Tennessee AG Opinion Says "Jesus Is Lord" Plates Violate Establishment Clause

Tennessee Attorney General Opinion 10-52 (April 15, 2010) concludes that the state's issuance of a specialty license plate carrying the motto "Jesus is Lord" would violate the Establishment Clause. The Opinion relied on a 2006 decision in a 6th Circuit case holding that Tennessee's messages on specialty license plates are government speech. The Attorney General's Opinion concluded that the proposed specialty plate would amount to an unconstitutional governmental endorsement of religion.

Brazil Is Latest Focus In Church Sex Abuse Scandal

AP today reports that the latest focus in the clergy sex abuse scandal is Latin America with charges against three Brazilian priests, including 83-year old Monsignor Luiz Marques Barbosa. Last month, a Brazilian television network broadcast a video of Barbosa in bed with a 19-year old former altar boy. The video was widely distributed on the Internet. Brazil's legislature launched an investigation in which witnesses charged that Barbosa and two other priests in the same archdiocese abused boys as young as 12. A judge requested Barbosa's immediate detention to prevent him fleeing the country. Prosecutors will now decide whether to file charges. Meanwhile the church has suspended all three priests and is conducting its own investigation.

Indonesia's Constitutional Court Upholds Blasphemy Law

Yesterday in an 8-1 decision, Indonesia's Constitutional Court upheld the country's blasphemy law. (Background.) The New York Times and Human Rights Watch both report on the decision. Section 156a of the Indonesian Criminal Code, which supplements a 1965 presidential decree, recognizes six religions, and imposes penalties of up to five years in prison for anyone who deliberately in public expresses hostility, hatred or contempt against one of these religions. The 1965 Presidential Decree prohibits deviant interpretations of any of these religions, and allows the Attorney General's office to dissolve deviant sects. The six recognized religions are Islam, Protestantism, Catholicism, Buddhism, Hinduism, and Confucianism. The law was challenged as violating Indonesia's Constitution which guaranties freedom of expression and religion, and human rights treaties. The suit was filed by a group of Indonesian NGOs and individuals, led by former president Abdurrahman Wahid. The Constitutional Court justified the law as a way of protecting against violence by intolerant members of the public.

White House Reaches Out To Muslim Americans

Yesterday's New York Times carried a length front-page story titled White House Quietly Courts Muslims in U.S. It reports that while the President himself has not visited an American mosque or met with U.S. Muslim or Arab-American leaders, others in his administration are meeting extensively with U.S. Muslims. Topics have included health care, the economy, foreign policy, immigration and national security. Muslims are particularly encouraged that the White House has appointed Muslims to government positions and have supported them against criticism. They point especially to the case of Rashad Hussain who was appointed U.S. Special Envoy to the Organization of the Islamic Conference.

Cert. Denied In Bail Plea of Kosher Meat Plant Executive

Yesterday the U.S. Supreme Court denied certiorari in Rubashkin v. United States, (Docket No. 09-1099, April 19, 2010). (Order List.) In the case, the 8th Circuit Court of Appeals refused to release Sholom Rubashkin, former vice-president of the Postville, Iowa Agriprocessors, Inc., a kosher meat packing plant, on bail pending sentencing. (Full text of order.) Rubaskin was convicted by a federal jury on 86 counts of financial fraud. (See prior related posting.) Religion News Service reported yesterday that Rubashkin's Orthodox Jewish supporters are increasing their protests over his case as he faces a possible life sentence at his April 28 sentencing hearing. Through an online petition, supporters are urging that citizens voice their concerns to the Justice Department. According to RNS, through Twitter and Facebook some rabbis have called it a "sacred obligation" for Jews to contact the Justice Department on Rubashkin's behalf.

Supreme Court Hears Arguments In Christian Legal Society's Clash With Hastings' Discrimination Rules -- [Updated With Link To Transcript]

The U.S. Supreme Court this morning heard oral arguments in Christian Legal Society v. Martinez. In the case, 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. (See prior posting.) AP reports that the Justices seemed sharply split:

Chief Justice John Roberts and Justice Samuel Alito questioned the school's lawyer sharply, saying that being forced to admit someone who doesn't share their beliefs was a threat to the group. But Justices Ruth Bader Ginsburg and Sonia Sotomayor pressed the group's lawyer on notion that if they can ban gays, other groups can legally ban women and minorities.

Scotus Blog last week had an excellent background article on the case. Scotus Wiki has links to all the briefs and much more background. An editorial titled The End of Religious Freedom? in Christianity Today outlines the arguments of Christian religious groups who hope that the 9th circuit will be reversed; while an editorial in today's New York Times titled A Case of Discrimination urges the Court to support the University's position.

The full transcript of the arguments is available online. Scotus Blog also has podcasts of the oral arguments of counsel for both sides, recorded before the actual argument. Last week, the Court turned down media requests for same-day release of the audio tapes of oral arguments in the case. According to the National Law Journal, this is the seventh time this term that such requests have been rejected.

UPDATE: Constitutional Law Prof Blog also has an interesting analysis of the oral argument.

Alamo Seeks New Trial Because of Sentencing Judge's Religious Comments

Yesterday's Texarkana Gazette reports that self-proclaimed prophet and church leader Tony Alamo last week filed a motion for a new trial, arguing that the sentencing judge "imposed his own sense of religiosity" in sentencing Alamo to 175 year prison on Mann Act charges. Alamo was convicted last year of taking young girls across state lines for sex. In sentencing Alamo, Judge Harry F. Barnes told him: "Mr. Alamo, one day you will face a higher and a greater judge than me. May he have mercy on your soul." (See prior posting.)

Bankruptcy Court Awards Damages For Violation of Stay Through Rabbinical Court Proceedings

In In re Pachman, (SDNY Bkrptcy., April 14, 2010), a federal bankruptcy court awarded damages of $15,311, representing the debtor's attorneys' fees and costs, against a creditor who had been found to have violated the Bankruptcy Code's automatic stay on enforcement of claims. (11 USC Sec. 362.) The creditor continued proceedings against the debtor in a Rabbinical court after the bankruptcy petition had been filed and the stay took effect. The Rabbinical court issued a siruv, an order that would subject the debtor and his family to ostracism in the Orthodox Jewish community. While the court awarded actual damages, it found insufficient bad faith to justify an additional award of punitive damages. [Thanks to Joseph Landau for the lead.]

Recent Articles of Interest

From SSRN:

• Ruthann Robson, Sexual Justice, Student Scholarship and the So-Called Seven Sins, (Law and Sexuality, Vol. 19, p. 31, 2010).
• Liav Orgad, Creating New Americans: The Essence of Americanism under the Citizenship Test, (Houston Law Review, Vol. 47, No. 5, 2011).
• Paul Horwitz, Of Football, 'Footnote One,' and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe, (April 14, 2010).
• Bernadette A. Meyler, Constitutional Commitments and Religious Identity, (Cornell Journal of Law and Public Policy, Forthcoming).

From SmartCILP:

• Daniel Gordon, Madison 1, Bush 0: Survey Testing Mr. Madison's Hypotheses, 26 Touro Law Review 1-22 (2010).
• Frederick B. Jonassen, Free Speech and Establishment Clause Rights at Public School Graduation Ceremonies: A Disclaimer: The Preceding Speech Was Government Censored and Does Not Represent the Views of the Valedictorian, 55 Wayne Law Review 683-820 (2009).

Goldstone Will Not Attend Grandson's Bar Mitzvah In South Africa After Demonstrations Threatened

On Friday, both the New York Times and the South African Jewish Report carried articles on the pressure being placed on South African jurist Richard Goldstone that has led him to decide not to attend his grandson's Bar Mitzvah next month in the Johannesburg suburb of Sandton. Many Jews in South Africa are severely critical of Goldstone's Report to the United Nations on the 2008 Israeli incursion into Gaza. The South African Zionist Federation had threatened to hold demonstrations against Goldstone outside the Beth Hamedrash Hagadol synagogue where the event will take place. After negotiations between the various parties, Judge Goldstone, who is currently a Distinguished Visitor at Georgetown University Law School in Washington, D.C., says that he has agreed, in the interest of his grandson, not to attend the Bar Mitzvah service. A number of lawyers and judges in South Africa strongly criticized the threats against Goldstone. Lawyer George Bizos said that those applying the pressure "ought to hang their heads in shame."

