Kenyan Churches Will Oppose New Draft Constitution

In Kenya, churches have decided to spearhead a campaign against approval of the country's new draft constitution which will be the subject of a referendum in the near future. Jurist reports that the draft (full text) was approved by Kenya's Parliament on April 1. Two issues have been at the center of the debate. One is the provision for Muslim Kadhis Courts (Secs. 169-170). The second is the provision on abortions (Sec. 26) which provides: "Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law."

The Standard reported last week that the Episcopal Council of the Catholic Church of Kenya, the National Council of Churches of Kenya and the Anglican Church of Kenya have all decided to oppose adoption of the Constitution, despite the popularity of the draft in the country. Angencia Angola Press reports that some Kenyan churches (but apparently not the Anglican Church (Sunday Nation))will use tithes and Sunday offerings to fund the "vote no" campaign. However some Anglican bishops support the constitution. Today's Sunday Nation editorially criticizes the U.S.-based American Center for Law and Justice, a conservative Christian group, which reportedly will fund a campaign to defeat the constitution.

Recent Prisoner Free Exercise Cases

In Smith v. Goord, (2d Cir., April 27, 2010), the 2nd Circuit remanded with instructions that plaintiff should be granted leave to amend his complaint that prison staff members violated his free exercise rights when they failed to provide him with an alternative method of tuberculosis testing consistent with his religious beliefs instead of placing him in confinement.

In United States v. Lafley, 2010 U.S. Dist. LEXIS 41445 (D MT, April 28, 2010), a Montana federal district court refused to modify defendant's conditions of supervised release to permit him to possess marijuana for religious or medical purposes.

In Hartmann v. California Department of Corrections & Rehabilitation, 2010 U.S. Dist. LEXIS 41522 (ED CA, April 27, 2010), Wiccan prisoners challenged a California regulations that provided full time prison chaplains for five specified faiths, but only part-time or volunteer chaplains for others. A California federal magistrate judge

In Jotunbane v. Sedillo, 2010 U.S. Dist. LEXIS 41360 (D NM, April 20, 2010), a New Mexico federal district court held that RLUIPA does not authorize prisoner claims of any sort against state officials in their personal capacities nor does it authorize claims for monetary damages (as opposed to other kinds of relief) against individuals in their official capacities.

In Robinson v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 42154 (ED NY, March 24, 2010), a New York federal magistrate judge recommended that a Jewish prisoner be permitted to proceed with his claim that his free exercise rights were infringed when a corrections officer burst into prison Jewish High Holy Day services, told participants they were over, had members of the congregation handcuffed, and took plaintiff who was leading the services into the elevator and physically assaulted him. An excessive force claim was dismissed because of improper defendants being named.

In Flett v. Vail, 2010 U.S. Dist. LEXIS 40725 (ED WA, April 26, 2010), a Washington federal court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 40749, Feb. 24, 2010) allowing a Native American inmate to move ahead with his RLUIPA complaint challenging a regulation that denied him access to an eagle bone whistle used in certain religious ceremonies.

In Gjevukaj v. Lowe, 2010 U.S. Dist. LEXIS 40781 (MD PA, April 26, 2010), a Pennsylvania federal district court dismissed plaintiff's claim that he was denied Halal-compliant meals. It upheld the policy of removing inmates from the Common Fare diet when they consumed commissary items that did not comply with their religious requirements.

In Lagervall v. Garringer, 2010 U.S. Dist. LEXIS 40730 (ED WA, April 26, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 40733, April 9, 2010) and dismissed a Muslim inmate's RLUIPA claim that his rights were infringed when a kufi mailed to him from a supplier was rejected because he had not paid for it from his personal funds.

In Hoeft v. Allen, 2010 U.S. Dist. LEXIS 40054 (WD WI, April 23, 2010), a Wisconsin federal district court rejected free exercise and RLUIPA claims by a former inmate whose drawing of a swastika was confiscated from his cell.

Army Hospital Emblem Challenged Because of Religious Content

AP reported Thursday that the Military Religious Freedom Foundation has protested to the Army over the religious symbol and motto on the emblem of Evans Army Community Hospital at Fort Carson, Colorado. The central feature of the emblem is a cross with a pointed base, said to be an emblem of mercy and a symbol from the Middle Ages when pilgrims carried this type of cross to mark a campsite. The emblem also carries the Latin motto "Pro deo et humanitate," which means "For God and humanity." MMRF head Mikey Weinstein says: "This continues to add more fodder to the argument that we are Crusaders. It's exactly what fundamentalist Muslims want." The Army will review the MMRF complaint.

