Court Explains Continued Jurisdiction Over Santa Rosa Schools Consent Decree

In yet another installment in the attempt by teachers, parents and others to challenge a consent decree entered into by the Santa Rosa Florida school district to settle an Establishment Clause challenge to religious activities in the schools, a Florida federal district court this week issued a ruling "intended to memorialize the basis for the court's conclusion that it retains ancillary enforcement jurisdiction over the consent decree." A Christian teachers group seeking to intervene argued that the court lacked jurisdiction because the original plaintiffs had graduated high school, rendering the case moot. In Doe v. School Board for Santa Rosa County, 2010 U.S. Dist. LEXIS 44400 (ND FL, May 6, 2010), the court said: "The decree itself stands as a valid final order subject to this court's enforcement jurisdiction, regardless of the graduation status of the named plaintiffs." The ruling seems to undercut one of the arguments raised in a separate case filed two days earlier seeking to enjoin Santa Rosa school officials from enforcing the settlement. (See prior posting.)

NY Community Board Approves Plans For Mosque Near Ground Zero

In New York City, the Community Board of lower Manhattan voted unanimously Wednesday night to support a planned 15-story community center which will include a mosque two blocks away from ground zero. CNN reported Friday that the plans, which do not legally need Community Board approval, were drawn up by two groups devoted to promoting greater understanding of Muslims. Daisy Khan, executive director of the American Society for Muslim Advancement, said the project will celebrate pluralism in the U.S. and will help amplify the voices of the majority of Muslims who reject extremist ideologies. Relatives of 9/11 victims were divided on the project.

DC Circuit Dismisses Suit Challenging Past and Future Inaugural Prayers and Presidential Oath

Today in Newdow v. Roberts, (DC Cir., May 7, 2010), the Court of Appeals for the D.C. Circuit dismissed an Establishment Clause challenge to prayer and the use of "so help me God" in the oath at Presidential inauguration ceremonies. An opinion by Judge Brown, joined by Judge Ginsburg, held that the suit should be dismissed on mootness and standing grounds, while a concurring opinion by Judge Kavanaugh would have dismissed on the merits.

Judge Brown wrote that the challenge to religious expressions at President Obama's 2009 inauguration is moot. Plaintiffs failed to appeal the district court's denial of a preliminary injunction. (See prior posting.) Had they done so and had they won on appeal, that would have avoided mootness. As to their challenge in connection with the 2013 and 2017 inaugurations, plaintiffs are seeking relief against unknown parties over whom the court lacks jurisdiction. There is no assurance that those involved in planning the 2009 Inauguration will be involved in the future. And there is no way for plaintiffs to sue all possible future Presidents-elect. Therefore a declaratory judgment will not remedy the wrong being challenged and plaintiffs lack standing to pursue these claims.

Judge Kavanaugh concluded that plaintiffs have standing to challenge prayers and the oath for future inaugurations, but that neither violate the Establishment Clause. The prayers, in the forms they have been offered at inaugurations, should be permitted under the U.S. Supreme Court's decision in Mash v. Chambers upholding non-proselytizing legislative prayer. The words "so help me God" added to the Presidential oath should also be upheld as a long national tradition that is neither proselytizing nor exploitative. Judge Kavanaugh also used his opinion to explain his earlier vote to deny plaintiffs' motion for the court to eliminate at oral arguments in this case its usual call asking God to save the court and the country. (See prior posting.) [Thanks to Bob Ritter for the lead.]

North Carolina Diocese Settles Abuse Case For $1M

The Diocese of Charlotte, North Carolina has agreed to settle a priest sexual abuse case by paying the victim $1 million, as well as paying for counseling for him. Today's Charlotte Observer reports that the lawsuit involves abuse by Rev. Robert Yurgel when plaintiff was an altar boy in 1999 at Charlotte's St. Matthew Catholic Church . Yurgel last year was sentenced t0 8 years in prison.

Police Departments Cancel Security Webinar Over Charges of Anti-Muslim Bias

In Washington state, objection to alleged anti-Muslim bias of one of the sponsoring groups has led to cancellation of a planned April 29 web-based seminar on security technology for law enforcement officers. A press release yesterday from the Washington state chapter of the Council on American Islamic Relations reports that the Washington State Patrol and the Seattle Police Department withdrew from the program because of objections to involvement of Security Solutions International which CAIR says has "offered misinformation about Islamic history, promoted Muslim 'control' and 'take over' conspiracy theories, advocated profiling local Muslim communities, and smeared mainstream American Muslim organizations."