Free Exercise Objection To Cellular Tower Rejected By Court

In Jaeger v. Connecticut Siting Council, 2010 Conn. Super. LEXIS 611 (CT Superior Ct., March 15, 2010), a Connecticut trial court held that plaintiff lacked standing to intervene to object to the issuance of a certificate of environmental compatibility for the construction of a cellular tower in Canaan, Connecticut. One of plaintiff's claims was that she has become interested in the Native American spirit world, including reverence for certain birds, and that the tower will make it less likely that hawks, eagles and woodpeckers will fly over her property. Relying on the 1988 U.S. Supreme Court decision in Lyng v. Northwest Indian Cemetery Protective Assoc., the court held that: "Free exercise of religion does not allow the claimant to dictate to the government whether it may give permission for use of property."

UPDATE: The trial court opinion was affirmed by Jaeger v. Connecticut Siting Council, 2011 Conn. App. LEXIS 215 (App. Ct. CT, April 26, 2011).

Article Profiles Lawyer Chosen By Vatican To Defend U.S. Abuse Suits Against It

The Associated Press yesterday reported on its exclusive interview with California lawyer Jeffrey Lena who is being increasingly called upon by the Vatican to be its spokesman and strategist to defend clergy abuse suits filed against the Holy See in U.S. courts. Lena, who is a solo practitioner, has an interest in sovereign immunity law and speaks Italian. He previously successfully obtained dismissal of a suit brought against against the Vatican Bank by Holocaust survivors who claimed the bank profited from assets looted by the Nazis and from Nazi slave labor. (See prior posting.) The article reports: "The Vatican's selection of the unknown and untested Lena ruffled some feathers among the small coterie of U.S. attorneys - most of them Catholics at big law firms - who were representing dioceses in sex abuse lawsuits."

Recent Prisoner Free Exercise Cases

In Hassan v. Maricopa County Sheriff's Office, 2010 U.S. Dist. LEXIS 35176 (D AZ, March 9, 2010), an Arizona federal district court permitted an inmate to move ahead with his claim that his free exercise rights were infringed when, in response to demonstrations, officials barred the Muslim chaplain from coming to the jail to lead services.

In Sandeford v. Plummer, 2010 U.S. Dist. LEXIS 35044 (ND CA, March 31, 2010), a California federal magistrate judge granted defendants summary judgment in a suit in which a Muslim prisoner alleged denial of an Islamic diet, interference with the observance of Ramadan, failure to provide an imam, and denial of a kufi cap.

In Copeland v. Livingston, 2010 U.S. Dist. LEXIS 24216 (ED TX, March 12, 2010), a Texas federal district court granted an inmate's motion to reopen a lawsuit alleging that he was forced to worship in a chapel containing Christian icons. In so ruling, the court adopted amended recommendations of a federal magistrate judge (2010 U.S. Dist. LEXIS 24107, Feb. 10, 2010).

In Wesley v. Muhammad, 2010 U.S. Dist. LEXIS 37154 (SD NY, April 13, 2010), a New York federal magistrate judge refused, because of undue delay, to permit a Muslim prisoner to amend his complaint in a suit against city and prison officials complaining that he has not been supplied correctly prepared Halal meals.

In Cable v. Wall, 2010 U.S. Dist. LEXIS 37143 (D RI, April 13, 2010), a Rhode Island federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 37176, March 18, 2010) and dismissed some claims but permitted plaintiff to move ahead with claims that he was denied certain Islamic books because his religion was considered a gang.

Suit Challenges Exclusion of Sectarian Groups From State Employee Charitable Campaign

Earlier this week, the Montana Family Foundation filed suit in federal district court challenging its exclusion from the Montana State Employees' Charitable Giving Campaign. The complaint (full text) in Montana Family Foundation v. Stoll, (D MT, filed 4/15/2010), alleges that MFF's application to become one of the numerous non-profit groups eligible to receive charitable contributions from state employees was rejected because eligible organizations may not have sectarian activities as their primary focus. MFF focuses on issues of the family, such as marriage and abortion, from a traditional Christian viewpoint. The complaint alleges that this anti-sectarian rule is vague and overbroad, discriminates against religious speech based on content, discriminates based on the speaker's viewpoint, and infringes rights of expressive association. It also alleges that the Campaign's practices violate the free exercise and establishment clauses, and infringe due process and equal protection rights. Alliance Defense Fund issued a release yesterday announcing the filing of the lawsuit.

Religion Clause Blog Is 5 Years Old Today

Today is Religion Clause's 5th birthday. Thank you to all the readers who have been on board for many years and to the many new readers who have joined us recently as well. All of you have contributed to the success of Religion Clause. As I look back at postings five years ago, it calls to mind the French proverb: Plus ca change, plus c'est la meme chose. There has been surprising stability in the major church state and free exercise issues that have captured the attention of courts, legislatures and the media over this period of time. I remain committed to continuing neutral coverage of both recurring and newly emerging developments, and to continuing to make extensive primary source material available for additional reference. I welcome your e-mails on leads for blog posts. I also urge you to e-mail me with any corrections that are called for in postings-- accuracy is an important goal on Religion Clause. Finally, if you are the subject of a post, or are personally involved in the situation covered, I invite your e-mail giving any additional context that would be helpful. Please note Religion Clause's new e-mail address: religionclause@gmail.com.

Kyrgyzstan's New Government Seeks To Liberalize 2009 Religion Law

The Washington Post reported today that with the overthrow of Kyrgyzstan's president Kurmanbek Bakiyev, interim leader Roza Otunbayeva says her new government is working on a new constitution that will set up a parliamentary democracy. Religious groups in the country are wondering if this will mean a backing off from the restrictive Religion Law passed last year by the Bakiyev government. (See prior posting.) According to a report today from Forum 18, Kanybek Imanaliyev, head of the interim government's Press Service, said: "We want to establish freedom of speech and freedom of religion. We will reform the Constitution, the laws as necessary and the Religion Law." However Imanaliyev said he is unsure whether religious groups will be able to carry on normal activity in the period before the changes are made.

Father's Religious Freedom Trumped By State's Interest In Protection of His Children

In Thorne v. Arkansas Department of Human Services, (AR Ct. App., April 14, 2010), an Arkansas appellate court upheld the November 2008 removal of three children from the Tony Alamo Ministry compound in Fouke, Arkansas. The trial court had conditioned the return of the children to their father on his obtaining both housing and employment separate and apart from the Tony Alamo Ministries. The father argued that this condition violates his religious freedom by forcing him to choose between his religion and his children. The court disagreed, saying that the state's interest in preventing potential harm to the children outweighs their father's "conscientious choice to live on ministry property, work for the ministry, and depend on the ministry for his family’s every need." (See prior related posting.)

Foster Care Agency Charged With Religious Discrimination

A Muslim woman, with the help of the ACLU of Maryland, has filed a complaint with the Baltimore City Community Relations Commission charging that a state-licensed agency refused her application to house foster children because she will not serve pork products in her home. According to an ACLU press release, Contemporary Family Services, an organization that places foster children, denied Tashima Crudup's application for a foster care license on the ground that exclusion of pork products from her home could create a discrepancy between her expectations and the needs and personal views of a foster child. Cudrup had finished a mandatory 50 hours of training for foster parents. She and her husband agreed that they would accept children of other religious faiths, would not impose their own religious faith on them and would make arrangements for the child to attend the church of his or her choice. ACLU says that the foster care agency has discriminated against Cudrup because of her religious beliefs, in violation of a Baltimore City Code, Chap. 4, Sec. 3-4.

Rights Group Charges Exploitation of Beggar Children By Senegal's Quranic Teachers

Human Rights Watch yesterday issued a 114-page report titled Off the Backs of the Children: Forced Begging and Other Abuses against Talibés in Senegal. [Links to full text and summary.] It charges that in the African nation of Senegal, over 50,000 boys, many under the age of 12, are forced to beg on the streets every day by brutal religious teachers, known as marabouts. According to an HRW press release:

In Senegal's predominantly Muslim society, where religious leaders wield immense social and political power, children have long been entrusted to marabouts who educate them in these residential Quranic schools, called daaras. Many marabouts, who serve as de facto guardians, conscientiously carry out the important tradition of providing young boys with a religious and moral education.

