Creator Of "Draw Mohammed" Campaign Backs Off, As Others Continue It

Reacting to last week's online threats to the creators of South Park over their depiction of the Prophet Muhammad in a bear costume (see prior posting), Seattle artist Molly Norris created a poster promoting May 20 as "Everybody Draw Mohammed Day," sponsored by a fictional group, Citizens Against Citizens Against Humor. The poster also included sketches of items such as a coffee cup and a pasta box each claiming to be the real Mohammed. The poster spread virally on the Internet, creating a reaction for which Norris was unprepared. AOL News and the National Post yesterday both reported that Norris has now backed off, posting a statement reading in part: "I did not intend for my cartoon to go viral. I did not intend to be the focus of any ’group’. This particular cartoon has struck a gigantic nerve, something I was totally unprepared for." Also Jon Wellington who created a Facebook page publicizing Norris' efforts has backed out, surprised at the deeply offensive drawings that were posted to his site. However now a Toronto IT specialist calling herself "Mimi" says she will promote the May 20 event. Also, Michael Moynahan at Reason has invited submissions that he says he will post on May 20.

Dispute Continues Over Nepal As Secular State In Proposed Constitution

In Nepal, as law makers approach the May 28 deadline for completing a draft of a new constitution, tensions increase over whether the country will remain a secular state. In 2006, Parliament passed a resolution providing that the country would no longer formally be known as a Hindu nation. (See prior posting.) Last week, Christians rallied in Kathmandu demanding that the new constitution ensure their rights by keeping Nepal as a secular state. Cath News India reports that Christians are pressing for provisions in the constitution that protect their right to form Christian NGOs and church trusts easily. However yesterday's London Guardian reports that there are increasing pressures, fueled by Hindu nationalists in India, to once again declare Nepal a Hindu state. A popular Nepal holy man, Kali Baba, has threatened to burn himself alive if the country is not again declared Hindu. According to the Guardian, even the proposed new constitution does not completely protect free exercise because it continues a ban that is in the country's interim constitution that prohibits converting another person from one religion to another.

9th Circuit: Appeal To Religion Did Not Void Miranda Waiver

In United States v. Scaggs, (9th Cir., April 26, 2010), the U.S. 9th Circuit Court of Appeals held that the Miranda waiver by convicted murderer David Scaggs was not renedered involuntary by interrogators appeal to his religious beliefs. In questioning Scaggs without a lawyer present, the investigator asked him if he was a religious man. When Scaggs said he was, the investigator told him: "Well, if you're a religious guy, now is the time to tell the truth." The court held that this brief reference did not overbear Scaggs' will. Indeed Scaggs did not begin to confess until interrogators played a tape of an interview with an accomplice.

Recommended Life Sentence For Rubashkin Questioned

A sentencing hearing is scheduled tomorrow in an Iowa federal district court for Sholom Rubashkin, the former manager of a Postville, Iowa kosher slaughter house who was convicted on 86 counts of financial fraud after a raid on the Agriprocessors packing plant also led to immigration charges that were eventually dropped. To the surprise of many, federal prosecutors have recommended a life sentence for Rubashkin. Yesterday's Washington Post reports that a letter from 23 former prosecutors, including former Attorneys General Janet Reno and Ed Meese, urges Judge Linda Reade to impose a shorter sentence. Some speculate that prosecutors have singled out Rubashkin, a Hasidic Jew, because of his appearance or religious beliefs, or that the U.S. Attorney's Office is motivated by anti-Semitism. (See prior related posting.)

Interpretation of Florida "No-Aid" Provision Certified To State High Court

In Council for Secular Humanism, Inc. v. McNeil, (FL App., April 27, 2010), a Florida appellate court in an Establishment Clause case, by a 7-7 vote, denied a motion for en banc review of a decision by a 3-judge panel. However the 3 judges did file an amended panel decision and certified to the state Supreme Court as a matter of great public importance the question of whether the "no aid" provision in Florida's constitution prohibits the state from contracting with religious organizations for the provision of faith based transitional housing for inmates. In certifying the question, the panel observed that this was the first instance in which the no-aid provisions had been applied outside the school context.

As the panel had done in its original decision (see prior posting), the revised decision struck down the state payments to these religious organizations, but held that plaintiffs lacked standing to challenge the constitutionality of the contracts that were entered into with these organizations and required them to provide faith-based transitional housing. Finally the court rejected a challenge to provisions requiring consultation with a chaplain before an inmate is placed in a faith-based substance-abuse transitional housing program.

Justice Thomas (joined by 4 others) wrote a dissenting opinion to the denial of en banc review urging the court to use this case as an opportunity to reverse earlier precedent and hold that paying a religious institution to provide a public benefit does not amount to "aid" to the institution. Yesterday's Miami Herald reported on the decision.

Islamic Clerics In Kenya Banning Public Soccer Broadcasts

Reuters yesterday reported that a group of Islamic clerics in Kenya are trying to prevent public broadcasts of soccer and of films in the area around the town of Mandera, near the border with Somalia. The clerics say that young people are being distracted from their religious obligations by the broadcasts, so the clerics are confiscating equipment, destroying DVDs, and compensating the owners for them. While this sort of ban cannot be enforced legally in Kenya, the clerics have pressured local administrators to support it. Many Kenyans are particularly distressed by the move because of the upcoming World Cup competition scheduled for June in South Africa. Kenyans are avid soccer fans, and many more moderate Muslim clerics in the country do not necessarily support the broadcast ban.

