Recent Prisoner Free Exercise Cases

In Merrell v. Lawler, 2010 U.S. Dist. LEXIS 3218 (MD PA, Jan. 15, 2010), a Pennsylvania federal district court dismissed an inmate's free exercise claim, but with leave to amend. Plaintiff alleged that because of a back injury, he was unable to climb steps to get to the fourth tier where the chapel was located. However he failed to name defendants that were responsible for obstructing his ability to use the chapel.

In Edwards v. Bruno, 2009 Conn. Super. LEXIS 3305 (CT Super., Nov. 9, 2010), a Connecticut trial court rejected claims of a Jewish prisoner that he was not given a reasonable opportunity to pursue his faith at Passover. He was given 7 pounds of matzoh, seder food prepared by an ordained rabbi, and a one-on-one seder conducted by the Protestant chaplain (who was also a Messianic rabbi).

In Rubio v. Diaz, 2010 U.S. Dist. LEXIS 3776 (WD TX, Jan. 15, 2010), a Texas federal magistrate judge dismissed free exercise and RLUIPA claims by an inmate who complained that his writing material, including his Bible and his Bible study correspondence, were confiscated pursuant to a subpoena generated by an investigation by the Texas Rangers. He claimed his personal Bible had the names and addresses of his family members in it, and he needed it to communicate with them. He says it also had sentimental value to him.

In Canada v. Ray, 2010 U.S. Dist. LEXIS 4115 (WD VA. Jan. 19, 2010), a Virginia federal magistrate judge recommended that a Muslim inmate be permitted to move forward with his claim that his free exercise rights and his rights under RLUIPA were violated when he was required to either face discipline or take a tuberculosis skin test which he claimed contained alcohol or pork products, both forbidden by Muslim law.

In Reynolds v. Newcomer, 2009 U.S. Dist. LEXIS 123469 (WD LA, Dec. 21, 2009), and in Carr v. Newcomer, 2009 U.S. Dist. LEXIS 123559 (WD LA, Dec. 21, 2009), a Louisiana federal magistrate judge concluded that inmates' religious exercise was not substantially burdened, and recommended that the claims in two similar cases be dismissed as frivolous. Plaintiff claimed they have been denied the right to receive religious material such as Bibles, books, and magazines; and that the warden allows Pentecostalists and other Christian "sects" to proselytize inmates in the dormitory's common day room. One of the plaintiffs also claimed that shortly after his arrival at the prison, his religious pendant -- a gift from his grandfather -- was confiscated and that he was denied a Bible shipped to him because it was improperly packaged.

In Windham v. Pierce, 2010 U.S. Dist. LEXIS 4518 (SD TX, Jan. 21, 2010), a Native American inmate challenged the requirement he take a test before being transferred to a Native American designated prison. When he was transferred without taking the test, he objected that there is no volunteer to lead services and the circle is inactive. His first claim was dismissed as moot, and his second was dismissed without prejudice because it should be brought in a different venue.

In Jihad v. Fabian, 2010 U.S. Dist. LEXIS 4749 (D MN, Jan. 21, 2010), a federal district court approved a magistrate's recommendations (2009 U.S. Dist. LEXIS 123652, Dec. 23, 2009) and refused to grant a temporary restraining order or preliminary injunction in response to plaintiff's complaints regarding impediments to his practice of Islam. Plaintiff, claiming a violation of his free exercise rights and of RLUIPA, alleged that authorities failed to provide a Muslim chaplain and enough Islamic services; prohibited religious meetings without a volunteer present; failed to provide Halal meals and a location where he can perform five daily salat (prayers); and prohibited him from wearing a Kufi (prayer cap) or an Islamic medallion outside of his clothing.

Mother Who Starved Children, Relying on God, Convicted of Endangerment

The Newark (NJ) Star-Ledger reports that a Sussex County (NJ) jury on Thursday convicted 50-year old Estelle Walker of child endangerment. Police found Walker's four malnourished children in a lakeside cabin in 2006. Walker's lawyer claimed that Walker was not responsible because she acted out a a delusional religious belief that God will provide. She did not eat either, and merely prayed with her children. Walker faces up to ten years in prison on each of four counts of second-degree endangerment. Earlier she had rejected a plea bargain that would have allowed her to go free with the one year time already served while she had not been able to post bail. She said she had been directed through prayer not to accept the arrangement. During Walker's trial, a psychiatrist testified that she is religious to an extreme degree, but not mentally ill.

Philippines Makes Eid'l Adha a National Holiday

The Manila (Philippines) Bulletin on Friday reported on the signing last month by President Maria Gloria Arroyo of a new law that makes the Muslim holiday of Eid'l Adha (Feast of the Sacrifice) a national holiday in the Philippines. Under a law that Arroyo signed in 2002, Eid'l Fitr is already a national holiday. The Office of Muslim Affairs has been given the authority to determine the dates of the two Muslim festivals which come at different times each year on the secular calendar. At a recent Muslim Inter-Organizational Meeting, participants also debated a bill that had been introduced into the Philippine Parliament to prohibit the pejorative use of "Muslim" and "Christian" to identify those charged with crimes. Only 5% to 10% of the Philippine population are Muslim. (Wikipedia).

Tribal Government Funds Rebuilding of Catholic Church On Reservation

The Indian Civil Rights Act of 1968 imposes most of the restrictions found in the Constitution's Bill of Rights and in the 14th Amendment on Tribal governments. However, it does not impose Establishment Clause limitations on tribes. This has permitted the tribal government of California's Rincon Indian Band to pay $3.2 million in tribal funds derived from Harrah's Rincon Casino to rebuild an expanded Catholic Church on the Rincon reservation. Today's San Diego Union Tribune reports that the prior Chapel, built in the 1930's, was one of 65 buildings on the reservation destroyed by fire in 2007. Approximately 80% of the Rincon tribe members are Catholic.

Pope Keeps Cardinal Bertone On As Secretary of State

Zenit reported this week that Pope Benedict XVI will keep Cardinal Tarcisio Bertone as the Vatican's Secretary of State even though the Cardinal has reached age 75 which makes him eligible for retirement. A letter from the Pope announcing his decision said that Bertone had played a particularly valuable role in building a dialogue with Archbishop Marcel Lefebvre who is the founder of the traditionalist Society of St. Pius X.

California Proposes Halal and Expanded Vegetarian Diets For Prisons

On Jan. 16, the California Department of Corrections and Rehabilitation issued a Notice of Proposed Regulations that would add a halal meat alternative program as a third religious dietary option for inmates at all adult institutions in the state. Participation in the program will be open to Muslim inmates and other inmates with a religious need to consume halal meat, as determined by a Muslim Chaplain. The proposed regulations would also amend existing regulations for vegetarian diets to make it clear that it is available to inmates who seek it for a personal or ethical reasons, as well as those who request it for religious reasons. The Notice says that the purpose of the proposed regulations "is to avoid future costly litigation and unnecessary expenses to the taxpayers of the State of California." Links to all the formal notices, text and forms involved are available from the CDCR website. Yesterday's Fresno Bee reported on the proposed regulations.

Passenger's Tefillin Leads To Security Scare and Emergency Landing

A U.S. Airways Express plane with 15 passengers aboard en route from New York's LaGuardia Airport to Louisville yesterday made an emergency landing in Philadelphia after a flight attendant became concerned when a 17-year old Jewish youth put on tefillin for his morning prayers. According to the Philadelphia Inquirer, neither the flight attendant nor the pilot had ever seen tefillin-- small leather boxes containing scriptural verses connected to leather straps and placed on the arm and head. The pilot reported that a passenger had a device with "wires" on the plane. In a statement, the airline said the crew "did not receive a clear response" when they asked the passenger about the tefillin. Law enforcement vehicles surrounded the plane when it touched down and it was taken to a remote area where the boy, and his sister who was travelling with him were removed. Apparently with 20 minutes or so, police decided the pair, shaken by the experience, posed no threat. A TSA statement referred to the unscheduled landing as a "disruptive passenger" incident.