But research by Human Rights Watch shows that in many urban residential daaras today, other marabouts are using education as a cover for economic exploitation of the children in their charge. Many marabouts in urban daaras demand a daily quota from the children's begging and inflict severe physical and psychological abuse on those who fail to meet it.

A New York Times article also focuses on the HRW report.

NASA Employee Sues For Religious Discrimination After Demotion For Pushing Intelligent Design

According to a release issued yesterday by the Discovery Institute, an employee at NASA's Jet Propulsion Laboratory (JPL) has filed suit in a California state court claiming religious discrimination, harassment and retaliation; wrongful demotion; and infringement of free speech rights. In the lawsuit, information technology specialist David Coppedge alleges that he was demoted for "pushing religion" after he loaned co-workers DVDs that support the theory of intelligent design. The suit was brought against JPL and California Institute of Technology which manages the NASA Laboratory. The Discovery Institute, which takes the position that Intelligent Design is not religion, argues that it is nevertheless illegal for an employer to discriminate against an employee based on what the employer believes to be a religion.

Presidential Memo Expands Non-Family Members' Visitation and Surrogate Health Care Rights

The President yesterday issued a Memorandum (full text) to the Secretary of Health and Human Services aimed at assuring that hospital patients have the right to designate visitors and surrogate decision-makers other than immediate relatives. While the action is aimed primarily at problems faced by gays and lesbians, the President framed the issue in broader terms:

Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives -- unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.

The Memorandum calls both for new rule making and for enforcement of current protections. New rules must also bar hospitals participating in Medicare and Medicaid from denying visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. The Memorandum gives HHS six months to develop further recommendations on health care issues that affect LGBT patients and their families. The Washington Post reported on the President's action.

Court Says Muslim Did Not Prove Employment Discrimination, But Can Proceed on Other Claims

In Awad v. National City Bank, (ND OH, April 15, 2010), an Ohio federal district court dismissed claims of religious, racial and national origin discrimination brought by Muslim, Arabic, Palestinian bank employee who was eventually fired. The court concluded that the bank had non-discriminatory reasons for the actions it took. However the court allowed plaintiff to pursue his claims of retaliatory discharge, and his claims of a hostile work environment caused by comments from fellow employees critical of Palestinians and Arabs. A press release yesterday from CAIR discusses the court's decision.

National Day of Prayer Declared Unconstitutional

In an important decision yesterday, a Wisconsin federal district court held that the federal statute which designates the first Thursday in May as a National Day of Prayer violates the Establishment Clause. In Freedom From Religion Foundation, Inc. v. Obama, (WD WI, April 15, 2010), the court, in a 66-page opinion, concluded that 36 USC Sec. 119 goes beyond mere acknowledgement of religion. It endorses and encourages citizens to engage in prayer. Examining the legislative history of the law, the court said:

This legislative history supports the view that the purpose of the National Day of Prayer was to encourage all citizens to engage in prayer, and in particular the Judeo-Christian view of prayer. One might argue that members of Congress voiced secular purposes: to protect against "the corrosive forces of communism" and promote peace. That is true, but the references to these purposes do nothing to diminish the message of endorsement. If anything, they contribute to a sense of disparagement by associating communism with people who do not pray. A fair inference that may be drawn from these statements is that "Americans" pray; if you do not believe in the power of prayer, you are not a true American. Identifying good citizenship with a particular religious belief is precisely the type of message prohibited by the establishment clause.

Conceding that much of the controversy had resulted from activities of the private National Day of Prayer Task Force, the court said that "government officials, including former Presidents, have sometimes aligned themselves so closely with those exclusionary groups that it becomes difficult to tell the difference between the government's message and that of the private group."

The court concluded with this explanation of its holding:

Although the law does not always point in the same direction on matters related to the establishment clause, my review of that law requires a conclusion that 36 U.S.C. §119 is unconstitutional.

I understand that many may disagree with that conclusion and some may even view it as a criticism of prayer or those who pray. That is unfortunate. A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination. Rather, it is part of the effort to "carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society." .... The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.

It is important to clarify what this decision does not prohibit. Of course, "[n]o law prevents a [citizen] who is so inclined from praying" at any time.... And religious groups remain free to "organize a privately sponsored [prayer event] if they desire the company of likeminded" citizens.... The President too remains free to discuss his own views on prayer.... The only issue decided in this case is that the federal government may not endorse prayer in a statute as it has in §119.

AP reporting on the decision quotes a White House spokesman as saying that the President still plans to issue a proclamation to recognize a National Day of Prayer next month. The court in its decision stayed its injunction for the 30-day period during which an appeal may be filed, and for the peridod during which any appeal is pending. (See prior related posting.) [Thanks to Paul Ballard and Ira "Chip" Lupu for the leads.]

House Subcommittee Holds Hearing on Anti-Semitism

Yesterday the Subcommittee on International Organizations, Human Rights and Oversight of the House Committee on Foreign Affairs held a hearing on Combating Anti-Semitism: Protecting Human Rights. (Witness list.) Here are links to the prepared statements presented at the hearing by Subcommittee Chair Russ Carnahan; Special Envoy to Monitor and Combat Antisemitism Hannah Rosenthal; ADL Deputy National Director Kenneth Jacobson; AJ Committee Director of International Jewish Affairs, Rabbi Andrew Baker; Human Rights First CEO Elisa Massimino; and Simon Wiesenthal Center Associate Dean, Rabbi Abraham Cooper.

Magazine Explores Hipsters Intrusions Into Insular Hasidic Community

This week's New York Magazine carries an interesting article titled Clash of the Bearded Ones: Hipsters, Hasids and the Williamsburg Street. The lengthy article focuses on Williamsburg's Bedford Avenue bike lane as a symbol of the intrusion of modern hipsters into the insular New York Jewish enclave of Satmar Hasidim. These excerpts give the flavor of the article:

For a full year, the city seemed to ignore the hipster-Hasid war. Then, on December 1, 2009, came a sudden announcement. The Department of Transportation—under Janette Sadik-Khan, the bike-friendliest commissioner it’s ever had—was going to rip up "a small portion" of the lane.... Just about everyone’s assumption, including that of more than a few Hasids, is that Michael Bloomberg had needed the Satmars—who tend to vote enthusiastically and in a single block—in the upcoming election and that this was an easy bone to throw them.

On December 1, a crew of municipal workers descended on Bedford, sandblasting the lane and its stenciled biker figures off the asphalt. The next day, a group of three bike activists ... hit the street with aerosol cans and handmade stencils. According to Ben, more than a few Satmars saw them paint. "As they walked by, I made sure I said hello, explained to them that we’re not vandalizing the street, and asked if they wanted to help," he says. "At first, they were a little standoffish, but a couple of guys had a sense of humor about it."

.... Baruch Herzfeld, 38, is a classic macher and motormouth with a foot in both the Hasid and hipster worlds.... His real bread and butter is some sort of telephone-card business, which finances his largely nonprofit bike shop with the awesome name Traif Bike Gesheft—Unclean Bike Business. For South Williamsburg’s Hasids, Traif Bike Gesheft functions as a semi-secret window onto the larger world and a clubhouse of mild transgressions. Herzfeld rents bikes to Hasids at no cost, just to get them to venture beyond the neighborhood....

New "Church Project" Aims At Protecting Churches From Government Intrusion

Alliance Defense Fund yesterday announced its new "Church Project," an effort to "protect churches from excessive and unconstitutional government intrusion prohibited by the First Amendment." Kevin Theriot, who heads the Project, said: "Historically, the Church has been the moral and cultural conscience of the nation. Every day the Church is intimidated into silence on issues like life, liberty, marriage, and the family is another day the cultural erosion continues unchecked." ADF's Pulpit Initiative has been integrated into the broader Church Project. A new website set up for the project is aimed at educating pastors and religious leaders, and furnishing them with resources to defend their religious freedom.

Suit Challenges School's Refusal To Permit Church Related Flyers

A federal lawsuit was filed Tuesday against the Pulaski County, Arkansas Special School District on behalf of an elementary school student who, along with her mother, was denied permission to distribute flyers inviting other students to a swimming event sponsored by plaintiff's church. The complaint (full text) in A.W. v. Pulaski County Special School District, (ED AR, filed 4/13/2010), alleges that the school violated the free expression, free exercise and establishment clauses as well as the due process and equal protection clauses by permitting students and community groups to distribute other flyers, but banning those promoting a church-related event. Alliance Defense Fund issued a release announcing the filing of the lawsuit.

