Obama Announces Recess Appointments To EEOC

Last Saturday, the White House announced it intent to make 15 recess appointments to high level government positions. The nominations are currently stalled in the Senate. Four of the 15 are for the Equal Employment Opportunity Commission: Jacqueline A. Berrien for EEOC Chair; Chai R. Feldblum for EEOC Commissioner; Victoria A. Lipnic for EEOC Commissioner; and P. David Lopez for General Counsel of the EEOC. As recess appointees, these individuals will hold office until the end of the Senate's session in 2011. (CRS background.) However their names will remain before the Senate for confirmation for the full terms of their offices. The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

Recent Prisoner Free Exercise Cases

In Clark v. Small, 2010 U.S. Dist. LEXIS 23731 (SD CA, March 15, 2010), a California federal district court permitted an inmate to proceed with his claim that he was not permitted to celebrate Ramadan, but dismissed his equal protection and due process challenges.

In Hartmann v. California Department of Corrections and Rehabilitation, 2010 U.S. Dist. LEXIS 23848 (ED CA, March 15, 2010), a California federal magistrate judge concluded that inmates failed to state a claim against the California State Personnel Board in connection with their complaint that no Wiccan prison chaplains were hired for their facility.

In Jackson v. Boucaud, 2010 U.S. Dist. LEXIS 23760 (SD GA, March 15, 2010), a Georgia federal district court accepted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 125893, Dec. 31, 2009) and dismissed an inmate's claims that his rights were infringed when he was not permitted to borrow in inter-library loan a copy of The Bible Code. He failed to allege how denial of the book infringed his sincerely held religious beliefs.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 23898 (WD VA, March 16, 2010), a Virginia federal magistrate judge permitted an inmate to proceed with challenges under RLUIPA and the due process clause to confiscation of religious materials of the Nation of Gods and Earths (also known as the Five Percent Nation of Islam).

In Boles v. Newth, 2009 U.S. Dist. LEXIS 126028 (D CO, Nov. 13, 2009), a Colorado federal magistrate judge concluded that damage to an inmate's religious objects and religious books did not create a meaningful burden on his practice of religion.

In Borzych v. Frank, 2010 U.S. Dist. LEXIS 25194 (WD WI, March 17, 2010), a Wisconsin federal district judge rejected an inmate's claim that his First and Fourteenth Amendment rights, and his rights under RLUIPA, were violated by a prison policy that prohibits practitioners of Odinism from having runes.

In McChesney v. Hogan, 2010 U.S. Dist. LEXIS 25717 (ND NY, March 18, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25705, Feb. 26, 2010), and permitted a civilly committed offender who is an atheist,to proceed on a claim for injunctive relief, but not for damages, on his complaint that material used in the sexual offender treatment program were premised on religious principles.

In Damron v. Sims, 2010 U.S. Dist. LEXIS 25166 (SD OH, March 17, 2010), an Ohio federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25158, Jan. 27, 2010) and dismissed claims by prisoners who were Christian Separatists that they have been denied in various ways the free exercise of their religion. The court held that plaintiffs pointed only to general policies and failed to allege particular instances in which their rights were infringed.

In Brown v. Michigan Department of Corrections, 2010 U.S. Dist. LEXIS 25396 (ED MI, March 18, 2010), a Michigan federal district court adopted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 126067, Oct. 28, 2009) and rejected both on statute of limitations grounds and on the merits an inmate's argument that his free exercise rights were violated when he was not permitted to talk about his religious beliefs during the Assaultive Offender Program.

In Anderson v. Craven, 2010 U.S. Dist. LEXIS 25140 (D ID, March 16, 2010), an Idaho federal district court refused to dismiss an inmate's claim that his rights were violated when, as a condition of parole, he was forced to attend the Therapeutic Community program which, allegedly, is religion based.

In Funzie v. Little, 2010 U.S. Dist. LEXIS 25771 (MD TN, March 18, 2010, a Tennessee federal district court adopted a magistrate's findings (2010 U.S. Dist. LEXIS 25768, Jan. 12, 2010) and dismissed plaintiff's objections to the seizure and screening of his religious materials by the security threat group.

Church Claims It Was Misled Into Not Applying For Tax Exemption

Knox News yesterday reported that a church in Knoxville, Tennessee is making an unusual argument in an attempt to avoid $53,000 in back taxes that it did not realize it owed. Tennessee law gives a church three years to apply for a property tax exemption when it replaces its previously exempt property with new property. New Covenant Baptist Church bought new property and began to occupy it as a church in 2005. It thought its previous property was exempt since it never received a tax bill. However in fact the county wrongly omitted its previous property from the tax rolls because the church had never properly applied for an exemption. In In re New Covenant Baptist Church, Inc., (TN Bd. Equal., Feb. 26, 2010), the Tennessee Board of Equalization concluded that the church was not entitled to the grace period for its new property because its previous property was not in fact exempt. In a letter to the Knox County Commission and a draft legal complaint, the church argues that the fault lies with the Knox County Tax Assessor who misled the Church into assuming that its prior property was exempt. The church obtained an exemption beginning Nov. 2006, but its taxes for the two prior years remain at issue.

Church Synod Sued After Ordering Changes In College's Board

According to last Thursday's Christian Post, one lawsuit has been dropped, but a second is still pending after the General Synod of the Associate Reformed Presbyterian Church removed the board of trustees and installed an interim board at Erskine College in Due West, South Carolina. Christianity Today last week reported on the March 3 meeting of the General Synod which acted on a March 2 Report of Moderator's Commission that recommended reducing the size of the college's Board from 34 (plus 23 advisory members) to 16. A Preliminary Report issued in February found numerous problems as the college searches for a new president. Among the findings were: "A significant majority of the professors interviewed had no understanding of how the Christian faith could be meaningfully integrated into their discipline."

All of this led to a lawsuit being filed against the General Synod by Scott Mitchell who is the chairman of both the old board that was removed and of the new interim board that was appointed. It alleged that the General Synod violated Erskine's charter and bylaws in the action it took. The court issued a temporary restraining order barring a change in the bylaws to reduce the size of the board. (Columbia (SC) The State.) However now at the direction of Erskine's executive committee, Mitchell has withdrawn his lawsuit. However a second lawsuit filed by the Alumni Association and three trustees is still pending.

UPDATE: On April 9, a state court judge issued a preliminary injunction in the Alumni Association's suit, freezing the status quo while the litigation is pending. (Erskine College Press Release.)

China Imposes New Financial Audit Rules On Religious Institutions

According to AsiaNews.it last week, China's State Religious Affairs Administration has issued new rules requiring all religious institutions to file audited annual financial reports. The agency said the rules are designed to help the government supervise finances and prevent embezzlement and misappropriation of funds from the country's 130,000 religious institutions. Religious organizations are seen as public institutions under Chinese law.

Court Upholds Rights of Evangelists To Leaflet At Catholic Parish Festival

Teesdale v. City of Chicago, (ND IL, March 17, 2010), is a suit by Garfield Ridge Baptist Church and five of its members who were prevented by police acting as security guards from handing out religious tracts, and from using a megaphone, at a Festival being held (with a city permit) by a Catholic parish on parish grounds and surrounding streets. The court held that it was a violation of plaintiff's clearly established rights to prevent them from leafleting, and that a question of fact remained as to whether preventing them from using a megaphone was reasonable. The court also refused to dismiss the false arrest claim by one of the plaintiffs who was arrested for trespassing. The court however did dismiss plaintiffs equal protection claims and their claims under the Illinois Religious Freedom Restoration Act. Preventing them from distributing literature on one afternoon at one place did not constitute a substantial burden on their religious exercise. Finally the court held that plaintiffs can proceed against the city itself only for equitable relief. Plaintiffs' attorneys issued a press release on the decision.

House Committee Holds Hearing On Outreach To Muslim Communities To Foil Terrorism

On March 17, the U.S. House of Representatives Committee on Homeland Security held hearings on Working with Communities to Disrupt Terror Plots. The full text of statements of the Chair and of six witnesses, as well as a video recording of the hearing, is available on the Committee's website. Witnesses focused largely on how to create relationships with American Muslim communities.

