Cert. Denied In Property Dispute Involving Break Away Episcopal Parish

Yesterday the U.S. Supreme Court denied certiorari in St. Luke's of the Mountains v. Episcopal Church, (Docket No. 09-708, March 1, 2010). (Order List.) In the case below, decided by a California appellate court under the name Huber v. Jackson, the court applied the "neutral principles" of law doctrine, concluding that the Episcopal Church and its Diocese of Los Angeles are the owners of the property of St. Luke's parish in La Crescenta, California. The congregants of St. Luke's voted in 2006 to break away from the Episcopal Church and affiliate with the more conservative Anglican Church of Uganda. (See prior posting.) The California Supreme Court refused review in the case (2009 Cal. LEXIS 9850, Sept. 17, 2009). The Episcopal Diocese of Los Angeles issued a statement yesterday thanking the Supreme Court for its clarity in refusing review. Episcopal News Service reports on the Supreme Court's refusal to review the state appellate court's ruling. [Thanks to John W. Chilton for the lead.]

Private Rabbinic Court In Israel Is At Center of a Controversy

Last week Haaretz carried a long article about the little known group of private rabbinic courts in Israel known as Badatz, an acronym for Court of Justice or Righteous Court. The article focuses on the court branch located in Bnei Brak, a city east of Tel Aviv in which strictly observant Orthodox Jews (Haredi) and important Haredi rabbis live. Unlike the government-run rabbinical courts that deal only with family and personal status matters, Badatz deals with a wide variety of civil disputes. The parties must agree to submit their disputes to Badatz, but the rabbinic court can place pressure on members of the Haredi community who do not do so by issuing a "writ of refusal" which essentially calls for others to ostracise the individual who will not submit to the court's jurisdiction. Badatz has come into the news because of a lawsuit filed in the civil court system against several of the rabbinic judges (dayanim) on Badatz. [This paragraph has been corrected thans to an e-mail from Jack Levey.] As reported by Haaretz:

Rabbi Zvi Bialostosky, a building contractor, his son Chaim and the son's partner, Eliezer Friedman, were involved in a lengthy dispute with people who bought an apartment from them in Bnei Brak. The case was heard by Badatz Bnei Brak, until at a certain point Bialostosky and the other plaintiffs sued the dayanim in Tel Aviv Magistrate's Court.... Late last year, the contractors filed no fewer than 11 requests for various legal proceedings against the religious judges, in the process crossing a Haredi red line by taking their case to the state secular court system and, worse, suing dayanim. The result was an offensive of unprecedented ferocity by the Haredi leadership against two private individuals.

A letter signed by ... spiritual leaders of the Haredi world asserts that Bialostosky and Friedman "lifted a hand against God and His Torah" and are liable to cause "the destruction of the religion."

The contractors requested and were granted a restraining order against threats and harassment, after complaining to the civil court that the Badatz rulings constituted "harassment" and "libel." The dayanim retorted that such allegations were groundless and added that Bialostosky is "a quarrelsome individual who is involved in numberless disputes and litigations."

Supreme Court Denies Cert. In Oklahoma 10 Commandments Case

The U.S. Supreme Court today denied certiorari in Haskell County Board of Commissioners v. Green, (Docket No. 09-531, March 1, 2010). (Order List.) In the case, the U.S. 10th Circuit Court of Appeals held that a display of a Ten Commandments monument on the lawn of the county courthouse in Stigler, Oklahoma, violated the Establishment Clause. (See prior posting.) AP reports on the Court's refusal to grant review. [Thanks to both Bob Ritter and Scott Mange for the lead.]

Indian Court Strikes Down Longer Divorce Waiting Period for Christians

In India last week, Kerala's High Court struck down as unconstitutional a provision that requires Christians to wait at least two years after they are first married to file for divorce. The personal law that governs other religious communities, as well as the Special Marriage Act that governs those with no religion, all allow others to file for divorce after one year. According to today's CathNews Asia, the court held that the clause in the Indian Divorce Act applicable only to Christians is discriminatory and violates the constitutional protection of equality before the law. Praveen and Soumya Thomas filed for divorce eight months after they were married. The court suggested that the legislature could impose a one-year waiting period for Christians, the same as imposed on other religious groups.

Obama's New Envoy To OIC Profiled

Today's Washington Post profiles Rashad Hussain, President Obama's recently appointed special envoy to the Organization of the Islamic Conference. (See prior related posting.) The 31-year old Hussain who grew up in Plano, Texas, is both a scholar of the Qur'an and an ardent North Carolina Tar Heels basketball fan (his undergraduate alma mater). After completing a master's degree in Arabic and Islamic studies at Harvard, he was working with the House Judiciary Committee at the time of 9-11. He later attended Yale Law School and, until his recent appointment, worked in the White House Counsel's Office. Hussain has memorized the Qur'an and prays daily, often in a room in the Eisenhower Executive Office Building used by all faiths.

Recent Articles and Books of Interest

From SSRN:

• Luc B. Tremblay, The Bouchard-Taylor Report on Cultural and Religious Accommodation: Multiculturalism by Any Other Name?,(EUI Working Papers LAW No. 2009/18, Dec. 1, 2009).
• Juliet P. Stumpf, Juliet P., The Implausible Alien: IQBAL and the Influence of Immigration Law, (Lewis & Clark Law Review, Vol. 14, No. 231, 2010).
• Cosmin Dariescu, Jurisdiction Over Marriage in the Romanian Principalities: From the Ecclesiastical Court to the Secular Tribunal, (Turning Points and Breaklines: Yearbook of Young Legal History 4, Szabolcs Hornyak, et. al., eds., pp.180-192, Martin Meidenbauer, Munchen, 2009).
• Gregor Noll, Sacrificial Violence and Targeting in International Humanitarian Law, (February 24, 2010).
• Perry Dane, Constitutional Law and Religion, (Blackwell Companion to Philosophy of Law and Legal Theory, Dennis Patterson, ed., Blackwell, 2010).
• Frederick C. DeCoste, Caesar's Faith: Limited Government and Freedom of Religion in Bruker v. Marcovitz, (Dalhousie Law Journal, Vol. 32, No. 1, pp. 153-176, 2009).
• Dimitry Kochenov, On Options of Citizens and Moral Choices of States: Gays and European Federalism, (Fordham International Law Journal, Vol. 33, No. 1, 2009).
• Heather Kennedy, Pleasant Grove v. Summum: Is Ten Truly Greater than Seven? An Examination of the Government Speech Doctrine Regarding Privately Donated Monuments Displayed on Public Land, (February 23, 2010).

From SmartCILP and elsewhere:

• J. Scott Carpenter, Matthew Levitt & Michael Jacobson, Confronting the Ideology of Radical Extremism, 3 Journal of National Security Law & Policy 301-327 (2009).
• H. Lyssette Chavez & Monica K. Miller, Religious References in Death Sentence Phases of Trials: Two Psychological Theories That Suggest Judicial Rulings and Assumptions May Affect Jurors, 13 Lewis & Clark Law Review 1037-1083 (2009).
• Michael Hatfield, The Anabaptist Conscience and Religious Exemption to Jury Service, 65 N.Y.U. Annual Survey of American Law 269-322 (2009).
• Debra A. Jones, The Role of Spirituality in the Mediation Process, [Abstract], 27 Conflict Resolution Quarterly 145-165 (2009).
• Journal of Church and State, Vol. 51, No. 3 (Summer 2009) has recently been issued.
• The March 2010 issue of American United's Church & State has recently appeared online.

Recent Books:

• Dan Diner, Lost in the Sacred: Why the Muslim World Stood Still, (Princeton Univ. Press , Nov. 2009), reviewed in The Muslim News.
• Frank Lambert, Religion in American Politics: A Short History, (Princeton Univ. Press, Feb. 2010).
• Ian Buruma, Taming the Gods: Religion and Democracy on Three Continents, (Princeton Univ. Press, Feb. 2010).

Op-Ed Presses For Continued US Foreign Aid Through Religious Groups

Nicholas Kristof's op-ed in today's New York Times focuses on the history of the U.S. channeling foreign humanitarian aid through religious organizations. He says that evangelicals have become the "new internationalists," pressing for U.S. programs abroad for a range of human service needs. He writes in part:

Some Americans assume that religious groups offer aid to entice converts. That's incorrect. Today, groups like World Vision ban the use of aid to lure anyone into a religious conversation.

Some liberals are pushing to end the longtime practice (it's a myth that this started with President George W. Bush) of channeling American aid through faith-based organizations. That change would be a catastrophe. In Haiti, more than half of food distributions go through religious groups like World Vision that have indispensable networks on the ground. We mustn't make Haitians the casualties in our cultural wars.