City Voters Approve Continuing Prayers To Open Council Meetings

On Tuesday, voters in Lancaster, California approved by a vote of more than 3-1 Nonbinding Measure I that calls for City Council to continue its present prayer policy. According to yesterday's Merced (CA) Sun-Star, the policy provides for clergy of different faiths to lead a prayer opening council meetings. Most of the invocations, however, have been sectarian Christian prayers. Mayor R. Rex Parris says that is not surprising since up to 90% of the community is Christian. The ACLU is considering filing suit over the city's prayer policy. Parris says he is confident the policy will be upheld in court. (See prior related posting.)

Milwaukee Reviewing Good Friday Closures

On Tuesday, the Freedom from Religion Foundation wrote Milwaukee (WI) Mayor Tom Barrett (full text of letter) complaining that the city acted unconstitutionally when it closed numerous city offices in observance of Good Friday. FFRF argued that the closures violate a 1996 federal district court ruling finding that Wisconsin's statute declaring Good Friday a legal holiday violates the Establishment Clause. According to the Milwaukee Journal-Sentinel, the Milwaukee City Attorney is reviewing the city's situation after receiving FFRF's letter.

Virginia High Court Hears Oral Arguments In Episcopal Church Split

The Washington Times has extensive coverage of the oral arguments presented on Tuesday in the Virginia Supreme Court in In re: Multi-Circuit Episcopal Church Property Litigation. (See prior posting.) Three of the Court's 8 justices had recused themselves. The remaining five justices pressed lawyers on whether Virginia's "Division Statute" applies to the case. The statute provides that if a "division" has occurred in a church, a majority of the congregation may decide to which "branch" the congregation shall belong. Lawyers argued over whether a "division" had occurred in the Episcopal Church, and whether the Convocation of Anglican Churches in North America (CANA) is a "branch" of the Church.

Court Rejects Establishment Clause Challenge To Housing Financing

In Glassman v. Arlington County, 2010 U.S. Dist. LEXIS 35745 (ED VA, April 12, 2010), a Virginia federal district court rejected an Establishment Clause challenge to county financing arrangements with the First Baptist Church of Clarendon (FBCC) for construction of an affordable housing complex. Plaintiff had alleged, among other claims, that FBCC had been overpaid for property it sold as part of the development plan, and that the housing units would have a "religious overtone" because they would be on church land and would share a lobby and entrance with the church itself. (See prior related posting.)

Student Paper Publishes Controversial Interview With Mike Huckabee

The College of New Jersey's student news magazine, The Perspective, last week reported on an interview with former Arkansas Governor and Republican Presidential candidate Mike Huckabee. In the interview, Huckabee took strong stands against same-sex civil unions as well as same-sex marriage, and expressed support for an Arkansas law that bars same-sex couples from adopting children or becoming foster parents. Huckabee, now a Fox News celebrity, said he believes an atheist could serve as President: "I'd rather have an honest atheist than a dishonest religious person," he commented. In a statement on Monday, Huckabee criticized the article as distorting and sensationalizing his views. The editor of The Perspective responded to Huckabee's criticism and posted a recording of the interview with Huckabee to counter the claim that Huckabee's statements were sensationalized.

New Source For Vatican Press Releases

A new source for news from the Vatican is now available. Vatican Information Service, the Holy See's Press Office, is making current and past news releases available in a blog format. VIS News is available in English, Spanish, Italian and French. According to Zenit yesterday, the new blog, which also links to the Vatican's Twitter and YouTube pages, not only features current news but has archived some 35,000 past Vatican news releases going back to 1999. A link to VIS News has been added to the Religion Clause sidebar under "Resources."

ABC Talks With Russian President About Religious Faith

ABC News yesterday reported on an extensive interview of Russian President Dmitry Medvedev by reporter George Stephanopoulos. Part of the interview focused on Medvedev's religious faith. ABC says:

Medvedev is his own man in another significant way. Unlike many of his predecessors, this Russian leader has publicly declared his faith. He was baptized a Russian Orthodox Christian when he was 23 years old.

Asked why he embraced religion when he was raised in a secular nation, Medvedev replied that he "needed it." "Why do people go to church?" he said. "They come because they feel a need, except if they're sightseeing. So at 23 I felt I needed it. I believe it's good for me, because afterwards my life changed.

"You don't really talk aloud about something like that because the religious feelings should be somewhere deep inside of you. If someone is displaying it, it's not really honest. It's more PR for yourself. But I believe religion is important for every person."

Dissolution Decree Lets Father Take Daughter To Church During Visitation Times

In a widely-followed divorce case, a Chicago trial judge yesterday as part of an opinion dissolving the marriage of Robert and Rebecca Reyes ruled that Robert can take their 3-year old daughter Ela to Catholic church services despite the objection of Rebecca. As reported by the Chicago Sun-Times, Robert converted to Judaism after Ela was born and the couple had agreed to raise Ela in the Jewish faith. However, after their separation, Robert returned to his original Catholic faith, claiming he had been pressured by his in-laws to convert. While dissolution proceedings were pending, Robert had Ela baptised, and in response Rebecca obtained a restraining order directing Joseph to only expose Ela to Judaism. All of this became the subject of much media coverage, largely instigated by Joseph. (See prior posting.)

In a 30-page dissolution judgment (full text), Cook County Circuit Court Judge Rene Goldfarb, focusing on the best interests of Ela, ruled that Rebecca would be given custody, but that Joseph will have visitation rights (including Christmas and Easter each year), and can take Ela to church during those times. In its opinion, the court said that Rebecca feared possible future confusion and harm if Ela was taken to church by her father. While the judge was highly critical of some of Joseph's behavior, she said no evidence was presented that taking the 3-year old to church is or would be harmful to her.

Obama's Statement Marking Yom Hashoah Is Released

On Sunday, President Obama issued a statement (full text) marking Holocaust Remembrance Day (Yom Hashoah). The observance date corresponds to the anniversary, on the Hebrew calendar, of the Warsaw Ghetto Uprising. (Background.) This year the observance was held on April 12. The President said in part:

On my visit to Buchenwald last year – and during my visit to Yad Vashem in 2008 – I bore witness to the horrors of anti-Semitism and the capacity for evil represented by the Nazis’ campaign to annihilate the Jewish people and so many others. But even at places like Buchenwald, the dignity and courage of those who endured the horrors of the Holocaust remind us of humanity’s capacity for decency and compassion.

The memories of the victims serve as a constant reminder to honor their legacy by renewing our commitment to prevent genocide, and to confront anti-Semitism and prejudice in all of its forms. We must never tolerate the hateful stereotypes and prejudice against the Jewish people that tragically continues to this day.

Meanwhile, CNN reports on a Tel Aviv University study released Sunday which shows that anti-Semitic incidents around the world more than doubled from 2008 to 2009. Part of the increase is attributed to Israel's operations in Gaza beginning in late 2008.

3rd Circuit: No Qualified Immunity In Suit Challenging Refusal To Issue "Choose Life" Plates

Children First Foundation, Inc. v. Legreide, (3d Cir., April 9, 2010), is a challenge to New Jersey's rejection of an application for the issuance of "Choose Life" license plates under the statute that permits issuance of special plates to members of non-profit groups. The trial court dismissed the complaint finding that defendants had qualified immunity. The U.S. 3rd Circuit Court of Appeals reversed and remanded, holding that here it is alleged that defendants engaged in viewpoint discrimination in rejecting the proposed plates. The ban on regulation based on the viewpoint or ideology of the speaker is clearly established. AP (via First Amendment Center) reported on the decision.

Campaign In Britain For Arrest of Pope Benedict

The London Telegraph reported Sunday on a campaign by well-known atheists Richard Dawkins and Christopher Hitchens to ask the Crown Prosecution Service to arrest Pope Benedict XVI on criminal charges under international law when he visits London on September 16-19. Hitchens and Dawkins are conferring with human rights lawyers on what charges can be brought against the Pope because of his alleged role-- when he was head of the Congregation of the Doctrine of Faith-- in delaying action against an American priest who had molested two boys. Lawyers argue that the Pope will not be able to claim diplomatic immunity because the Vatican should not be treated as a state under international law. [Thanks to Bob Ritter for the lead.]