Group Urges Action To Appoint International Religious Freedom Ambassador

CNSNews reported yesterday that the Christian Advocacy group, Open Doors USA, has begun a petition drive to urge President Obama to fill the vacant position of Ambassador-at-Large for International Religious Freedom. Open Doors spokesperson Lindsay Vessey said that an appointment is needed to demonstrate the importance of international religious freedom. The position was created by the International Religious Freedom Act of 1998 (IRFA). Washington Post's On Faith reported that rumors circulating in the capital suggest that the White House is considering prominent New York City pastor, Rev. Suzan Johnson Cook, for the position. Meanwhile, international religious freedom advocates are also concerned that the Ambassador-at-Large position does not carry enough clout to affect foreign policy.

Also yesterday, the U.S. Commission on International Religious Freedom released a letter it sent earlier this month to President Obama urging him to designate Vietnam a "Country of Particular Concern" under the IRFA. It also asked him to press Congress to pass the proposed Vietnam Human Rights Act (S. 1159/ H.R. 1969). USCIRF had already recommended adding Vietnam to the list in its 2009 Annual Report issued last May. (See prior posting.)

Bible References On Rifle Sights Will End

Trijicon, Inc. issued a statement yesterday voluntarily agreeing to stop its previously reported practice of including coded references to Bible verses as part of the serial number on rifle sights supplied to the military. The New York Times reports that the company will also supply the Pentagon with 100 free modification kits that will allow the military to remove the serial numbers from rifles of units deployed in combat. Foreign military units will also be offered the kits. Trend reports that Australia and New Zealand have both announced that they will remove the inscriptions from rifle sights issued to their military. Meanwhile, blogger Christian Fighter Pilot suggested this week that there was in fact a close tie-in between the Biblical verses chosen by Trijicon and the rifle sights. The sights use fiber optic and light enhancement technology, and all of the Bible verses chosen (Old and New Testament) include "light" as a theme.

Alaska Appellate Court Says Religious Belief in Marijuana Was Not Sincere

In Lineker v. State, (AK Ct. App., Jan 20, 2010), the Alaska Court of Appeals in a 2-1 decision upheld a trial court's finding that defendants had not established that their possession of marijuana was supported by a sincere religious belief. Judge Mannheimer dissenting argued that the trial court's findings in places seemed to assess the sincerity of defendants' beliefs by examining whether they were unorthodox. (See prior related posting.)

Court Holds Church Can Tear Down Historic Rectory

In Stamford, Connecticut, a state trial court judge on Wednesday refused to enjoin St. Andrew's Episcopal Church from tearing down its its 136-year old rectory building. The Stamford Advocate reports that in a 26-page opinion the court rejected the challenge brought under a rarely used state law that allows any citizen to sue to prevent the "unreasonable" destruction of historic buildings. In denying the temporary injunction. the court concluded that there is no feasible or affordable alternative to the church's arrangement with a real estate developer.

Suit Challenges Regulation of Spiritual Counsellors As Fortune Tellers

Yesterday's Richmond (VA) Times-Dispatch reports on a lawsuit filed in federal district court in Virginia challenging the constitutionality of a Chesterfield County (VA) law that regulates "spiritual counsellors" in the same way that fortune tellers are regulated. This includes a requirement to obtain a permit after a background check and character references, as well as zoning restrictions and a $300 license tax. Spiritual adviser Sophie King says she is engaged in a religious activity. She says she is not a fortune teller because she merely relays information she receives without knowing how it relates to her individual client. The county, in a motion to dismiss filed this week, says that King is engaged in a business that may be regulated. The motion to dismiss also argues that the federal court lacks jurisdiction over challenges to the county's business license tax or zoning ordinance.

Diocese Challenges Designation of Church As Historic District

Yesterday's Springfield (MA) Republican reported that the Roman Catholic Diocese of Springfield has filed suit in state court seeking to enjoin enforcement of a city ordinance enacted last December that creates an historic district out of Our Lady of Hope Church. The suit, filed against the city, the mayor and the council members in office when the district was created, also seeks unspecified damages. Historic district designation means that the building may not be torn down, and no changes can be made to its exterior, without approval of the city's Historical Commission. The complaint alleges that by limiting its ability to control church buildings, including religious symbols on them, the ordinance infringes the Diocese's constitutionally protected free exercise rights and freedom of expression, as well as violating equal protection guarantees, under both the state and federal constitutions.

Egypt's High Administrative Court Overturns Ban On Niqab In University Exams

World Bulletin reports that on Wednesday, Egypt's High Administrative Court overturned a ban imposed by the Minister of Higher Education on female students wearing the full-face niqab in university examinations. The court said:

Freedom to wear the niqab is guaranteed by human rights and constitutional liberties, and a girl's right to dress the way she sees fit in accordance with her beliefs and her social environment is a firm right that cannot be violated.

The court added, however, that a student must show her face when asked to do so for security reasons. The decision reverses one handed down by a Cairo court earlier this month. (See prior posting.)

Supreme Court Decision Impacts Those Seeking Asylum Because of Religious Persecution

The U.S. Supreme Court yesterday handed down an immigration law opinion that has important implications in cases in which an individual about to be deported or removed seeks to reopen proceedings to claim asylum because of religious persecution in his country of origin. A federal regulation makes discretionary a decision to reopen proceedings to consider changed conditions relating (among other things) to religious persecution in his country of origin. In Kucana v. Holder, (Sup. Ct., Jan. 20, 2010), the Court, in an opinion by Justice Ginsburg, held that a statutory bar to judicial review of decisions by the Attorney General that are made discretionary by statute does not apply to decisions by the Attorney General made discretionary only by federal regulations. In this case, an Albanian citizen sought political asylum, fearing political persecution. His motion to reopen his removal proceedings was based on claims that conditions in Albania had worsened. Justice Alito filed a concurring opinion. ScotusBlog reports on the decision.

Court Rejects Claim of Religious Exemption From Income Taxes

In Bennett-Bey v. Shulman, (D DC, Jan. 20, 2010), the federal district court for the District of Columbia dismissed a pro se complaint in which plaintiff claimed a free exercise exemption from having federal income taxes withheld from her salary. Tanya Bennett-Bey alleged that she had sovereign immunity from federal taxes because she is a beneficiary of the Great Moorish Estate Express Trust, which makes her "a Moorish American Citizen." The court first found that it lacked jurisdiction because plaintiff had never filed for a refund from the IRS. Beyond that, plaintiff failed to allege that paying federal income tax would place a substantial burden on her free exercise of religion.

Rifqa Bary Remains In Foster Care, Agrees to Counseling

The Columbus Dispatch reported yesterday that a sort of detente has been reached in the case of Rifqa Bary, the 17-year old who fled her home in Ohio after converting from Islam to Christianity. She fled to a pastor in Florida, claiming her father had threatened to kill her because of the conversion. Florida courts eventually returned her to Ohio. At a court hearing in Columbus (OH) on Tuesday, both sides agreed that Rifqa would remain in a foster home where she is now living in temporary custody of Franklin County (OH) Children Services. Rifqa and her parents will go through counseling. If they are not reconciled, when Rifqa turns 18 in August when will be considered an adult and will be free to live wherever she wishes. Also in the court hearing, Rifqa admitted she was unruly in running a way from home, but the court will impose no sanctions on her. During the hearing, Rifqa, carrying a wooden cross and wearing a rhinestone crucifix necklace, clung to her attorney, Angela Lloyd. (See prior related posting.)