Appeal of Windermere Quiet Title Action Dismissed [Corrected]

Last week, a Missouri appellate court agreed with the Missouri Baptist Convention's unusual position that the appeal it filed in a case should be dismissed because the order it was appealing is not a final judgment. The decision is part of MBC's attempt to regain control of the Windermere Baptist Conference Center that, along with four other institutions, broke away from the Convention in a dispute over the fundamentalist stance of Convention leaders. After losing other attempts (see prior posting), the Conference brought a quiet title action, claiming fraud in the transfer of real estate to Windermere. The trial court dismissed the suit. In Atkins v. Jester, (MO App., April 30, 2010), the court of appeals held that the dismissal order was not properly certified for immediate appeal because the dismissal was without prejudice and was not implicitly a ruling on the merits. ABP yesterday reported on the decision. [Note: an earlier version of this posting incorrectly indicated that the decision was a defeat for MBC.]

"Year of Our Lord" Language Omitted In Jewish-American Heritage Proclamation

As previously reported, on April 30 President Obama issued a Proclamation declaring May to be Jewish American Heritage Month. The New Jersey Jewish News this week points out an interesting element of religious sensitivity in the Proclamation. The standard formula in reciting the date on which Presidential proclamations (and many other formal government documents) are signed would be: "In Witness Whereof, I have hereunto set my hand this thirtieth day of April, in the year of our Lord two thousand ten, and of the Independence of the United States of America the two hundred and thirty-fourth." However in the Jewish American Heritage Month proclamation, the words "in the year of our Lord" are omitted. [Thanks to Jack S. Levey for the lead.]

9th Circuit: Religious Group In Prison Is "State Actor"

In Florer v. Congregation Pidyon Shevuyim, (9th Cir., May 5, 2010), the 9th Circuit held that a Jewish organization which had contracted with the Washington Department of Corrections to provide Jewish religious services to prisoners acted under color of state law and not merely as a private party for purposes of a prisoner's RLUIPA claim. At issue was the denial of a prisoner's request for a kosher diet, a Jewish calendar, a Torah and consultation with a rabbi because the prisoner failed to complete a questionnaire that the organization would use to determine whether he was Jewish. The court, emphasizing the fact-specific nature of the inquiry, said:

Here, although Congregation's decision to limit Florer's access to religious materials may have had a religious component, that characteristic does not alter that Congregation's conduct was a direct delegation of the DOC's constitutional duty to provide appropriate access to religious materials. If Congregation had instead been sued for its performance of religious activities that the state could not conduct itself, such as delivering sermons or praying for healing, Congregation could not be held liable as a state actor because such religious conduct would lack "joint effort" between the state and Congregation.

Hawaii Group and Lt. Gov. Criticized Over Church-State and Gay Issues

A press release issued Monday by Hawai'i Citizens for the Separation of State and Church reports that last weekend's convention of Ohau County Democrats passed resolutions denouncing the group Transformation Hawai'i (now known as Hawai'i He'e Nalu) for supporting efforts in Uganda to criminalize homosexuality and "to 'establish' particular religious beliefs in Hawaii." The resolutions condemn Transformation Hawaii's affiliation with the International Transformation Network and the group's efforts "to transform Hawai'i into the first state that belongs to Jesus." The press release says that a number of Hawaii's politicians have been active supporter of Transformation Hawaii's, including Lt. Governor Duke Aiona who is a candidate for governor in this month's primary.

Yesterday's Honolulu Star Bulletin reports that both Lt. Gov. Aiona and Transformation Hawaii strongly deny the allegations. Aiona said: "These despicable attacks on my personal faith are politically motivated and intentionally deceitful. To insinuate any support at any time for the imprisonment of homosexuals is unconscionable." However his campaign says that while Aiona is not a member of Transformation Hawaii, he has participated in some of its activities in his personal capacity. Francis Oda, chairman of the Transformation Network's Global Council said the organization's mission in Uganda is to "end systemic poverty." According to another supporter of Transformation Hawaii, Honolulu city councilman Gary Okino, the group closed its Uganda office well before the anti-gay legislation was introduced in Uganda. He said the Democrat's resolution was inspired by Transformation's opposition to Hawaii's recent civil union legislation that is awaiting the governor's signature or veto. (CNN report on bill 4/30.)