Evangelicals Urge Christian Approach To Nuclear Reduction

As the Nuclear Security Summit convened in Washington, D.C. (White House statement), yesterday Ekklesia reported on the "Matthew 5 Project: Evangelicals for Nuclear Reduction." Evangelical leaders, including Rick Warren, have sent a statement (full text) to the President, Vice President, Secretaries of State and Defense, the Joint Chiefs of Staff and all members of Congress. The statement reads in part:

In order to safeguard life, liberty, community, and security for its own citizens and for the world, the United States must demonstrate moral leadership in protecting the human rights of the most vulnerable, strengthening the rule of law in the international community, and seeking diplomatic negotiations with allies and enemies alike..... We urge churches to teach members ethics for discernment, including just peacemaking practices based on the teachings of Jesus.... We encourage church groups to consider engaging in interfaith dialogue and witness, and in building international partnership with fellow Christians around the world. We call for governmental action to oppose the rise in global terrorism by working for international justice and peacemaking. We call for verifiable international reduction of nuclear weapons and other weapons of mass destruction. We affirm that overcoming the threat of global poverty, global warming, global terrorism, regional insecurity, and nuclear war requires international cooperation. We call for obedience to the Lordship of Christ in all that we do, including talking with an adversary and seeking to make peace.

UPDATE: Another Christian organization with significant evangelical support that is pressing for the abolition of nuclear weapons is the Two Futures Project, organized in 2009. (Faith in Public Life, April 2009). [Thanks to Kristin Williams for the lead.]

Vatican Posts New Guidelines On Clerical Sexual Abuse Investigations

Voice of America reported yesterday that the Vatican has posted simple new guidelines on its website outlining how complaints of clerical sexual abuse of minors are to be handled. The Vatican's Guide (full text) provides in part:

The local diocese investigates every allegation of sexual abuse of a minor by a cleric.

If the allegation has a semblance of truth the case is referred to the CDF [Congregation for the Doctrine of the Faith]. The local bishop transmits all the necessary information to the CDF and expresses his opinion on the procedures to be followed and the measures to be adopted in the short and long term.

Civil law concerning reporting of crimes to the appropriate authorities should always be followed.

During the preliminary stage and until the case is concluded, the bishop may impose precautionary measures to safeguard the community, including the victims....

A Reuters report published in the New York Times says: "Although the rules are not new, their publication in a short, simple format reflects the Roman Catholic Church's determination to deflect criticism that its response to the sex abuse scandal has been bureaucratic, secretive and defensive."

Connecticut Bishops Oppose Ending Statute of Limitations On Child Sex Abuse Claims

CNN reported yesterday that Catholic Bishops in Connecticut are urging parishioners to strongly oppose a bill pending in the state legislature that would remove the statute of limitations in child sexual abuse cases. (Full text of HB 5473). A letter from the Bishops reads in part:

Over the past several years in states that have even temporarily eliminated the statutes, it has caused the bankruptcy of at least seven dioceses. House Bill 5473 would make Connecticut the only State without a statute of limitations. This bill would put all Church institutions, including your parish, at risk....

It is important to understand that the claims which could be made under House Bill 5473 might be 50, 60, 70 years old or older. Most often, these claims would be driven by a small number of trial lawyers hoping to profit from these cases. They would be difficult to defend because key individuals are deceased, memories have faded, and documents and other evidence have been lost.

The Diocese of Bridgeport has also posted A Call for Action and a FAQ about the bill.

Bangladesh High Court Says Women Employed In Education Cannot Be Forced To Wear Veil

Asia News reports that Bangladesh's High Court ruled on April 8 that women employed in public educational institutions may not be required to wear the veil, or hijab, against their will. The ruling came in a lawsuit filed after a local government official called the director of an elementary school a "beshya" (prostitute) for not wearing a veil. The High Court concluded that forcing a woman to wear a veil is a violation of basic human rights protected by the Constitution, and called on the Ministry of Education to implement the protection. Some fundamentalist Islamic groups criticized the decision as "a conspiracy to destroy Islam in Bangladesh." [Thanks to Institute on Religion & Public Policy for the lead.]

Additional Recent Prisoner Free Exercise Cases

In Babcock v. Clarke, (9th Cir., April 6, 2010), the 9th Circuit held that requiring an inmate to use his committed name along with his religious name on correspondence, intead of his religious name alone, and requiring staff to refer to him only by his committed name, does not violate RLUIPA or the free exercise clause.

In Holley v. California Department of Corrections, (9th Cir., April 5, 2010), the 9th Circuit held that California had not waived sovereign immunity in a damage suit by an inmate who claimed that prison regulations requiring him to wear short hair placed a substantial burden on his exercise of religion.

In Henderson v. Langenbrunner, 2010 U.S. Dist. LEXIS 32558 (MD FL, April 2, 2010), a Florida federal district court rejected a Muslim inmate's complaint over a 35 minute delay in delivering his bagged meal for Ramadan.

In Perez v. New York State Department of Correctional Services, 2010 U.S. Dist. LEXIS 32500 (ND NY, March 16, 2010), a New York federal magistrate judge rejected an inmate's claim that a strip frisk after a Catholic Family Day event deterred him from attending other Catholic religious services.

In Smith v. Graziano, 2010 U.S. Dist. LEXIS 33878 (ND NY, April 6, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 33811, March 16, 2010), and held that an inmate's free exercise rights and his rights under RLUIPA were not infringed when Protestant religious services were not held on two Sundays.

In Robinson v. Roper, 2010 U.S. Dist. LEXIS 34286 (CD CA, April 7, 2010), a California federal district court adopted a magistrate's findings (2010 U.S. Dist. LEXIS 34281, Feb. 16, 2010), and found no violations of plaintiff's free exercise rights or rights under RLUIPA. Plaintiff, who was confined under the state's violent sexual predator law, complained that during a search of his room, his Bible, Koran and prayer rug were placed on the floor.

In Hazle v. Crofoot, 2010 U.S. Dist. LEXIS 34108 (ED CA, April 6, 2010), a California federal district court held that parole and correctional officers were liable for violating an Atheist inmate's Establishment Clause rights by requiring him, as a condition of parole, to attend a religion-based 12-step program.

In Myles v. Wallace, 2010 U.S. Dist. LEXIS 34684 (ND WV, April 8, 2010), a West Virginia federal district court adopted a magistrate's recommendations (2008 U.S. Dist. LEXIS 112631, Nov. 7, 2008) and held that no substantial burden was placed on an inmate's free exercise when two orders of religious materials he placed and paid for were by mistake placed in the chapel library instead of being delivered to him.

RLUIPA Suit Challenges Denial of Rezoning For Islamic Learning Center

The Council on American-Islamic relations last week announced that it had filed a RLUIPA lawsuit in federal court in Chicago challenging DuPage County's rejection of a zoning permit for the Irshad Learning Center that would serve some 30 Shia Muslim families primarily of Middle Eastern origin. No reasons were given by the County Board for rejecting the Naperville location, and Muslim community members fear the decision was influenced by anti-Islamic attitudes. The Chicago Tribune reports that the county's Development Committee had approved the project, but the Zoning Committee voted against it. Anti-Muslim demonstrations took place outside the County Board meeting. Before the vote, opponents claimed the Center had financial ties to a foundation suspected of aiding Iran's nuclear weapons program. Proponents believe the county imposed higher standards on the school than it would have done for a non-Muslim institution.

Recent Articles of Interest

From SSRN:

• Thomas Charles Berg, What Same-Sex Marriage and Religious Liberty Claims Have in Common, (Northwestern Journal of Law and Social Policy, Forthcoming).
• Julie A. Oseid, The Power of Metaphor: Thomas Jefferson’s 'Wall of Separation between Church & State', (U of St. Thomas Legal Studies Research Paper No. 10-14, 2010).
• Thomas Charles Berg, Religious Displays and the Voluntary Approach to Church and State, (Oklahoma Law Review, Forthcoming).
• T. John O'Dowd, Pilate’s Paramount Duty: Constitutional 'Reasonableness' and the Restriction of Freedom of Speech and Assembly, (Comparative Constitutionalism In South Asia, Khilnani, Sunil, Raghavan, Vikram and Thiruvengadam, Arun, eds., Oxford Univ Press India, 2010).
• Richard W. Garnett, Religious Liberty, Church Autonomy, and the Structure of Freedom, (Christianity and Human Rights : An Introduction, John Witte, Jr. and Frank S. Alexander eds., pp. 226-238, Cambridge University Press, 2010).
• Nathan B. Oman, Bargaining in the Shadow of God’s Law: Islamic 'Mahr' Contracts and the Perils of Legal Specialization , (Wake Forest Law Review, Forthcoming).
• Yossi Nehushtan, Female Segregation for Religious Justifications: The Unfortunate Israeli Case, (Droit et Religions, Vol. 4, pp. 441-459, 2009-2010).
• Arnold H. Loewy, Intelligently Designing a Course in Intelligent Design, (February 22, 2010).
• John A. Humbach, Free Will Ideology: Experiments, Evolution and Virtue Ethics, (March 25, 2010).