Japan's Supreme Court Says City's Gift of Site For Shrine Is Unconstitutional

Japan's Supreme Court yesterday ruled that the city of Sunagawa violated the Japanese Constitution when it allowed city-owned land to be used without charge as a site for a Shinto shrine. Article 20 of the Constitution bans religious organizations from receiving any privileges from the State and bars the government from engaging in religious activity. According to today's Japan Times , the Supreme Court's Grand Bench wrote: "It is inevitable that the general public would believe the local government supports a specific religion if it provides specific benefits to it." The Court remanded the case to the Sapporo High Court for it to fashion a remedy other than removal of the shrine.

Hundreds Killed In Muslim-Christian Violence In Nigeria

Reports from the Nigerian city of Jos say that between 200 and 400 people were killed and over 4,000 were injured in three days of violence between Muslims and Christians that began January 17. The Kyiv Post reports that most of the violence took place in the city's poor neighborhoods. There are conflicting reports on what started the violence. Next reports that the Plateau state government has imposed a 24-hour curfew and that the federal government has ordered the deployment of troops to the area.

Visa Bans for Two Muslim Scholars Lifted

Reuters reported yesterday that Secretary of State Hillary Clinton has signed orders ending the bans on granting visas to two Muslim scholars--Prof. Tariq Ramadan of Oxford University and Prof. Adam Habib of Johannesburg University. Originally government officials gave no reason for revoking Ramadan's visa, but later said it was based on a provision of the Patriot Act that allows exclusion of individuals who have supported terrorism. Ramadan is also banned from some Arab countries for his criticism of their failure to support the Palestinians. The ACLU issued a press release praising Secretary Clinton's actions.

Free Exercise Claim Growing Out of Auto Search Dismissed

In Turner v. Craig, 2010 U.S. Dist. LEXIS 3356 (ND CA, Jan. 14, 2010), plaintiff alleged that he was arrested after a traffic stop by defendant police officers. Officers searched his vehicle and took a bottle of "blessing oil" that defendant uses for religious purposes from the car's glove box. Plaintiff claimed this violated his free exercise rights. The court dismissed the claim with leave to amend, indicating that plaintiff needed to set out some description of his religious practices and allege that defendants acted with the object or purpose of suppressing his religion. Various other claims growing out of the same incident-- including illegal search and false arrest allegations-- were also dismissed with leave to amend.

Vatican Issues Guidelines For Scheduled Mideast Synod

The Vatican yesterday released a document titled Guidelines for Mideast Synod. The synod, scheduled for Oct. 10-24, is expected to attract some 150 bishops, mostly from Eastern rite churches. Haaretz reports that there are some 17 million Christians in the Middle East from Iran to Egypt. Many Christians have fled, but many others (primarily from Philippines, India and Pakistan) have arrived in Arab lands in recent years to work in domestic or manual labor. Here are some excerpts from the lengthy Guidelines:

18. Political conflicts in the region have a direct influence on the lives of Christians, both as citizens and as Christians. The Israeli occupation of the Palestinian Territories makes daily life difficult with regard to freedom of movement, the economy and religious life (access to the Holy Places is dependent on military permission which is granted to some and denied to others on security grounds). Moreover, certain Christian fundamentalist theologies use Sacred Scripture to justify Israel's occupation of Palestine, making the position of Christian Arabs even more sensitive.

19. In Iraq, the war has unleashed evil forces within the country, religious confessions and political movements, making all Iraqis victims. However, because Christians represent the smallest and weakest part of Iraqi communities, they are among the principal victims, with world politics taking no notice.

20. In Lebanon, Christians are deeply divided at a political and confessional level, without a commonly acceptable plan of action. In Egypt, the rise of political Islam, on the one hand, and the disengagement of Christians from civil society on the other, lead to intolerance, inequality and injustice in their lives. Moreover, this Islamisation also penetrates families through the media and school.... In many countries, authoritarianism or dictatorships force the population - Christians included - to bear everything in silence....

22. In the Middle East, freedom of religion customarily means freedom of worship and not freedom of conscience, i.e., the freedom to change one's religion for belief in another. Generally speaking, religion in the Middle East is a social and even a national choice, and not an individual one. To change religion is perceived as betraying a society, culture and nation, founded largely on a religious tradition.

23. Conversion is seen as the fruit of a proselytism with personal interests attached and not arising from authentic religious conviction. Oftentimes, the conversion of Jews and Muslims is forbidden by State laws. Christians, though also subjected to pressure and opposition from families and tribes - even if less severely - remain free to change their religion. Many times, the conversion of Christians results not from religious conviction but personal interests or under pressure from Muslim proselytism, particularly to be relieved from obligations related to family difficulties.

British Equality Commission Opens Consultation on Equality Guides

Last week, Britain's Equality and Human Rights Commission opened its consultation on drafts of three guides under Britain's Equality Bill. The Bill is in its final stages of Parliamentary passage. The three proposed guides are: (1) Employment; (2) Equal Pay; and (3) Services, Public Functions and Associations. (Links to full texts and questionnaires.) The draft guides have extensive examples of the ban on religious discrimination, and also deal with various exemptions for religious organizations. The consultations close on April 2.

British Proposal Would Permit Religious Same-Sex Commitment Ceremonies

Ekklesia reported yesterday on a proposal to create more options in Britain for same-sex commitment ceremonies. The proposal is now before the House of Lords. Currently under Britain's Civil Partnership Act 2004, same-sex commitment ceremonies can only be conducted by civil registrars. The proposed amendment to the pending Equality Bill would also give legal recognition to same-sex commitment ceremonies performed by churches or religious organizations if they wish to be able to do so.

UPDATE: The House of Lords passed the amendment by a vote of 95-21 on March 2. London Times.

Cert. Denied In Kindergarten Bible Reading Ban

Yesterday, the U.S. Supreme Court denied certiorari in Busch v. Marple Union School District, (Docket No. 09-315, 1/19/2010). (Order List.) In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, upheld a Pennsylvania elementary school's restriction that barred a kindergartner's mother from reading aloud from the Bible as part of a "show and tell" activity in her son's classroom. (See prior posting.) The Christian Science Monitor reports on the Supreme Court's refusal to grant review. The school involved is in suburban Philadelphia.

NY Prison Chaplain Administrator Charges Discrimination

Askew v. New York State, 2010 U.S. Dist. LEXIS 3297 (ND NY, Jan. 15, 2010), involves discrimination charges by a Protestant Ministerial Program Coordinator (MPC) employed by the New York Department of Correctional Services. Glorya Askew is the only female and only African-American Protestant MPC. She claims her supervisors, particularly Mark Leonard, discriminated against her in favor of the Catholic MPC in assigning duties, offering job opportunities and speaking appearances and in relocating her from New York City to Albany. She also alleges Leonard told her that "[she] should never have gotten [the MPC] position because [she is] black and a woman." Leonard asked the inspector general's office to investigate Askew, and its report charges that Askew misrepresented outside employment and submitted false travel and time records. Askew says the charges are false. The court refused defendants' motions to dismiss many of Askew's Title VII, equal protection and free exercise of religion claims.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of 'Defamation of Religion', (January 18, 2010).
• Bruce Garen Peabody, Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order, (Cardozo Law Review, Forthcoming).
• Steven Paul Goldberg, Neuroscience and the Free Exercise of Religion, (Law and Neuroscience: Current Legal Issues, M. Freeman, ed., Oxford University Press, 2010).

Other Articles:

• Michael W. Schwartz, Wahhabism and the First Amendment , (Commentary, 2010).
• The January 2010 Issue of Church & State (from Americans United) has recently appeared.

Military Contractor Secretly Placing Biblical References On Rifle Sights

In an investigative report yesterday, ABC News revealed one of the more unusual examples of religion intruding in the military. A Michigan company, Trijicon, has a $660 million contract to supply up to 800,000 high-powered rifle sights to the Marine Corps, and additional sights to the Army. It urns out that the company has been added coded references to New Testament verses at the end of the serial number on each rifle sight. For example, serial numbers end with "2COR4:6" (Second Corinthians 4:6) or "JN8:12" (John 8:12). The company says it has been adding the references for years. The practice was begun by the company's founder, Glyn Bindon, a devout Christian from South Africa. The company's website makes reference to the goodness of Americans based on Biblical standards. The military was unaware of the company's practice. The Biblical references were in the same type size and font as the rest of the serial number on the sight.