New Costa Rican President Likely To Maintain Role of Catholic Church

CNS reported yesterday that Costa Rica's new President, Laura Chinchilla, who will be sworn in this week end, is likely to maintain traditional ties between the government and the Catholic Church. Article 75 of Costa Rica's Constitution provides: "The Roman Catholic and Apostolic Religion is the religion of the State, which contributes to its maintenance, without preventing the free exercise in the Republic of other forms of worship that are not opposed to universal morality or good customs. " Academics and human rights activists have urged that Costa Rica become a secular state. However, a month after her February election, Chinchilla created a commission to "stabilize the relationship between the next government and the Catholic Church." Officials of the Archdiocese of San Jose have proposed a new agreement to solidify the Catholic Church's presence in the country.

Suit Chalenges Use of Cathedral For High School Commencement

In Connecticut, the ACLU and Americans United have been objecting to several high schools' traditional use of Bloomfield, Connecticut's First Cathedral for their graduation ceremonies. (See prior posting.) One of the schools, Enfield High School, originally agreed to move this year's ceremony to school property, but after objections were raised by the Family Institute of Connecticut, the school board last month decided to move the ceremonies back to the Cathedral. Yesterday the ACLU filed suit on behalf of two Enfield students and three of their parents. The complaint (full text) in Does v. Enfield Public Schools, (D CT, filed 5/5/2010)alleges:

Holding a public-school graduation in such a religious environment violates the Establishment Clause ... : the location coerces students and parents to receive the overwhelming religious message of the Cathedral as the price of attending a seminal event in their lives; communicates a message of governmental favoritism of the Christian religion; entails the use of public funds to support religion-infused graduations; and excessively entangles the Schools with a religious institution. The practice also violates Article Seventh of the Connecticut Constitution, which provides that “no person shall by law be compelled to . . . support, nor be . . . associated with, any congregation, church or religious association.”

USA Today reports on the filing of the lawsuit.

French Lawmaker's Op-Ed Argues For Burqa Ban

Jean-Francois Cope, majority leader in the French National Assembly and the mayor of Meaux, writes an op-ed in today's New York Times explaining his support for a proposed ban in France on wearing the burqa or niqab in public. In a piece titled Tearing Away the Veil he argues:

The ban would apply to the full-body veil known as the burqa or niqab. This is not an article of clothing — it is a mask, a mask worn at all times, making identification or participation in economic and social life virtually impossible. This face covering poses a serious safety problem at a time when security cameras play an important role in the protection of public order....

[W]earing headgear that fully covers the face does not constitute a fundamental liberty. To the contrary, it is an insurmountable obstacle to the affirmation of a political community that unites citizens without regard to differences in sex, origin or religious faith. How can you establish a relationship with a person who, by hiding a smile or a glance — those universal signs of our common humanity — refuses to exist in the eyes of others?

Pastor's Conviction Reversed By Consent After Noise Ordinance Held Unconstitutional

Now that a federal district court has enjoined Phoenix, Arizona officials on constitutional grounds from enforcing the city's noise ordinance against church bells and carillons (see prior posting), an Arizona Superior Court vacated a municipal court's conviction of a Phoenix pastor. Bishop Rick Painter of Christ the King Cathedral, had been given a suspended sentence after he was convicted on two counts of violating the noise ordinance because of the hourly ringing of electronic church bells. (See prior posting.) In State of Arizona v. Painter, (AZ Super. Ct., May 3, 2010), an Order (full text) recites that the state did not object to defendant's motion that the court direct an order of acquittal. Alliance Defense Fund yesterday issued a release announcing the reversal of Painter's conviction.

Developments In Rubashkin Trials

Last week, a two-day sentencing hearing for Sholom Rubashkin, former executive at Agriprocessors, Inc.'s Iowa kosher meat packing plant, was concluded. It is expected that the federal court will hand down a sentence on the 86 counts of financial fraud later this month. (See prior related posting.) At the hearing, Rubashkin, an Orthodox Jew, told the judge that he had "faith in God that mercy and justice will be done." (Des Moines Register, 4/30). According to the WCF Courier (4/30), prosecutors asked for a 25-year sentence, not the effective life sentence that had been recommended in a controversial sentencing report filed earlier. Defense attorneys asked for no more than six years.