From SmartCILP and elsewhere:

• Molly Greene, Goodbye to the Despot: Feldman on Islamic law in the Ottoman Empire, (Reviewing Noah Feldman, The Fall and Rise of the Islamic State), 35 Law & Social Inquiry 219-242 (2010).
• Journal of Law and Religion, Vol. XXV, No. 1 (2009-10) has recently appeared.
• Journal of Church & State, Vol. 51, No. 4 (Autumn 2009) has recently appeared.

British Religious Leaders Want Special Judicial Panel To Hear Religious Rights Cases

Today's London Times reports that Lord Carey, the former Archbishop of Canterbury, and other church leaders will support a motion being filed by attorneys for Christain relationship counsellor Gary McFarlane calling for a special Court of Appeals panel of five judges who understand religious issues to be appointed to hear McFarlane's appeal and future appeals involving religious rights. At issue in McFarlane's case is a ruling by the Employment Appeal Tribunal that religious discrimination prohibitions were not violated when McFarlane was dismissed by a counselling service for refusing to counsel same-sex couples. (See prior posting.) Critics of the court say that a series of rulings have shown a lack of understanding of Christian beliefs. They point especially to an opinion by Lord Neuberger, the Master of the Rolls, rejecting a complaint by marriage registrar Lillian Ladele who was disciplined when she refused to perform civil partnership ceremonies for same-sex couples. (See prior posting.)

Dutch Supreme Court Tells Christian Political Party To Give Women Leadership Roles

According to AP, Netherlands Supreme Court on Friday rejected religious freedom arguments and ruled that the fundamentalist Christian inspired Political Reformed Party (SGP) must accept women in leadership roles. The court held that the party's policies are in conflict with the 1979 U.N. Convention on the Elimination of All Forms of Discrimination Against Women. SGP has held two or three seats in Parliament since the 1920's and says that its policy stems from Biblical values. After the decision was announced, SGP released its slate of all male candidates for national elections in June. [Thanks to Scott Mange for the lead.]

Minister-Social Worker's Claim Under Title VII Survives Motion To Dismiss

In Moore v. Metropolitan Human Service District, 2010 U.S. Dist. LEXIS 34808 (ED LA, April 7, 2010), a Louisiana federal district court held that an ordained minister employed as a social worker at a state agency that provides services to individuals with addictive disorders stated a plausible religious discrimination claim under Title VII of the 1964 Civil Rights Act. Plaintiff Beulah Moore answered religious questions posed to her by patients. Her employer gave her an ultimatum to stop speaking about God at work, or else resign. The court held:

The Court finds that Metropolitan's argument that its conduct was appropriate because it prohibited Bible-based study at a state facility misses the point. Moore alleges that Metropolitan said she could not mention God at work.... If Moore's allegation is true-and the Court must assume that it is at this stage of the proceedings -a reasonable inference to draw is that Metropolitan prohibited Moore from mentioning God even when she was not speaking with Metropolitan clients. Such an unconditional prohibition could run afoul of Metropolitan's duty to reasonably accommodate Moore's religious beliefs. Moore's direct religious discrimination claim therefore survives Metropolitan's motion to dismiss.

Recent Prisoner Free Exercise Cases

In Abdulhaseeb v. Calbone (10th Cir., April 2, 2010), the 10th Circuit held that a Muslim prisoner adequately demonstrated the existence of a genuine issue of material fact as to whether the denial of halal food, and the denial of halal meat for an Islamic feast, substantially burdened his religious exercise. The 10th Circuit in the case for the first time for its circuit defined "substantial burden" under RLUIPA. Its definition includes requiring or imposing substantial pressure on an individual to engage in, or refrain from, conduct that violates a sincerely held religious belief.

In Nasious v. Grayson, 2010 U.S. Dist. LEXIS 30409 (D CO, March 29, 2010), a Colorado federal district court agreed with a federal magistrate (2010 U.S. Dist. LEXIS 30498, Feb. 17, 2010), that the policy of a detention facility to issue a single eating utensil, a spoon, to each inmate for the inmate to keep did not substantially burden plaintiff's religious exercise. Plaintiff claimed that his Jewish faith required that his kosher meals be eaten with disposable eating utensils.

In Goodson v. Maggi, 2010 U.S. Dist. LEXIS 30058 (WD PA, March 1, 2010), in an opinion largely focusing on other issues, a federal magistrate judge held that plaintiff, an inmate, had failed to allege how his inability to access a spiritual advisor and attend church services created a substantial burden or substantially impacted his ability to exercise a central tenet of his religion. However he was given an opportunity to amend his complaint.

In Blumenthal v. Armstrong, 2010 U.S. Dist. LEXIS 30050 (WD MI, March 29, 2010), a Michigan federal district court adopted recommendations of a magistrate (2010 U.S. Dist LEXIS 20174, Feb. 10, 2010), and upheld a prison's decision to remove an inmate from receiving a kosher diet based on his lack of adherence to Jewish religious practices and his purchasing of non-kosher items from the prison's store.

In Massenburg v. Adams, 2010 U.S. Dist. LEXIS 31226 (ED VA, March 31, 2010), a Virginia federal magistrate judge denied both defendants' motion to dismiss and plaintiff's motion for summary judgment in a damage action in which plaintiff, a member of the House of Israel, complained that he was given a job assignment that required him to work on his Sabbath.

In Pouncil v. Tilton, 2010 U.S. Dist. LEXIS 31094 (ED CA, March 31, 2010), a California federal district court held that a Muslim prisoner serving a life sentence properly stated a claim under RLUIPA in his challenge to a rule that prohibited him, in violation of his Muslim faith, from having conjugal visits with his wife.

In Barendt v. Gibbons, 2010 U.S. Dist. LEXIS 31004 (D NV, March 30, 2010), a Nevada federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 31011, Feb. 11, 2010), holding that plaintiff failed to demonstrate a substantial burden on his free exercise of religion under RLUIPA. Plaintiff who is Jewish claimed that the nightly count of inmates took place at the time of pre-Shabbat candle lighting, barring the ability to hold a group ceremony until later.

In Leonard v. Louisiana, 2010 U.S. Dist. LEXIS 31892 (WD LA, March 31, 2010), a Louisiana federal district court held that defendant's free exercise rights and his rights under RLUIPA were infringed by a prison's refusal to permit him to receive Nation of Islam's newspaper The Final Call solely because each issue contains "The Muslim Program" written by Elijah Muhammad.

In Strutton v. Meade, 2010 U.S. Dist. LEXIS 31944 (ED MO, March 31, 2010), a Missouri federal district court rejected complaints by an inmate being held indefinitely under the state's violent sexual predator law that a second Wiccan religious service each week was not permitted because there was no volunteer leader. It also rejected on pleading grounds his complaint that at one time he was not permitted to make Wiccan objects in Arts and Crafts class. Finally it rejected his claim that pressure from fellow-inmates at one AA meeting to recite the serenity prayer amounted to an Establishment Clause violation.

Mintun v. Peterson, 2010 U.S. Dist. LEXIS 31598 (D ID, March 30, 2010), involves a claim by a gay inmate that he was prevented from participating in the inmate-run choir or Christian Fellowship services because of beliefs of fellow inmates that homosexuality is a sin. An Idaho federal district court denied defendants' motion for summary judgment on plaintiff's free exercise and RLUIPA claims for lack of evidence. The court rejected plaintiff's retaliation and equal protection claims.