Appeal Filed By Intervenors Challenging Consent Decree On Religion In Schools

The Pensacola (FL) News-Journal reports that an appeal has been filed with the U.S. 11th Circuit Court of Appeals in Minor Doe I v. School Board for Santa Rosa County, Florida. In the case, a federal district court in February rejected an attempt by the Christian Educators Association International, representing teachers, 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. (See prior posting.)

New Head of al-Azhar Appointed In Egypt

Trade Arabia reports that on Friday, Egyptian President Hosni Mubarak appointed Sheikh
Ahmed El-Tayeb as the head of al-Azhar to succeed Sheikh Mohamed Sayed Tantawi who died on March 10. (See prior posting.) Al-Azhar is Egypt's most prestigious institution of Islamic learning, and one of the preeminent centers of Sunni learning in the world. Sheikh El-Tayeb has been head of al-Azhar University since 2003. In a 2004 interview he stressed the importance of teaching about the diversity of the Islamic heritage and of opening channels of communication with European countries. El-Tayeb's new position places him as the leader of the entire al-Azhar, which includes educational institutions throughout Egypt.

Pope Sends Pastoral Letter To Irish Catholics Addressing Clergy Sexual Abuse

Vatican Radio reports that Pope Benedict XVI today sent a Pastor Letter to all Catholics in Ireland apologizing for the sexual abuse of young people by Catholic clergy, and for the way in which the matter was handled by local clergy and religious superiors. Last May, a special government commission released a lengthy report on abuse at Catholic institutions in Ireland from 1936 to the present. (See prior posting.) The Pope's letter (full text) charged Irish bishops with "grave errors of judgment" and "failures of leadership." According to BBC News, groups representing victims of abuse have a mixed reaction to the Pope's letter, with some believing that Irish Cardinal Sean Brady should resign because of his reported role in the cover up of abuse charges. Others, however, pointing to the passage in the letter instructing bishops and religious superiors to "cooperate with civil authorities in their area of competence," say this means the Pope believes that those guilty of sexual abuse should face criminal prosecution.

Court Rejects Street Preachers' Challenge To Permit Ordinance

In Bethel v. City of Montgomery, 2010 U.S. Dist. LEXIS 24949 (MD AL, March 2, 2010), two street preachers challenged the requirement imposed by Montgomery, Alabama that they obtain a permit before preaching on public streets. A federal magistrate judge rejected their facial challenge to the ordinance, concluding it is a neutral time, place and manner restriction that is permissible under the First Amendment. The magistrate judge also rejected plaintiffs' equal protection and Fourth Amendment claims, recommending that the complaint be dismissed.

Suit Over School Rules That Banned Pro-Life T-Shirt Is Settled

Alliance Defense Fund on Wednesday announced the settlement of a lawsuit challenging the policies of a Pennsylvania school district under which a middle school student was told to remove a pro-life T-shirt which carried the message: "Abortion is not Healthcare." (See prior posting.) The Notice of Voluntary Dismissal in E.B. v. West Shore School District, (MD PA, filed 3/17/2010), says that the school district has revised it policy on school expression to eliminate a provision that allowed officials to ban expression that seeks to establish the supremacy of a particular religious denomination or viewpoint. The school district also revised its dress and grooming policy to eliminate a a ban on clothing that creates a hostile educational environment or displays discriminatory bias or animus.

Council Considering Policy on Proclamations for Religious Holidays

In North Miami Beach, Florida, city council's multicultural committee submitted recommendations Tuesday for a council policy on issuing proclamations recognizing religious holidays. Yesterday's Miami Herald reports that under the proposal, council would issue an official proclamation for only one holiday for each religion. The report generated some controversy however because it provides that proclamations should be issued fairly, for holidays of "all legal recognized religions." Committee chairman, Thomas Pinder, says this means no proclamations should be issued for religions considered to be cults or known to practice illegal acts as part of their ceremonies or worship. The report calls for a subcommittee to identify the various religions practiced by North Miami Beach residents, and for it to specify the one main holiday that should be recognized by the council for each of the religions.

Belgian Court Suspends Ban On Islamic Headscarves

Yesterday, Belgium's Council of State suspended a ban on Islamic headscarves that had been imposed on Muslim school girls in the Dutch-speaking region of Flanders. Earth Times reports that the Flanders regional educational council imposed the ban last year after teachers complained that some parents were forcing their daughters to wear the headscarves against their will. In ruling on a challenge to the order, the Council of State said it is not clear whether the educational council had the authority to issue the ban. The Council of State referred to the Constitutional Court the question of whether action by the Flemish Parliament was required before the ban could be imposed.

EEOC Gets Consent Decree In Suit Charging Anti-Semitic Harassment

On Wednesday, the Equal Employment Opportunity Commission announced the filing of a consent decree in a lawsuit against Administaff, a company that provides human resource services for small and medium size businesses. The company will pay $115,000 in damages to settle allegations that two brothers employed by the company were subjected to harsh anti-Semitic harassment by managers and co-workers. For example, one of the brothers was forced into a trash bin for the amusement of managers in an activity they called "throw the Jew in the dumpster." (See prior posting.) The consent decree also enjoins Administaff from engaging in religious harassment or retaliation. The company will revise its policies, post non-discrimination notices, and train its managers on anti-discrimination laws. [Thanks to Michael Lieberman for the lead.]

Episcopal Church Wins Title To Property of Break-Away Connectiuct Parish

A Connecticut trial court ruled this week that the real and personal property of Bishop Seabury Episcopal Church in Groton, Connecticut, belongs to the Diocese of Connecticut and the Episcopal Church. Episcopal Life reports on the March 15 decision. In 2007, the congregation's former rector and some parish members broke away from the Episcopal Church and affiliated with the more conservative Convocation of Anglicans in North America.

Quebec Presses Government-Funded Day Cares To Be Secular

Wednesday's Canadian Jewish News reports on the confusion in the province of Quebec over a new ban on teaching of religion at publicly funded day cares for young children. Pressed by Parti Québécois, Quebec Families Minister Tony Tomassi's issued a statement on March 10 requiring day cares to be secular. He said that 20 day cares in Quebec were known to be including improper religious content. This was followed up by a unanimous National Assembly motion confirming Tomassi's announcement. However, two days later, in a meeting with Jewish community representatives, Tomassi said that so far as he could tell, Jewish day cares are in compliance with the requirement. Tomassi has not made clear whether day cares are merely prohibited from instilling religious beliefs, or whether they are also banned from holding holiday celebrations or having religious symbols in the classroom. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Catholic Bishops, Nuns Split Over Health Care Bill

Groups within the Catholic Church in the United States have taken sharply opposing views on pending health care legislation. Yesterday's Boston Globe called the split between U.S. Conference of Catholic Bishops and leaders of the major Catholic women's religious orders "a rare public disagreement that will reverberate among the nation's 70 million Catholics." In a statement issued Monday, the Bishops said:

The status quo in federal abortion policy, as reflected in the Hyde Amendment, excludes abortion from all health insurance plans receiving federal subsidies. In the Senate bill, there is the provision that only one of the proposed multi-state plans will not cover elective abortions – all other plans (including other multi-state plans) can do so, and receive federal tax credits. This means that individuals or families in complex medical circumstances will likely be forced to choose and contribute to an insurance plan that funds abortions in order to meet their particular health needs.

Further, the Senate bill authorizes and appropriates billions of dollars in new funding outside the scope of the appropriations bills covered by the Hyde amendment and similar provisions.... Additionally, no provision in the Senate bill incorporates the longstanding and widely supported protection for conscience regarding abortion as found in the Hyde/Weldon amendment. Moreover, neither the House nor Senate bill contains meaningful conscience protection outside the abortion context. Any final bill, to be fair to all, must retain the accommodation of the full range of religious and moral objections in the provision of health insurance and services that are contained in current law, for both individuals and institutions.

This analysis of the flaws in the legislation is not completely shared by the leaders of the Catholic Health Association. They believe, moreover, that the defects that they do recognize can be corrected after the passage of the final bill. The bishops, however, judge that the flaws are so fundamental that they vitiate the good that the bill intends to promote. Assurances that the moral objections to the legislation can be met only after the bill is passed seem a little like asking us, in Midwestern parlance, to buy a pig in a poke.