Court Says Student May Participate In Pro-Life Day of Solidarity

In C.H. v. Bridgeton Board of Education, (D NJ, April 22, 2010), a New Jersey federal district court enjoined a New Jersey high school from preventing a student from distributing flyers and wearing a red duct tape armband reading "Life" as part of her participation in the Pro-Life Day of Solidarity. Applying the Supreme Court's Tinker decision, the court held that school officials had not carried their burden of showing a well-founded fear that either the armband or flyers will cause substantial disruption to the educational process. Alliance Defense Fund issued a release announcing the decision. (See prior related posting.)

New Poll On Religion In Public Life

Last Friday, Rasmussen Reports released a new poll of American adults on issues of religion in public life and the performance of the courts. Among the results: 64% believe judges' rulings have been more anti-religious than intended by the country's founders. 46% say the Supreme Court has been too hostile toward religion. 39% say the Court is too liberal, while 25% say it is too conservative. 45% believe that justices nominated by President Obama will be too liberal. 61% favor prayer in public schools. Breakdowns show Evangelical Christians most likely to see courts as anti-religious.

5th Circuit Hears Oral Arguments On Texas School Agency Creationism Policy

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Comer v. Scott. (Recording of oral arguments.) In the case the district court rejected an Establishment Clause challenge to a policy of the Texas Education Agency (TEA) that required its Director of Science to remain publicly neutral regarding the teaching of creationism. The Director, Christina Comer, was fired for forwarding to two listservs and seven science educators an announcement about an anti-Creationism talk that was being presented in Austin. (See prior posting.) Yesterday the Washington Post reported on the 5th Circuit oral arguments. Judge Fortunato Benavides pressed Comer's lawyer on why this wasn't a free speech claim instead of an establishment clause one. Lawyer Douglas Mishkin said that TEA's neutrality policy endorses a religious belief.

Christian Stock Index Launched

London's Financial Times reported that Europe's first stock index based on Christian values was launched yesterday. Stoxx Europe Christian Index consists of stocks of 533 European companies whose revenues come only from sources approved "according to the values and principles of the Christian religion." Companies are excluded if they profit from pornography, weapons, tobacco, birth control or gambling. The companies in the index are screened by a committee that includes representatives of the Vatican.

Obama Meets With Ailing Billy Graham In North Carolina

AP reports that yesterday while in North Carolina, President Barack Obama traveled to visit ailing 91-year old evangelist Billy Graham at Graham's mountainside home. Graham's son, evangelist Franklin Graham, was also there. Obama's visit lasted 30 minutes. Staff of both men were at the meeting. Obama had a private prayer and conversation with Graham who presented Obama Bibles for himself and the First Lady. Franklin Graham said his father prayed for the nation and asked God to give Obama wisdom in his decisions. Obama thanked God for Billy Graham's life.

Prayers At Honolulu City Council Questioned

Yesterday's Honolulu Advertiser reports that Hawai'i Citizens for Separation of State and Church has filed a complaint with Honolulu City Council contending that since January 2008, 25 out of 27 Council meetings have been opened by Christian prayer or sermonizing. Council chairman Todd Apo said the policy does not need changing, but reminded members about existing guidelines for aloha messages that open Council meetings. He says that a few recent messages have "gone deeper into religion than was appropriate." Meanwhile, Apo is encouraging council member to deliver the aloha message personally rather than seeking an outsider to do so. Apo delivered the message at Council's last monthly meeting. Hawai'i Citizens for Separation of State and Church also plans to file a complaint with the Hawaii state Senate about the prayers that open its sessions.

Recent Articles of Interest

From SSRN:

• Adam Schwartzbaum, The Niqab in the Courtroom: Protecting Free Exercise in a Post-Smith World, (April 20, 2010).
• Samuel J. Levine, Of Inkblots and Omnisignificance: Conceptualizing Secondary and Symbolic Functions of the Ninth Amendment, in a Comparative Hermeneutic Framework, (Michigan State Law Review, Vol. 2009, No. 2, 2009).
• Samuel J. Levine, Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity, (Law and Religion: Cases in Context: Leading Law and Religion Scholars Explore the Issue That Confound the Courts, Leslie C. Griffin ed., 2010.)
• Mike Newdow, Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?, (Capital University Law Review, Forthcoming).
• David W. Opderbeck, A Critical Realist Theology of Law, Neurobiology, and the Soul, (Seton Hall Public Law Research Paper, April 23, 2010).
• Lorenz Langer, Panacea or Pathetic Fallacy? The Swiss Ban on Minarets, (Vanderbilt Journal of Transnational Law, Vol. 43, 2010).
• Robert K. Vischer, Individual Rights vs. Institutional Identity: The Relational Dimension of Conscience in Health Care, (U of St. Thomas Legal Studies Research Paper No. 10-17, 2010).
• Robert K. Vischer, Conscience and the Common Good: Reclaiming the Space between Person and State, (Cambridge University Press, 2010).