Meanwhile, God and Country blog carries an extensive response to the MMRF complaint, picturing numerous other Army emblems that carry imagery from a wide variety of religious traditions.

President Issues 2010 National Day of Prayer Proclamation

Despite the questions of legality raised by a recent federal district court opinion (see prior posting), yesterday President Obama issued a Proclamation, (full text) designating May 6 as this year's National Day of Prayer. The Proclamation reads in part:

Prayer has been a sustaining way for many Americans of diverse faiths to express their most cherished beliefs, and thus we have long deemed it fitting and proper to publicly recognize the importance of prayer on this day across the Nation....

I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us.

Presidential Proclamation Sets May As Jewish American Heritage Month

Yesterday President Obama issued a Proclamation (full text) declaring May 2010 as Jewish American Heritage Month. It reads in part:

The Jewish American story is an essential chapter of the American narrative. It is one of refuge from persecution; of commitment to service, faith, democracy, and peace; and of tireless work to achieve success. As leaders in every facet of American life -- from athletics, entertainment, and the arts to academia, business, government, and our Armed Forces -- Jewish Americans have shaped our Nation and helped steer the course of our history. We are a stronger and more hopeful country because so many Jews from around the world have made America their home.

Today, Jewish Americans carry on their culture's tradition of "tikkun olam" -- or "to repair the world" -- through good deeds and service. As they honor and maintain their ancient heritage, they set a positive example for all Americans and continue to strengthen our Nation.

Court Permits Wife To Move Husband From Jewish Cemetery

In Matter of Eirand-Herskowitz v. Mt. Carmel Cemetery Association, (Queens Co. NY Sup Ct., April 23, 2010), a New York trial court granted a petition filed by a wife to disinter her deceased husband who was buried in a Jewish cemetery to permit her to bury him elsewhere so she could be buried beside him. Jamie Herskowitz, who was Jewish, died after nearly 20 years of marriage to Debra Eirand-Herskowitz, who was not Jewish. Non-Jews are not permitted to be buried in a Jewish cemetery. The original burial in 2007 was arranged by Jamie's mother and sister when Debra was too overwrought to make the plans. The court said:

Both respondents, mother and sister, testified to the fact that the decedent followed many Jewish traditions, and that his Jewish faith was an important part of his daily life. Although it is not the function of this court to sit in judgment of anyone's choice in the manner in which he/she chooses to practice or observe his/her faith, the court finds that these occasional, isolated acts of religious observance do not unequivocally constitute and support the fact that Jamie actively practiced his Jewish faith. Moreover, the court finds that whatever the nature of decedent's bond of religion, it was insufficient to overcome his paramount wish that his wife and he be together in death as they were in life.... Additionally, as the proposed final resting place for his remains, St. Elizabeth Cemetery is nondenominational, there is no evidence to show that his burial there will offend his Jewish faith.... There was no evidence presented by respondents to show decedent's paramount concern was that his remains be laid to rest in a Jewish cemetery.

[Thanks to Joseph Landau for the lead.]

Nurse Files State Claims After Being Required To Assist In Abortion

As previously reported, last July a nurse at New York's Mt. Sinai Hospital filed a federal lawsuit claiming her conscience rights, protected by federal law, were violated when she was required to assist in an abortion performed on a woman who was 22-weeks pregnant. On Friday, the nurse filed a second lawsuit in New York state court based on state law. The complaint (full text) in Cenzon-Decarlo v. Mt. Sinai Hospital, (NY Kings Co. Sup. Ct., filed 4/30/2010), alleges religious discrimination and infringement of free exercise rights in violation of the New York state constitution. It also alleges discriminatory employment practices and a hostile work environment in violation of New York statutes, as well as intentional infliction of emotional distress. Alliance Defense Fund issued a release announcing the filing of the lawsuit.