Tom Munson, Trijicon's director of sales and marketing said there is nothing wrong with the inscriptions and that the issue was raised by a group that is "not Christian." Apparently the practice was called to the military' attention by the Military Religious Freedom Foundation. MMRF's founder, Mikey Weinstein, says members of his group that currently serve in the military have complained about the inscriptions, saying that commanders have referred to the weapons with these sights as "spiritually transformed firearm[s] of Jesus Christ." Interfaith Alliance issued a statement calling on the Defense Department to conduct an immediate investigation and to take appropriate action if Trijicon broke any laws.

India's Supreme Court Refuses To Order Constitution Amended To Clarify Status of Sikhs

India's Supreme Court yesterday dismissed a lawsuit asking it to order the government to amend India's Constitution to eliminate a provision in Explanation II to Article 25 that says the reference in the Constitution to the power to legislate regarding Hindu religious institutions should be construed to also include Sikh, Jain and Buddhist institutions. Sikhs want it made clear that Sikhism is a separate religion. Calcutta's Telegraph reports that the court held it lacks the power to direct Parliament to amend the provision. Eight years ago a Constitution review committee recommended the change, but Parliament has never acted on it. Sikhs say that because their marriages are governed by the Hindu Marriage Act, they face problems when the migrate abroad. They declare their religion as Sikh, but foreign authorities are confused because they present Hindu marriage certificates.

Ohio High Schoolers Fight Removal of God From School Mission Statement

In Uniontown, Ohio, the school board last month voted to change the school's mission statement to temporarily remove "belief in God" from the school district's mission statement after a complaint from the Freedom from Religion Foundation. (See prior posting.) Fox 8 News Cleveland yesterday reported on efforts of two high school students, Mackenzie Muchalk and Alex Looney, who are fighting the school board's move. They are selling T-shirts that read: "We value a belief in God" on the front and, on the back, "They can take his name out of our mission statement but they can NEVER take Him out of our hearts." They want the audience at next month's school board meeting to attend wearing the T-shirts. Muchalk says: "We just want to stand up to who we think of as bullies." FFRF retorts that it is the Christians in the community who are the "bullies."

Lawsuit Asks Court To Uphold Removal of Church Directors

In Westmoreland County, Pennsylvania Common Pleas Court last week, the pastor of a local church filed suit asking the court to uphold a vote last November by the church's board of directors removing two elders. Today's Pittsburgh Tribune-Review reports that Pastor Roy Aiken Jr. asked the court to uphold a 3-2 board vote to expel Frank Ring and William Grassel from the Christian Fellowship Center of Greensburg's board of directors. The lawsuit says both men violated the church's bylaws by being combative and quarrelsome, contentious and argumentative, and failing to regularly attend church functions. The lawsuit also charges that Grassel did not speak in tongues, a requirement for board membership under the church's bylaws. Both men continued to attend board meetings, and last week, they enlisted the support of one other board member to expel Lewis Gainfort from the board. Gainfort had been one of the votes in November in favor of expelling Ring and Grassel. At last week's meeting, the same three also voted to issue an $18,450 check to Ring's construction company.

Obama Speaks At D.C. Church About Dr. King's Legacy

Yesterday, President Barack Obama spoke at Washington, D.C.'s Vermont Avenue Baptist Church in remarks that the White House Blog captioned "Martin Luther King and the Challenges of a New Age." (Full text; Excerpts and video of full remarks.) The Church, founded by freed slaves after the Civil War was the site of a 1956 speech by Dr. King titled "The Challenges of a New Age." As part of his extensive remarks in advance of Martin Luther King Day, President Obama talked about religious faith:

Even as Dr. King stood in this church, a victory in the past and uncertainty in the future, he trusted God. He trusted that God would make a way. A way for prayers to be answered. A way for our union to be perfected. A way for the arc of the moral universe, no matter how long, to slowly bend towards truth and bend towards freedom, to bend towards justice. He had faith that God would make a way out of no way....

There are times when it feels like all these efforts are for naught, and change is so painfully slow in coming, and I have to confront my own doubts. But let me tell you -- during those times it's faith that keeps me calm. ... It's faith that gives me peace. The same faith that leads a single mother to work two jobs to put a roof over her head when she has doubts. The same faith that keeps an unemployed father to keep on submitting job applications even after he's been rejected a hundred times. The same faith that says to a teacher even if the first nine children she's teaching she can't reach, that that 10th one she's going to be able to reach. The same faith that breaks the silence of an earthquake's wake with the sound of prayers and hymns sung by a Haitian community. A faith in things not seen, in better days ahead, in Him who holds the future in the hollow of His hand. A faith that lets us mount up on wings like eagles; lets us run and not be weary; lets us walk and not faint.

So let us hold fast to that faith, as Joshua held fast to the faith of his fathers, and together, we shall overcome the challenges of a new age.... Together, we shall seize the promise of this moment. Together, we shall make a way through winter, and we're going to welcome the spring. Through God all things are possible.

NY Appeals Court Says Breakaway Church Property Belongs to Prebyterian Church USA

In Presbytery of Hudson River of Presbyterian Church (U.S.A.) v Trustees of First Presbyterian Church & Congregation of Ridgeberry, (NY App. Div., Jan. 12, 2010), a New York state appellate court, reversing the trial court, held that property of a break-away congregation is held in trust by the Presbytery for the Presbyterian Church (USA). It said in part:

the Book Of Order, a component of the constitution of PCUSA, contains language specifying that all property held by a particular church is held in trust for the national denomination. The neutral principles approach requires the courts to "look to the constitution of the general church concerning the ownership and control of church property" .... [D]efendants, in opposition to the plaintiffs' motion, failed to demonstrate that PCUSA is not hierarchical, or that cases involving hierarchical religious organizations do not apply here.

[Thanks to Joseph Landau for the lead.]

Pope's Visit To Rome Synagogue Focuses Debate On Pius XII's Actions In WW II

Pope Benedict XVI yesterday visited Rome's Great Synagogue amidst continuing controversy over whether Pope Pius XII did enough during World War II to save Italian Jews. (London Times.) Reuters reports that Riccardo Pacifici, president of Rome’s Jewish community and grandson of Genoa's Chief Rabbi who died in Auschwitz, directly confronted the Pope on the issue. After expressing gratitude to the convent that sheltered his father and uncle, Pacifici said:

In Italy and other parts of Europe, many religious people risked their lives to save thousands of Jews from certain death, without asking anything in return. This is why the silence of Pius XII before the Shoah still hurts because something should have been done. Maybe it would not have stopped the death trains, but it would have sent a signal, a word of extreme comfort, of human solidarity towards those brothers of ours transported to the ovens of Auschwitz.

In his address at the Rome Synagogue yesterday (full text) the Pope set out the Vatican's view of its record:

The extermination of the people of the Covenant of Moses, at first announced, then systematically programmed and put into practice in Europe under the Nazi regime, on that day tragically reached as far as Rome. Unfortunately, many remained indifferent, but many, including Italian Catholics, sustained by their faith and by Christian teaching, reacted with courage, often at risk of their lives, opening their arms to assist the Jewish fugitives who were being hunted down, and earning perennial gratitude. The Apostolic See itself provided assistance, often in a hidden and discreet way.

Last December, Pope Benedict issued a decree moving Pius XII closer to beatification, a move that sparked anger among some Jewish groups. (AP, 12/23/2009). Israel on Sunday asked Pope Benedict to open the Vatican archives to researchers to clarify Pope Pius XII's actions. (Reuters).