DC Catholic Archdiocese Says It Will Be In Compliance When Same-Sex Marriage Takes Effect

Washington, D.C.'s new law legalizing same-sex marriage takes effect this Wednesday. (See prior posting.) Yesterday's Washington Post reports that the Washington Catholic Archdiocese that receives significant social service funding from the city says it will be in compliance with law, though it has not specified exactly what it will do. D.C. law appears to require groups receiving public funds to offer benefits to spouses of married employees, whether traditional or same-sex marriages. The Archdiocese has already transferred its foster care program to avoid having to allow same-sex couples to serve as foster parents. (See prior posting.)

Mennonites Have Problems With Road Protection Law In Iowa County

Today's WCF Courier reports on the problem posed for the Groffdale Conference Mennonite Community by Mitchell County, Iowa's Ordinance No. 41 that bans steel wheels on the county's hard surfaced roads. This group of Mennonites use modern tractors, but as a religious matter they replace inflated rubber tires with metal rims surrounded by a thick rubber belt containing metal bars to provide traction. They fear conventional tires would make trips to town too convenient. Thirteen year old Matthew Zimmerman is due in court this Friday on charges of violating Ordinance No. 41. He was cited for driving a 19,000 pound steel-wheel tractor pulling a home-made 2-wheel cart on a county road on his way to pick up four bales of wood shavings for his family's farm. County officials say steel wheels damage highways. However neighboring Howard County rejected a similar ordinance after Mennonites deposited $25,000 in a trust to cover any future highway damage. (See prior related posting.) Apparently steel wheels are harder on cement roads like many in Mitchell County, than on asphalt roads that predominate in Howard County. Mitchell County suspended the ordinance for 60 days last fall during the harvest season.

Anti-Semitism Showing Reductions In Poland

Today's New York Times reports that Poland "is finally showing solid signs of shedding the rabid anti-Semitism of the past." There has been a small Jewish revival in Eastern Europe, with hundreds of Poles converting to Judaism or discovering Jewish roots that were hidden during World War II. The article focuses specifically on the story of Pawel, a former Nazi skinhead, who after discovering he and his wife both had Jewish grandparents has become an observant Orthodox Jew. Pawel says he is now studying to become a schochet, a a ritual kosher slaughterer of animals. He explained: "I am good with knives."

Recent Prisoner Free Exercise Cases

In Yoshiyah v. Norris, 2010 U.S. Dist. LEXIS 14176 (ED AR, Feb. 18, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 14386, Jan. 28, 2010) and dismissed claims by an inmate who was a member of the House of Yahweh who complained that he was denied various religious publications and that he could only watch religious videos alone on Wednesdays rather than with a group on Saturdays. He also complained about the quality of the vegetarian kosher diet that was available.

In Abdul-Aziz v. Ricci, 2010 U.S. Dist. LEXIS 14657 (D NJ, Feb. 19, 2010), a New Jersey federal district court allowed an inmate to proceed with claims relating to use of prayer oils and availability of Halal meals.

In Walker v. Dart, 2010 U.S. Dist. LEXIS 14638 (ND IL, Feb. 19, 2010), an Illinois federal district court refused to dismiss an pre-trial detainee's complaint that religious services were denied for nearly nine months in one part of the Cook County Jail.

In Wappler v. Kleinsmith, 2010 U.S. Dist. LEXIS 15322 (WD MI, Feb. 22, 2010), a Michigan federal district court allowed a now-released inmate to proceed only against certain of the defendants in their individual capacities on his claims that he was denied kosher meals, religious materials and the opportunity to participate in group religious services and that officials made membership in the Alliance for Jewish Renewal (ALEPH) a condition of his ability to practice Judaism, participate in Seder and Passover services.

In Shoucair v. Snacker, 2010 U.S. Dist. LEXIS 15551 (ED MI, Feb. 23, 2010), a Michigan federal district court adopted the magistrate's recommendations (2010 U.S. Dist. LEXIS 15634, Feb. 3, 2010) and dismissed claims by an inmate including an allegation that a correction officer assaulted him, motivated by prejudice against Islamic Caucasians.

In Roberson v. South Carolina Department of Corrections, 2010 U.S. Dist. LEXIS 16421 (D SC, Feb. 24, 2010), a South Carolina federal district court adopted a magistrate's recommendations
(2010 U.S. Dist. LEXIS 16370, Jan. 27, 2010) finding that an inmate failed to show how an alleged denial of "any Kairos sponsored religious feast [and/or] bread festival celebration" prevented him from practicing his religion, and did not claim that Kairos food or celebrations are part of any religious ritual or faith to which he subscribed.

No Compromise Found For Hutterite Drivers' Licenses

Last July, the Supreme Court of Canada upheld a requirement imposed by the province of Alberta that all drivers' licences contain a photo of the license holder. Hutterites had objected to the requirement on religious grounds. (See prior posting.) A report from yesterday's Calgary Herald says that months of discussions between the provincial government and the Hutterites have failed to work out a compromise. The photo-less licenses that were issued to Hutterite drivers while legal proceedings were pending are now mostly expiring. Sam Wurz, manager of the Three Hills Hutterite Colony, says that their current plan is to continue to drve without a license.

Controversy In Trinidad Over Aid To Prime Minister's Church

In Trinidad & Tobago, a bitter fight between Prime Minister Patrick Manning and his critics is underway involving the extent of government aid to a Christian church with which Manning has ties. Today's T&T Guardian reports that Manning delivered a strongly worded 53-minute statement to the Lower House of Parliament yesterday accusing his critics of persecuting the Full Gospel Fellowship Movement. Two issues have surfaced. One is the extent of government assistance in the construction of the Heights of Guanapo church. Manning says no government funds are being used in the construction, but that the land was given to the church just as the government has granted land over a number of years to many religious groups. T&T Express reports that, according to Manning, over the years the government has given millions of dollars of assistance to a wide variety of religious bodies. The other issue is Manning's relationship with Juliana Penna, leader of the Lighthouse of the Lord Jesus Christ Church. Manning has been consulting her as his spiritual advisor. (T&T Express.) Manning denied charges that government funds were used to pay for Penna's travel, and that she accompanied him on his trips. (T&T Express.)

Complaint Filed With EEOC Over Conflict Between Hijab and Abercrombie's Employee "Look Policy"

National Law Journal reports today on an EEOC complaint filed against Abercrombie & Fitch on behalf of Umme-Hani Kahn, a Muslim stockroom worker who was fired from Hollister (an Abercrombie subsidiary) because she insisted on wearing her hijab (headscarf). According to the complaint filed by CAIR (press release), Kahn was originally assured by local management in San Mateo, California, that she could wear her hijab so long it was in white, blue or gray. However several months later a district manager told Kahn that scarves and hats do not fit the company's "look". In September, the EEOC sued Abercrombie on behalf of a prospective employee in Tulsa, Okla., who was denied a sales position because her hijab violated the company's "look" policy. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

Suit Charges Car Dealership With Employment Discrimination Against Sikh

A lawsuit filed in a New Jersey state court yesterday alleges that a Little Falls (NJ) Lexus dealership refused to hire plaintiff, a Sikh, because he was not willing to shave his religiously-mandated beard. The refusal came after plaintiff completed a two-day training course for potential sales employees. The complaint (full text) in Kherha v. Tri-County Lexus, (NJ Super. Ct., filed 2/25/2010), alleges that the dealership engaged in religious discrimination and that its refusal to accommodate plaintiff's religious practice violates the New Jersey Law Against Discrimination (NJSA Sec. 10:5-1 et. seq.). A press release today from the Sikh Coalition announced the filing of the lawsuit.

New Policy on Comments on Religion Clause Blog

Beginning with this morning's posts, I am turning off the Comment function on new postings on Religion Clause. In recent months, comments have largely become a lengthy colloquy between a small number of readers. While their views are robust, it has become an exchange that is so extensive that it calls for those readers to create their own forum for their debate rather than imposing me as an intermediary. I continue to invite readers who find factual errors in any posting, or who are personally involved in any of the matters discussed, to e-mail me about them.

Suit On Religious Use of Cannabis Dismissed On Ripeness Grounds

In Oklevueha Native American Church of Hawaii v. Holder, 2010 U.S. Dist. LEXIS 16123 (D HI, Feb. 23, 2010), an Hawaii federal district court dismissed on ripeness grounds a suit seeking a declaratory judgment that a church and its founder can grow, possess and distribute cannabis free from federal drug crime prosecution. Plaintiffs claimed that cannabis is used in their religion. The court found that the complaint does not allege any threat that the church or any of its members will be prosecuted for drug related offenses. The court also cautioned the attorney in the case about advising his client to submit an affidavit admitting to a possible drug crime, saying that the attorney may have a conflict in giving this advice because the declaratory judgment sought would benefit another of his clients.