A letter supporting the bill from the heads of women's religious orders representing 59,000 nuns was sent yesterday to all members of Congress. It says in part:

The health care bill that has been passed by the Senate and that will be voted on by the House will expand coverage to over 30 million uninsured Americans. While it is an imperfect measure, it is a crucial next step in realizing health care for all. It will invest in preventative care. It will bar insurers from denying coverage based on pre-existing conditions. It will make crucial investments in community health centers that largely serve poor women and children. And despite false claims to the contrary, the Senate bill will not provide taxpayer funding for elective abortions. It will uphold longstanding conscience protections and it will make historic new investments – $250 million – in support of pregnant women. This is the REAL pro-life stance, and we as Catholics are all for it.

As the bishops's statement indicates, the Catholic Health Association, representing Catholic hospitals and health care systems, has also urged passage of the current bill in a letter sent to members of the House of Representatives last week.

UPDATE: Taking issue with the letter from the heads of numerous women's religious orders, the Council of Major Superiors of Women Religious issued a statement on Thursday backing the Bishops' opposition to the pending health care bill. [Thanks to Aaron Cole for the lead.]

Britiain Moves To Strengthen Voice of Faith-Based Groups In Government

In Britain, Communities Secretary John Denham yesterday announced a series of steps to help faith groups have their voices heard by government. The Department of Communities and Local Government has set up a £1 million Faith Leadership in Government Fund. National faith-based organizations are invited to bid for grants to strengthen their capacity to engage and challenge government. A £50,000 Innovation in Faith-Based Social Action Prize has been created to call attention to innovative faith-based projects. Finally the Department has released a 3-page paper countering some of the common myths about faith-based funding. The British Humanist Association released a statement criticizing these developments, arguing that "faith groups already enjoy a privileged voice in the ear of government." [Thanks to Scott Mange for the lead.]

Senate Defeats Attempt To Reauthorize D.C. School Voucher Program

Yesterday, by a vote of 42-55, the U.S. Senate defeated an amendment to the Federal Aviation Administration bill that would have reauthorized the District of Columbia's Opportunity Scholarship program. The amendment was proposed by Sen. Joseph Lieberman. (Congressional Record debate.) Last March, in the budget bill, Congress provided that the Opportunity Scholarship school voucher program would end after the 2009-10 school year, unless reauthorized. (See prior posting.) More than half the students receiving scholarships use their vouchers at religious-- mostly Roman Catholic-- schools. In a press release applauding the Senate vote, American United executive director, Rev. Barry Lynn, said: "Not only has the program failed to boost achievement among its targeted population, it also has forced taxpayers to support religious schools against their will."

Priest's Salary Claim Dismissed As Requiring Interpretation of Canon Law

In Tarasi v. Jugis, (NC Ct. App., March 16, 2010), a North Carolina appellate court dismissed a claim by a Catholic priest that his Bishop violated the state's Wage and Hour Act by refusing to assign him to a congregation or pay him a salary, despite a direction from the Vatican to do so. The instructions from the Vatican called for the Bishop to provide the priest "with an adequate means of livelihood and the appropriate necessities as envisioned in canons 281 § 1 and 384 of the Code of Canon Law, and that which is established by Diocesan Particular law regarding the sustenance of clergy." The court held that the First Amendment precludes it from taking jurisdiction. Determining the amount of compensation to which plaintiff is entitled would require the court to interpret canon law.

Jewish Groups Want Title VI Interpreted To Cover Anti-Semitic Harassment of Students

Thirteen national Jewish organizations yesterday wrote to U.S. Secretary of Education Arne Duncan urging the Department's Office of Civil Rights (OCR) to interpret Title VI of the 1964 Civil Rights Act to protect Jewish students from anti-Semitic harassment. (Full text of letter.) Title VI prohibits discrimination on the basis of race, color or national origin by educational institutions that receive federal funds. However, Title VI does not mention religious discrimination.

In 2004, OCR said Title VI covers discrimination against Jewish students even if they are Caucasian and American born. This is consistent with the U.S. Supreme Court's holding in the 1987 case of Shaare Tefila Congregation v. Cobb that held Jews could make a racial discrimination claim under a 19th century federal law. Subsequently OCR backed away from that interpretation, contending that it could investigate harassment motivated by a student's perceived Jewish ethnic origin, but not harassment because of a student's Jewish religious beliefs or practices. (See prior posting.) By July 2009, OCR had gone even further and apparently now takes the position that Title VI does not cover any kind of anti-Semitic harassment. In yesterday's letter, the Jewish groups wrote:

We urge you to review OCR's change in policy for enforcing Title VI. To Jewish students, the narrowed policy means that that they must endure a hostile educational environment because the law, while protecting other ethnic and racial groups, offers them no protection—even when intimidation or harassment is directed at them based on ethnic, as opposed to religious, identity. The government's message to campus perpetrators of anti-Semitic harassment, intimidation and discrimination is that they may continue to do what they are doing, because colleges and universities have no legal obligation to respond to their hateful conduct....

The letter also focused on the issue of when anti-Semitic harassment disguised as anti-Israel expression loses First Amendment protection:

[C]onduct that threatens, harasses or intimidates particular Jewish students to the point that their ability to participate in and benefit from their college experience is impaired should not be deemed unactionable simply because that conduct is couched as "anti-Israel" or "anti-Zionist." ... [H]arassment or intimidation that holds Jewish students responsible for the acts of other Jews, or of Israel, is better understood as ethnic or "national origin" discrimination than as religious discrimination.

An ADL press release announced the letter. [Thanks to Michael Lieberman for the lead.]

British Court Orders Commission To Consider Exemption For Catholic Adoption Agency

In Britain, Catholic Care, a Catholic adoption agency operating in South Yorkshire has won an appeal of a Charity Commission's refusal to grant it an exemption from the Equality Act (Sexual Orientation) Regulations 2007. Yesterday's Yorkshire Post reports that a High Court judge sitting in London has ordered the Charity Commission to review its determination. Catholic Care offers specialized adoption services, and is the last of the Catholic adoption agencies in Britain to continue the fight against regulations that would require them to allow adoptions by same-sex couples. Catholic agencies elsewhere in Britain have either stopped offering adoption services or have cut their ties with the Catholic Church in order to continue in business. [Thanks to Scott Mange for the lead.]

Free Exercise Claims of Muslim Parents Against Police Officials Dismissed

In Syed v. Hamady, 2010 U.S. Dist. LEXIS 23353 (ND IN, March 12, 2010), and Indiana federal district court dismissed claims by a Muslim couple against a police officer and a sheriff who they claimed violated their rights to free exercise of religion, free expression and freedom of assembly. The court also rejected defamation and infliction of emotional distress claims. The free exercise claim grew out of a statement made at a school board meeting by the police officer and others objecting to the fact that plaintiffs' children were given time to pray at school, while non-Muslim children were not. Other claims revolved around publicity of the fact that a van which picked up plaintiffs' children from school on one occasion had license plates that were on the FBI's terrorist watch list.

9th Circuit Defines Ministerial Exception For Employment Cases

In Alcazar v. Corporation of the Catholic Archbishop of Seattle, (9th Cir., March 16, 2010), the U.S. 9th Circuit Court of Appeals dismissed under the "ministerial exception" doctrine claims by two Catholic seminarians who alleged violations of Washington state's Minimum Wage Law. The two claimed that they were not paid required overtime wages while they served in a placement program as part of their preparation for the priesthood. The Court held that the religion clauses of the 1st Amendment compel a ministerial exception from neutral statutes that interfere with the church-clergy employment relationship. It also announced a test for determining whether an individual is a minister for purpose of the doctrine:

if a person (1) is employed by a religious institution, (2) was chosen for the position based "largely on religious criteria," and (3) performs some religious duties and responsibilities, that person is a "minister" for purposes of the ministerial exception.

[Thanks to Mark Scarberry via Religionlaw for the lead.]