From SmartCILP:

• John A. Eidsmoe, The Use of the Ten Commandments in American Courts, 3 Liberty University Law Review 15-46 (2009).
• Jeffrey C. Tuomala, Book Review, (Reviewing Robert George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis), 3 Liberty University Law Review 77-102 (2009).
• Symposium: A Celebration of the Twentieth Anniversary of Mulieris Dignitatem, Part I. Articles by Marguerite A. Peeters, Sr. Prudence Allen, Maria Sophia Aguirre, Mary Timothy Prokes, Elizabeth R. Schiltz, Margaret McCarthy, I.F.C. Camp, M.R. Gonzales and Helen M. Alvare. 8 Ave Maria Law Review 1-195 (2009).

Suit In Botswana Challenges Authority of Territorial Chief Over Churches

According to Botswana's Sunday Standard, a hearing is scheduled today before a High Court judge in Botswana in a suit filed by the country' Evangelical Fellowship and the Family of God Church against the royal family of the territory of Bakgatla. Last week, a dispute broke out between the Family of God Church and the royal family over a crusade held by the church in the city of Mochudi. The church was accused of disrespecting Kgatla law, and Paramount Chief Kgafela Kgafela II's regiments whipped two of the church's pastors. An order was issued banning the church from worshiping in Mochudi. The lawsuit seeks a court order declaring that the Bakgatla paramount chief has no legal authority to expel the churches or any of its members from Kgatleng, and that the order banning the church was a violation of its free exercise rights and its members' rights to practice their religion. (Botswana Constitution, Sec. 11.)

UPDATE: MMEGI reported Tuesday that in an interim ruling a High Court justice has held that Family Church of God's constitutional rights to freedom of conscience, thought and religion were infringed by Kgafela and his regiments. The court issued an order barring Kgafela, pending final determination of the case, from interfering with the activities of any church that is a member of the Evangelical Fellowship of Botswana.

British Court Sentences Atheist For Leaving Insulting Material In Airport Chapel

A judge in England's Liverpool Crown Court last week Harry Taylor, described by BBC News as a "militant atheist", a six month suspended sentence for causing religiously aggravated intentional harassment. He was convicted by a jury in March of leaving distressing posters in the prayer room at Liverpool's John Lennon Airport. One of the posters depicted a smiling crucified Jesus next to an advertisement for "no nails" glue. A second poster showed Islamic suicide bombers at the gates of paradise being told to stop because they had run out of virgins. The court also issued a five-year Anti-Social Behavior Order against him-- a civil order banning him from carrying religiously offensive material in a public place. Taylor was convicted on similar charges in 2006. [Thanks to Volokh Conspiracy for the lead.]

Compromise Will Let South African Jurist Attend His Grandson's Bar Mitzvah

Apparently South African jurist Richard Goldstone will be able to attend his grandson's Bar Mitzvah in a Johannesburg suburb after all. Goldstone is currently a visiting faculty member at Georgetown University in Washington, D.C. Earlier this month it was reported (see prior posting) that planned demonstrations by the South African Zionist Federation over Goldstone's report to the United Nations on Israel's Gaza incursion had led Goldstone to decide not to attend. However today's New York Times reports that the South African Board of Jewish Deputies has now worked out a compromise. No protests will be held on the day of the planned Bar Mitzvah. In exchange, Goldstone will meet with leaders of the South African Zionist Federation and other Jewish groups.

Recent Prisoner Free Exercise Cases

In Taylor v. Doe, 2010 U.S. Dist. LEXIS 38201 (SD OH, April 19, 2010), an Ohio federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 38195, March 2, 2010) and dismissed an inmate's argument that his free exercise rights were infringed when he was not permitted to go to a doctor's appointment because of long hair that he wore for religious reasons. The court held that the complaint had not raised the 1st Amendment issue.

In Simmons v. Herrera, 2010 U.S. Dist. LEXIS 39819 (ND CA, March 26, 2010), a California federal district court dismissed as moot an inmate's suit for injunctive relief to obtain Native American religious services at Salinas Valley State Prison. Plaintiff has been moved to a different prison facility.

In Ransom v. Martinez, 2010 U.S. Dist. LEXIS 39707 (ED CA, March 24, 2010), a California federal magistrate judge permitted a prisoner to move ahead with free exercise and RLUIPA claims that the requirement he undergo a strip search in front of female guards violates his Muslim religious beliefs.

Traffic Arrest Intensifies Debate In France Over Ban of Burqa and Niqab

Yesterday's Irish Times reports that the debate in France over a proposed ban of the niqab and burqa (full face veils) (see prior posting) has intensified after it was learned that traffic police in the city of Nantes earlier this month fined a Muslim woman 22 Euros for driving a car while wearing a niqab. They claimed that her field of vision was obstructed by the veil. The woman's lawyer argues that the fine is not justified by concerns about road safety, and that it is a breach of human and women's rights.

Meanwhile the government confirmed that its proposed ban on the full face veil in all public places would apply to tourists as well as residents. This led to speculation that police might force luxury shoppers from the Gulf states to remove their veils on the Champs-Elysees.