On Monday, Rubashkin was moved to a county jail for the beginning of his state trial on 83 misdemeanor child labor charges. However, according to yesterday's Des Moines Register, Rubashkin has not eaten since noon Monday because the food at the Black Hawk County jail does not meet his religious requirements for kosher food. The county sheriff agreed to meet with a rabbi to discuss Rubashkin's religious needs. Judge Nathan Callahan says he will not delay the trial, even if he has to proceed without Rubashkin being present.

AU Says High School Assemblies Violate Establishment Clause

In a press release yesterday, Americans United announced that it had written the Todd Becker Foundation complaining about the religious nature of programs the organization presents at high school assemblies. (Full text of letter.) While the programs are billed as events that focus on the dangers of drunk driving, AU charges that the programs are based on Bibilical themes and that following the program students individually are given a Bible and invited to accept Jesus. The letter says that under the Establishment Clause these programs are impermissible in public schools and can lead to liability on the part of the Foundation as a willful participant in joint action with the state. The Foundation lists over 100 schools in Nebraska and Kansas where it has presented assemblies.

Italian Town Fines Muslim Woman For Wearing Burqa At Post Office

Last Friday, outside the post office in a suburb of the northern Italian town of Novara, police imposed a 500 Euro fine on a 26-year old Muslim woman who, with her husband, was on her way to the local mosque for prayer services. Today's London Times reports that Tunisian-born Amel Marmouri, wearing a burqa, was charged with violating a local ordinance prohibiting clothing that prevents police from immediately identifying the wearer inside a public building, school or hospital. This is the first time the anti-terrorist ordinance, adopted in January, has been enforced. Marmouri's husband said he would respect the ordinance, but would be forced to confine his wife at home because the Qur'an prohibits her face from being seen by other men. However the head of Italy's Islamic Community and Organizations Union said that his organization is against veils of any kind and for freedom of women.

Meanwhile, AP reports that Germany's Interior Minister Thomas De Maziere this week said he sees no need for a ban on the burqa in his country.

Lawsuit Challenges Prayers Referencing Jesus At City Council Meetings

The Contra Costa (CA) Times reports that a lawsuit was filed yesterday in state court in California seeking to enjoin Lancaster (CA) City Council sessions from including any prayer that invokes the name of Jesus. The lawsuit in Los Angeles Superior Court comes three weeks after Lancaster residents, by a vote of more than 3-1, approved a Nonbinding Measure that calls for City Council to continue its present prayer policy. (See prior posting.) One of the plaintiffs in the lawsuit is Shelley Rubin, chair of the Jewish Defense League.

Parents, Teachers, Students Seek To Bar School Board From Enforcing Consent Decree

Last May, the Santa Rosa County, Florida School Board agreed to settle a lawsuit brought against it by the ACLU challenging various religious practices in the school system. Under the consent decree, prayers are not to be delivered at school events; schools are not to sponsor religious baccalaureate services; school events are not to be held at religious venues where reasonable alternatives exist; and school personnel may not promote their personal religious beliefs to students in class or in conjunction with school events. (See prior posting.) In a case currently on appeal, a Christian teachers' organization tried unsuccessfully to intervene to challenge the settlement. (See prior posting.) Now opponents of the settlement have taken a new approach. A large group of parents, teachers, staff, students, former students, and community residents, in a lawsuit filed by Liberty Counsel, seek to enjoin the school board and superintendent from enforcing the settlement.

In Allen v. School Board for Santa Rosa County, Florida, (ND FL, filed 5/4/2010), the 308-paragraph complaint (full text) alleges that enforcement of the consent decree infringes First Amendment protections of speech, association, and free exercise of religion, violates the establishment clause and denies plaintiffs equal protection of the law. The complaint also asserts that the consent decree can no longer be enforced because plaintiffs in the original lawsuit, having graduated from high school, lack standing. They can no longer be injured by any conduct of the defendants. In a press release, Liberty Counsel summarizes the lengthy charges in the complaint as follows:

[P]rotected religious expression, such as voluntary, student-initiated prayers or off-the-clock religious discussion among adults, has been criminalized. Students can no longer say "God Bless," teachers must hide in closets to pray, parents cannot communicate frankly with teachers, volunteers cannot answer any questions regarding religion, Christian groups cannot rent school facilities for private religious functions benefiting students, and pastors are dictated how they can and cannot seat their audiences at private, religious baccalaureate services held inside their own houses of worship.