Malaysian Professor Discusses Controversy Over Christians Using "Allah" For God

The American Muslim on Wednesday published an interview with Prof. Chandra Muzaffar, Malaysia's best known public intellectual, on the controversy over Christians in Malaysia using the term "Allah" for God in their Malay language publications. While saying there is nothing in Islam that prohibits the practice, he urged understanding of the fear by Malays that they are being turned into an economically subordinate community in their native country. He added:

I have been pushing for the setting up of a National Consultative Council for Religious Harmony, as an official body or mechanism to promote dialogue between the different religious communities in Malaysia. Such a council can deal with issues like this ongoing controversy.... Lamentably, the muftis of the different states in Malaysia have consistently opposed the setting up such a council, on the specious grounds that it would mean Islam being treated at par with the other religions although Islam is the religion of the Malaysian Constitution.

Court Says School Can Insist Valedictorian Remove Religious References From Talk

A Montana trial court this week upheld the action of Butte High School officials in refusing to let one of the class' ten valedictorians speak at her 2008 graduation when she refused to remove religious references from her remarks. Yesterday's Billings Gazette reports that officials asked Renee Griffith to replace the words "Christ and his joy" with "my faith" and "from God with a passionate love for him" with the words "derived from my faith and based on a love of mankind." The court concluded that the school board policy barring religious references in graduation speeches is a policy applied even handedly to all students in order to maintain the religious neutrality required by the Establishment Clause. Griffith's attorney plans to appeal the decision to the Montana Supreme Court, arguing that Griffith was not going to be speaking on the school's behalf, but wanted to express her own personal beliefs.

White House Official To Meet With Secular Coalition Members

This morning, Tina Tchen, the director of the White House Office of Public Engagement along with representatives from the Justice Department and the Department of Health and Human Services are scheduled to meet with the Secular Coalition for America. According to McClatchy Newspapers, some 60 individuals from the Coalition's ten member groups will be at the meeting being held at the Eisenhower Executive Office Building next to the White House. The President is not expected to make an appearance. Attendees want to raise three issues with administration officials: child medical neglect, proselytizing in the military and faith-based initiatives.

Court Finds No Meeting of the Minds on "Mahr"

In Obaidi v. Qayoum, (WA App., Feb. 23, 2010), a Washington state appellate court refused to enforce a mahr-- a prenuptial agreement based on Islamic law that provides an immediate and long-term dowry to the wife. When the couple's marriage was dissolved after 13 months, the wife claimed she was entitled to $20,000 under the terms of the mahr. However the court concluded, applying neutral principles of contract law, that the parties had not entered a valid agreement. The court said in part:

A valid contract requires a meeting of the minds on the essential terms.... Mr. Qayoum was not told that he would be required to participate in a ceremony that would include the signing of a mahr until 15 minutes before he signed the mahr. Here Mr. Qayoum was unaware of the terms of the agreement until they were explained to him by an uncle after the mahr had been signed. The negotiations preceding the execution of the agreement were conducted in Farsi. Also, the document was written in Farsi which Mr. Qayoum does not read, write, or speak.... Because Mr. Qayoum could not speak, write, or read Farsi, there was no meeting of the minds as to the terms of the mahr agreement. In addition, the court indicated that the agreement was influenced by duress.

[Thanks to Volokh Conspiracy for the lead.]

Finnish Court Imposes Damages on Parents for Son's Circumcision Without Anesthetic

A district court in Helsinki, Finland has imposed damages of 1500 Euros on an Orthodox Jewish couple who had their son ritually circumcised by a British Chabad rabbi who is a recognized mohel in Britain. The damages are payable to their son for pain and suffering. London's Jewish Chronicle reported yesterday on the proceedings brought by the Helsinki prosecutor who wanted the court to rule that only physicians could perform circumcisions. However instead the court found the parents guilty of conspiracy to commit bodily harm because the procedure was performed without use of an anesthetic-- a common practice because of complications with anesthetic creams or injections. The case was instituted after the parents took the child to Helsinki University Hospital because of excessive bleeding. The boy was treated by Dr. Harry Lindahl, a well-known campaigner against circumcision. Despite the victory, the prosecutor is expected to appeal because the court did not prohibit non-physicians from performing circumcisions. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Maryland AG Says Same-Sex Marriages From Other States May Be Recognized

Maryland Attorney General Douglas F. Gansler has issued a 55-page Attorney General's Opinion concluding that same-sex marriages validly entered in other states may be recognized in Maryland. The opinion (94 Op. Att'y. Gen. 3, Feb. 23, 2010) says in part:

While the matter is not free from all doubt, in our view, the Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. In light of Maryland's developing public policy concerning intimate same sex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition.

Three Catholic Archbishops of Maryland issued a joint statement (full text) criticizing the ruling. Today's Baltimore Sun reports on developments.

Brazil's Catholic Church Sues Columbia Pictures Over Use of Statue In Film

AFP reports that the Catholic archdiocese of Rio de Janeiro, Brazil is suing Columbia Pictures for unauthorized use of its famous Christ the Redeemer statue in the motion picture 2012. The disaster movie shows the famous landmark being destroyed by a giant wave in a worldwide apocalypse. The archdiocese holds the copyright on the famous Paul Landowski statute that overlooks the city until is expires in 2032. Usually the archdiocese grants permission for movie producers to use the statute, but it refused to do so in pre-production negotiations. Columbia Pictures used the statute anyway. Negotiations to settle the lawsuit have been under way since December, a month after the movie was released. The Archdiocese wants Columbia Pictures to publicly declare that it did not intend to cause offense.

Murder Trial of Cult Members Under Way In Baltimore

The Baltimore Sun in two articles is reporting on the murder trial of a religious cult leader who convinced another cult member to starve her 16-month old child to death because he was likely possessed by an evil spirit. Two other cult members are also on trial for their parts in the death. The three defendants have refused lawyers and are representing themselves. Toni Sloan (also known as Queen Antoinette), the leader of 1 Mind Ministries, convinced Ria Ramkissoon that her son Javon should be deprived of food when he refused to answer "amen" after a prayer. Ramkisson believed that her own mother and stepfather had offered Javon up to the devil. Ramkissoon is not a defendant in this trial. She has already plead guilty to child abuse resulting in death. She will likely receive a 20-year suspended sentence, inpatient counseling and five years' probation. Her sentencing has been postponed pending her testimony in the current trial that opened on Monday.

Tony Perkins' Invitation To Speak At Military Prayer Luncheon Rescinded Over Stand on Gays

CBN News reported yesterday that the Andrews Air Force Base chaplain's office has withdrawn its previous invitation to Family Research Council president Tony Perkins to speak at the National Prayer Luncheon scheduled at Andrews on Feb. 25. The move came after Perkins spoke out strongly against President Obama's call to end the military's don't-ask-don't-tell policy that bans gays and lesbians from serving openly in the military. A letter to Perkins said his past statements are "incompatible in our role as military members who serve our elected officials and our Commander in Chief." Perkins, an ordained minister and Marine corps veteran, reacted strongly, saying:

I am very concerned ... that this merely foreshadows the serious threat to religious liberty that would result from repeal of the current military eligibility law. Such legislation would not merely open the military to homosexuals. It would result in a zero-tolerance policy toward those who disapprove of homosexual conduct. Military chaplains would bear the heaviest burden. Would their sermons be censored to prevent them from preaching on biblical passages which describe homosexual conduct as a sin? Would they remain free to counsel soldiers troubled by same-sex attractions about the spiritual and psychological resources available to overcome those attractions?

Negligent Supervision Claims Against Archdiocese Dismissed on 1st Amendment Grounds

In two decisions handed down on Tuesday, Doe v. Roman Catholic Archdiocese of St. Louis and Nicholson v. Roman Catholic Archdiocese of St. Louis, (MO Ct. App., Feb. 23, 2010), a Missouri state appellate court held it is bound by Missouri Supreme Court holdings on whether the 1st Amendment to the U.S. Constitution bars courts from adjudicating the reasonableness of a church's supervision of a cleric. In both cases, the trial court dismissed negligent supervision claims against the Archdiocese growing out of sexual abuse of minors over 50 years ago by a now deceased priest. The court of appeals affirmed, quoting the Missouri Supreme Court's 1997 opinion in Gibson v. Brewer:

adjudicating the reasonableness of a church's supervision of a cleric—what the church 'should know'—requires inquiry into religious doctrine. . . . [T]his would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision.