Congressional Earmarks Challenged On Church-State Grounds

In a letter (full text) sent last week to the Attorney General and to the Labor, HUD and Education secretaries, Americans United identified ten Congressional funding earmarks for fiscal 2010 that it says raise church-state issues. AU contends that the recipient organizations in each case "are pervasively sectarian, engage in substantial religious activities such as teaching or proselytization, engage in religious discrimination in service provision, and/or coerce service recipients to take part in religious activities." The letter asks each department to review the grants, impose adequate church-state restrictions or, if that is impossible, refrain from funding the earmarks. In a release announcing the letter, AU executive director Rev. Barry Lynn said: "Religious pork is bad for America’s constitutional health." Nine of the challenged grants are to Christian organizations; one is to a Jewish school.

Britain Apologizes To Vatican Over Leaked Memo On Pope's Planned Visit

Britain's Foreign Office yesterday issued a public apology to the Vatican after the press obtained a copy of a provocative memo circulated earlier this month among government officials. London's Sunday Telegraph reports that the background document grew out of a "brainstorming" session among civil servants on plans for Pope Benedict XVI's September visit to Britain. Circulated within the Foreign Office by a junior official, the proposals for the "ideal visit" by the Pope included many items that were implicitly critical of current Church policies on a variety of issues. (Excerpts from memo.) Suggestions included the Pope's opening an abortion ward, doing forward rolls with children to promote healthy living, singing a duet with the Queen, reversing Church policy on women as bishops and opening a help line for abused children. A cover memo admitted that a number of the ideas were "far-fetched." Senior officials quickly withdrew the document and one official who was responsible for it has been transferred to other duties. UK's Ambassador to the Vatican has also met with Holy See officials to express regret.

A second document circulated at the same time lists individuals and groups that are important to the Pope's visit, and ranks them in order of how influential and positive they are. The singer Susan Boyle is listed as more influential than the Archbishop of Westminster.

Tax Court Rules On Disputed Religious Charitable Deductions

In Wilkes v. Commissioner of Internal Revenue, (USTC, April 22, 2010), the United States Tax Court agreed with some, but not all, of the Commissioner's disallowance of claimed religious charitable contributions by Jeffrey and Patricia Wilkes who are members of the Church of Jesus Christ. The Church has no hierarchy, clergy or formal leadership, and autonomous local churches will accept contributions directly only from their members. At issue were contributions to "Needy Saints," and other contributions to church missionaries. Needy Saints are individuals certified by the elders of the local church as deserving of assistance. The Court held that contributions given directly to these needy private individuals are not deductible. However the Court did allow deductions for $12,500 given to two missionaries because they were given to them as agents of qualified non-profit organizations.

Sri Lankan Official Complains About South Park's Portrayal of Buddha

Sri Lanka's Sunday Leader reports today on indignation in Sri Lanka over two recent episodes of the animated American television show South Park which depicted Lord Buddha snorting cocaine. The government's Minister of Religious Affairs said he would ban the shows, and even the entire series, from being televised in the country. However he would not say whether he would also ban the sale of South Park DVDs that are widely available. This stir follows objections by Muslims earlier this week over the depiction of the Prophet Muhammad on South Park. (See prior posting.) South Park episodes have portrayed other religious leaders in unflattering ways as well, including Jesus viewing Internet pornography.

Challenge To Nativity Scene Dismissed As Moot

In Freedom from Religion Foundation v. Manitowoc County, 2010 U.S. Dist. LEXIS 39667 (ED WI, April 22, 2010), a Wisconsin federal district court dismissed as moot a challenge to the display of a Nativity scene on the Manitowoc County (WI) Courthouse lawn. The court said:

the County recently enacted a written Policy governing the placement of displays on courthouse grounds. Previously, citizens wanting to place a display on the grounds sought permission from the Director of Public Works.... Now, however ... the new written Policy is intended to allow all citizens equal access to the courthouse grounds. Because citizens will now have open access, any Nativity scene displayed in the future would be seen not as a government-sponsored message but simply as the message of a citizen group taking advantage of an open forum.

The court rejected plaintiff's argument that the new policy is a sham and that the county will continue to favor Christian religious displays.

Suit Against Vatican and Pope Seeks Damages, Release of Names of Absuive Clergy

Yesterday's National Law Journal reported on a suit filed in federal court in Milwaukee, Wisconsin against the Holy See, the Pope, and two cardinals at the Vatican, seeking damages because of sexual abuse plaintiff suffered at the hands of Rev. Lawrence Murphy who taught at St. John's School for the Deaf. Murphy allegedly abused around 200 boys at the suburban Milwaukee school between 1950 and 1974. The 55-page complaint (full text) in Doe v. Holy See, (ED WI, filed 4/22/2010) also seeks release of the names of clergy sex offenders and of documents relating to their activity. It asserts a wide range of claims against defendants, including breach of contract, misrepresentations, negligence, conversion and violation of international human rights conventions. Counsel for plaintiff expects that the Vatican will raise a defense of sovereign immunity. Plaintiff intends to rely on the tort and commercial activity exceptions to sovereign immunity (28 USC Sec. 1605) found in the Foreign Sovereign Immunities Act. The complaint contains numerous allegations regarding the commercial nature of the Catholic Church's fundraising in the United States.

The Vatican Press Office issued a release yesterday responding to the lawsuit, saying: "the lawsuit - together with its de rigueur press conference and news releases - is simply the latest attempt by certain U.S. lawyers touse the judicial process as a tool of media relations."