In Levy v. Holinka, 2010 U.S. Dist. LEXIS 31743 (WD WI, Marach 30, 2010), a Wisconsin federal district court rejected RFRA, free exercise and establishment clause claims of a Hebrew Israelite prisoner who complained that he was not permitted to wear a turban.

Unique Arrangement For Catholic Schools Converted To Charter Schools

In Indianapolis, Indiana last Monday, officials approved the conversion of two Catholic elementary schools into taxpayer-supported charter schools. According to today's Louisville (KY) Courier-Journal, unlike similar conversions in New York City and Washington, D.C. (see prior postings 1, 2) where the charter schools were then operated by secular organizations, in Indianapolis they will be operated by ADI Charter Schools, Inc., a non-profit group organized by the Catholic archdiocese. The schools will end religious education classes during the school day and will remove or cover religious symbols and displays. They will teach a secular version of the character education program already in use. Bookkeeping for state funds will be done off-site.

11th Circuit: Ministerial Exception Doctrine Applies To Suits Under Section 1981

In McCants v. Alabama-West Florida Conference of the United Methodist Church, Inc., (11th Cir., April 5, 2010), the 11th Circuit dismissed a suit brought by an African-American former pastor of the United Methodist Church against his former church employer. The lawsuit, brought under 42 USC Sec. 1981, charged racial discrimination and retaliation in preventing him from being reappointed pastor of two congregations. The court held that the Free Exercise and Establishment Clauses require the "ministerial exception" doctrine to extend to suits under Section 1981, as well as to Title VII lawsuits.

5th Circuit Hears Oral Arguments In Religious Candy Cane Lawsuit

On Wednesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Moran v. Plano Independent School District. (Audio recording of oral arguments.) Last December, the 5th Circuit remanded to the district court the question of whether school rules in effect prior to 2005 that restricted the distribution of materials by students were constitutional. The rules were challenged after they were applied to bar a students from distributing religious themed candy cane pens. While new rules adopted in 2005 were upheld, the question of nominal damages against school officials for enforcing the old rules remained open. (See prior posting.) The district court on remand ruled against school officials. As reported by the Dallas Morning News, the appeal argued Wednesday focused on the question of whether the school principals involved had qualified immunity for their conduct. This turns on whether constitutional rules regarding the free speech rights of elementary school students to distribute non-curricular materials were "clearly established." During oral arguments, both sides avoided answering a question from Judge Catharina Hayes, who asked: "Why does Plano seem to have so many issues?" Liberty Institute, which represents the students in the case, issued a press release on the oral arguments.

Ecclesiastical Abstention Applies To Both Congregational and Hierarchical Churches

In Ad Hoc Committee of Parishioners of Our Lady of the Son Catholic Church, Inc. v. Reiss, (AZ App., Feb. 23, 2010), an Arizona appellate court held that the ecclesiastical abstention doctrine applies to congregational churches in the same way that it applies to hierarchical ones. The court dismissed claims that Father Paul Andrade was improperly appointed as priest and Board Member of the separate Tridentine congregation because he was not validly ordained before 1968, as required by the church's articles.. It also dismissed a second claim that the Board improperly removed Father Andrade, holding that his firing was a purely ecclesiastical matter. Finally it dismissed a dispute among factions in the church over use of church funds.

Justice Stevens Announces Retirement

The Washington Post reports that today U.S. Supreme Court Justice John Paul Stevens notified President Obama that he will retire one day after the end of the current Supreme Court term. (Full text of Stevens resignation letter.) Justice Stevens religion clause jurisprudence is reviewed in the following articles: Eduardo M. Penalever, Treating Religion as Speech: The Religion Clause Jurisprudence of Justice Stevens (SSRN, November 2005); Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 Fordham L. Rev. 2177 (2006); Robert F. Nagel, Justice Stevens' Religion Problem, (June/July 2003 First Things).

New Jersey Supreme Court Defines Cleric-Penitent Privilege

In a decision handed down Wednesday, the New Jersey Supreme Court, for the first time since N.J.S.A. 2A:84A-23 was amended in 1994, defined the scope of the cleric-penitent privilege. In State of New Jersey v. J.G., (NJ Sup. Ct., April 7, 2010), in a 6-1 decision, the court held that:

the cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric's professional character or role as a spiritual advisor.

At issue in the case is a conversation between a defendant accused of sexually abusing his daughters and a pastor that defendant had known for over thirty years. The state argued that the pastor was not acting as a spiritual advisor, but was acting to protect defendant's children. The court reversed and remanded the case since it was unclear whether the trial court had applied an objective reasonableness standard.

Justice Rivera-Soto dissented, arguing that the majority has "secularized" the privilege, based on an "unexpressed but nevertheless palpable fear of entangling itself in religious controversy." He urged a different standard: "in order for the cleric-penitent privilege to make sense, the question of whether the communication was made 'in confidence' must be informed and governed by the fundamental tenets and practices of the religious belief represented by the cleric and espoused by the penitent." He also objected that the parties had not been given an opportunity to develop their evidence in light of the new standard announced by the majority.

Anti-Abortion Tax Protester Sent To Jail In Canada

In Canada, a judge in Fredericton, New Brunswick has ordered anti-abortion tax protester, David Little, to jail for 66 days for refusing to pay $3000 in fines imposed when he was convicted of failing to file tax returns. According to yesterday's Winnipeg Free Press, Little, a 66-year old Roman Catholic, says he will never file a tax return so long as there is tax-funded abortion in Canada. He now faces a new charge for failing to follow a judge's order to file the past delinquent returns.

Priest's Suit Against Bishop Dismissed On Church Autonomy Grounds

A Nevada trial court has dismissed on church autonomy grounds a lawsuit brought by Rev. Richard DeMolen, a Catholic priest, against the Diocese of Reno and Bishop Randolph Calvo. The priest claimed that Bishop Calvo defamed him in a letter sent to parishioners. However the court said that the letter was part of the church's internal decision-making process. Fr. DeMolen was fired when he sought a court protective order after receiving a death threat he believed was from someone in the parish. According to yesterday's Reno Gazette Journal, the court held that the First Amendment precludes it from becoming involved in a contractual dispute between an employee and the religious organization that employs him.

British Nurse Loses In Bid To Wear Cross On Necklace

Earlier this week, an Employment Tribunal in Britain upheld a decision by a hospital banning Christian nurse Shirley Chaplin from wearing a cross on a chain around her neck. According to Wednesday's BBC News, the hospital's dress code bars front-line staff from wearing necklaces because patients might grab them. Chaplin argued that the ban prevents her from expressing her religious beliefs. However the Tribunal found no direct or indirect religious discrimination. Chaplin intends to appeal, saying that Christians feel "quite persecuted" by the decision.

Indian Court Rejects Government Involvement In Islamic Bank

In the Indian state of Kerala, a 2-judge bench of the High Court held that neither the state nor any of its instrumentalities may be involved with the creation of an Islamic banking institution. According to today's Business Standard and The Peninsula, the ruling came in a public interest lawsuit that alleged government involvement in a Shariah-compliant bank would amount to unconstitutional preference for one religion. The Kerala State Industrial Development Corporation (KSIDC) had planned to take a 13% interest in the Islamic bank. However under the ruling, promoters may go ahead and organize the bank without state involvement, so long as the proper procedures are followed and the required permissions obtained.

Claims Against Controversial School Teacher Continue After Summary Judgment Motion Is Denied

In Doe v. Mount Vernon City School District Board of Education, (SD OH, April 6, 2010), an Ohio federal district court ruled on several summary judgment motions in the lawsuit against controversial middle school science teacher John Freshwater by one of his students. The lawsuit alleged violations of the Establishment Clause. Four copies of the Ten Commandments were posted in Freshwater's classroom. He kept his personal Bible on his desk, and a box of Bibles were stored in the back of the classroom for use by the school's Fellowship of Christian Athletes. Freshwater was the faculty advisor to FCA. The student also alleged a battery growing out of an experiment with a Tesla coil which allegedly left a mark on his arm in the shape of a Christian cross. The court denied plaintiff summary judgment on these claims, finding there were genuine issues of fact as to whether the Establishment Clause was violated and as to whether the Tesla coil experiment constituted a battery. However the court dismissed Freshwater's counterclaims for defamation and intentional infliction of emotional distress. Yesterday's Mt. Vernon (OH) News reported on the decision. (See prior related posting.)