The court of appeals held that different 1st Amendment interpretations by federal district and appellate courts and courts in other states do not take precedence.

Florida Federal Court Rejects Jurisdiction In Church Homeless Shelter Challenge

In Westgate Tabernacle v. Palm Beach County, (SD FL, Feb. 18, 2010), a Florida federal district court dismissed claims by a West Palm Beach church that its federal and state constitutional rights were violated by Palm Beach County's zoning enforcement efforts against its use of its church building as a homeless shelter. The court held that it lacked jurisdiction under the Rooker-Feldman doctrine. That doctrine precludes a federal district court from reviewing a prior judgment of a state court where the federal issues involved could have been raised in that state proceeding. Here a Florida Court of Appeals had previously rejected a similar challenge to the county's requirement that Westgate Tabernacle apply for a conditional use permit. (See prior posting.) Tuesday's Palm Beach Post reported on the federal court dismissal.

Employee Loses Sabbath Accommodation Claim

In Waltzer v. Triumph Apparel Corp., (SD NY, Feb. 18, 2010), a New York federal district court rejected claims under Title VII of the 1964 Civil Rights Act and under the New York City Human Rights Law by a former employee of an apparel manufacturer who wanted to leave work early on Friday afternoons to accommodate her observance of the Jewish Sabbath. Employee Marilyn Waltzer had two residences, a small apartment in New Jersey and a condo in Pennsylvania. She insisted on leaving work on Fridays as early as 1:00 while her employer insisted she work until 3:00 or 4:00. Waltzer's supervisor was unaware that Waltzer was commuting to Pennsylvania instead of New Jersey for the Sabbath. The court concluded that Waltzer had not shown religious discrimination because in months when sundown came early she was offered the opportunity to leave in time to get to her New Jersey apartment, or alternatively to work part time on Fridays. Waltzer concealed that she was commuting to Pennsylvania and instead told her employer she needed the earlier time off to go to the kosher butcher and prepare herself mentally for the Sabbath. [Thanks to Steven H. Sholk for the lead.]

Church Classification for Capitol Hill Townhouse Questioned

Both the New York Times and the Washington Post report on a letter (full text) sent yesterday to the Internal Revenue Service by a group of Ohio mainline Protestant clergy. The signers, members of Clergy VOICE, question the tax-exempt status of the C Street Center which owns a town house on Capitol Hill that provides inexpensive lodging and meals for conservative Christian members of Congress. The letter argues that the C Street Center does not qualify as a church under IRS regulations.

Apparently there is a close relationship between the Center and the Fellowship Foundation that sponsors the National Prayer Breakfast. J. Robert Hunter, a member of the Fellowship, said that "there are religious services all the time" at the C Street Center. He added it is also "a safe place where politicians who are tempted by lust would hold each other accountable." The Center has received notoriety because at least four politicians involved in extra-marital affairs have lived at or used the Center-- South Carolina Gov. Mark Sanford, Nevada Senator John Ensign, Oklahoma Senator Tom Coburn, and Mississippi Representative Charles W. "Chip" Pickering, Jr. Last year D.C. tax authorities classified the Center as 66% taxable. [Thanks to Scott Mange and Wall of Separation for the leads.]

Court Upholds Application of Noise Ordinance To Church

In Christian Methodist Episcopal Church v. Rizzo, 2010 U.S. Dist. LEXIS 15246 (D SC, Feb. 18, 2010), a South Carolina federal district court rejected a church's free exercise challenge to the enforcement of a town's noise ordinance against it. Atlantic Beach, South Carolina police ticketed the CME Mission Church for broadcasting its religious services into the surrounding neighborhood by means of a loud speaker system, after complaints by surrounding businesses and residents. The court rejected CME's contention that it was exempt from the noise ordinance and found that police had not acted improperly in entering the church during a service to address the noise violations. CME failed to prove either intent to suppress religious practices or discriminatory enforcement.

Report Urges More US Religious Engagement In Foreign Policy

The Chicago Council on Global Affairs yesterday released a task force report titled Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy. The 32-member task force includes former government officials, religious leaders, heads of international organizations, and scholars. Here is an excerpt from the Foreword to the 109-page report:

Religion has been rapidly increasing as a factor in world affairs, for good and for ill, for the past two decades. Yet the U.S. government still tends to view it primarily through the lens of counterterrorism policy. The success of American diplomacy in the next decade will not simply be measured by government-to-government contacts, but also by its ability to connect with the hundreds of millions of people throughout the world whose identity is defined by religion. Religious communities are central players in the counterinsurgency war in Afghanistan, development assistance, the promotion of human rights, stewardship of the environment, and the pursuit of peace in troubled parts of the world, but the United States lacks the capacity and framework to engage them.

The report includes a dissent and response among task force members on whether the Establishment Clause imposes restrictions on the way the U.S. pursues engagement with religious communities abroad.

The report is already controversial. Writing in the Washington Post, author Susan Jacoby says: "I have rarely read a document filled with more destructive premises and recommendations...." US Catholic says that the task force co-chairs and others involved in the report were scheduled to discuss its findings yesterday with Joshua Dubois, director of the White House Office of Faith-based and Neighborhood Partnerships.

European Human Rights Court Says Turkey Violated Rights In Conviction For Clothing

The European Court of Human Rights yesterday held that Turkey violated Art. 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights when it convicted members of a religious group known as Aczimendi tarikatÿ for the clothing they wore. According to the Court's press release on the decision:

In October 1996 they met in Ankara for a religious ceremony held at the Kocatepe mosque. They toured the streets of the city while wearing the distinctive dress of their group, which evoked that of the leading prophets and was made up of a turban, "salvar" (baggy "harem" trousers), a tunic and a stick. Following various incidents on the same day, they were arrested and placed in police custody.

In the context of proceedings brought against them for breach of the anti-terrorism legislation, they appeared before the State Security Court in January 1997, dressed in accordance with their group's dress code.

Following that hearing, proceedings were brought against them and they were convicted for a breach both of the law on the wearing of headgear and of the rules on the wearing of certain garments, specifically religious garments, in public other than for religious ceremonies.

The full opinion in Affaire Ahmet Arslan v. Turquie, (ECHR, Feb. 23, 2010), is available in French.

Oregon Senate Agrees With House That Teachers Can Wear Religious Garb

According to the Oregonian, yesterday by a vote of 21-9 Oregon's state Senate approved House Bill 3686 repealing an 87-year old ban on teachers wearing religious dress in the classroom. Beginning in the 2011-12 school year, teachers will be allowed to wear head coverings or other clothing in accordance with sincerely held religious beliefs. The state House of Representatives has already passed the bill, but it now goes back to the House because of two changes in wording made by the Senate. Opponents of the bill argued that a classroom should be a religiously neutral environment. (OPB News.) The new law (Sec. 659A.033(5)) does not require schools to accommodate religious garb if it "would would constrain the legal obligation of a school district, education service district or public charter school to: (a) Maintain religious neutrality in the school environment; or (b) Refrain from endorsing religion." [Thanks to Steven Green via Religionlaw for the lead.]

UPDATE: On Feb. 23, the House by a vote of 48-7, with 5 not voting, repassed the bill with the Senate amendments in it. It now goes to the governor for his signature. The Oregonian reports on the final vote, and the questions about the bill raised by even some who voted for it. Opponents predicted the bill will lead to numerous lawsuits.

Saudi Judges Can Require Women Witnesses To Unveil Faces For Identification

Today's Saudi Gazette reports that Sheikh Ibrahim Al-Haqeel, chairman of Saudi Arabia's Court of Grievances, speaking at a workshop said that judges now have the right to require Muslim women inside the courtroom to unveil their faces for identification purposes. The move is designed to prevent instances in which veiled women are falsely presented as wives or daughters in inheritance cases. The Court of Grievances is planning to employ women to check out identities before women present their cases in court. [Thanks to Crossroads Arabia for the lead.]

New USCIRF Executive Director Named

The U.S. Commission on International Religious Freedom announced on Monday that it has appointed a new executive director. The new top staff person is Jackie Wolcott, ambassador to the United Nations Security Council in the George W. Bush administration. Reporting on the appointment, World Mag suggests that Wolcott may be able to develop a stronger relationship with the State Department where she worked for nine years. The State Department in the past has ignored some of the recommendations of USCIRF as to the nations that should be designated as countries of particular concern because of their religious freedom restrictions.