UPDATE: An April 26 article from CNN profiles Jeff Anderson, the lawyer who filed the lawsuit. Active in bringing clergy sex abuse litigation for decades, the article describes Anderson as the attorney who has most driven U.S. media coverage of the Catholic Church sex abuse scandal.

Church Property Tax Disputes Continue In Various Locations

Disputes over tax exemptions for property owned by religious institutions continue to arise around the country. In Congregation Rabbinical College of Tartikov, Inc. v. Town of Ramapo, (NY App. Div., April 20, 2010), a New York appellate court held that town tax authorities improperly revoked the tax exemption for property that was being leased out as a religious summer camp by the rabbinical college that owned it. The court held that the operation of the summer camp was in furtherance of the college's religious purposes. (See prior related posting.)
[Thanks to Joseph Landau for the lead.]

Meanwhile in Scituate, Massachusetts, the Boston Archdiocese has withdrawn a lawsuit seeking a court declaration that the town cannot tax the St. Francis X. Cabrini church building that had been closed by the archdiocese, so long as it was not used for non-religious purposes. The archdiocese argued that the building remains a sacred place designated for divine worship. (See prior posting.) The Quincy (MA) Patriot Ledger reports that the Archdiocese has decided to pursue appeals through the state Appellate Tax Board instead of in court.

New Law Expands Florida Tax Credit School Voucher Program

Florida's Governor Charlie Crist yesterday signed SB 2126, a bill that dramatically expands Florida's Tax Credit Scholarship Program. (Legislative history.) According to today's Miami Herald, corporations get dollar-for-dollar tax credits for contributions to the voucher program that is open to low-income students. Some 27,700 students now receive vouchers. Under the new law which takes effect July 1, the amount of each voucher will grow over several years from the current $3950 to up to 80% of the state's per pupil funding amount-- $5492 at current levels. Many students use the vouchers at faith-based schools. A spokesman for the program predicted that participation could grow to 70,000 students in five years.

Canadian Judge Refuses To Let Sikh Witness Wear Kirpan

A Canadian trial court in Windsor, Ontario yesterday refused to permit a key witness in a contentious lawsuit between two factions at a local Sikh temple to enter the courtroom wearing his kirpan (ceremonial dagger). According to the Montreal Gazette, Superior Court Justice Steven Rogin said that the witness, a physician and gurdwara leader, will not be permitted to bring his kirpan into the courthouse even though the ban may breach his charter right to freedom of religion. The judge said that the leadership dispute at the Sikh Cultural Society of Metropolitan Windsor has generated "excitement and passion," and the kirpan could be used as a weapon. When witness Dr. Sukdev Singh Kooner, who is at the center of the dispute, refused to enter the courtroom without his kirpan, Judge Rogin adjourned the proceedings so Kooner can testify through a deposition that will be taken at his lawyer's office, transcribed by a court reporter and entered into evidence.

Kentucky High Court Voids Funding of Pharmacy Building, Scholarships At Baptist University

In University of the Cumberlands v. Pennybacker, (KY Sup. Ct., April 22, 2010), the Kentucky Supreme Court held that a $10 million state appropriation for construction of a pharmacy school at a Baptist college violates the provision in Kentucky's Constituiton that prohibits public funding of "any church, sectarian or denominational school" (Sec. 189). The court rejected the argument that the ban on sectarian funding violates the First Amendment of the U.S. Constitution, finding that the state has legitimate anti-establishment concerns. It also rejected the argument that Sec. 189 of the state Constitution was anti-Catholic in its origins. The court went on to also hold that a $1 million appropriation for a pharmacy student scholarship program at the same college violates the Kentucky Constitution's ban on special legislation (Sec. 59). Justice Cunningham (joined by Justice Scott) wrote a concurring opinion "to dispel any abiding notion that courts, such as this one, in marking clearly the divide between church and state, are taking a legalistic swipe at religion." Justice Scott (joined by Justice Venters) wrote a partial dissent arguing that the pharmacy student scholarship program is permissible. (See prior related posting.) Yesterday's Lexington Herald-Leader reports on the court's decision.

Korea's Supreme Court Says Private Mission School Must Respect Students' Religious Rights

South Korea's Supreme Court yesterday sent back for retrial a damage action brought by a 24-year old law student who six years ago was expelled by a Protestant high school for protesting a required religion class. JoongAng Daily reports on the decision that held students' religious freedom must be respected even by private mission schools because students are assigned to the schools through a random lottery instead of by their own choice. Plaintiff Kang Ui-seok says that if he wins at his retrial, he will follow the Christian teaching of "love your enemies," and will return the money to the school.

Taxpayer May Not Intervene To Challenge Settlement of Suit By School District

In Doe v. Cheatham County School Board of Education, 2010 U.S. Dist. LEXIS 38883 (MD TN, April 20, 2010), a Tennessee federal district court refused to permit a citizen/taxpayer to intervene to challenge a settlement of an Establishment Clause lawsuit that was brought by the ACLU against Cheatham County (TN) public schools. In the settlement, the school board agreed that the schools will no longer allow various religious activities. (See prior posting.) The court, in rejecting the motion to intervene, said:

[Intervenor] objects in toto to the enforcement of the Establishment Clause as it pertains to Christianity in public schools and to the ability of the ACLU to collect fees for its efforts to enforce the Establishment Clause in such cases, both of which are far beyond the scope of the issues presented here. Allowing her to pursue such global claims would undoubtedly prolong what is a simpler question of whether specific acts by certain teachers and administrators violated either the state or federal constitution.