RLDS Church Wins Trademark Infringement Claims

In Community of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, (WD MO, Jan. 14, 2010), a Missouri federal district court issued a permanent injunction protecting a church, now commonly known as Community of Christ, from various trademark violations. The church has registered several trademark and service mark variations of the name it previously used more widely, "Reorganized Church of Jesus Christ of Latter Day Saints." The court concluded defendants had infringed the protected marks and enjoined defendants from using the name in various forms and from committing any acts likely to cause the public to believe they are connected to plaintiffs. The court had previously issued a preliminary injunction in the case. (See prior posting.)

Pope Seeks Civil Recognition of Catholic Church In Turkey

Ekklesia yesterday reported on Pope Benedict XVI's remarks (full text) earlier this month on receiving Turkey's new ambassador to the Holy See. The Pope urged Turkey to grant "civil juridical recognition" to the Church in Turkey in order to help it enjoy full religious freedom.

Recent Prisoner Free Exercise Cases

In Lopez v. White, 2010 U.S. Dist. LEXIS 2701 (ND WV, Jan. 14, 2009), a West Virginia federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 123205, June 29, 2009) and rejected free exercise complaints by an inmate who claimed that he was segregated before All Saints' Day communion based on false disciplinary charges and that he was not allowed to participate in readings during Catholic chapel services.

In Blackwell v. Madison Parish Correctional Center, 2010 U.S. Dist. LEXIS 2515 (Jan. 13, 2009), a federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 123042, Dec. 4, 2009) and dismissed as frivolous free exercise and RLUIPA charges by an inmate who complained that the correctional facility did not offer Jehovah's Witness religious services.

DoD Report on Ft. Hood Shooting Includes Recommendations on Religion In Military

The Department of Defense yesterday released an 86-page report Protecting the Force: Lessons from Fort Hood. The study was ordered by Secretary of Defense Robert Gates after the November killing of 13 and wounding of 43 at Ft. Hood by Army Major Nidal Hasan. Among the Report's numerous Findings (supplemented by Discussion and Recommendations) are three that impact religion in the military:

Finding 2.3: DoD standards for denying requests for recognition as an ecclesiastical endorser of chaplains may be inadequate.... This limited authority to deny requests for designation as ecclesiastical endorsers could allow undue improper influence by individuals with a propensity toward violence.....

Finding 2.7: DoD policy regarding religious accommodation lacks the clarity necessary to help commanders distinguish appropriate religious practices from those that might indicate a potential for self-radicalization....

Finding 4.9: The lack of published guidance for religious support in mass casualty incidents hampers integration of religious support to installation emergency management plans.

Today's Wall Street Journal discusses the report.

President Proclaims Today "Religious Freedom Day"

Today is Religious Freedom Day marking the anniversary of Virginia’s 1786 Statute for Religious Freedom. Yesterday President Obama issued a Proclamation (full text) officially designating the observance. It said in part:

The Virginia Statute was more than a law. It was a statement of principle, declaring freedom of religion as the natural right of all humanity -- not a privilege for any government to give or take away. Penned by Thomas Jefferson and championed in the Virginia legislature by James Madison, it barred compulsory support of any church and ensured the freedom of all people to profess their faith openly, without fear of persecution. Five years later, the First Amendment of our Bill of Rights followed the Virginia Statute's model, stating, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .".

Supreme Court Will Review Release of Names of Referendum Petition Signers

Yesterday, the U.S. Supreme Court granted certiorari in John Doe #1 v. Reed (Docket No. 09-599, cert. granted 1/15/2010) (Order List.) In the case, the 9th Circuit allowed release under Washington state's Public Records Law of the names of those who signed petitions seeking a referendum on the state's domestic partnership law. The court concluded that release does not violate the signers' 1st Amendment right to anonymous political speech. (See prior posting.)SCOTUS Blog here discusses the case, and here has links to the opinion below and the petitions supporting and opposing a grant of cert. [Thanks to Alliance Alert for the lead.]

6th Circuit Upholds Courthouse Display Including 10 Commandments

In ACLU of Kentucky v. Grayson County, Kentucky, (6th Cir., Jan. 14, 2010), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected an Establishment Clause challenge to a "Foundations of American Law and Government" display in a county courthouse. The display consisted of nine historical documents, including the Ten Commandments, along with a document explaining the historical importance of each component. The court concluded that the challengers failed to show the county Fiscal Court had a primarily religious purpose in approving the display; nor would an objective observer see the display as a state endorsement of religion. The Court focused on a prior 6th Circuit decision, Mercer County v. ACLU, (see prior posting) that upheld an identical display in another Kentucky county.

Judge Moore, dissenting, said: "The County's asserted purpose here—that the Display was posted for educational or historical reasons—is a sham and should be rejected." She also concluded that the display sent an unmistakable message of endorsing religion.

Liberty Counsel, (which represented Grayson County) urged in its press release on the decision: "Pray that the Lord continues to bless Liberty Counsel as we continue to battle the ACLU in other cases." The Lexington Herald-Leader, reporting on the decision, said that plaintiffs in the case are reviewing the decision to decide whether to file an appeal.

UPDATE: The Cincinnati Enquirer reports that on Jan. 18, just days after the decision, the Ten Commandments were reposted on the Grayson County Courthouse walls. Rev. Charles Shartzer and 200 others joined county officials for the ceremony, at which Shartzer said: "We have Christian leadership. We have leadership that is not ashamed to stand up for God, not ashamed to have this display in our courthouse."

Scientology Sues Atlanta Suburb Over Zoning Denial

The Church of Scientology yesterday filed a federal lawsuit against Sandy Springs, Georgia, challenging zoning limits the city has imposed on the Church. According to AP, Scientology wanted to add a fourth floor to an office building in the Atlanta suburb, and move the Georgia state headquarters there. Sandy Springs City Council voted to allow the Church to move into the building, but rejected the request that it be able to add an additional floor.

Appeals Court Upholds Religious Objection To Autopsy On Executed Prisoner

In Johnson v. Levy, (TN Ct. App., Jan., 14, 2010), the Tennessee Court of Appeals affirmed a decision of the state Chancery Court (see prior posting) and rejected the request of the county Medical Examiner to conduct an autopsy on executed murderer Cecil Johnson. Johnson's wife objected to the procedure, arguing that it would violate her husband's religious beliefs.

The court held that under Tennessee's law on preservation of religious freedom (TN Code Ann. Sec. 4-1-407), the Medical Examiner is required to establish by clear and convincing evidence under the specific facts of the case that performing an autopsy is essential to further a compelling governmental interest. While there is a compelling interest to conduct some kind of investigation as to every inmate who is executed in order to assure against cruel and unusual punishment, where a religious objection is raised to an autopsy, that may be part of the investigation only if the compelling interest standard is met. Religious objections might be overruled when the execution was not without incident, the prisoner did not react to the drugs as expected, and there is a need to understand why. Even then, the autopsy needs to be limited to the procedures necessary to understand what happened. UPI reported on the decision yesterday.

County Assessed Large Attorneys' Fees and Costs In RLUIPA Case

Last April, the Rocky Mountain Christian Church in Boulder County, Colorado won its challenge to the county's denial of its special use application, convincing a jury and the court that the denial violated the substantial burden and unreasonable limitations provisions of the Religious Land Use and Institutionalized Persons Act. (See prior posting.) The church sought to expand the buildings on its campus. Yesterday's Longmont (CO) Times-Call reports that now the federal district court has ordered Boulder County to pay $1.25 million of the Church's legal fees, as well as $90,000 in costs. The county is now appealing the original decision, claiming that RLUIPA is unconstitutional. Oral argument to the 10th Circuit in that appeal is scheduled for March. All sides agree that the fees and costs do not have to be paid until after the appeal is concluded.