Amicus and Party Briefs In Christian Legal Society Case All Now Available Online

All of the amicus briefs, as well as the briefs of the parties, have now been filed with the U.S. Supreme Court in Christian Legal Society Chapter v. Martinez. The full text of all the briefs are available online from the ABA's website: 22 amicus briefs support Petitioner; 12 support Respondent; and one is in support of neither party. In the case, which is scheduled for oral argument in the Supreme Court on April 19, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition.

Court Rejects Appeal, Decrying Trial Tactics, In Dispute Over Sikh Temple Board

Brar v. Sedey, (TX App., March 15, 2010), is a lawsuit in which Jasdeep Singh, a member of the board of directors of a non-profit corporation that operates a Sikh Temple, was removed from the board by a vote of fellow board members. Singh sued claiming his removal violated the Temple's bylaws. The trial court granted a temporary injunction finding it likely that Singh would prevail on the merits because less than two-thirds of the board members voted for his removal. Defendants then filed a motion for rehearing and argued the court lacked jurisdiction because deciding the case would unconstitutionally entangle the court in matters of church doctrine. Instead of waiting for a ruling on this jurisdictional defense, defendants appealed the temporary injunction. The court dismissed the appeal, criticizing defendants' litigation tactics. They could have gone to trial in the case 3 months before the appeal was argued, but they instead sought a continuance in order to obtain an interlocutory appellate ruling.

Suit Charges Wrongful Prosecution For Use of Annointing Oil In Courtroom

In Mt. Pleasant, Michigan, John C. Ridgeway has filed a lawsuit in state court against local police and prosecutors charging wrongful imprisonment, malicious prosecution, abuse of process and violation of First Amendment speech, free exercise and assembly rights. According to yesterday's Bay City Times, his lawsuit was filed after a jury acquitted him on charges of assaulting police and public officials. Those charges grew out of a misdemeanor traffic case in which Ridgeway represented himself. As the jury was about to deliver its verdict, Ridgeway took out a vial of oil, rubbed it on his fingertips and then on the defense table. He also insisted on shaking hands with an assistant prosecutor, the bailiff and the officer who had given him the traffic ticket. Soon after, all three suffered nausea, headaches, numbness and tingling. Ridgeway says he was using anointing oil-- virgin olive oil blessed by Pastor Pete Peters of the La Porte Church of Christ in La Porte, Colorado. The pastor urged his followers to use the oil to cast evil out of government buildings, including courthouses.

Morocco Deports Foreigners Living At Orphanage For Christian Proselytizing

Yesterday's Los Angeles Times reports that 16 foreign nationals who were part of the Village of Hope orphanage in the town of Ain Leuh were deported from Morocco last week for proselytizing. Apparently the charges were filed in part because the children at Village of Hope were reading Bible stories from a children's Bible. The 33 children at the orphanage were living in family units with different adult couples there. The government claims the foreigners exploited poverty-stricken families in order to convert their children to Christianity. Morocco's minister of communication, Khalid Naciri, said the country would "continue to take stern action against anyone who toys with the religious values" of the nation, whose official religion is Islam. Herman and Jellie Boonstra, a Dutch couple who lived at the orphanage had eight children in their care. Herman says that while the children were familiar with Christianity because they grew up with the Christian family, he did not intend to convert them.

Ireland To Hold Referendum On Blasphemy Provision In Constitution

Ireland's Justice Minister announced Sunday that the country will hold a referendum this fall on removing a blasphemy ban from the Constitution. Yesterday's London Guardian reports that the advocacy group Atheist Ireland particularly welcomed the announcement. When Ireland's new more lenient blasphemy law took effect in January, the group responded by publishing on its website 25 blasphemous statements from famous figures in history. (See prior posting.) Currently Ireland's Constitution (Sec. 40) requires that the country have a blasphemy law.

Town Will Change Law To Permit Small Churches To Meet In Residences

Responding to an appeal (full text) filed by the Alliance Defense Fund with the Board of Adjustment, the Gilbert, Arizona Town Council announced yesterday that it will move quickly to change the town's zoning code to permit small church groups to meet in individual homes. The Arizona Republic yesterday describes Council's statement as "extremely apologetic." The issue arose when Gilbert's zoning administrator upheld a cease-and-desist order issued to the Oasis of Truth Church. The administrator said that the church's religious services for 10 to 15 people on a rotating basis at the pastor's home constitute a "religious assembly" under the town zoning ordinance, and that Bible study, church leadership meetings and fellowship activities were "church-sponsored activities," all of which are prohibited in single-family residences. To show their concern over the order issued to Oasis of Truth, the town's mayor and acting town manager attended Sunday services there this past week end.

New Briefing Urges End To Bishops In House of Lords

The British Humanist Association yesterday released a new briefing paper titled Religious Representatives in the House of Lords. It argues:

The presence of Church of England in the House of Lords entrenches a privileged position for one particular branch of one particular religion that cannot be justified in today’s society, which is not only multi-faith but increasingly nonreligious.It is at odds with the aspiration of a more legitimate and representative second chamber and with recognition of a plural society.

According to BHA, a recent poll in Britain found that 74% of people think it is "wrong" for Bishops to be given an automatic seat in the Lords, and 48% say it is not important for Church of England Bishops to have seats at all. Community Newswire reports on the poll.

Swiss Muslims To Sue To Obtain Separate Cemeteries

World Radio Switzerland reported yesterday that the Conference of Islamic Organizations of Switzerland is planning to sue to require all Swiss cantons to create separate Muslim cemeteries. The move comes after a suburb of Bern refused to create a separate burial ground as require by Islamic law. The Muslim group says this violates their protected freedom of religion.

Israel Passes Civil Union Bill For Those With No Recognized Religion

Under Israeli law, marriage is handled by religious authorities of each recognized religious community-- Jewish, Christian, Muslim and Druze. Israel has had no civil marriage, though civil marriages performed in other countries are recognized. (Background.) Israel's Knesset yesterday by a vote of 56-4 passed a civil union bill that allows a man and woman both of whom have no religious affiliation to, for the first time, enter a civil union though a new marriage registrar bureau. The bill was introduced by the Israel Beiteinu party. The bill passed with the two major Jewish religious parties that are part of the governing coalition-- Shas and United Torah Judaism-- not voting because no agreement had been reached on a controversial companion bill on conversion. Today's Jerusalem Post and YNet News report on the complex situation. Opponents of the civil union bill are concerned that it would increase the power of the Chief Rabbinate by allowing it a say in whether a person in fact was not a member of a religious community. The bill will apply primarily to individuals who consider themselves to be Jewish, but who do not meet the Orthodox halachic criteria for being considered Jewish. Opponents are also concerned over how these civil unions will be recognized in other countries.

Two Religious Land Use Disputes In Northern New Jersey

In northern New Jersey, one land use dispute was settled while a lawsuit was filed in another. In Englewood (NJ), two lawsuits between the town and a neighborhood group over expansion of East Hill Synagogue and the synagogue's use of tents for events on its property have been settled. NorthJersey.com last week reported that neighbors objected to Planning Board decisions that allowed the synagogue to expand its seating for 123 to 225, and to put up tents in the parking lot 12 times per year. The neighborhood group argued, among other things, that some members of the Planning Board had conflicts of interest because they were members of a synagogue that was affiliated with East Hill. Under the settlement, tents can be put up six times per year, with various restrictions on timing and a ban on outdoor music.

Meanwhile, in Ridgefield Park (NJ), the owner of a 2-story building that houses a donut and an ice cream store have filed suit because the village Planning Board refuses to permit rental of a back office in the building to a church group, the Go Ahead Mission. According to NorthJersey.com yesterday, the building owner claims that the refusal to grant a variance is related to the fact that he is Korean.

Boiler Plate AG Endorsement of Church Property Sale Found Insufficient

A New York trial court has rejected the apparently routine method by which the state Attorney General's office gives its statutorily required consent to the sale of real property by non-profit religious corporations. The New York Religious Corporations Law, Sec. 12(a)(1), requires religious corporations to obtain court approval for sale, mortgage or lease of real property. The procedures for court approval, in Sec. 511 of the Not-For-Profit Corporation Law, call for the court to require at least 15 days notice to the attorney general. In Matter of The House of The Lord and Church On The Mount, Inc., (Sup. Ct. Kings Co., March 10, 2010), a church's ex parte petition to sell a property it owns for $595,000 was accompanied by a proposed order that included a rubber stamped and signed endorsement from the attorney general's office stating:

The Attorney General hereby appears herein, has no objection to the granting of judicial approval hereon, acknowledges receipt of statutory notice, and demands service of all papers submitted herein ... conditioned on submission of the matter to the court within 30 days hereafter....