Federal Lawsuit Challenges Capital Appropriations To Religious Organizations

Chicago activist Rob Sherman has taken another step in his campaign to challenge the state legislative appropriations to houses of worship, parochial schools and religious institutions that were placed in last year's Illinois capital budget. (See prior posting.) On Wednesday he filed a federal lawsuit against the governor and two other state officials seeking to enjoin disbursement of appropriations to 155 groups, or to force recoupment of any funds already distributed. The lawsuit also raises questions about 20 other grants. The complaint (full text) in Sherman v. Quinn, (CD IL, April 7, 2010), alleges that these appropriations violate the federal Establishment Clause. It also alleges that they violate provisions of the Illinois Constitution that require public funds to be used only for public purposes (Art. VIII, Sec. 1), that prohibit forcing any person to support a place of worship (Art. I, Sec. 3), and bar appropriations in aid of any church or for sectarian purposes (Art. X, Sec. 3).

First Shariah-Compliant Space Satellite Insurance Policy Is Written

Yahsat, a satellite communications company owned by the government of Abu Dhabi, has broken new ground by purchasing a Shariah-compliant insurance policy as part of the insurance package on the two satellites it plans to launch in 2011. Space News reported yesterday that the policy supplements two larger conventional policies previously acquired. The new Shariah-compliant policy written by Abu Dhabi-based Methaq Takaful Insurance Co. was reviewed by a Shariah supervisory board to assure that it complies with Islamic law. The board also examined the intended use and customers of the satellites. The policy is seen as a prototype for future space insurance coverage in the Middle East and elsewhere in the Muslim world.

Possibility In Offing of Supreme Court Without Protestant Justices

NPR yesterday reported that with the anticipated retirement this year of U.S. Supreme Court Justice John Paul Stevens, the country for the first time may have a Supreme Court with no Protestant Justices. The two leading candidates to replace Stevens-- U.S. Solicitor General Elena Kagan and D.C. Circuit Judge Merrick Garland-- are both Jewish. If one of them is ultimately confirmed, the Court would have 6 Catholic and 3 Jewish justices.

Kenyan Religious Leaders Oppose New Draft Constitution

In Kenya, Cardinal John Njue of Nairobi, chairman of the Kenyan bishops' conference, and Rev. Peter Karanja , general secretary of the National Council of Churches say they will mobilize Christians to vote against Kenya's new draft constitution in the June referendum on it. Catholic News Service yesterday reported that the religious leaders object to the fact that the constitution would legalize abortion and would keep in place Islamic courts. However other religious leaders-- an Anglican archbishop and a priest known for his human rights work -- support the new constitution.

UPDATE: The Standard reported Thursday that church leaders are softening their opposition to the proposed constitution after a meeting with President Kibaki and Prime Minister Raila Odiga.
Church leaders and the President agreed to set up a committee to dialogue on controversial issues surrounding the proposed new constitution.

Vaccination Objection Held To Be Sincere, But Not Religious

In Caviezel v. Great Neck Public Schools, (ED NY, April 5, 2010), a New York federal district court refused to grant a preliminary injunction to force the Great Neck school system to grant plaintiffs an exemption from the requirement their child be vaccinated in order to enroll. The New York Public Health Law provides an exemption for children whose parents hold genuine and sincere religious beliefs against vaccination. The court concluded that while plaintiffs genuinely and sincerely oppose vaccination for their child, their objections are not "religious" in nature. Part of plaintiff's reasons involve safety concerns. Her other reasons are closer to a secular philosophy. She believes the human body is a perfect creation and we do not need to inject vaccines into it. Yesterday's New York Law Journal reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Ministerial Exception Precludes Wage and Hour Suit Against Scientology

In Headley v. Church of Scientology International, (CD CA, April 2, 2010), a California federal district court dismissed a claim by a Church of Scientology staff member that the Church violated state and federal labor laws. The court said:

Here, even if Plaintiff could establish the alleged federal and state labor law violations, there is no dispute that she: (1) was employed by a religious institution; (2) was chosen for her position based largely on religious criteria; and (3) performed religious duties and responsibilities. She worked for ... institutions within the Church of Scientology. She also was able to hold the positions she had with Defendants based largely on religious criteria, namely her commitment to 1,000,000,000 years of service to Scientology and the lifestyle constraints that come with being a member of the Sea Org.... Finally ... she performed various religious duties and responsibilities, most notably "auditing" and "cramming." For these reasons ... the ministerial exception would apply. Thus, her first cause of action fails.

According to AP's report on the decision, plaintiff alleged that she worked 100-hour weeks at almost no pay as part of Scientology's elite Sea Organization. (See prior related posting.) The Church of Scientology issued a press release on the decision.

Morocco Expels 50 Christians; US Government and Religious Group Protest

Morocco last month expelled around 50 Christians accused of proselytizing Muslims in violation of Moroccan law. (Moroccan authorities say the number was 27.) UAE's The National today reports that the expulsions include 16 staffers at the Village of Hope who were accused of using foster care as a cover for converting Moroccan children to Christianity. The Minneapolis Star Tribune yesterday reported that the expulsions targeted other foreign-run orphanages as well. The issue seems to be informal influence on the children by the Christian foster families, even though the children are formally taught the Qur'an in schools operated by the orphanages.

U.S. Ambassador to Morocco, Sam Kaplan, has urged that the aid workers be given due process rights. Kaplan is one of the few Jewish diplomats representing the U.S. in Arab countries. Morocco has a long tradition of tolerance of Jews and Christians, but the evangelical community sees the expulsions as a political gesture to Islamic fundamentalists. Nationals of Britain, Netherlands and South Korea were also expelled. Politicians and the media in the Netherlands also protested strongly. (Morocco Board News Service 3/10). [Correction.] Meanwhile, leaders of the Evangelical Church Alliance International met with the Ambassador of Morocco at the Moroccan Embassy in Washington, D.C. An Alliance press release reports they urged Morocco to adopt a clear definition of "proselytizing" to guide foreign Christians. It concludes that: "It was the consensus of the Evangelical leaders present that the Moroccan government understands our concerns and also wishes to strengthen the bonds of friendship that exist between us and to seek new and productive ways to keep the established bridges intact."

Australian Police Stop Crucifixion Reenactment As Offensive

Last Saturday, police in the Australian town of Geelong, Victoria, stopped a graphic depiction of Jesus' crucifixion being enacted in a busy shopping area. Police say the semi-nude Jesus covered with fake blood violated laws prohibiting offensive behavior in public. The Herald Sun and The Australian report that police stopped the performance 40 minutes into the one hour pageant after it apparently distressed young children watching. Church leaders plan to complain to Victoria's police chief about their treatment. Police reportedly later conceded the group was not technically breaking any law.

Blogger States Free Speech and Establishment Clause Claims

In Rich v. City of Jacksonville, (MD FL, March 31, 2010), a Florida federal district court refused to dismiss claims by a blogger in a lawsuit against a police officer and an assistant state attorney. Tom Rich began an anonymous blog on which he raised concerns about the pastor of First Baptist Church in Jacksonville. Police officer Robert Hinson, who was also on the pastor's security detail, opened an investigation in order to be able to subpoena Google and Comcast to discover the owner of the blog. Hinson obtained subpoenas from defendant Stephen Siegel in the Office of the State Attorney. After Hinson or Siegel told church officials that the blogger was Tom Rich, the church issued trespass warnings against Rich and his wife, barring them from church premises. (See prior posting.) The court concluded that, if proven, the allegations would support a finding that plaintiff's right to anonymous speech was infringed, and that the Establishment Clause was violated because defendants had no secular purpose for their actions. The court however dismissed another portion of the complaint on 11th Amendment grounds-- a damage claim against the state attorney in her official capacity. Yesterday's Florida Times-Union reported on the decision.

Complaint Filed Over Local Official's Washing of Government Employees' Feet

In St. Bernard Parish, Louisiana, the ACLU has sent a letter to Parish President Craig Taffaro complaining about the official's decision on the Thursday before Easter to wash the feet of Parish employees. WSDU News reported yesterday that Taffaro says he did not see the practice as a religious act, but as an act of public service. Taffaro also says that no employee was coerced into participating. The ACLU's letter argues that Taffaro is imposing his religion on government employees. Foot washing is practiced by certain Christian denominations based on words of Jesus in John 13: 14-17. (Background.)