Court Upholds School Board Invocations Under Legislative Prayer Precedents

In Doe v. Indian River School District, (D DE, Feb. 21, 2010), a Delaware federal district court upheld against an Establishment Clause attack the policy of the Indian River School Board to open its meetings with a prayer delivered by members of the school board on a rotating basis. Alternatively the board member may call for a moment of silence. Under the policy, the prayers offered may be sectarian or non-sectarian, so long as they are not used to proselytize anyone or disparage any particular belief. The court held that the Supreme Court's Marsh v. Chambers decision relating to legislative prayer applies to invocations at school board meetings, even though school students sometimes attend the meetings. Brief sectarian references in some of the prayers offered do not make Marsh inapplicable, so long as the prayer is not used to proselytize or advance religion. Yesterday's Wilmington News Journal reported on the decision, pointing out that other parts of the lawsuit challenging promotion of religious activities in the schools and at school activities were previously settled with a payment to plaintiffs and a revision of school policies. (See prior posting.)

Forsyth County Commissioners Will Appeal Prayer Ruling To 4th Circuit

The Winston-Salem Journal reports that Forsyth County, North Carolina's Board of Commissioners voted 4-3 last night to appeal a federal district court decision (see prior posting) holding that, as implemented, its policy of beginning meetings with prayers violates the Establishment Clause. Board Chairman David Plyer was the swing vote. He agreed to the appeal to the 4th Circuit only after assurances that it would not cost the county money to do so. Alliance Defense Fund is bearing the costs of defending the county and pursuing its appeal, but it will not cover plaintiffs' costs which the county may be ordered to pay if it loses. However the North Carolina Partnership for Religious Liberty has now pledged $300,000. WFMY News reported that before the Commission meeting, Christ Cathedral Church of Deliverance organized a prayer group outside the government building to urge the Board to appeal the case.

Court Rejects Free Exercise Challenge To SSN For Drivers License

In State of Montana v. Turk, 2010 Mont. Dist. LEXIS 18 (MT Dist. Ct., Jan. 12, 2010), a Montana state court rejected a claim by defendant Richard Turk that his rights under the U.S. and Montana constitutions were violated by the state's requirement that he present a social security number in order to obtain a drivers' license. Turk believes that his social security number is the Biblical mark of the beast, and that requiring him to use it violates the free exercise and establishment clauses. The court concluded that Turk had not shown that his belief is a central teaching of any religion. It also concluded that the requirement has a completely secular purpose and does not advance or inhibit religion. Calling Turk's claim a "bold proposition," the court affirmed his conviction and $45 fine (plus court costs) imposed by a Justice of the Peace for driving without a valid license.

ICANN Review Panel Finds US Religious Right Pressure In Denial of .xxx TLD

ICANN is a non-profit corporation charged with overseeing the protocols and domain names system of the entire Internet. Challenges to any of its actions can be submitted for an advisory arbitration opinion of an Independent Review Panel. In the first ever use of the review panel process, a Panel last week found that ICANN's board acted improperly in 2007 when, under pressure from the U.S. government and others, it reversed a decision it had reached earlier and refused to allow ICM Registry to introduce a new .xxx top level domain that would identify pornographic websites. In ICM Registry, LLC v. ICANN, (ICDR, Feb. 19, 2010), the Panel, in a 2-1 decision, concluded in part:

The volte face in the position of the United States Government ... appeared to have been stimulated by a cascade of protests by American domestic organizations such as the Family Research Council and Focus on the Family. Thousands of email messages of identical text poured into the Department of Commerce demanding that .XXX be stopped.... [W]hile officials of the Department of Commerce concerned with Internet questions earlier did not oppose and indeed apparently favored ICANN’s approval of the application of ICM, the Department of Commerce was galvanized into opposition by the generated torrent of negative demands, and by representations by leading figures of the so-called “religious right”, such as Jim Dobson, who had influential access to high level officials of the U.S. Administration.

Goldstein Report, Thinq.co.uk and The Domains all report on the Panel's decision. ICANN has links to all the pleadings and briefs in the proceedings. As a result of the decision, apparently ICM will begin offering .xxx top level domains later this year. (See prior related posting.)

Recycled Church Pews In Courtroom Challenged As Establishment Clause Problem

In Southaven, Mississippi, the city's seven-year old renovation of a former library into its municipal courthouse has led to an unusual Establishment Clause challenge. To save money, the city salvaged the pews from a church building it had purchased to turn into a performing arts center. The pews were used for seating in two of the municipal courtrooms -- 24 pews in one and seven in the other. Now, according to the Memphis (TN) Commercial Appeal and Memphis ABC24 News, a defendant in a disorderly conduct case has filed a motion to have the pews removed because they all have crosses engraved on each side.

Seventy year old Carroll Robinson, an agnostic and a paralegal student, says that the 62 crosses are an endorsement of a religion he does not believe in. He does not want to be judged in a courtroom that represents a specific religion. He says: "I'm afraid I couldn't get a fair trial because I am not Christian, but am agnostic." Mayor Greg Davis says he will not remove the seats, calling this another example of war on public expression of the Christian faith in America. The charges against Robinson grew out of an incident at a Walmart where he was wrongly accused of shoplifting by store security.

AU Charges Liberty University Violated Non-Profit Limits In Virginia Election Campaign

Americans United announced yesterday that it has asked the Internal Revenue Service to investigate whether Liberty University has violated its Section 501(c)(3) non-profit status by using the school's student newspaper to support one of the two candidates for a seat in Virginia House of Delegates last November. AU's letter (full text) to the IRS charges that University Chancellor Jerry Falwell, Jr. and others used the paper and other school resources to support the election of Scott Garrett over incumbent Shannon Valentine. Garrett won by 210 votes in a victory attributed to block voting by students, faculty and staff of Liberty University. [Thanks to Scott Mange for the lead.]

Draft Report on Reform of White House Faith-Based Office Released

The Washington Post reports that on Saturday the task forces created by the President's Advisory Council on Faith-based and Neighborhood Partnerships released their long-awaited report (full text Word doc.) on reform of the faith-based office. The task forces' 12 recommendations--explained at length in the report-- will be voted on later this week by the full Advisory Council before being sent to the President. Here are the recommendations:

1: Perform a strategic review of government-supported technical assistance and capacity building.
2: Convene and encourage learning communities of social service programs and providers.
3: Develop a strategy to partner with State, county, and city officials.
4: Strengthen constitutional and legal footing of partnerships, and improve communications regarding White House Office of Faith-Based and Neighborhood Partnerships and Agency Centers.
5: Clarify prohibited uses of direct Federal financial assistance.
6: Equally emphasize separation requirements and protections for religious identity.
7: State more clearly the distinction between "direct" and "indirect" aid.
8: Increase transparency regarding federally funded partnerships.
9: Improve monitoring of constitutional, statutory, and regulatory requirements that accompany Federal social service funds.
10: Assure the religious liberty rights of the clients and beneficiaries of federally funded programs by strengthening appropriate protections.
11: Reduce barriers to obtaining 501(c)(3) recognition.
12: Promote other means of protecting religious liberty in the delivery of government-funded social services.

Turkish Military Commanders Arrested In Plot Against Islamic Leaning Prime Minister

AP reported yesterday that Turkish police have arrested 52 military commanders for planning a military overthrow of the Islamic oriented government of Prime Minister Tayyip Erdogan. In simultaneous operations in eight cities, police detained the military leaders, including 21 generals and admirals. They are charged with plotting to blow up mosques in order to set off a military coup. They also are charged with planning to shoot down a Turkish warplane to trigger an armed conflict with Greece. Turkey's military has always strongly supported secularism in the country. (See prior related posting.)

Study On the Religion Blogosphere Released

The Social Science Research Council has released a study titled "The New Landscape of the Religion Blogosphere." SSRC describes the study:

This report surveys nearly 100 of the most influential blogs that contribute to an online discussion about religion in the public sphere and the academy. It places this religion blogosphere in the context of the blogosphere as a whole, maps out its contours, and presents the voices of some of the bloggers themselves.

Religion Clause is among the blogs included in the study.

US Supreme Court Refuses Review In Bible Trademark Infringement Case

Today the U.S. Supreme Court denied certiorari in Phillips v. Mike Murdock Evangelistic Association, (Docket No. 09-7813, 2/22/2010). (Order List.) In the case, the U.S. 9th Circuit Court of Appeals (full opinion LEXIS link) rejected a trademark infringement claim brought by the author of the Wisdom Bible of God against the author of The Wisdom Bible. It held that the term is descriptive and had not acquired a secondary meaning.