Initially, Liberty Counsel offered free consultation to the school district, but the school district decided instead to shake hands with the ACLU, pay the ACLU $200,000 in legal fees, and voluntarily enter into the Consent Decree that obliterates religious freedom and makes a mockery of the First Amendment.

Court Says Dependency Finding Did Not Infringe Parents' Free Exercise Rights

In In re Z.S., (OH Ct. App., May 3, 2010), an Ohio appellate court rejected the claim that parents' free exercise rights and their right to control the education of their six children were infringed by a Juvenile Court's determination that the children were neglected and dependent. The children, three of whom are autistic, were placed in temporary custody of the state. Reviewing the evidence, the court said:

Mrs. Siefker's beliefs, known only to her, were constantly changing and often carried the appearance of being pre-textual in order to keep the children confined to her home and under her exclusive control. While she steadfastly professed to believe in the existence of God and Jesus Christ and that the original King James version of the Bible was true, the "tenets" or "rules" of her faith were always in flux, rarely remaining the same from day-to-day. For instance, one day something was not sinful, the next day it was. Thus, it is difficult to determine what is truly held because it could change the next day, the next week, or the next month. Moreover, more than one person ... opined that these beliefs were intertwined with Mrs. Siefker's mental condition, particularly her OCD and anxiety issues. This renders it nearly impossible to discern whether a particular position she has is based on her religious beliefs, her mental condition(s), or a combination of the two. Further, Mr. Siefker seems to follow whatever belief his wife has, rather than forming his own belief system. Thus, determining whether he truly holds these beliefs is also difficult, if not impossible.

Nominal Damages Awarded In "Day of Truth" T-Shirt Case

An Illinois federal district court last week issued yet another decision in the long running litigation against a suburban Chicago school district over its attempt to prevent two Christian students from wearing a T-shirt carrying the slogan "Be Happy, Not Gay" as their participation in "Day of Truth," an event set up to counter the LGBT "Day of Silence" event. In 2008, the 7th Circuit granted a preliminary injunction limited to allowing student Alexander Nuxoll to wear the T-shirt for that year's event. (See prior posting.) Now in Zamecnik v. Indian Prarie School District, 2010 U.S. Dist. LEXIS 42748 (ND IL, April 29, 2010), an Illinois federal district court awarded nominal damages of $25 to Nuxoll and Heidi Zamecnik, a former student, for violation of their free expression rights. The court concluded that school officials had not shown that plaintiffs' wearing of their T-shirts caused a substantial disruption of the educational process. The court also concluded that Nuxoll is entitled to a permanent injunction prohibiting defendants from preventing displays such as the T-shirt message. However, the court said Nuxoll must submit proposed language for the injunctive order to prevent school rules from being overbroad, and ordered the parties to meet to discuss settling the remaining issues in the case.

Pastors Convicted of Tax Evasion Despite "Love Offering" Defense

In Charlotte, North Carolina yesterday, a federal jury convicted husband and wife co-pastors of the Greater Salem City of God Church on numerous counts of tax evasion and fraud. WCNC News reported yesterday on the convictions of Anthony and Harriet Jinwright, following their 4-week trial for failing to report some $1.8 million in income. In closing arguments, Anthony Jinwright's lawyers argued that the government was punishing Jinwright for following the traditional church practice of accepting gifts of "love offerings." Attorney Ed Hinson told the jurors: "The kingdom of God is not run on generally accepted accounting principles. Thank God. If it were, we'd all be in trouble." Prosecutors said the case did not involve an attack on the Jinwrights' religious practices.