Canadian FLDS Leader Denied Advance of Legal Fees In B.C. Polygamy Reference

In the Canada last October, British Columbia's Attorney General decided that instead of appealing the dismissal of polygamy charges that were filed against the leaders of two FLDS factions, the province would instead ask the British Columbia Supreme Court for clarification on the law's constitutionality. (See prior posting.) That led Winston Blackmore, one of the two FLDS leaders who had been charged under the law, to ask the court to permit him and his congregation to participate as interested parties in the Reference proceedings. He also sought an order advancing him funds to pay for attorneys' fees for his participation. In In re the Constitutional Question Act, R.S.B.C. 1986, C. 68, (BC Sup. Ct., April 20, 2010), the court granted Blackmore and the FLDS faction he represents "interested person" status so they can participate in the case. However the court refused Blackmore's request for an advance of costs. It found no reason to give him preferential treatment over twelve other interested parties who are also participating in the case. CBC News reported on the decision on Tuesday.

Government Will Appeal Decision Striking Down National Day of Prayer

Yesterday the U.S. Department of Justice filed a Notice of Appeal to the 7th Circuit in Freedom From Religion Foundation, Inc. v. Obama. According to the AP, the United states will appeal both last week's decision finding that the statute creating the National Day of Prayer violates the Establishment Clause (see prior posting), but also the court's decision last month holding that plaintiffs had standing to bring the challenge. (See prior posting.)

Meanwhile, according to AOL News, the Pentagon Chaplain's Office yesterday withdrew its invitation to Franklin Graham, honorary chairman of this year's National Day of Prayer Task Force, who had originally been invited to speak at the Pentagon's special prayer service scheduled for May 6. The move came after complaints surfaced about Graham's previous references to Islam as an "evil and wicked" religion. (See prior posting.)

Supreme Court's Attorneys' Fees Decision Will Impact Religious Rights Cases

The U.S. Supreme Court yesterday decided an attorneys' fee case that will be important to lawyers bringing cases seeking to vindicate free exercise or establishment clause rights. 42 USC Sec. 1988 authorizes the award of reasonable attorneys' fees to the prevailing party in civil rights lawsuits, including those under Section 1983, RLUIPA and RFRA. In Perdue v. Kenny A., (Sup. Ct., April 21, 2010), the Court, in an opinion by Justice Alito, held that while the amount of the fee is generally determined by computing an hourly rate (the "lodestar" amount), that amount may be increased for superior performance, but only in extraordinary circumstances. Justices Breyer filed a partial dissent, joined by Justices Stevens, Ginsburg and Sotomayor, objecting to the manner in which the majority dealt with the application of its holding to the facts of the case before it which involved a challenge to Georgia's foster care system. National Law Journal reports on the decision, and Scotus Blog has further analysis of it.

Lawsuit Argues Publisher's Pension Plan Was Not An Exempt Church Plan

The Wall Street Journal reports on a federal lawsuit filed in Minneapolis yesterday by employees and retirees of Augsburg Fortress, the company that publishes hymnals, theological works and other books for the Evangelical Lutheran Church of America. Plaintiffs are suing the company after it announced it was terminating its seriously underfunded pension plan and would distribute out the remaining assets to employees and retirees. The lawsuit argues that the publisher's pension plan was not exempt from ERISA as a church plan, that Augsburg violated its fiduciary duties under ERISA by allowing the plan to become underfunded and failing to alert plan participants to the plan's financial problems. The complaint alleges alternatively that even if the plan was exempt from federal law as a church plan, Augsburg violated its fiduciary duties under state law to prudently manage the fund's assets. [Thanks to Rev. Chris Duckworth for the lead.]

Jehovah's Witness Loses Unemployment Comp Bid Over Beliefs About Birthday Celebrations

In Calhoun Jewelers, LLC v. Unemployment Compensation Board of Review, (PA Commnwlth. Ct., April 20, 2010), a Pennsylvania Commonwealth Court held that a Jehovah's Witness employee failed to show that she had a compelling reason based on sincerely held religious belief to leave her job. Without such a showing, her voluntary decision to quit her job as a salesperson in a jewelry store disqualifies her from receiving unemployment compensation benefits. The claimant's religious beliefs prohibit her from celebrating birthdays. She refused to write out personalized messages on birthday cards her employer was sending out to customers. The court concluded that claimant failed to show how the message she was instructed to write conflicted with her beliefs, particularly since she sold customers jewelry for birthday presents.

OIC Will Set Up New Committee On Human Rights

After a meeting Tuesday with U.N. High Commissioner for Human Rights Navanethem Pillay, the Organization of the Islamic Conference announced that it is setting up a permanent independent committee to deal with issues of human rights. MidEast News Source reports that the new committee will likely begin work following a meeting of OIC foreign ministers in Tajikistan next month. Some critics argue that the committee will be effective only if it does not draw its human rights principles from Shariah law. However OIC Secretary General Ekmeleddin Ihsanoglu said that universal human rights are in harmony with Islamic values.