Uganda Lawuit Challenges Polygamy; Government Says It Is Protected Religious Practice

In Uganda earlier this month, the women's rights organization Mifumi Uganda Ltd. filed a petition in the country's Constitutional Court seeking to have laws that permit men to practice polygamy, but do not permit women to have more than one husband, declared unconstitutional. The suit argues that provisions in the Customary Marriages Registration and the Marriage and Divorce of Mohammedan Act that allow polygamy violate the right to equality guaranteed in Article 21 of Uganda's Constitution. (Mufumi press release.) Friday's Kampala Daily Monitor reports that the Attorney General's Office has responded to the petition by arguing that polygamy is protected by Article 37 of the Constitution that guarantees the right "to belong, practice, enjoy, profess and promote any culture, tradition and religion of his or her own choice."

Program Encourages Non-School Sponsored Baccalaureate Services

The Pacific Justice Institute last week announced its second annual campaign to encourage churches and Christian student clubs to host baccalaureate services for high school seniors. PJI is offering free legal advice, practical tips and model formats for programs that respect church-state separation because they are not school-sponsored.

Indian State Seizes Workbooks With Offensive Picture of Jesus

In the Indian state of Meghalaya, the government has seized from schools and bookstores all copies of a primary school cursive writing workbook that contains a picture of Jesus holding a cigarette and a beer can. BBC News reported on Friday that the book was published by Skyline Publications in New Delhi. The book was discovered by a private school in the city of Shillong. The Catholic Bishops Conference in India has now ordered removal of all books published by Skyline from all its schools. Meghalaya Education Minister Ampareen Lyngdoh said the government is considering taking legal action against the publishers over the offensive picture. Meghalaya state is 70% Christian. The Christian Post on Sunday reported that the publishers have issued an apology. [Thanks to Scott Mange for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Josh Goodman, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel, (Hastings International and Comparative Law Review, Vol. 32, No. 2, p. 379, Summer 2009).
• Marc O. DeGirolami, No Tears for Creon, (Legal Theory, Forthcoming).
• Richard F. Storrow, Medical Conscience and the Policing of Parenthood, (William & Mary Journal of Women and the Law, Vol. 16, No. 2, pp. 369-393, 2010).
• Gregory P. Magarian, Religious Argument, Free Speech Theory, and Democratic Dynamism, (Washington U. School of Law Working Paper No. 10-02-04, Feb. 18, 2010).
• Florian H. Karim Theissen & Hans-Martien Ten Napel, Th.D., Taking Pluralism Seriously: The US and the EU as Multicultural Democracies, (Bart C. Labuschagne & Reinhard W. Sonnenschmidt, eds., Religion, Politics and Law: Philosophical Reflections on the Sources of Normative Order In Society, pp. 363- 392, Brill, 2009).
• Patrick McKinley Brennan, Are Catholics Unreliable from a Democratic Point of View? Thoughts on the Occasion of the Sixtieth Anniversary of Paul Blanshard’s American Freedom and Catholic Power, (Villanova Law Review, 2010).
• Patrick McKinley Brennan, Are Legislation and Rules a Problem in Law? Thoughts on the Work of Joseph Vining, (Villanova Law Review, 2010).
• Raphael Cohen-Almagor, Holocaust Denial is a Form of Hate Speech, (Amsterdam Law Forum, 2009).

From SmartCILP:

• Craig C. Briess, The Crescent and the Corporation: Analysis and Resolution of Conflicting Positions Between the Western Corporation and the Islamic Legal System, 8 Richmond Journal of Global Law & Business 453-511 (2009).
• Scott Thompson, House of Wisdom or a House of Cards? Why Teaching Islam in U.S. Foreign Detention Facilities Violates the Establishment Clause, 88 Nebraska Law Review 341-384 (2009).

Recent Books:

• Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Indian Supreme Court, (Oxford Univ. Press India, Dec. 2009), reviewed in The Hindu.
• Bill Donohue, Secular Sabotage: How Liberals Are Destroying Religion and Culture in America, (Faith Words, Sept. 2009), reviewed in National Catholic Register.

Recent Prisoner Free Exercise Cases

In Vinning El v. Evans, 2010 U.S. Dist. LEXIS 13294 (SD IL, Feb. 16, 2010), plaintiff claimed his request for a vegan diet as required by his Moorish Science Temple beliefs was denied before he was transferred to his present facility. An Illinois federal district court dismissed his claims under RLUIPA because his claim for injunctive relief was now moot, and damages are not available under RLUIPA. However the court refused to dismiss his Free Exercise claim for damages because it read recent 7th Circuit precedent as requiring the state to show that it was using the least restrictive means when prison rules impose a substantial burden on religious practice.

In Wallace v. Miller, 2010 U.S. Dist. LEXIS 13278 (SD IL, Feb. 16, 2010), an Illinois federal district court allowed an inmate to move ahead with claims that since changing his religion to Judaism, certain prison officials refused to provide him with meals and clothing satisfying his religious needs, denied him access to certain religious items and to group religious worship, and imposed grooming policies that contradict his religious beliefs. It also allowed him to move ahead with a retaliation claim. A number of other claims were dismissed without prejudice.

In Sims v. Hudson, 2010 U.S. Dist. LEXIS 13392 (SD GA, Feb. 17, 2010), a Georgia federal district court, adopting a magistrate's recommendations (2010 U.S. Dist. LEXIS 13440, Jan. 4, 2010) held that a Muslim prisoner's free exercise rights were not violated by the prison's shower-restriction policy. Plaintiff did not show that showering at prescribed times presented an unacceptable delay before Juma'h, or Friday prayers, under Islamic law or teaching that required purification before prayer.

In Henderson v. Hubbard, 2010 U.S. Dist. LEXIS 14256 (ED CA, Feb. 18, 2010), a California federal magistrate judge recommended dismissal on statute of limitations grounds of a claim by a Muslim inmate that his free exercise rights and his rights under RLUIPA were infringed when he was denied conjugal visits with his wife. He claimed his Muslim religious beliefs require him to engage in sexual relations with his wife.

In Celestine v. Estes, 2010 U.S. Dist. LEXIS 14361 (WD LA, Feb. 18, 2010), a Louisiana federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 14131, Jan. 20, 2010) and dismissed as frivolous claims by a Hindu prisoner that he is being denied equal time in the prison chapel, is being denied use of a room in the educational building in the evening, and is not being supplied with a Hindu vegetarian diet.

In Saunders v. Wilner, 2010 U.S. Dist. LEXIS 14127 (D CO, Feb. 18, 2010), a Colorado federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 125123, Aug. 25, 2009) and permitted plaintiff to move ahead on his claims for injunctive relief (but not damages) under the 1st Amendment and RFRA. Plaintiff practiced the Eckankar Religion, whose primary focus is on group meditation. He wanted to be able to gather with other followers and have a spiritual leader preside over such gatherings.

DC Court Refuses To Delay Effectiveness of Same-Sex Marriage Law

In Washington, D.C. on Friday, the D.C. Superior Court tentatively rejected an attempt to prevent the city's Religious Freedom and Civil Marriage Equality Amendment Act of 2009 from going into effect on March 3. The Act authorizes same-sex marriage in D.C. Metro Weekly reports that challengers sought the delay while the court is deciding on their attempt to get a referendum on the new law. The DC Board of Elections and Ethics has rejected the referendum petition because it would undercut attempts to eradicate discrimination prohibited by the D.C. Human Rights Act. That ruling is on appeal to the Superior Court. (See prior posting.)

Haitian "Orphans" Actually Had Parents Alive

AP reported yesterday that the 33 Haitian children that Baptist missionaries from the U.S. attempted to take illegally to an orphanage in the Dominican Republic after the recent earthquake (see prior posting) were not orphans. All were all turned over to the missionaries by parents because the parents were promised the children would be kept safely there. Two of the missionaries, leader Laura Silsby and her her assistant, Charisa Coulter, are still being held in jail in Haiti. Silsby after her arrest claimed that the children were either orphans or came from distant relatives. Apparently even before the January 12 earthquake, half of the 380,000 children in Haiti's orphanages have parents who are living. However they are unable to care for the children.

Summum Case Back In District Court On Establishment Clause Issue

When the U.S. Supreme Court last year decided Pleasant Grove City, Utah v. Summum (see prior posting), it held that Summum's free speech rights were not violated by the city's refusal to permit it to erect its Seven Aphorisms monument in a public park. However the court left open the question of whether the Establishment Clause precludes the city from excluding that monument when a 10 Commandments monument is already in the park. Friday's Salt Lake Tribune reports that the case is now back in the district court on that issue. The city has asked to court to dismiss the case, arguing that the 10 Commandments monument conveys a secular historical message. Summum on the other hand has asked the court to permit it to put up a display of its Seven Aphorisms while the lawsuit is pending.