Title VII Religious Institution Exemption Not Applicable To Harassment Claim

In Kennedy v. Villa St. Catherines, Inc., (D MD, April 30, 2010), a Maryland federal district court held that the exclusion in Title VII of the 1964 Civil Rights Act that permits religious institutions to use religious criteria in their hiring does not prevent a suit under Title VII for religious harassment or for retaliation stemming from opposition to the harassment. In the court's language:

[W]hile 42 U.S.C. § 2000e-1(a) may give religious institutions carte blanche in considering religion in deciding whom to employ, promote, or terminate, it does not follow that it gives them free rein to harass an individual once hired, even on religious grounds.

The lawsuit was filed by a nursing assistant who was a member of the Church of the Brethren and who was employed at a Catholic nursing center. She alleges that her Director created a hostile work environment by repeated complaints about her religiously-motivated long skirts and head covering.

Challenge To Town Council Invocations Moves To Britain

The challenge to prayers prior to city council meetings, quite common in the U.S., has now made its way to Britain. Today's London Daily Mail reports that the National Secular Society (NSS) is filing a test suit against the Bideford Town Council, in North Devon. The suit claims that opening town council sessions with Christian prayer violates Article 9 of the European Convention on Human Rights that protects freedom of thought, conscience and religion. A Daily Mail survey of 181 large town councils in England and Wales shows that 118 start their sessions with prayer-- almost all with Christian prayer. However the nature and formality of the invocations vary widely. The City of London opens its session with merely a 3-word Latin invocation--Domine Dirige Nos - meaning 'Lord guide us'. Commenting on the new lawsuit, the executive director of NSS suggested that if Bideford Town Council members want to pray, they should do so in another room before the council meeting begins. Some religious groups characterize the lawsuit as an attack on Britain's Christian heritage by "aggressive atheists."

9th Circuit Says RLUIPA Does Not Cover Court House Holding Cell

In Khatib v. County of Orange, (9th Cir., May 3, 2010), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, concluded that a court house holding cell is not covered by the Religious Land Use and Institutionalized Persons Act. A majority, therefore, upheld the dismissal of a RLUIPA lawsuit filed by a Muslim woman who, on two occasions in a single day when the court was dealing with her probation violation, was required to remove her hijab (headscarf) for security reasons. Examining the legislative history of RLUIPA, the majority concluded that the court's holding area is neither "a jail, prison or other correctional facility," nor a pre-trial detention facility. Judge Kozinski dissented, beginning his 8-page opinion as follows:

Freud is reported to have said that sometimes a cigar is just a cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. [RLUIPA] ... covers ... pretrial detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me. Everything below is unnecessary and you could easily skip it.

Yesterday's San Francisco Appeal reports on the decision.

French Court Orders Facebook To Remove Page That Is Insulting To Bishop

Last week, BNA's Electronic Commerce & Law Reporter [subscription required] reported on a decision by a French court ordering Facebook to take down a page that the court found violated the privacy of a French bishop. It was also ordered to ensure that the page was not reposted. Facebook apparently failed to appear in the case, and had no attorney present at the hearing. In Hervé G. v. Facebook France, (TGI Paris, April 13, 2010) [full text in French from BNA, subscription required], the Paris First Instance Court also ordered Facebook France to identify the authors of the page and pay 2000 Euros in damages to Catholic Bishop Herve Giraud of Soissons. The offending page, titled "Courir nu dans une église en poursuivant l'évêque" (Running naked in a church after the bishop), was said by the court to incite hate and violence against Catholics. It included references to pedophilia. Facebook France says that the page is the responsibility of the U.S.-based Facebook.com.

Cert. Denied In Boy Scouts Case

The U.S. Supreme Court today denied certiorari in Boy Scouts of America v. Barnes-Wallace, (Docket No. 08-1222, May 3, 2010). (Order List). The long -running case challenged the constitutionality of San Diego's leasing of city property at nominal rents to the Boy Scouts. (See prior posting.) The challenge turned on the scout's exclusion of atheists, agnostics, and homosexuals as members or volunteers and its requirement that members affirm a belief in God. Challengers claimed the Scouts are a religious organization. (See prior posting.) Presumably the Court's long delay in deciding whether to grant review of the 9th Circuit decision stemmed from the fact that the decision in Salazar v. Buono, a case also involving an Establishment Clause challenge to governmental leasing of property to a private organization, might have resolved the issue here. (See prior posting.) However ultimately the recent fragmented disposition in Salazar (see prior posting) gave little guidance on the question posed by the lease to the Boy Scouts. AP reports on the denial of cert.