UPDATE: The text of the opinion awarding fees and costs is at Rocky Mt. Christian Church v. Bd. of County Comm'rs. of Boulder County, CO., 2010 U.S. Dist. LEXIS 8273 (D CO, Jan. 11, 2010).

DC Court Upholds Election Board's Rejection of Initiative To Define Marriage

In Jackson v. District of Columbia Board of Elections and Ethics, (DC Super. Ct., Jan. 14, 2010), the District of Columbia Superior Court agreed with the D.C. election board's rejection of an initiative petition seeking to amend the D.C. Code to provide that only marriage between a man and a woman would be recognized in D.C. Last year, D.C. City Council passed a law recognizing same-sex marriages validly performed elsewhere. (See prior posting.) The court held that Council appropriately implemented the Charter Amendment Act when it prohibited initiatives that would authorize discrimination in violation of the D.C. Human Rights Act. The proposed initiative would violate the Human Rights Act by authorizing discrimination based on sexual orientation. (See prior related posting.) Alliance Defense Fund (which filed the lawsuit on behalf of a local pastor and other voters) in a release yesterday says it will appeal the decision.

Pat Robertson's Remarks on Haiti Earthquake Draw Criticism

As both religious and secular groups scramble to provide aid for the earthquake victims in Haiti, evangelist Pat Robertson made comments on CBN's "700 Club" that are drawing criticism from White House advisor Valerie Jarrett as well as from many Christian leaders. ABC reports that Robertson harked back to a legend about Haiti's revolt against the French in 1803 to suggest that Haitians may have brought disaster on themselves. He said in part: "You know ... something happened a long time ago in Haiti. … They got together and swore a pact to the Devil. They said, 'We will serve you if you get us free from the French.' True story." Robertson also said that the destruction there "may be a blessing in disguise" because it could lead to a massive rebuilding of the country. YouTube has a video of Robertson's full remarks.

UPDATE: At Thursday's White House press briefing (full text), Press Secretary Robert Gibbs also commented on Robertson's remarks:

Q: ...What did you think of Pat Robertson's comments yesterday that the Haitians brought this on themselves by making a pact with the devil?

MR. GIBBS: It never ceases to amaze that in times of amazing human suffering somebody says something that could be so utterly stupid, but it like clockwork happens with some regularity....

9th Circuit Uphold's UC's Rejection of Certain Christian School Courses

In Association of Christian Schools International v. Stearns, (9th Cir., Jan. 12, 2010), the 9th Circuit rejected constitutional challenges to the University of California's admissions policy that refuses to accept certain high school courses offered by Christian schools to qualify students for admission to UC. Rejecting both facial and as-applied challenges, the Court said the policy does not prevent high schools from teaching whatever and however they choose. It rejected the argument that UC's refusal to recognize religion and ethics courses that are limited to one denomination's viewpoint amounts to discrimination. The court also rejected establishment clause and equal protection challenges to UC's policy. (See prior related postings 1, 2 .)

In Malaysia, More Vandalism and Revelations of Broader Bans on Word Usage By Non-Muslim Papers

In Malaysia, vandalism against Christian churches continues in response to a High Court decision allowing the Catholic newspaper, The Herald, to use the term "Allah" in ints Malay-language edition to refer to God. Canadian Press today reports that a tenth church was vandalized this morning, with red paint splashed on it. Also the offices of the law firm representing The Herald were broken into and ransacked. Papers were strewn on the floor and a laptop computer was taken.

Malaysian Insider today and the New Straits Times yesterday say that in fact the ban on use of certain words by non-Muslim publications is broader than previously reported. Guidelines issued to the Herald in 2007 also barred it from using three other words: Kaabah (Islam's holiest shrine in Mecca), Solat (prayer) and Baitullah (House of God). Each state in Malaysia has enacted its own laws allowing certain words to be used only by Islamic publications. In the state of Pahang, Section 9 of the Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1989 lists 25 words that cannot be used in writing or speeches to describe a religion other than Islam, as well as ten expressions with Islamic origins that may not be used by non-Muslims (except as a quotation or reference).

Supreme Court Blocks Broadcast of California Proposition 8 Trial

The U.S. Supreme Court yesterday, in a 5-4 decision, blocked the broadcast by a California federal district court of the non-jury trial challenging the constitutionality of Proposition 8-- California's ban on same-sex marriage. In Hollingsworth v. Perry, (Sup. Ct., Jan. 13, 2010), the per curiam majority opinion concluded that the federal district court did not follow the proper procedures in amending its rules to permit broadcast of the trial. It did not give enough time for public comment on its proposal. The majority said:

The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast.... Some of applicants' witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment....

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Technically the court granted a stay of the district court's order pending filing of petitions for a writ of certiorari and mandamus. The decision only related to the proposal to broadcast the trial live to a number of other courthouses around the country. It did not relate to the proposal to post recordings of the trial on YouTube at the end of each day. The 9th Circuit never approved that portion of the district court's poposal because the district court's technical staff encountered difficulties in preparing video that was suitable for online posting. Justice Breyer dissenting, joined by Justices Stevens, Ginsburg and Sotomayor said:

The majority’s action today is unusual. It grants a stay in order to consider a mandamus petition, with a view to intervening in a matter of local court administration that it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone “irreparable harm,” to justify its issuance of this stay.

The New York Times reports on the decision. (See prior related posting.)

Texas Board of Education Holds Hearings On Social Studies Curriculum

The Texas State Board of Education yesterday held hearings on proposed revisions to the state's social studies curriculum. A number of the 130 speakers at the hearing focused on issues of how the role of religion in American history will be taught. News 8 Austin and the Ft. Worth Star Telegram report on much of the testimony. Sue Tilis of the National Council of Jewish Women said the draft revisions do a good job of teaching the role of religion in history without advocating particular religious beliefs. Steve Green representing the Texas Freedom Network objected to increased emphasis on documents such as the Mayflower Compact of 1620 written by Christian Pilgrims. Other witnesses urged changes ranging from more emphasis on American "exceptionalism" to including discussion of Sikhism in the world history section of the curriculum standards.

Rhode Island Legislature Overrides Veto Of Limitations Extension for Civil Rights Claims

On Jan. 5, the Rhode Island legislature overrode Gov. Donald Carcieri's veto of SB 162 which extends from one year to three years the statute of limitations applicable to discrimination suits under the state's Civil Rights Act of 1990. That law prohibits discrimination on the basis of religion, race, sex, age, national origin or disability in making or enforcing contracts, in buying, selling or leasing real property and in various other matters. A Jan. 7 article from Lexology says this means that employers who terminate or take other action against an employee may not know for three years whether the action will be challenged. Unlike the state's Fair Employment Practices Act, the law does not require filing first with the Human Rights Commission before suit is filed in court.

Wisconsin Board Rejects RLUIPA Argument In Zoning For Bible Camp

The Oneida County (Wisconsin) Board of Adjustment has rejected a RLUIPA claim and has upheld the denial of a conditional use permit for construction of a Bible camp on Squash Lake near Rhinelander (WI). Yesterday's Rhinelander Daily News reports that the zoning ordinance would allow a church or a school to be built on the site, but the Board ruled that a camp and conference center are not permitted even though the lodge would contain a chapel and classrooms. The Board concluded that denial of the permit did not impose a "substantial burden" on the free exercise of the two brothers who sought to build the recreational camp. Other sites in the county are available where the camp could be built.

Canadian FLDS Leader Sues BC Government For Illegal Prosecution

In Canada, FLDS leader Winston Blackmore has filed a claim for damages against British Columbia's provincial government charging that he was prosecuted illegally last year. As previously reported, polygamy charges against Blackmore were quashed when the B.C. Supreme Court ruled that the province's attorney general lacked authority to appoint a second special prosecutor after a first one recommended against filing the charges. Yesterday's National Post reports that Blackmore's suit, filed in the B.C. Supreme Court, claims that the polygamy charges caused him to suffer business and other financial losses and that he and his family suffered stress and anxiety.