Illinois Appeals Court Issues TRO To Stop Relocation of Graves In O'Hare Expansion

The Chicago Tribune and NBC Chicago report that an Illinois appellate court on Thursday issued a temporary restraining order barring the city of Chicago from relocating any more graves from the St. Johannes Cemetery. In long-running litigation, the city is attempting to obtain the cemetery land to use for expansion of O'Hare International Airport. Earlier this month, a DuPage County trial court ordered the transfer of title of the 5.3-acre cemetery from St. John's United Church of Christ to the city for $630,000. (See prior posting.) Since then, the city has relocated 24 graves to nearby cemeteries with the consent of the families of the deceased. The new TRO prevents the city from taking further action on disinterments while an appeal is pending even where it has already received permission from families. However families may still relocate graves, so long as the city is not involved. In the case, church members have so far unsuccessfully argued that removal of graves substantially burdens their religious exercise.

Head of White House Faith Based Office Outlines Its Goals

On Thursday, Joshua DuBois, Executive Director of the White House Office of Faith-based and Neighborhood Partnerships gave a speech (full text) at the Brookings Institute on the broad vision of the Office and its work over its first year. Here is an excerpt:

From storefront churches in South Carolina to huge congregations in the Midwest, everyone from religious leaders to civil libertarians had the perception that the faith-based office consisted of a big pot of money in the White House – dollars everyone knew about, but only a politically-connected few had access to..... [I]t is an often misunderstood point that there is absolutely no dedicated funding stream specifically for faith-based groups....

[A]t the end of the day, President Obama knows that the relationship between the federal government and religious organizations must not be about money alone. Many faith-based groups do not want to receive federal funds, because of the various restrictions attached to those dollars. Many others should not receive federal grants, because they're either unable or unwilling to separate those funds and use them through appropriate means.

So we must find a way to work with the vast majority of those faith-based organizations who will not receive money from the government, while insuring of course that those who wish to apply for and receive federal support do so in a way that respects both their rights and responsibilities....

[O]ur guiding vision is this: to connect with faith-based and other neighborhood organizations on specific challenges confronting our communities, and partner with those groups to strengthen their good work. Critically, this support may not always be through federal grants. We do not measure our success based on how many dollars flow to faith-based organizations. Instead, we measure our success based on the impact that our partnerships with faith-based and other neighborhood groups have on individuals, families and communities across the country.

Christian Teachers Group Denied Standing To Challenge School Consent Decree

In Minor Doe I v. School Board for Santa Rosa County, Florida, (ND FL, Feb. 19, 2010), a Florida federal district court rejected an attempt by the Christian Educators Association International to intervene to seek a modification of a consent decree under which the Santa Rosa County school board was enjoined from various activities that promoted religion in school classrooms and at school events. CEAI claimed that its members' religious speech was chilled by the consent decree. In an earlier ruling the court held that CEAI lacked standing to seek to totally vacate the decree. Now the court concludes that CEAI lacks standing to intervene to modify the decree because the fears of restrictions on their speech that CEAI members allege are not objectively reasonable.

The court found that it is objectively unreasonable for CEAI members to believe that the language of the decree requires them to refrain from all religious speech in any context at school or at informal gatherings such as retirement parties, or to believe they cannot have small personal religious items in their personal area or a drawer or cannot attend a baccalaureate service in their personal capacity. It is also unreasonable for them to believe the consent decree requires them to exclude all reference to religion from personal conversation with colleagues or parents or to censor students' creative work. The court found alternatively that CEAI lacks organizational standing since any speech rights that are chilled depend on highly individualized facts that are not common to all of CEAI's members. Finally, the court concluded that the motion to intervene was not timely.

The ACLU of Florida issued a press release announcing the decision. Liberty Counsel also issued a press release saying that it will now file a direct lawsuit against the school district to attempt to get the consent order overturned. It characterized the court's ruling as one that "has elevated this case to nuclear war." Today's Pensacola (FL) News-Journal also reports on the decision.

Appellate Court Upholds Beth Din Arbitration Award

In Matter of Brisman v. Hebrew Academy of Five Towns & Rockaway, (NY App. Div, Feb. 16, 2010), a New York appellate court upheld an arbitration award by the Beth Din of America (a Jewish religious court) which found that a tenured teacher in a Jewish religious school was wrongfully terminated. The arbitrators ordered him reinstated and awarded him his lost pay. The decision reversed the trial court (see prior posting) which had refused to confirm the award because it required the school to employ an "at will" teacher who has a clear difference in religious philosophy from the administration for an indefinite tenure. The Appellate Division said that none of the narrow statutory grounds for vacating an arbitration award had been shown.

DC Archdiocese Ends Foster Care Services Over New Same-Sex Marriage Law

CBN News reported yesterday that in Washington, DC, the Catholic Archdiocese has transferred its entire program of foster care services to the non-profit National Center for Children and Families. The Archdiocese made the move, after 80 years of furnishing services, because DC's new same-sex marriage law that will take effect shortly could require it to allow same sex couples to serve as foster parents, in violation of Church teachings. (See prior related posting).

Cert. Filed In Arizona Tuition Case, Challenging Standing

A petition for certiorari to the U.S. Supreme Court (full text) was filed yesterday in Arizona Christian School Tuition Organization v. Winn. In the case, a 3-judge panel of the 9th Circuit found taxpayer standing and ruled that, as applied, Arizona's tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations" violates the Establishment Clause. (See prior posting.) The 9th Circuit then denied en banc review, but with 40 pages of opinions. (See prior posting.) The cert. petition seeking Supreme Court review focuses on the issue of standing. Alliance Defense Fund announced the filing of the cert. petition.

Virginia Christian Clergy Urge Defunding of Planned Parenthood

Dozens of Virginia's most influential Christian leaders, including Rev. Pat Robertson and Rev. Jonathan Falwell, have signed a petition to the state's governor, lieutenant governor and attorney general asking them to take steps to cut off state funds that go to Planned Parenthood. AP reported yesterday that the petition presented by the Virginia Christian Alliance complained that Planned Parenthood provides abortions. It accused the organization of "unethical, immoral and racist practices." Pastors cite a quotation from the 1939 book written by Margaret Sanger, the founder of Planned Parenthood, who supported the now-discredited theory of eugenics. Planned Parenthood says this does not represent its values today. It is unclear how much Planned Parenthood receives in state funds.

ACLU Seeks USAID Documents On Funding of Abstinence Programs Overseas

The ACLU announced yesterday that it has filed a Freedom of Information Act lawsuit seeking documents from the U.S. Agency for International Development relating to USAID's funding of some abstinence-only-until-marriage programs overseas that reflect a religious perspective. The complaint (full text) in ACLU v. U.S. Agency for International Development, (SD NY, filed 2/18/2010) follows up on a report (full text) issued last year by USAID's Inspector General. It seeks documents to properly understand whether USAID is properly monitoring grantees to assure that federal funds are not being spent on religious activities in violation of the Establishment Clause. (See prior related posting.)

Obama Meets Dalai Lama At White House

President Obama yesterday met at the White House with the Dalai Lama. A statement (full text) by Press Secretary Robert Gibbs after the meeting said:

The President stated his strong support for the preservation of Tibet's unique religious, cultural and linguistic identity and the protection of human rights for Tibetans in the People’s Republic of China. The President commended the Dalai Lama's "Middle Way" approach, his commitment to nonviolence and his pursuit of dialogue with the Chinese government.

Wednesday's Washington Post outlined the careful balancing act Obama is carrying out in setting up a meeting in a way that honors the Tibetan leader without enraging the Chinese excessively. For example, the meeting took place in the Map Room rather than the Oval Office.

Saudi Court Sentences Religious Police Official For Having Too Many Wives

Reuters reported Wednesday that a Saudi Arabian court has convicted a man in his 50's who holds an administrative position with the Saudi religious police of having six wives. The man claimed he was not educated enough to know that Islam does not allow him to be married to more than four women at the same time. The court in Ahad-al-Massarha in the southern province of Jazan said it did not believe his claims. It sentenced him to 120 lashes, banned him from preaching and leading prayers, ordered him not to travel abroad for 5 years and required him to memorize two chapters from the Qur'an.

Virginia Governor's New Equal Opportunity Order Eliminates Sexual Orientation Protection

Earlier this month, Virginia Gov. Bob McDonnell signed Executive Order No. 6 on Equal Opportunity in all facets of state government, superseding an Equal Opportunity executive order signed in 2006 by Gov. Tim Kaine. The new order eliminates reference to a ban on discrimination on the basis of sexual orientation-- a category that was included in the prior executive order. It also calls for the state to take "appropriate" measures to emphasize recruitment of minorities. Gov. Kaine's EO called for "affirmative" measures. TPM on Wednesday, in an article reviewing the situation, said that Gov. McDonnell has also signed a different memo calling for equal opportunity for all in the Governor's office in hiring, promotion, discipline and termination. It urges all other cabinet secretaries to implement a similar policy.