Delaware Court Dismisses Abuse Suits Against Out-of-State Dioceses and Parish On Due Process Grounds

A Delaware Superior Court this week decided four cases involving jurisdiction over lawsuits claiming sexual abuse of minors by Catholic clergy. In Tell v. Roman Catholic Bishops of Diocese of Allentown, (DE Super. Ct., April 26, 2010), in an opinion also covering a second case consolidated with it for decision, the court held that it lacked personal jurisdiction over Pennsylvania and Maryland Catholic dioceses and a Catholic parish in Maryland. Asserting personal jurisdiction on the facts of these cases would violate the due process rights of the defendants.

The cases allege sexual abuse occurring in Delaware by priests employed by the out-of-state entities. The court refused, on First Amendment grounds, to examine canon law to determine which Church superiors were responsible for the priests' behavior. The court held that since the priests were not acting within the scope of their employment when they committed the alleged abuse, any liability of the dioceses or parish is not based on the doctrine of respondeat superior. Therefore in determining whether there was a sufficient nexus to support personal jurisdiction, the court must examine actions in Delaware of the dioceses and parish, not actions of the priests themselves. Plaintiff failed to show sufficient activities in Delaware to establish general jurisdiction over the dioceses or parish. The court likewise rejected claims of specific jurisdiction since the alleged negligence in hiring or supervising the priests, or in failing to warn potential victims, all took place out of state. The court concluded its opinion with this unusual statement directed at the plaintiffs:

If the allegations of the complaints are true, you have suffered immeasurably at the hands of men who betrayed a sacred vow and a position of trust solely to satisfy their own selfish and perverted desires. The Court realizes that the foregoing analysis must seem to be a cold, sterile calculus devoid of any understanding of the injuries you have suffered, and it is fully cognizant that its decision in this matter will leave you without a remedy because your claims are barred by the statutes of limitations in your home states. Nonetheless, the Court is bound to apply our federal constitution and the laws of this state as it finds them. The legal questions presented by these motions are not even close ones.

In Naples v. Diocese of Trenton I, (DE Super. Ct., April 29, 2010), the court similarly dismissed for lack of personal jurisdiction a lawsuit brought under the Delaware Child Victim's Act against a New Jersey diocese and parish. Some of the alleged acts of sexual abuse had taken place in Delaware. However in Naples v. Diocese of Trenton II, the court refused to dismiss on forum non conveniens grounds a suit against the priest himself who allegedly abused plaintiff. Much of the abuse took place in New Jersey, but some acts took place in Delaware.

Muslim Woman Loses Suit Against Judge Who Banned Hijab In Courtroom

In Council on American-Islamic Relations v. Callahan, (ED MI, April 29, 2010), a Michigan federal district court dismissed a case in which a Muslim woman, Raneen Albaghdady, sued a state court judge who requested that she remove her hijab in his court room. The federal lawsuit sought an order declaring the practice an unconstitutional infringement of plaintiff's free exercise of religion and of her right of access to the courts. It also sought an injunction barring the judge from taking similar action in the future.

The court dismissed the claim for an injunction on the ground that judges have absolute immunity when acting in their judicial capacity. Here defendant was controlling the demeanor and dress of parties who were participating in matters before the court. It also dismissed the request for a declaratory judgment, finding plaintiff lacked standing. She failed to show an injury in fact. According to the court: "Albaghdady never protested removal of her head piece, she never informed Defendant that her 'hat' was a hijab, and most critically, when asked to remove it, said, 'Okay. It doesn't matter.' ... She removed her hijab without hesitation." The Detroit Free Press yesterday reported on the decision.

Lower House of Belgian Parliament Passes Burqa Ban

According to reports from RTT News and CNN, yesterday Belgium's Chamber of Deputies-- the lower house of the Belgian Parliament-- passed a bill that would ban Muslim women from wearing the burqa in public places. More precisely, the legislation bans clothing that would hide the identity of the wearer in any place that provides services to the public or is meant for public use. This includes public transportation, streets, parks and sports grounds, though authorities could grant exceptions for special events such as carnivals. Violators would face a fine of 15 to 25 Euros and up to a week in jail. The Chamber of Deputies vote was 136 in favor, none opposed, and two abstentions. The bill now goes to the Belgian Senate where final approval is expected. This would make Belgium the first country in Europe to ban the burqa, though France is moving ahead with similar legislation. (See prior posting.) A Muslim political leader in Belgium warns that passage of the law could have the opposite effect from that desired. It may encourage more women to wear the burqa.