Mennonite Service Agency Added To List of Conscientious Objector Alternatives

Last month, the Selective Service System added one additional alternative for conscientious objectors if the draft should ever be reinstated. According to the Army's website, on April 20 the Selective Service System signed the first new Alternative Service Employer Network agreement in 25 years. It added Mennonite Voluntary Service, an agency of the Mennonite Church USA, to the list of civilian alternative service choices for CO's. [Thanks to God and Country blog for the lead.]

Defrocked Orthodox Priest Did Not Show Malice In Allegedly False Statements

In Kondratick v Orthodox Church in America, (Nassau Co. Sup. Ct., April 14, 2010), a New York trial court refused to grant summary judgment to a former high-ranking priest in the Orthodox Church in America who, after an investigation by the Church's Spiritual Court, was removed from the priesthood because of his alleged role in a church financial scandal. Plaintiff alleged a Church spokesman Rev. Andrew Jarmus defamed him when Jarmus was apparently misquoted by the press as saying that plaintiff was "solely responsible" for the financial scandal involving millions of dollars. Plaintiff claims that Jarmus was guilty of malicious conduct because he never issued a clarification or retraction of statements attributed to him. The court held that plaintiff had not made an adequate prima facie case of entitlement to summary judgment.

British Street Preacher Charged Under Public Order Act For Anti-Gay Statement

The London Telegraph reported yesterday on the arrest of a Baptist street preacher by British police in Workington, Cumbria for violating Britain's Public Order Act. According to Preacher Dale McAlpine, after he told a passing shopper that homosexuality violated the word of God he was approached by a police community support officer who introduced himself as the LGBT liaison officer for the Cumbria police. McAlpine told him: "It's still a sin." McAlpine then began a 20 minute sermon condemning drunkenness and adultery, during which three regular police officers arrested him. He was later charged under Sections 5(1) and 6 of the Public Order Act that outlaw use of language which the person intends, or is aware may be, abusive or insulting. [Thanks to Joel Sogol via Religionlaw for the lead.]

Recent Articles and Film of Interest

From SSRN:

• Daphne Barak-Erez, Law and Religion Under the Status Quo Model: Between Past Compromises and Constant Change, (Cardozo Law Review, Vol. 30, No. 6, pp. 2495-2507, 2009).
• R. Randall Kelso, Modern Moral Reasoning and Emerging Trends in Constitutional and Other Rights Decisionmaking Around the World, (April 1, 2010).

From SmartCILP:

• M. Mohsin Alam, Constructing Secularism: Separating 'Religion' and 'State' Under the Indian Constitution, [Abstract], 11 Australian Journal of Asian Law 29-55 (2009).
• Mark A. Levine, The Modern Crusade: An Investigation of the International Conflict Between Church and State, 40 California Western International Law Journal 33-54 (2009).

Recent Films:

• Reed Cowin, 8: The Mormon Proposition, reviewed in the Washington Post.

Court Enjoins Planned Student Prayer At High School Graduation

On Friday, an Indiana federal district court issued a preliminary injunction prohibiting the planned student-led prayer at suburban Indianapolis' Greenwood High School's upcoming graduation. The school conducts a student ballot at an assembly in which students vote on whether to have a fellow student deliver a non-denominational prayer at graduation. This year's valedictorian sued challenging the practice. (See prior posting.) In Workman v. Greenwood Community School Corp., (SD IN, April 30, 2010), the court said in part:

Under the circumstances of this case, were a prayer to be permitted at the upcoming Greenwood graduation ceremony, it likely would be perceived "as a public expression of the views of the majority of the student body delivered with the approval of the school administration."... The offering of prayer at a high school graduation does not, by itself, violate the Establishment Clause. If, however, "the 'degree of school involvement makes it clear that the [graduation] prayers bear ‘the imprint of the state,' then a constitutional violation has occurred." ... The policy in place at Greenwood purposefully encourages the delivery of a majority-sanctioned prayer at a "regularly scheduled, school-sponsored function conducted on school property." ... That policy therefore violates the Constitution as an establishment of religion.

Reporting on the decision, yesterday's Indianapolis Star quotes school officials who say they will not appeal the decision and will not hold votes or attempt to hold graduation prayers in future years.

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.