An apparently puzzled court refused to grant the order, instead directing service on the Attorney General. The court explained that it "does not deem the pre-printed text and hand written entries to satisfy the notice requirements of N-PCL § 511(b). At the very least, the Court would require an affirmation or affidavit from someone with personal knowledge explaining the circumstance and the import of the text and signatures as it pertains to the notice requirements to the Attorney General."

Samoa To Look Into Freedom of Religion

Radio New Zealand reported yesterday that the government of Samoa has approved creating a Commission of Inquiry to review freedom of religion. The Cabinet set up the Commission because of concern that new religions advocating beliefs contrary to Christianity may arrive in the country.

Some Non-Muslims Use Britain's Muslim Arbitration Tribunal

Yesterday's London Times reports that 20 non-Muslims used Britain's Muslim Arbitration Tribunal (MAT) to resolve their legal disputes last year. This is a 15% increase over the prior year. The MAT operates under Britain's Arbitration Act. Meanwhile, the One Law for All Campaign has 22,000 signatures on a petition in opposition to religious tribunals of any sort operating in Britain.

Recent Articles of Interest

From SSRN:

• Alice Ristroph & Melissa E. Murray, Disestablishing the Family, (Yale Law Journal, Forthcoming).
• Noa Ben-Asher, Legal Holes, (Ubound, Vol. 5, No. 1, 2009).
• Olatunde C. Johnson, The Story of Bob Jones University v. United States: Race, Religion, and Congress’ Extraordinary Acquiescence, (February 12, 2010).

From SmartCILP and elsewhere:

• Anita S. Krishnakumar, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon, 51 William & Mary Law Review 1053-1111 (2009).
• Ronan McCrea, Religion as a Basis of Law in the Public Order of the European Union, 16 Columbia Journal of European Law 81-119 (2009/2010).
• Alan C. Lazerow, Give and "Get"? Applying the Restatement of Contracts to Determine the Enforceability of "Get Settlement" Contracts, 39 Baltimore Law Review 103 (2009).

Religious Group Lacks Standing To Sue For-Profit Board For Breach of Duty

The Eugene, Oregon Register-Guard reported yesterday on a state trial court decision denying standing to the religious non-profit organization Sikh Dharma International in its lawsuit against the head of the for-profit natural foods company, Golden Temple, and three members of the Unto Infinity board. Unto Infinity was charged with overseeing the businesses operated by the Sikh spiritual community created by Yogi Bhajan. Golden Temple has 330 employees in Oregon, 100 in Europe, and annual revenues of $125 million. The lawsuit charges that defendants are breaching their fiduciary duties through enriching themselves at the expense of the community's assets. Still pending before the court is the question of whether individual Sikh ministers who are members of Sikh Dharma International have standing to pursue the claims separate from the organization. The court is expected to issue its preliminary views on that issue before a scheduled May hearing.

Recent Prisoner Free Exercise Cases

In Redd v. Wright, (2d Cir., March 9, 2010), the 2nd Circuit Court of Appeals upheld the granting of qualified immunity to prison officials who placed a "TB hold" (cell lock down) on an inmate after he refused on religious grounds to submit to a TB test.

In Aldin v. Brink, 2010 U.S. Dist. LEXIS 20204 (SD IL, March 5, 2010), an Illinois federal district court permitted a Muslim prisoner to move ahead with his retaliation and free exercise claims. Plaintiff claimed he was not permitted to say his Friday prayers in the prison chapel and was threatened by other inmates when he attempted to pray elsewhere. He claims he was denied the opportunity to participate in Ramadan, and denied prayer rugs and a Qur'an. He also alleged retaliation for a prior complaint about religious accommodation.

In Candelaria v. Baker, 2010 U.S. Dist. LEXIS 19870 (WD NY, March 5, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 19981, Feb. 9, 2010), and rejected a free exercise claim by an inmate who, as a dialysis patient, was prescribed a special renal diet. The inmate insisted on fasting in fulfillment of a religious vow. Excessive fasting makes the diet ineffective, and officials insisted that he stop his fasting practices in order to receive the diet. The court also rejected a claim that a misbehavior report was a result of the inmate exercising his religious beliefs regard his hairstyle.

In Curry v. California Department of Corrections & Rehabilitation, 2010 U.S. Dist. LEXIS 20798 (ND CA, Feb. 10, 2010), a California federal district court held that an inmate who practices the Shetaut Neter faith (an Ancient African Religion) could proceed with his RLUIPA, Free Exercise, Establishment Clause and Equal Protection claims. He alleged that authorities denied him a religiously required vegan diet and incense oils for religious rituals.

In Indreland v. Bell, 2010 U.S. Dist. LEXIS 20618 (D MT, Jan. 12, 2010), a Montana federal magistrate judge recommended dismissal of an inmate's claims that he was denied his Satanist medallion, the detention center staff placed Christian greeting cards under his cell door, and he was held in maximum security due to his religious beliefs. The court reserved judgment pending further briefing on his claim that he was denied access to a Satanic Bible.

In Johnson v. DeRose, 2010 U.S. Dist. LEXIS 21337 (MD PA, March 9, 2010), a Pennsylvania federal district court allowed an inmate to proceed on a claim that his free exercise rights were violated by denial of a Bible and denial of access to Mass.

In Black v. Camon, 2010 U.S. Dist. LEXIS 21259 (MD GA, March 9, 2010), a Georgia federal district court adopted a federal magistrate's recommendation (2010 U.S. Dist. LEXIS 21258, Feb. 9, 2010) and dismissed an inmate's claim that he was forced to attend a Christmas ceremony that included Christian prayer and a religious sermon.

In Brown v. Vail, 2010 U.S. Dist. LEXIS 20997 (ED WA, Feb. 19, 2010), a Washington federal magistrate judge refused to order a state prison to supply a Passover Seder box for an indigent Jewish prisoner. The prison allowed inmates to purchase Seder boxes or to have them donated by religious organizations.

In Comundoiwilla v. Evans, 2010 U.S. Dist. LEXIS 21884 (ED CA, Feb. 22, 2010), a California federal magistrate judge permitted a Muslim inmate to proceed with a claim under RLUIPA challenging restrictions on his wearing a beard and long hair. Plaintiff was permitted to file an amended complaint alleging he was prevented from attending Jum'ah prayer services.

In Cranford v. Hammock, 2010 U.S. Dist. LEXIS 22554 (ND FL, March 11, 2010), a Florida federal district court dismissed claims by a Muslim inmate who alleged that Jum'ah services were cancelled on one occasion, that when he complained the chaplain cancelled Taleem study classes and stopped making the chapel available for day prayers. Defendants say the changes were instituted because of a lack of staffing.

In Moro v. Winsor, 2010 U.S. Dist. LEXIS 22611 (SD IL, March 10, 2010), an Illinois federal magistrate judge denied an inmate's motion for a new trial in a case that he lost challenging prison practices. Plaintiff, a practitioner of the Ordo Templi Orientis, claimed he was denied access to religious items and books, worship services and the ability to celebrate feasts. The court approved of jury instructions that required the jury to find plaintiff had a sincere religious belief and finding that defendants' wrongful conduct was the proximate cause of plaintiff's injury.

In Rogers v. United States, 2010 U.S. Dist. LEXIS 21918 (WD PA, March 10, 2010), a Pennsylvania federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 22474, Feb. 9, 2010) and refused to dismiss plaintiff's free exercise and equal protection claims growing out of the alleged denial of Halal meat in celebration of Eid-ul-Adha in January 2006. A number of other claims were dismissed.

In Foster v. Berry, 2010 U.S. Dist. LEXIS 22383 (CD CA, March 9, 2010), a California federal district court accepted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 22388, Jan. 21, 2010), and dismissed an inmate's free exercise and RLUIPA claims when he merely alleged that defendants did not let him "go to his religion."