Suit Seeks To Prevent Further Searches of Missouri Church [Corrected]

In Independence, Missouri yesterday, the New Covenant Faith Center, along with its pastor, his wife and the church secretary filed suit to prevent the Jackson County Sheriff's Office from conducting further searches of the church or having contacts with its members. The Kansas City Star reports that in a series of searches last week, authorities took $130,000, computers and files containing personal information about church members. The church cannot meet its payroll or operate as a result of the seizures. The lawsuit, which alleges that church members' free exercise rights have been infringed, also seeks damages and return of the property that was taken. The church's pastor, Lloyd D. Sartain, was detained twice but no charges have been filed. The search warrant has been sealed and no one will comment on the charges that led to the searches. According to the Kansas City Pitch last week, authorities also found four guns during the searches. The church's attorney (who regained his law license in 2006 after serving federal prison time for bribery and bank fraud) criticized Sheriff Mike Sharp's performance. The attorney says a power struggle within the church led to the investigation, and rumors it operates as a cult are inaccurate. [Note: An earlier version of this posting incorrectly identified the location of Independence as Kansas instead of Missouri.]

Bankruptcy Judge Orders Trial On Whether Parish Assets Are Shielded From Diocese Creditors

A Delaware federal bankruptcy judge yesterday decided that the Catholic Diocese of Wilmington cannot develop a plan of reorganization and exit bankruptcy without first obtaining a determination of whether funds belonging to individual parishes and Catholic Charities are shielded from Diocese creditors (mostly abuse victims). Bloomberg News reports that Judge Christopher Sontchi ordered a trial to take place in June on the issue.

White House Faith-Based Task Force Debates Religious Symbols In Funded Programs

The White House Office of Faith-Based and Neighborhood Partnerships Task Force on reform of the faith-based office held a two-hour teleconference on Monday as it moved toward finalizing its draft report. According to the Washington Post's On Faith, one of the important debates on the phone conference was whether religious groups operating federally-funded programs out of their facilities need to cover up religious symbols during the times the funded services are being offered. The task force discussed two other alternatives: allowing the symbols if covering them is impractical and no religiously neutral rooms are available, or imposing no requirements but urging religious groups to be sensitive to the issue. No consensus emerged, as the group chose Wake Forest Center for Religion and Public Affairs Director Melissa Rogers to coordinate the drafting of the final report.

Trial Court Leaves Open Manslaughter Option In Trial of Tiller's Shooter

In Wichita, Kansas, a state trial court judge has left open the question of whether Scott Roeder who is on trial for killing abortion doctor George Tiller will be permitted to argue that he is guilty only of manslaughter. Roeder wants to argue that he was attempting to save the lives of the unborn. According to yesterday's New York Times, Judge Warren Wilbert denied the prosecution motion to exclude evidence that might support a manslaughter conviction. Instead, he said that he would decide on a witness-by-witness basis during trial what evidence he will admit. [Thanks to Scott Mange for the lead.]

3rd Circuit Dismisses Challenge To Muslim Scientist's Security Clearance

In El-Ganayni v. U.S. Department of Energy, (3d Cir., Jan. 11, 2010), the U.S. 3rd Circuit Court of Appeals upheld the revocation of the security clearance of a Muslim physicist, Abdel El-Ganayni, who worked for Bettis Laboratory on the Navy's nuclear propulsion program. El-Ganayni also served as an imam for the Pennsylvania Department of Corrections. His problems apparently began after he distributed to Muslim prisoners a book about Islam titled The Miracle in the Ant, which includes a passage about an ant that has a defense mechanism that allows spraying of deadly secretions on attackers. He also spoke at a mosque criticizing the FBI for recruiting Muslims as informants.

El-Ganayni sued claiming the revocation was motivated by speeches he gave criticizing the FBI, US foreign policy and the war in Iraq, and that he was being discriminated against based on his religion and national origin. The court dismissed the claims concluding that El-Ganayni could prove retaliation or discrimination only by showing the government's primary motivation for revoking his clearance. This however would involve the courts in deciding on the merits of a security clearance revocation-- a matter over which courts lack jurisdiction. The court also concluded that DOE followed the applicable regulations and executive orders in revoking El-Ganayni's security clearance.

Rabbi Seeks Army Waiver of Beard Policy To Become Chaplain

Yesterday's New York Jewish Week reports on the efforts of Rabbi Menachem Stern to obtain a waiver of U.S. Army grooming rules so he can become a chaplain. Stern , a Chabad Lubavitch rabbi, wears a beard for religious reasons. Originally he was informed that the Accession Board had approved him, but then he received a phone call saying that the approval was an error because he could not enlist while wearing a beard. Apparently the chaplaincy branch is willing to have Stern wear a beard, but the Army's chief of personnel along with the chief of staff object. Rabbi Sandy Dresin, executive director of chaplains at the Aleph Institute, says that currently there is a shortage of Jewish chaplains in the military. He says that the 8 Jewish chaplains in the Army could be doubled if the Army relented on its policy on beards. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

New Statement of Current Law On Religious Expression In U.S

Yesterday, Wake Forest University's Center for Religion and Public Affairs released a 32-page document titled Religious Expression in American Life: A Joint Statement of Current Law. Drafted by a group of 28 experts from a variety of religious and political views, the document attempts to answer in clear language some 35 questions about the permissible role of religion in the public forum. The document covers topics such as the role of religious belief in formulating public policy, restrictions on tax-exempt organizations, religious displays on public property, religion in the workplace, and religious activity in public schools. ADL has issued a press release describing the joint statement. [Thanks to Steve Sheinberg for the lead.]

British Faith Schools Criticize Government's Admissions Guidelines

Yesterday's London Mail reports that government-supported faith schools in Britain are criticizing admissions guidelines promulgated by the Department of Children, Schools and Families. Designed to prevent discrimination against working-class students, the guidelines allow schools to favor pupils who are members of the faith promoted by the school, but not to discriminate on the basis of their level of observance. Schools say this favors "pew-jumpers" who discover a new religion in order to get their children into a good school.

Pope Addresses Environment, Religion and State In Annual New Year Address

Pope Benedict XVI yesterday delivered his annual New Year address to the diplomatic corps accredited to the Holy See. Zenit reports on the address (full text) which focused on the environment, but related the issue to a broad range of international issues. Speaking of relations between religion and state, the Pope said:

Sadly, in certain countries, mainly in the West, one increasingly encounters in political and cultural circles, as well in the media, scarce respect and at times hostility, if not scorn, directed towards religion and towards Christianity in particular. It is clear that if relativism is considered an essential element of democracy, one risks viewing secularity solely in the sense of excluding or, more precisely, denying the social importance of religion. But such an approach creates confrontation and division, disturbs peace, harms human ecology and, by rejecting in principle approaches other than its own, finishes in a dead end.

There is thus an urgent need to delineate a positive and open secularity which, grounded in the just autonomy of the temporal order and the spiritual order, can foster healthy cooperation and a spirit of shared responsibility. Here I think of Europe, which, now that the Lisbon Treaty has taken effect, has entered a new phase in its process of integration.... Noting ... the Treaty provides for the European Union to maintain an "open, transparent and regular" dialogue with the Churches (Art. 17), I express my hope that in building its future, Europe will always draw upon the wellsprings of its Christian identity.

German State Checks IDs of All Attending Mosques

A 2003 law in the German state of Lower Saxony allows police to question and search individuals in public places regardless of suspicion of wrongdoing when done to prevent crimes of "grave and international concern." Yesterday's Boston (MA) Global Post reports that police are using this authority to routinely monitor those attending mosques. Streets in front of mosques are cordoned off on Fridays. Armed police check the identification papers of everyone entering or leaving the mosque. Sometimes police search bags, ask questions, or even bring in for questioning those who cannot show ID. The Green Party is introducing a bill to end this practice of "unmotivated mosque checks" which interferes with integration of Muslims into society.