Court Tells Prosecutor To Remove Ash Wednesday Markings

Ash Wednesday yesterday led to an unusual ruling in a Marshall County, Iowa courtroom. Today's Marshalltown (IA) Times-Republican reports that after the lunch recess in an attempted murder trial, the prosecutor handling the case returned to court with ash on his forehead-- a traditional Catholic practice on the day on which Lent begins. The court agreed with defense counsel that the ash should be removed before the jury returned to avoid improper influence for or against the prosecution's case. Assistant County Attorney Paul Crawford complied, saying he understood the request was made out of an abundance of caution.

9th Circuit Rejects Church Members' Attempt To Prevent Marijuana Seizure

In Multi-Denominational Ministry of Cannabis and Rastafari, Inc. v. Holder, (9th Cir., Feb. 16, 2010), the U.S. 9th Circuit Court of Appeals dismissed an action by members of a religious organization seeking to enjoin further seizures by government officials of their marijuana plants. Among the various grounds for rejecting plaintiffs' First Amendment, RLUIPA and RFRA claims was a finding that the government had a compelling interest in preventing diversion of thousands of marijuana plants to non-members of the church. Courthouse News Service reported on the decision.

Utah Supreme Court Hears Arguments In Two FLDS Cases

The Utah Supreme Court yesterday heard oral arguments (recording of full arguments) in two cases relating to the ongoing efforts of the state of Utah to reform the FLDS United Effort Plan Trust. Yesterday's Salt Lake Tribune reports that the first case, FLDS v. Lindberg, involves the question of whether FLDS church members can collaterally attack reform of the trust over three years after the trial court entered its order. The second case, Snow, Christensen & Martineau, involves the trial's court's disqualification of a law firm from representing FLDS members in an action against the trust because the firm previously had a legal relationship with the trust. (See prior related posting.)

New Hampshire House Refuses To Backtrack On Same-Sex Marriage

The Concord (NH) Union Leader reports that on Monday the New Hampshire House of Representatives voted down two proposals that would have backed away from the state's recognition of same-sex marriage. By a vote of 201-135, the House defeated a proposed state constitutional amendment (CACR 28) that would have defined marriage as being only between a man and a woman. An hour later, by a vote of 210-109, the House defeated HB 1590 that would have enacted a statutory repeal of same-sex marriage in the state.

French Politicians Criticize Restaurant Chain For Serving Halal Meat

Reuters today reports that in France, various politicians are criticizing Quick, a fast-food chain, for deciding to serve only halal meat in eight of its restaurants that have a large Muslim clientele. Marine Le Pen, vice president of the far-right National Front, argued that the restaurant's customers "are forced because of halal meat to pay a tax to Islamic organizations" that certify the food. She also criticized President Nicolas Sarkozy for supporting a "forced Islamization of France" because almost all of Quick's stock is owned by an arm of the state-owned savings bank, the Caisse des Depots et Consignations.

Other politicians joined in. Rene Vandierendonck, the Socialist mayor in the town of Roubaix, threatened to sue, and Lionnel Luca, a conservative member of parliament called for a boycott to restore "freedom of choice." Agriculture Minister Bruno Le Maire added his criticism, saying: "When they remove all the pork from a restaurant open to the public, I think they fall into communalism, which is against the principles and the spirit of the French republic." However a marketing firm executive says Quick is merely responding to competition from smaller Halal restaurants.

EEOC Files One Religious Discrimination Suit; Settles Another

The EEOC announced last week that it had filed suit in a North Carolina federal district court against a Goldsboro, North Carolina construction company that refused to accommodate the religious needs of Seventh Day Adventist employees. The lawsuit against T.S. Loving Co. alleges that eventually the day laborers were fired because of their refusal to work on their Sabbath which runs from sundown Friday to sundown Saturday.

Yesterday, in another case, the EEOC announced that UPS Freight, one of the country's largest trucking companies, will pay $46,000 to a Rastafarian who was fired shortly after he was hired because he refused for religious reasons to cut his hair or shave his beard. In the settlement of the EEOC lawsuit that had been filed in a Pennsylvania federal district court, the company also agreed to an injunction prohibiting it from engaging in religious discrimination or retaliation, to anti-discrimination training and to post a notice of the settlement. (See prior related posting.)

Settlement Reached In Suit Alleging Proselytizing of Clients By Salvation Army

The New York Civil Liberties Union yesterday announced a settlement agreement relating to part of the claims in Lown v. Salvation Army. In 2005 (see prior posting), a New York federal district court permitted a taxpayer's suit to proceed challenging the alleged use of government social service funds by the Salvation Army to proselytize clients. Under the settlement, six governmental agencies in New York City, Long Island and New York state have adopted auditing procedures or standards of conduct that will be used to monitor the Salvation Army to make sure it does not force clients in need of government-funded social services to also attend religious worship or instruction. The NYCLU will receive regular reports from the agencies, and the court will maintain jurisdiction over the agreement for two years to make sure it is enforced.

County Commissioners Will Lead Prayer Instead of Ministers

Buncombe County, North Carolina county commissioners have been discussing with their county attorney the implications of a federal court decision ruling that the invocation policy in another North Carolina county violates the Establishment Clause. Last month, a federal district court held that Forsyth County's policy as implemented advances one particular faith. (See prior posting.) Now, according to yesterday's Asheville Citizen-Times, Buncombe County will stop inviting ministers to deliver an invocation, and instead the county commissioners themselves will offer the opening prayer at each commission meeting.

Court Orders Exhumation So Deceased's Cremation Wishes Can Be Carried Out

In Hiller v. Washington Cemetery, (NJ App., Feb. 16, 2010), a New Jersey appellate court agreed that the body of decedent Irving Gottesman should be disinterred so that it can be cremated and his ashes scattered in accordance with his clearly expressed wishes. Irving Gottesman had been born into an Orthodox Jewish family, but did not remain observant after his early years. However his brother Bert did. When Irving died, Bert, within hours, had Irving's body buried in a Jewish cemetery. This prevented the woman with whom Irving was romantically involved from being able to make arrangements for cremation, even though Irving's will called for her to be the one to make funeral arrangements. Both the trial and appellate courts saw no reason that Irving's wishes should not be carried out. [Thanks to Steven H. Sholk for the lead.]

USCIRF Accused of Anti-Muslim Bias

A Washington Post report yesterday says that the U.S. Commission on International Religious Freedom is itself being accused of religious bias. The article by reporter Michelle Boorstein reports that USCIRF staff, former staff and some former commissioners charge that the agency "is rife, behind-the-scenes, with ideology and tribalism, with commissioners focusing on pet projects that are often based on their own religious background. In particular, they say an anti-Muslim bias runs through the commission's work..." Last fall, a former agency policy analyst, Safiya Ghori-Ahmad, filed an EEOC complaint against USCIRF. She says her contract was cancelled because of her Muslim faith and her affiliation with the Muslim Public Affairs Council.

Some critics also charge that USCIRF devotes a disproportionate amount of its time to issues of persecution of Christians, and not enough on persecution of other religious groups. Current commissioners, including one who is an imam, deny this, saying they have taken action on behalf of the Uighurs in China and the Ahmadis in Pakistan. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

White House Statement Marking Ash Wednesday

The White House today issued the following statement marking Ash Wednesday:

Michelle and I join Christians here in America and around the world in observing Ash Wednesday. We mark this solemn day of repentance and promise, knowing that Lent is a time for millions to renew faith and also deepen a commitment to loving and serving one another.

Virginia Legislature Approves Pro-Choice License Plates, But With Disagreement On Use of Fees

In Virginia, both the House of Delegates and the state Senate have passed bills authorizing a license plate with the message: "Trust Women/ Respect Choice." The House version (HB 1108), passed yesterday by a vote of 77-22, however eliminated a provision that would have directed a portion of the fees from the plates to Planned Parenthood. Instead the House bill sends the fees to the Virginia Pregnant Women Support Fund administered by the state Board of Health to support women with unplanned pregnancies. (Hampton Roads Pilot, 2/16). The Senate version, (SB 704), passed yesterday by a vote of 26-8, retains the original language directing fees to Planned Parenthood. The Washington Post reports that an attempt to amend the bill to conform it to the House version was defeated. [Thanks to Scott Mange for the lead.]