San Joaquin Episcopal Diocese Sues To Recover Property of Another Parish

The reorganized continuing Episcopal Diocese of San Joaquin, California, continues to file lawsuits to reclaim property of break-away parishes. Episcopal Life reported on Friday that the diocese has filed suit in state court against St. Columba's Church in Fresno, one of the 40 congregations that broke away to affiliate with the more conservative Province of the Southern Cone. The diocese has previously sued two other break-away parishes as well as former bishop, John-David Schofield. (See prior posting.).

D.C. Catholic Charities Requires New Hires To Support Church Tenets

Yesterday's Washington Post reports that Washington, D.C.'s Catholic Charities has begun to require newly hired employees to sign a letter promising that they will not "violate the principles or tenets" of the Catholic Church. A spokesman says this is consistent with the organization's past policies. Catholic Charities receives millions of dollars of government funding for its social service activities. Bush administration policy allowed religious organizations receiving federal funds to engage in faith-based hiring. (See prior posting.) The Obama administration, which has been urged by many to reverse that policy for employees within federally funded programs, is apparently reviewing the question on a case-by-case basis. (See prior posting.)

Anti-Semitic Handbills Attack Jewish Legislators Who Support Gun Control

Today's Baltimore Sun reports on anti-Semitic handbills available on the website of the organization Jews for the Preservation of Firearms Ownership (JPFO). Three of the 39 handbills available from the website attack Jewish legislators-- state and federal-- for their support of firearms regulation. One attacks Maryland state Senator Brian Frosh and Marlyland state Assembly Delegate Samuel Rosenberg, proclaiming "Bagel Brain Jews Want Your Bullets and Your Guns." This flyer has been mailed by someone to homes in Frosh's district. A second flyer aimed at Maryland state Senator Michael Lenett is headlined "A Jew Should Not Support Racism!" and refers readers to a video titled "No Guns for Negroes." A third flyer portrays U.S. Senators Feinstein, Schumer, Boxer and Lautenberg in Nazi uniforms. The executive director of JPFO is Aaron Zelman of Hartford, Wisconsin, who says he is Jewish.

EEOC Sues Company On Behalf of Fired Mennonite Baptist Employee

The EEOC announced on Thursday that it has filed a religious discrimination lawsuit against the Pollard Agency, an Alabama-based security company. The company fired Marian Lawson who had been assigned to a client in Monticello, Ga. Pollard refused to accommodate her request that she be permitted to cover her hair with a scarf in accordance with her Mennonite Baptist beliefs.

Argentine Court Invalidates Marriage of Same-Sex Couple

According to a CNA report this week, a federal judge in Argentina has nullified the same-sex marriage of two men that was performed at Buenos Aires' Civil Registry earlier this month. The court ruled that the marriage was invalid "because of the absence of the institution's structural elements." The court ordered the men to return their marriage license and ruled that any legal effects derived from the marriage ceremony are suspended. The marriage was originally performed after a City Court judge ordered the Civil Registry to provide the couple with a date for their ceremony. (Buenos Aires Herald.)

Court Says Non-Custodial Parent May Share Religion With Child

In D.R.S. v. L.E.K., (LA App., March 10, 2010), a Louisiana state appellate court held that a parent holding court-awarded custody of a child generally may not shield the child from exposure to the non-custodial parent's religious beliefs. The court said:

Though the custodial or domiciliary parent may raise the child in a legitimate religion of his/her own choosing, that parent may not force that religion or religious affiliation upon the noncustodial parent or preclude the noncustodial parent from pursuing his/her own religious affiliation and sharing same with the child provided doing so does not negatively affect the best interests of the child. There is no statutory nor jurisprudential authority to support the trial court's ruling that the custodial or domiciliary parent has the sole authority to mandate "what belief system is presented to the child in . . . any home in which the child visits or resides."

Oklahoma Senate Passes Bill Rejecting Cooperation With Feds On Intimidation Investigations

The Oklahoma state Senate earlier this week passed by a vote of 39-6 Senate Bill 1965 [Word doc.] which is designed to prevent Oklahoma law enforcement officials from cooperating with federal agencies that attempt to prosecute individuals under 18 USC Sec. 245 when the state has investigated the crime but has not prosecuted, or has not obtained a conviction under state's intimidation and harassment law. Sec. 245 outlaws intimidation of a person engaged in federally protected activities because of race, religion or national origin. Both a press release from Oklahoma state Sen. Steve Russell and an article Friday in The Edge says that the bill is designed to prevent cooperation with federal prosecutions under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. However that law is codified as 18 USC 249. The provisions passed by the state Senate and sent on the the House on March 10 provide:

law enforcement agencies shall deny access to law enforcement records to any federal agency when such request is made relating to a case handled and completed by a law enforcement agency of this state and the purpose is to attempt to investigate or prosecute the individual or individuals pursuant to 18 U.S.C. Section 245, except for records of any individuals convicted pursuant to Section 850 of Title 21 of the Oklahoma Statutes and for those records listed in subsection A of this section....

[State law enforcement officials] shall keep their litigation files and investigatory reports confidential upon request of any federal agency when such request is made for the purpose of an attempt to investigate or prosecute an individual or individuals pursuant to 18 U.S.C. Section 245, except for those records of any individuals convicted pursuant to Section 850 of Title 21 of the Oklahoma Statutes.

EEOC Says New York City Discriminated Against Arabic Language School Principal

According to today's New York Times, the U.S. Equal Employment Opportunity Commission has concluded that New York City's Department of Education (DOE) discriminated against the founding principal of a controversial Arabic-language public school when it fired her. The EEOC concluded that DOE discriminated on the basis of race, religion and national origin when it forced Debbie Almontaser, a Muslim of Yemeni descent, to resign as principal of the Khalil Gibran International Academy in Brooklyn. According to the EEOC's letter urging DOE to reach a just resolution of Almontaser's claims, opponents of the dual-language school succeeded in falsely painting Almontaser as a jihadist, instead of as the moderate Muslim that she was. Misleading characterization of remarks by Almontaser in a New York Post article triggered anti-Muslim bias that led to the Department of Education's action. (See prior related posting.) DOE says it did not discriminate against Almontaser, will not reinstate her and will defend against any litigation she brings.

Faith-Based Restriction Prevents Volunteer From Being Hired In Federally Funded Program

A Seattle Times article earlier this week personalizes the controversy over whether faith-based social service agencies may use religious criteria in hiring employees in federally funded programs. World Relief's U.S. activities, under contract with the State Department, resettle refugees from all cultural and religious backgrounds. The organization receives up to 70% of its funding from government sources. Saad Mohammad Ali worked for six months as a volunteer with World Relief in Seattle, Washington, helping resettle Iraqi refugees. However, when Ali, a Muslim who came to the U.S. from Iraq two years ago, applied for a job with Wold Relief as a case worker, he was told that the organization only hires Christians. While the agency's agreements with the State Department prohibit it from proselytizing, it says its hiring policy allows it to preserve its core identity and values. Also, employees say they often pray during staff meetings, and non-Christians might feel uncomfortable with that practice. Ali says he finds the policy to be in conflict with everything he has learned about the U.S.

Texas State Board Rejects Teaching About Establishment Clause

The Texas State Board of Education is meeting this week to debate the social studies standards for Texas schools. (Dallas Morning News.) In a surprise decision yesterday, the Board defeated by a 10-5 party line vote a proposal by Democratic member Mavis Knight that government classes teach about the Establishment Clause. Her proposal called for students to examine the reasons the Founding Fathers "protected religious freedom in America by barring government from promoting or disfavoring any particular religion over all others." Republicans on the Board said that Knight's proposal was based on an inaccurate interpretation of the Founder's intent and was a half-truth that would play down the importance of religion to the Founders. (Dallas Morning News.) Fox News reports that the final vote on this proposal and others will come in May after they are all posted for public comment.