Court Can Enjoin Expelled Member From Entering Church Property

In Church of Christ in Hollywood v. Cage-Barile, (CA App., April 27, 2010), a California appellate court upheld against constitutional attack an injunction issued barring an expelled Church member from entering Church property. Lady Cage-Barile was expelled for disrupting religious services and harassing the congregation. She now contends that the First Amendment and comparable state constitutional provisions preclude civil courts from adjudicating whether she has the right to enter church property. The court disagreed, saying:

[R]egardless of whether the Church is congregational or hierarchical, its decision to terminate Cage-Barile's membership is binding on us. That decision was based on religious doctrine and, as a matter of constitutional law, is not subject to review by civil courts. Nor is there any suggestion in the record that the Church failed to follow the proper procedures in making its decision. The Church held a noticed meeting, invited the congregation, allowed Cage-Barile to speak to the assembly, and, thereafter, the board and membership expelled her.... Under the First Amendment, the courts must accept the Church's decision. The question before us is whether, having expelled Cage-Barile, the Church can prevent her from entering its property. The answer is yes....

British Appeals Court Rejects Plea For Special Panel To Adjudicate Religious Rights Cases

Yesterday in Britain's Court of Appeal, Lord Justice Laws sharply rejected charges that the regular judges of the court do not understand Christianity or other relgious faiths. He reiterated an earlier decision of the court to refuse to allow an appeal of a controversial employment discrimination case. Last November, the Employment Appeal Tribunal upheld the right of a counseling service to require employees to serve all clients. Counselor Gary McFarlane was dismissed after he refused on the basis of his Christian religious beliefs to counsel same-sex couples. The EAT rejected McFarlane's religious discrimination claim. (See prior posting.) After the Court of Appeal in January rejected an application to appeal, McFarlane, backed by Lord Carey, the former Archbishop of Canterbury, petitioned for appointment of a special Court of Appeal panel of five judges who understand religious issues to hear McFarlane's appeal and future appeals involving religious rights. (See prior posting.) Rejecting that request, in McFarlane v. Relate Avon Ltd., (Ct. App., April 29, 2010), the court said:

The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.... But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.

... We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials.

The London Daily Express , The Independent and the Daily Mail all report on the decision.

Head of Egypt's Al-Azhar Cuts Political Ties

On Wednesday, IPS reported that the new head of Al-Azhar, Egypt's premier center of Islamic learning, has resigned from President Hosni Mubarak's ruling National Democratic Party in order to avoid charges that the government is mixing religion and politics. On April 11, Mubarak accepted the resignation of Grand Sheik Ahmed al-Tayeb who had been a member of the group that draws up NDP party policy. The resignation was motivated by the fact that NDP often charges its chief opposition-- the Muslim Brotherhood-- with exactly that kind of mixing of religion and politics. (See prior related posting.)

USCIRF Releases 2010 Annual Report on International Religious Freedom

In a press release today, the U.S. Commission on International Religious Freedom announced the release of its 2010 Annual Report. The Report recommends to Congress, the White House and the State Department that 13 countries be listed as "countries of particular concern (CPCs)" -- countries where the most egregious violations of religious freedom are taking place. Those countries are Burma, China, North Korea, Eritrea, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam. It listed 12 other countries that it is placing on its watch list of nations that require close monitoring due to the extent that religious freedom is being infringed. Those are: Afghanistan, Belarus, Cuba, Egypt, India, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela.

USCIRF's 382-page report documents religious freedom issues in both CPC and watch list countries, as well as in three others that are being closely monitored: Bangladesh, Kazakhstan and Sri Lanka. Under the International Religious Freedom Act of 1998, USCIRF's report is to be considered by the State Department in preparing its Annual Report to Congress on International Religious Freedom. Also each year, the President is to revise the list of CPCs. The most recent list (see prior posting) is comprised of 8 of the 13 countries recommended this year by USCIRF: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia (with a waiver), Sudan, and Uzbekistan. An AP article discusses the USCIRF Report.