Nevada Court Rejects Proposed Personhood Amendment

Yesterday, in a decision apparently issued orally from the bench, a Nevada trial court judge ruled that a petition seeking to place a proposed "Personhood Amendment" to the state Constitution on the November ballot cannot be circulated. The proposed amendment reads: "In the great state of Nevada,the term 'person' applies to every human being."

In Bristol v. Personhood Nevada, the court held that the language of the amendment is so vague that there is no way the average person can understand the effect of the petition. The court also concluded that the petition violates a state law that limits ballot issues to one subject. The Las Vegas Review-Journal and a release from the ACLU of Nevada report on the decision. The petition is part of a national campaign by a Christian anti-abortion organization, PersonhoodUSA, to find a way to overturn Roe v. Wade. Personhood Nevada says it will appeal yesterday's decision to the Nevada Supreme Court.

Cert. Denied In Establishment Clause Challenge To Sheriff's Christian Speaker

The U.S. Supreme Court yesterday denied certiorari in Milwaukee Deputy Sheriff's Association v. Clarke, Docket No. 09-460 (Jan. 11, 2010), refusing to review the 7th Circuit's decision in the case. (Order List.) In the case below, the Court of Appeals held that a Wisconsin sheriff's department violated the Establishment Clause when it invited representatives of the Fellowship of the Christian Centurions, a peer support group for law enforcement officers, to speak at several mandatory employee meetings.

IRS Updates Procedures For Obtaining Non-Profit Determinations

The Internal Revenue Service today published Rev. Proc. 2010-9 (Jan. 11, 2010), updating the procedures for issuing of determination letters and rulings under Sections 501 of the Internal Revenue Code on the exempt status of non-profit organizations. This includes religious organizations applying for non-profit status. The major change instituted in this revision is the centralization of the responsibility for processing applications in the Exempt Organizations Determinations office in Cincinnati, Ohio. Key district offices no longer exist.

Catholic Bishops Press Congress For Immigration Reform In 2010

Last week, the U.S. Conference of Catholic Bishops announced a new campaign for immigration reform in 2010. USCCB is taking three step: (1) launching a nationwide postcard campaign as part of its "Justice of Immigrants" campaign; (2) launching two new websites-- Justice for Immigrants and National Migration Week; and (3) sending out a nationwide action alert asking for Congress to quickly enact immigration reform. Bishop John C. Webster said that an important principle is pressing for reforms so individuals can find work in their home countries and not be forced to emigrate. The San Bernadino Sun on Saturday covered the Bishop's new initiative. It quotes Steven Camarota, Director of the Center for Immigration Studies, who says that most parishioners do not agree with the Bishops' call to help illegal immigrants.

White House Introduces Commerce Department Faith-Based Head

Last week, the White House Office of Faith-based and Neighborhood Partnerships posted an interview with Cedric Grant, Director of the faith-based office at the Department of Commerce. Grant says his most important activity so far has been outreach efforts for the 2010 Census. He explains: "Clergy are the most trusted voices in communities and are great advocates to bring awareness and participation in the 2010 Census. Community leaders, both faith-based and secular, know their communities intimately and service hard- to- count populations through their various programs."

Utah County Will Balance Budget By Police Fee, Including On Churches

Salt Lake County, Utah is proposing to balance its budget by assessing a law enforcement fee on homes, businesses, churches and non-profits. Yesterday's Salt Lake Tribune reports that the amount of the annual fee will depend on the demand for police services that is generated by the particular type of property. For example, big box stores would pay $13,584; taverns would pay $1,044 and preschools would pay $588. Under the plan, which the County Council will vote on today, churches would pay $1,008 per year, while smaller non-profits would be assessed $180. Some 41 churches in the unincorporated county would be covered by the new fees. A number of clergy object to imposing the fee on churches in the county.

Recent Articles and Book of Interest

From SSRN:

• Cornelia Koch, Classroom Crucifixes, Teacher Headscarves, Faith Healers and More - The German Experience of Religious Freedom Under a Bill of Rights, (U. of Adelaide Law Research, Aug. 13, 2009).
• Adam S. Hofri-Winogradow, The Muslim-Majority Character of Israeli Constitutional Law, (Middle East Law and Governance, Vol. 2, No. 2, February 2010).
• Peter Rizov, Definition of Religion: Honest Conviction, Regardless of Perception, in a Predominantly Non-Secular Subject Matter, (February 23, 2009).
• Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, (UCLA Law Review, Vol. 57, Forthcoming).
• David C. Gray, Constitutional Faith and Dynamic Stability: Thoughts on Religion, Constitutions, and Transitions to Democracy, (Maryland Law Review, Vol. 69, p. 26, 2009).
• Debora Threedy, Claiming the Shields: Law, Anthropology, and the Role of Storytelling in a NAGPRA Repatriation Case Study, (Journal of Land, Resources & Environmental Law, Vol. 29, No. 1, p. 91, 2009).
• Samuel J. Levine, Miranda, Dickerson, and Jewish Legal Theory: The Constitutional Rule in a Comparative Analytical Framework, (Maryland Law Review, Vol. 69, No. 1, 2009).
• Micah Schwartzman, The Sincerity of Public Reason, (Journal of Political Philosophy, Forthcoming).
• Geoffrey P. Miller, Golden Calves, Stone Tablets and Fundamental Law, (NYU School of Law, Public Law Research Paper No. 10-02, Jan. 4, 2010).

New Book:

• Michael J. Perry, The Political Morality of Liberal Democracy, (Cambridge Univ. Press, Nov. 2009).

Indian Buddhists Protest Hindu Control Over Temple

In India, a group of Buddhists have gone on a hunger strike to protest the governance arrangements of the Mahabodhi Temple, in the holy city of Gaya in the province of Bihar. Pakistan's Daily Times yesterday reported that the strikers, in a makeshift tent just outside the office of the Bodhgaya Temple Management Committee object to a law enacted 60 years ago that sets up an 8-member committee to run the Temple. The committee has 4 Buddhist and 4 Hindu members, and the chairman must be the local district magistrate who must be Hindu. Buddhists argue that this gives Hindus control over a Buddhist holy site.

Recent Prisoner Free Exercise Cases

In Merring v. O'Brien, 2010 U.S. Dist. LEXIS 120 (MD PA, Jan. 4, 2010), a Pennsylvania federal district court dismissed an inmate's claim that he was not provided with a Bible when he was booked and he did not receive one for three weeks, despite his complaints.

In Robinson v. Jacquez, 2009 U.S. Dist. LEXIS 121732 (ND CA, Dec. 8, 2009), a California federal district court held that a Jewish inmate's complaint properly states a cognizable claim against a prison's warden for acquiescing in the prison's policy of denying kosher diets and Jewish religious services.

In Goodvine v. Swiekatowski, (WD WI, Jan. 4, 2010), a Wisconsin federal district court held that an inmate could move ahead with his damage claim alleging that a prison chaplain refused to provide him with a Qur'an even though the chaplain provided Christian prisoners with Bibles.

In Kanda v. Walker, 2010 U.S. Dist. LEXIS 784 (ED CA, Jan. 6, 2010), a California federal magistrate judge recommended denying a preliminary injunction to a Hindu inmate who requested a religious diet containing no meat, and prepared with separate utensils and kitchenware.

In Kendrick v. Faust, 2009 U.S. Dist. LEXIS 122114 (ED AR, Dec. 16, 2009), an Arkansas federal magistrate judge that an inmate be permitted to proceed with her claim that prison authorities destroyed her Catholic Bible on multiple occasions. However the magistrate recommended dismissal of a claim that the inmate was told by correctional officers that she was in a "southern Baptist prison" and was not permitted to practice any other religion.

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.