UPDATE: On Friday, the Texas State Board of Education voted 11-4 to approve a new social studies curriculum which, according to the New York Times, "will put a conservative stamp on history and economics textbooks, stressing the role of Christianity in American history and presenting Republican political philosophies in a more positive light." Among the numerous changes, Thomas Jefferson was dropped from the list of those who inspired revolutions in the late 18th and 19th centuries. Added to the list of those to be mentioned are St. Thomas Aquinas, John Calvin and William Blackstone. The curriculum standards will now be published in the state register for 30 days of public comment. [Thanks to Scott Mange for the lead.]

Indiana Valedictorian Sues To Stop Graduation Prayer

The valedictorian at Greenwood High School in suburban Indianapolis, Indiana has sued to enjoin a planned prayer at this year's graduation ceremonies. Because of his class rank, plaintiff Eric Workman will likely be speaking at commencement. The complaint (full text) in Workman v. Greenwood Community School Corporation, (SD IN, filed 3/11/2010), alleges that again this year the school followed its practice of scheduling graduation prayer after conducting a vote by students. A preprinted ballot handed out at a school assembly contained questions on this and other issues. Workman argues that the school has subjected religious practice to majority vote in violation of the First Amendment. Yesterday's Indianapolis Star reported on the lawsuit that was filed on the student's behalf by the ACLU of Indiana.

State Department's 2009 Country Reports on Human Rights Released

The U.S. State Department yesterday released its 2009 Country Reports on Human Rights Practices, covering conditions in 194 countries around the world. Among the issues of religious freedom highlighted in the report's Introduction are China's tightening controls on independent Muslim religious leaders, sectarian attacks on Coptic Christians in Egypt, religious discrimination in Saudi Arabia, increasing anti-Semitism in Europe and South America, and discrimination against Muslims in some European countries. Jurist reports on the release.

Divided 9th Circuit Upholds Pledge Against Establishment Clause Challenge

In a 2-1 decision in Newdow v. Rio Linda Union School District, (9th Cir., March 11, 2010), the U.S. 9th Circuit Court of Appeals yesterday upheld against an Establishment Clause challenge the Pledge of Allegiance, including its reference to God, and the statutorily authorized practice in the Rio Linda (CA) School District of teachers leading students in the pledge each day. Students are permitted to refrain from participating in the recitation. The majority, in a 60 -page opinion by Judge Bea (joined by Judge Nelson), said:

We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge—its wording as a whole, the preamble to the statute, and this nation’s history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase "one Nation under God" does not turn this patriotic exercise into a religious activity

Accordingly, we hold that California’s statute requiring school districts to begin the school day with an "appropriate patriotic exercise" does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge.

In 2002, the 9th Circuit in another case invalidated on Establishment Clause grounds a different school's pledge-recitation policy. Ultimately that holding was reversed by the U.S. Supreme Court on standing grounds. In reaction to the 9th Circuit's opinion, Congress reenacted the Pledge with findings detailing secular reasons for it. (P.L. 107-293). The majority pointed to this history to distinguish its earlier holding.

Judge Reinhardt filed a strongly-worded 133-page dissent. He said in part:

[N]o judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words "under God" were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one.... Nor could any judge ... seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.

It is equally clear that no judge ... could legitimately rely on a 2002 "reaffirmation" to justify the incorporation of the words "under God" into the Pledge ... as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God, had never occurred.... In doing so [in 1954], we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us.

Today’s majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts.... [T]o the joy or relief ... of the two members of the majority, this court’s willingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights.

If a majority of the populace comes to believe in a patriotism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignoring its basic values, if it comes to embrace a practice of bringing together the many by forfeiting the rights of the few, then we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular.... I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all.

CNN reports on the decision. [Thanks to Scott Mange for the lead.]

9th Circuit Rejects Challenge To "In God We Trust" On Coins and Currency

In Newdow v. Lefevre, (9th Cir., March 11, 2010), the U.S. 9th Circuit Court of Appeals yesterday rejected an Establishment Clause challenge to the inscription of "In God We Trust" on U.S. coins and currency. It relied on a 1970 decision by the 9th Circuit that held the motto is patriotic or ceremonial, not theological or ritualistic. The court also rejected a challenge under the Religious Freedom Restoration Act. The court rejected on standing grounds plaintiff Michael Newdow's broader claim that the mere adoption of "In God We Trust" as the national motto was unconstitutional. Judge Reinhardt concurred only in the result.

Lawsuit Challenges Zoning Refusal For Bible Camp

Three brothers who have been refused zoning approval to build a year-round Bible camp and conference center that would serve youths with medical disabilities in the summers have filed a federal lawsuit challenging the refusal. The complaint (full text) in Eagle Cove Camp & Conference Center, Inc. v. Town of Woodboro, Wisconsin, (WD WI, filed 3/10/2010), alleges that the refusal to allow the camp on plaintiffs' Squash Lake property violates RLUIPA, the ADA, and constitutional equal protection and free exercise protections. Plaintiffs allege, among other things, that the town of Woodboro discriminates against missionary, outreach and evangelical religious exercise carried out by Bible camps. Yesterday's Rhinelander (WI) Daily News reported on the lawsuit. (See prior related posting.) [Thanks to Art Jaros for the lead.]

Cert. Filed In Dispute Over Display of Kindergartener's "Jesus" Poster

On Wednesday, a petition for certiorari (full text) in Peck v. Baldwinsville Central School District was filed with the U.S. Supreme Court. In the case, the 2nd Circuit dismissed a viewpoint discrimination lawsuit brought by parents who charged that a kindergarten teacher and a principal displayed their son's poster on environmental issues only after folding under a picture of Jesus on the poster so it was not visible. The court concluded that plaintiffs in their action for injunctive and declaratory relief had not shown a likelihood of future censorship or an official policy of regularly violating students' free speech rights. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition for review.

Egypt's Sheik Tantawi, Head of Al Azhar, Dies

According to the New York Times, Egypt's chief religious official, Sheik Mohamed Sayed Tantawi, died yesterday during a visit to Saudi Arabia. He was 81. As head of Egypt's most prestigious center of Islamic learning, Al Azhar, Tantawi held sway over government policy on which books and films should be banned. He worked with President Hosni Mubarak's government to enforce moderate interpretations of Islam, and was sometimes criticized for giving religious legitimacy to the government. Last year he banned female students at Al Azhar from wearing full face veils. (See prior posting.) Tantawi strongly condemned the 9-11 attacks and the 2005 London subway attacks. (See prior posting.) Tantawi's willingness to interact with Israelis made him a controversial figure.

Virginia Governor Backs Equal Employment Opportunity for LGBT

Less than a week after Virgina's attorney general told public colleges in the state that they may not ban discrimination based on sexual orientation, gender identity or gender expression (see prior posting), Virgina Governor Robert McDonnell has taken a somewhat different view. He issued Executive Directive 1 (2010) prohibiting employment discrimination by cabinet members or executive branch agencies. It reads in part:

The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.

The Culpepper (VA) Star Exponent reports on developments. The Directive expands on an earlier equal opportunity memo signed by McDonnell that did not explicitly mention sexual orientation. (See prior posting.) [Thanks to Scott Mange for the lead.]

Irish Pubs Want Good Friday Exemption For Rugby Viewers

Yesterday's London Mail reports that Ireland's ban on the sale of alcohol on Good Friday is creating significant problems for rugby fans. The much anticipated Munster v. Leinster match is scheduled for Good Friday, and while alcohol can be sold inside the stadium, that does not satisfy those who plan to watch the match in their local pubs. The Vintners Federation of Ireland is seeking a six-hour exemption for all licensed pubs in the Limerick city area. Pub owners believe that they may have to file a lawsuit to get the exemption.

Mandatory Premise Registration Violates Free Exercise Rights of Amish Farmer

In State of Wisconsin v. Miller, (WI Cir. Ct., March 10, 2010), a Wisconsin trial court held that the state's livestock premise registration requirements impose an impermissible burden on the religious beliefs of an Old Order Amish farmer who was cited for failure to comply with the registration provisions. Premise registration violated several Amish beliefs, including requirements they remain isolated from the modern world, that they rely on God not the government, and that they avoid the "Mark of the Beast." Relying on the free exercise protections of the Wisconsin Constitution, the court held that the state failed to establish that its interest in animal health cannot be met by alternative means that are less restrictive of farmer Emanuel Miller's free exercise of religion. The court concluded that alternative voluntary record keeping of the purchase, sale and transfer of animals is actually a more reliable alternative than mandatory premise registration. Tuesday's Milwaukee Journal-Sentinel reports on the decision, indicating that the state will probably file an appeal.