Court Says Juror's Discussion With Pastor On Capital Punishment Was Harmless Error

In Centennial, Colorado, a trial judge has ruled that a juror's discussions of the death penalty with his pastor during a recess in jury deliberations in a murder trial amounted to harmless error. Yesterday's Aurora (CO) Sentinel reports that, in violation of the judge's instructions, a juror in the trial of Robert Ray sought the advice of his pastor on his church's views on capital punishment. The pastor told him the church was opposed to it, but that he was free to make his own decision on the matter. One of Ray's lawyers argued that this "green-lighted" the juror's vote in favor of imposing the death penalty on Ray. The court, however, concluded that it had not been shown that the conversation affected the decision of the juror in question or his fellow jurors. Defendant Ray is already serving a 108-year sentence for his part in another murder.

5th Circuit Hears Oral Arguments In Challenge To Texas Pledge of Allegiance

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Croft v. Perry, (recording or oral arguments), an Establishment Clause challenge to the Texas Pledge of Allegiance recited in public schools in Texas. State law permits students to opt out of reciting the Pledge, which refers to Texas as "one state under God." The district court found a secular legislative purpose and concluded the pledge did not amount to an endorsement of religion. (See prior posting.) Texas Tribune reports on the case and has posted the full text of the Texas Attorney General's brief in the appeal.

Retired Chaplains Urge President To Retain Don't Ask, Don't Tell

Yesterday 41 retired military chaplains sent a letter (full text) to President Obama and Secretary of Defense Gates urging them to retain the military's current "don't ask, don't tell" policy on gays and lesbians in the armed forces, or at least to include robust religious liberty protections in any change. Copies of the letter were sent to additional military and legislative leaders as well. (CBS News reported on developments.)

The letter says: "if the government normalizes homosexual behavior in the armed forces, many (if not most) chaplains will confront a profoundly difficult moral choice: whether they are to obey God, or to obey men." The letter contends that chaplains will be pressured into watering down their religious teachings and may have their ability to share their religious beliefs challenged. It goes on to argue:

Marginalizing a large group of chaplains ... will unavoidably harm readiness by diminishing morale. Similarly, making orthodox Christians-- both chaplains and servicemen-- into second-class Soldiers, Sailors, Airmen or Marines whose sincerely-held religious beliefs are comparable to racism cannot help recruitment or retention.

According to Congress.org, to counter the letter, six gay rights activists delivered toy soldiers to their lawmakers yesterday to represent the 13,500 service personnel who have been discharged under "don't ask, don't tell." Also, the Interfaith Alliance released a statement (full text) criticizing the chaplains' letter, saying in part: "Repealing 'Don't Ask, Don't Tell' is a step forward in equality and justice for all citizens. When chaplains find the government's pursuit of these goals to be a threat to their values, we must ask whether something is askew with their values."

Iran Limits Rights of Sunnis To Conduct Prayers

According to a report yesterday from Asharq Al-Awsat, the government of predominately Shiite Iran has recently issued a ban on Sunnis praying at state universities and military camps. The order follows a ban in several cities of Sunnis holding Friday prayer services in their homes.

Virginia Governor Restores Police Chaplains' Right To Deliver Sectarian Prayers

In Virginia, a State Police policy adopted in 2008 requiring police chaplains to deliver non-sectarian prayers at official events has been reversed by Gov. Bob McDonnell's administration. Yesterday's Hampton Roads Virginian-Pilot reports on the change that had been pressed by the Family Foundation of Virginia. When the prior policy was adopted by the Gov. Tim Kaine administration, six of the department's seventeen volunteer chaplains resigned in protest. (See prior posting.) The policy restored yesterday allows chaplains to pray according to the dictates of their own conscience, in accordance with their faith traditions, while being respectful of other faiths. The ACLU of Virginia (press release) had urged McDonnell to ignore lobbying efforts of those who wanted sectarian prayer restored.

Supreme Court Hears Arguments On Release of Names of Petition Signers

The U.S. Supreme Court yesterday heard oral arguments in Doe v. Reed, (full transcript of arguments). At issue is whether the right to anonymous political speech was infringed when Washington state, under its Public Records Law, released the names of those who signed a petition seeking a referendum on the state's domestic partnership law. The 9th Circuit found no First Amendment problem with the release. (See prior posting.) The New York Times says that the First Amendment arguments were met with skepticism from justices across the ideological spectrum. Justice Scalia remarked: "running a democracy takes a certain amount of civic courage."