Russian Court Says Scientology Titles Are Extremist Literature

A court in the Siberian city of Surgut has approved the request of prosecutors to list 28 works by Scientology founder L. Ron Hubbard to the Russian Federation's list of extremist literature. The Moscow Times reported yesterday that transport prosecutors in Surgut and Khanty-Mansiisk customs officers seized the books and recordings and had them examined by psychiatrists, psychologists and sociologists. Prosecutors say the works call for social and religious hatred, undermining Russia's traditional spiritual values. Possession of extremist literature can lead to a jail sentence of up to 15 days and a fine of $100(US).

Bill To Permit Mennonites To Self-Insure Autos Goes To Georgia Governor For Signature

WSAV News reports that yesterday the Georgia state Senate passed, and sent to the governor for his signature, HB 656. The law will allow a 100-member community of Eastern Pennsylvania Mennonites who live in Metter (GA), near Savannah, to self-insure rather than buy auto insurance. Their religion considers insurance to be gambling. The bill provides that a religious organization may qualify as a self insurer for vehicles owned or leased by its members if the organization meets a number of specific requirements, including having been in continuous existence since 1950 and having been exempt from federal social security and medicare since 1970.

French Government Will Propose Burqa Ban In All Public Places

Today Britain's The Independent reports that French President Nicolas Sarkozy's government has decided that next month it will propose a complete ban on wearing the burqa in any public place. Sarkozy insisted that the ban is needed to protect the "dignity of women." In pressing for the new ban, Sarkozy ignores advice from the Conseil d'Etat that a total ban is unworkable and likely is unconstitutional. It recommended a ban only in public buildings. A report from a French Parliamentary committee also suggested limiting the ban to public buildings and transportation. (See prior posting.) The French State Ombudsman opposes the total ban, as do moderate Muslim groups who say that a ban will make Muslims feel that their religion is resented in France. While only 2,000 women in France wear the full-length veil, it is increasingly seen by a number of politicians across the spectrum as inconsistent with republican values of liberty and equality.

Meanwhile, Voice of America reports that tomorrow debate will begin in the Belgian parliament on similar legislation. Amnesty International urged the Belgian Parliament to reject the proposal, but said that women should be protected from coercion to wear the garment.

Miami Transit Authority Backs Off Decision To Pull Anti-Muslim Ads

In Miami, Florida, the Miami-Dade County Transit Authority has backed off of its original decision to pull ten ads that were set to be placed on Miami buses by an organization known as Stop Islamization of America. Last Friday's Miami Herald reported that the Transit Authority decided to stop the ads after complaints from CAIR that the ads were offensive to Muslims. The ads, carrying a website address, read in part: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get answers." A press release yesterday from the law offices of David Yerushalmi says that after a lawsuit was threatened, the Transit Authority agreed that it should not have prevented the ads from being run. It agreed to run the original ten ads and to also run twenty more at no additional cost.

Suit For Clergy Sex Abuse Relies On Alien Tort Claims Act

The Los Angeles Times reports that on Tuesday, a lawsuit was filed in federal district court in Los Angeles (CA) invoking the 1789 Alien Tort Claims Act in a clergy sex abuse case. The Act allows foreign victims of human rights violations to sue for damages in U.S. courts. This is apparently the first time that statute has been used in a clergy abuse case. Plaintiff alleges that as a 12-year old altar-boy, he was raped repeatedly by Father Nicolas Aguilar Rivera in Mexico in 1997. Aguilar had fled to Mexico from Los Angeles in 1987 after Los Angeles Cardinal Roger Mahony learned of police suspicions about him. The lawsuit charges that Cardinal Mahony and Mexican Cardinal Norberto Rivera Carrera covered up known charges against Aguilar, and claims that top church officials knew Aguilar was about to flee to Mexico but failed to inform police. Aguilar's was not defrocked until last year, and he is now in hiding, apparently in Mexico where an arrest warrant for him is outstanding.

Ohio High Court Says No Tax Exemption For Church's Low-Income Apartments

In NBC-USA Housing, Inc.–Five v. Levin, (OH Sup. Ct., April 12, 2010), the Ohio Supreme Court held that a federally subsidized apartment complex for low-income tenants operated by the National Baptist Convention (NBC) and a local church does not qualify for the property tax exemption under Ohio Rev Code 5709.12(B). That section exempts property used exclusively for charitable purposes. The court relied on "the consistent and longstanding doctrine that a distinctly residential use of real property defeats a claim of charitable exemption, even where attendant circumstances indicate the existence of charitable motives." It is not enough that NBC was carrying out a religious mission. The exemption depends on the use of the property, not the nature of the charitable institution that owns it. The argument for an exemption under a different section of the Ohio statutes was precluded because it was not properly raised on appeal.