Canadian Advocate For Religious Use of Cannabis Profiled

Cannabis Culture yesterday carried a long article about Canadian Chris Bennett who has filed a lawsuit in Canadian federal courts seeking an order to compel the Minister of Justice to issue an exemption from Canada's Controlled Drugs and Substances Act for religious use of cannabis. Alternatively the suit seeks a declaration that the ban on possession and production of marijuana is unconstitutional under Canada's Charter of Rights and Freedoms (Sec. 2, religious freedoms; Sec. 7, liberty and security of the person; and Sec. 15, guaranteeing equality and prohibiting discrimination on the basis of religious belief).

Church's Misrepresentations Do Not Get Former Employee Unemployment Benefits

In Irvine v. St. John's Lutheran Church of Mound, (MN Ct. App., March 9, 2010), a Minnesota appellate court held that a former business administrator of a church was not entitled to unemployment compensation benefits even though the church's employment handbook indicated the church paid unemployment taxes and implied that employees would receive unemployment benefits if they lost their job through no fault of their own. Under Minnesota's statutes, church employees are eligible for unemployment benefits only if the church elects coverage. Here the church did not elect coverage. Incorrect representations to employees regarding coverage are not binding on the state. [Thanks to Chris Duckworth for the lead.]

Religious Land Use Disputes Continue To Arise: Michigan Church, Connecticut Chabad House

Zoning disputes involving religious institutions continue to arise around the country. Here are two recent ones. In Benton Township, Michigan, the Overflow Church wants to move its religious services and community outreach programs into a former Sears store that was donated to the church by the building's owner. Tuesday's Benton Harbor- St. Joseph Herald-Palladium reports on the Planning Commission hearing at which the church asked for a special use permit to allow it to operate in the commercial-zoned area. The owner of nearby Orchard Mall opposes the church's plans, saying the proposed use is not compatible with the mall and adjacent properties. Separately the mall owner is suing the church arguing that a 1978 operating agreement with Sears requires the property to be used for retail purposes.

Meanwhile, in Hartford, Connecticut, a Jewish group, Chabad Chevra, has filed a federal lawsuit claiming that its free exercise, speech, association, equal protection and due process rights and its rights under RLUIPA have been violated by the city's refusal to allow it to use a building it purchased as a Chabad House for religious worship, educational and university student activities and as a residence for its rabbi. The property had previously been used by a Baptist organization, and before that by a Catholic group, for religious purposes. The complaint (full text) in Chabad Chevra LLC v. City of Hartford, Connecticut, (D CT, filed 3/8/2010), charges that the city is burdening plaintiff's religious exercise, favoring nonreligious institutions over religious ones, and in particular is discriminating against proposed university student religious use of the premises. It claims that the city's action is based in large part on "anti-Hasidic animus." Courthouse News reported on the case yesterday. [Thanks to Steven H. Sholk for the lead.]

Faith-Based Advisory Council Report Released

The White House today released the final version of the report of the President's Advisory Council on Faith-Based and Neighborhood Partnerships. (See prior related posting.) The report is titled A New Era of Partnerships. It contains recommendations from each of the six task forces. (Note: The draft made available last month by the Washington Post was not the full report, but only the recommendations of the task force on reform of the faith-based office. See prior posting.)

Britain's Supreme Court Denies Christian Marriage Registrar Permission To Appeal

According to Pink News, the Supreme Court of the United Kingdom on Monday refused permission to appeal the decision in Ladele v. London Borough of Islington. In the case the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing on religious grounds to register same-sex civil partnerships. (See prior posting.) The Supreme Court said the case did not raise legal issues of "general public importance." Ladele is now considering whether to take her case to the European Court of Human Rights.

Court Rejects Religious Defense To Marijuana Use

In Georgetown, Colorado, a state court judge has rejected Trevor Douglas' free exercise claims and has found him guilty of possessing marijuana and drug paraphernalia, as well as driving an unregistered vehicle. He was assessed a $450 fine and ordered to perform 15 hours of community service. AP reported yesterday that the court found Douglas' beliefs do not rise to the level of a religion. Denver Channel 7 News says that Douglas is a member of the THC (The Hawaii Cannabis) Ministry and the Church of Universal Sacraments. Douglas says: "The religious use of cannabis is mandated by my god, just as wine and bread are used by Christians or peyote used by Indians." He plans to appeal his conviction.

Suit Argues Letter Cursing Police Officer Was Protected Religious Speech

A federal lawsuit filed on Monday claims that Pennsylvania state police and the police department of Media Borough (PA) have a practice of unlawfully prosecuting citizens for protected speech using Pennsylvania’s terroristic threats, harassment, and disorderly conduct statutes. The complaint (full text) in Damato v. Commonwealth of Pennsylvania, (ED PA, file 3/8/2010), contains these interesting allegations:

On October 11, 2008, the Plaintiff received a traffic citation issued by Officer Matthew Bellucci, of the Media Borough Police Department. Thereafter, on October 18, 2008, Officer Bellucci received a letter at his home stating the following: "You will get what's coming to you. God is just, and you will be punished. Fuck you! You are an asshole! A fucking asshole!"

... On or about October 24, 2008 Trooper Gerard B. McShea prepared a sworn Affidavit of Probable Cause causing a criminal summons to be issued against Plaintiff, charging Plaintiff of the crimes of Terroristic Threats, 18 Pa.C.S.A. §2706(a)(1) and Harassment, 18 Pa.C.S.A. §2709(a)(1) and 18 Pa.C.S.A. §2709(a)(6) as a result of mailing the aforementioned letter....

The communication directed to Officer Bellucci was expressing a religious opinion that "You will get what is coming to you. God is just and you will be punished." Such opinion is not a threat, but rather protected religious speech identifying God’s righteousness and willingness to punish.

Plaintiff asks for a declaratory judgment, damages and lawyer's fees. Yesterday's Delaware County (PA) Daily Times reports on the filing of the lawsuit.

6th Circuit: Parochial School Teacher of Secular Subjects Covered By ADA

In EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, (6th Cir., March 9, 2010), the U.S. 6th Circuit Court of Appeals held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act. They are not "ministerial employees" who are excepted from coverage. Only teachers who teach primarily religious subjects or who have a central role in the spiritual or pastoral mission of the church are covered by the ministerial exception. The fact that plaintiff led some religious activities during the day, and that she had the title of commissioned minister do not make her primary duties religious in nature. [Thanks to both Steven H. Sholk and Derek Gaubatz for the lead.]

Final Faith-Based Advisory Council Report Submitted To White House

Yesterday, President Obama's Advisory Council on Faith-Based and Neighborhood Partnerships presented its final report to administration officials. According to IPA:

Over the course of the day, the Council presented its recommendations in key policy areas to senior officials who deal with each of those areas, including: Secretary of Health & Human Services Kathleen Sebelius, USAID Director Raj Shah, White House Domestics Policy Director Melody Barnes, National Security Council Chief of Staff Denis McDonough, and EPA Director Lisa Jackson.

The group concluded the day in a meeting with President Obama who appreciated the Council members’ service and hard work in forging common ground across religious, political and philosophical lines.

The text of one task force report was released in advance last month,[corrected] (see prior posting), as was information on two issues on which the Advisory Council was divided-- whether religious symbols can be present in areas where government-funded programs are offered and whether churches need to form separate corporations to receive federal social service funds (see prior posting). Council Member Melissa Rogers writes at length on the report in yesterday's Washington Post. Meanwhile a coalition of 26 religious and civil rights groups-- the Coalition Against Religious Discrimination-- wrote the President recommending that he adopt the consensus recommendations on reform of the Faith-Based Office, that religious-based hiring in federally funded social service programs be prohibited, and that houses of worship be required to create separate corporations if they seek to provide secular government funded social services.