Court Lacks Jurisdiction Over Decision Not To Circulate Minister's Resume

In Thibodeau v. American Baptist Churches of Connecticut, (CT App., April 27, 2010), the Appellate Court of Connecticut held that the free exercise protections of the U.S. and Connecticut constitutions preclude it from exercising jurisdiction over complaints by a Baptist minister that the regional organization of American Baptist churches refused to circulate his resume to congregations because of concern about his fitness for the ministry. The court held that plaintiff's promissory estoppel, defamation, fraud and infliction of emotional distress claims all involve issues of the church's internal management and the right of a church to determine, without government interference, the qualifications of individuals to serve as a member of the clergy. (See prior related posting.)

Supreme Court Reverses Order Barring Display of Cross At World War I Memorial

The U.S. Supreme Court today, in a fragmented decision producing six separate opinions, decided a challenge to Congress' transfer of a religious symbol on federal land to a private party, the VFW. The case involved the long-running dispute over the Sunrise Rock Cross in the Mojave Preserve memorial to those killed in World War I. In Salazar v. Buono, (Sup. Ct., April 28, 2010), the Court reversed the 9th Circuit and remanded the case. The Court of Appeals had found Establishment Clause problems with Congress' transfer of the cross. (See prior posting.) The Supreme Court's decision was announced in an opinion written by Justice Kennedy, joined by Chief Justice Roberts and joined in part by Justice Alito.

Justice Kennedy concluded that the government's objections to plaintiff's standing could not be raised at this stage of the litigation because the government had not properly sought Supreme Court review of the issue when it was initially decided. He then focused on the complex procedural history of the case. The district court enjoined the government from permitting display of the Cross on Sunrise Rock before Congress passed the statute transferring the land to a private party. The Court of Appeals affirmed on the ground that a reasonable observer would see the cross as an endorsement of religion. Plaintiff's challenge to the land transfer was brought in the form of seeking to apply or extend the original injunction to it. The district court enjoined the transfer on the basis of an improper Congressional purpose. Justice Kennedy objected:

The District Court thus used an injunction granted for one reason as the basis for enjoining conduct that was alleged to be objectionable for a different reason.... [It] failed to consider whether, in light of the change in law and circumstances effected by the land-transfer statute, the "reasonable observer" standard continued to be the appropriate framework through which to consider the Establishment Clause concerns invoked to justify the requested relief. As a general matter, courts considering Establishment Clause challenges do not inquire into "reasonable observer" perceptions with respect to objects on private land....

.... [T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

In a one-paragraph concurring opinion, Chief Justice Roberts said that the land transfer was no different that tearing down the cross, selling the land to the VFW, and having the VFW reconstruct the cross.

Justice Alito, writing separately, said he agreed with Justice Kennedy, except he did not see any need to remand the case for further proceedings. He would reverse the decision and instruct the district court to vacate its order prohibiting implementation of the land-transfer statute. He said:

Congress chose an ... approach that was designed to eliminate any perception of religious sponsorship stemming from the location of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument. The mechanism that Congress selected is one that is quite common in the West, a "land exchange."

Justice Scalia wrote an opinion joined by Justice Thomas, concurring in the judgment but arguing that plaintiff lacks Article III standing to pursue what Scalia characterized as new relief, not an appliation of the original injunction. Plaintiff failed to allege any actual or imminent injury from the land transfer, since the only injury plaintiff claimed was his concern with seeing the cross on federal land.

Justice Stevens, in an opininon joined by Justices Ginsburg and Sotomayor, dissented. Stevens argued that it was proper for the district court to find that the land transfer statute violated its original injunction. He concluded that the land transfer statute did not end government endorsement of the cross:

First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display.

Stevens goes on to assert that the plurality is attempting to reopen a settled issue-- whether the government can endorse the cross because of its dual symbolism. In concluding, he emphasized that because Congress has created no other memorial to the veterans of World War I, this sectarian symbol is the only monument to all the soldiers who died in that war.

Finally Justice Breyer wrote a separate dissent arguing that the Court should have dismissed the writ of certiorari as improvidently granted since the case turns on fairly clear principles of the law of injunctions and presents no federal questions of general significance. A district court has considerable leeway to interpret the meaning of its own injunctions, and should interpret the scope of an injunction in light of the injunction's purpose and history. The district court did that here. The Washington Post reports on the decision.

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.