U.S. Sentencing Commission Incorporates New Hate Crimes Law Into Sentencing Guidelines

The U.S. Sentencing Commission announced on Monday that it has voted to send to Congress for promulgation several amendments to the Sentencing Guidelines. One portion of the amendments adds language to incorporate the new provisions of the recently enacted Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. (See prior posting.) The Sentencing Commission's proposal broadens the Sentencing Guideline for offenses involving individual rights to include a new offense added by the hate crime law: willfully causing bodily injury to a person because of the person’s race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. The amendment also expands the definition of a hate crime in the penalty enhancement section to now include victims who were targeted because of their gender identity. The proposed changes (full text) were published in the Federal Register last month. Today's National Law Journal reports on the amendments.

Florida Legislature Considering Proposals To Lower Church-State Wall In Schools

Yesterday's St. Petersburg (FL) Times reports on the continuing efforts in the Florida legislature to allow greater mixing of religion and publicly funded education. Yesterday the Senate Education Pre-K-12 Committee unanimously approved SB 1580 that would "permit the delivery of an inspirational message, including a prayer or an invocation, at a noncompulsory high school activity, including a student assembly, a sports event, or other school-related activity, if a majority of the participating students request the delivery of an inspirational message and select a student representative to deliver the message. Several House committees have approved a similar bill (HB 31). One version of the House Bill would bar school boards from settling litigation that infringes the First Amendment freedoms of school teachers and staff without the individuals' express written consent. This is apparently a reaction to the settlement of litigation by the Santa Rosa school district. (See prior posting.)

The Florida House and Senate are also considering a proposed state constitutional amendment to eliminate Florida's ban on state funds aiding any religious denomination. The amendment would also specifically allow inidividuals to use public benefits at religious service providers. (SJR2550/HJR1399). Significant opposition has developed to this proposal.

City Permanently Enjoined From Enforcing Noise Law Against Church Bells

After issuing a preliminary injunction last month prohibiting the city of Phoenix (AZ) from enforcing its noise ordinance against churches because of their carillon bells (see prior posting), on Monday an Arizona federal district court made the injunction permanent. In St. Mark Roman Catholic Parish Phoenix v. City of Phoenix, (D AZ, April 19, 2010), upon stipulation of the parties, the court enjoined enforcement o the noise law against any sound generated in the course of religious expression and entered a declaratory judgment finding that its enforcement against religious expression violates the 1st and 14th Amendments. Finally the court ordered the city to pay plaintiffs' attorneys, Alliance Defense Fund, fees of $25,000. CBN News yesterday reported on the decision.

Chinese Lawyers Who Defended Falun Gong Face Disbarment

Epoch Times reported yesterday that in China, two human rights lawyers who attempted to defend Falun Gong practitioners are about to have their licenses suspended. The Beijing Municipal Bureau of Justice will be holding a public hearing tomorrow on revocation of the law licenses of Tang Jitian and Liu Wei. They are charged with disturbing court order, interfering with normal legal proceedings, and damaging implementation of the law. Six months ago, the lawyers withdrew from a case when the judge in the city of Luzhow would not let them speak in defense of their client. Some of the charges against the two lawyers stem from their refusal to cooperate with a security check in the courtroom that they say was illegal.

Objections Raised To Pentagon's Speaker For National Day of Prayer

AP reported yesterday that the Military Religious Freedom Foundation is objecting to an invitation extended by the Pentagon to evangelist Franklin Graham to speak on May 6 for the National Day of Prayer. MRFF president, Mikey Weinstein, says that Graham has offended Muslims who work for the Department of Defense by describing Islam as "a very evil and wicked religion." Weinstein, while not objecting to the National Day of Prayer, does object to the close ties between the Pentagon and the National Day of Prayer Task Force, a private group that organizes Christian event for National Day of Prayer. Graham is this year's honorary chairman of the Task Force. Last week a federal judge held that the statute authorizing a National Day of Prayer is unconstitutional, but did not enjoin this year's activities while an appeal is pending. (See prior posting.)

Government Policy and Poverty Encourage Polygamy In Gaza

Palestine Note reported yesterday that societal pressures and government policies are encouraging polygamy in Gaza. Permitted by Islam, the difficult economic conditions in Gaza are encouraging poorer women to become second wives. Also the Hamas government is backing the Palestine Marriage Fund which encourages men to marry the widows of so-called "martyrs." The Fund gives $2800 plus gifts for the home to each couple. One hundred of these marriages have taken place already.

Islamist Website Threatens "South Park" Creators Over Muhammad Episode

CNN reports that the radical Islamic website Revolutionmuslim.com on Sunday posted an entry that can be seen as a physical threat to the creators of the television cartoon series South Park . The posting was triggered by an episode of the program that included a satirical discussion of whether the image of the Prophet Muhammad could be shown. In the end, he was portrayed in a bear costume. The website warned that program creators Trey Parker and Matt Stone "will probably wind up like Theo Van Gogh," the Dutch filmmaker who was murdered by an Islamic extremist. The website also runs audio of a sermon by radical U.S.-born Muslim preacher Anwar al-Awlaki which justifies assassinating anyone who defames the Prophet Muhammad.

UPDATE: Thursday's New York Times reports that an episode of South Park aired on Wednesday on Comedy Central continued a story line involving the Prophet Muhammad but included a number of audio bleeps and image blocks reading "CENSORED". Many of the audio bleeps were added by Comedy Central. Meanwhile Thursday's Musalman Times ran a long article titled South Park: A Muslim Perspective justifying strong Muslim opposition to the South Park episode.

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.)