Religion Clause

Tuesday, May 18, 2010

North Carolina City Council Switches From Moment of Silence To Invocation

In Greensboro, North Carolina, Mayor Bill Knight has decided to end the long City Council tradition of opening each meeting with a moment of silence, and instead replace it with an invocation. Knight says he will invite people from a broad spectrum of the faith community to offer opening prayers. Yesterday's Greensboro News-Record quotes Knight's explanation: "I think this adds a very distinctly America quality and a very necessary element. We all believe in something. This is an opportunity to exercise that without infringing on the government-religion prohibition."

10th Circuit Upholds Church's RLUIPA Victory, Avoids Deciding Constitutionality of RLUIPA

In Rocky Mountain Christian Church v. Board of Commissioners of Boulder County, Colorado, (10th Cir., May 17,2010), the U.S. 10th Circuit Court of Appeals held that sufficient evidence was presented at trial to justify the jury's determination that the denial of a special use application to Rocky Mountain Christian Church violated the equal terms and unreasonable limitations provisions of RLUIPA. It also upheld the permanent injunction that had been granted by the district court ordering the approval of the church's special use application. (See prior posting.) However the court avoided ruling on the issue seen by many as the more important question raised on appeal-- whether the substantial burden provisions of RLUIPA violate the Establishment Clause or exceed Congress' enforcement powers under Sec. 5 of the 14th Amendment. It was presumably that issue that had caused the Justice Department to intervene as a party in the case and over 25 organizations to join in a half dozen amicus briefs. AP reported on the decision.

Monday, May 17, 2010

Sri Lanka Charges Muslim Convert With Insulting Buddhism By Publishing Books

On Friday, the British-based Islamic Human Rights Commission reported on the upcoming trial in Sri Lanka of Sarah Malanie Perera, a Sri Lankan national who lives in Bahrain. While she was vacationing in Sri Lanka in March, she was detained by the Ministry of Defense under special emergency laws and charged with offending Buddhism. She was released on bail in April, but banned from traveling. Charges against her stem from two books she wrote describing her 1999 conversion from Buddhism to Islam. Authorities claim that writing the book in the Sinhalese language creates the insult. The trial was supposed to have begun on Saturday.

Christian Group Launches 8th Annual Campaign To Encourage Graduation Prayer

Last week, Liberty Counsel announced that it was launching its 8th annual "Friend or Foe" Graduation Prayer Campaign. Again this year it is distributing its 8-page Legal Memorandum on Graduation Prayers in Public Schools setting out its understanding of legal precedent that still permits prayers by speakers who truly initiate prayer on their own after being chosen to speak. Liberty Counsel says that, if necessary, it will litigate "to ensure that prayer and religious viewpoints are not suppressed during graduation ceremonies." The group also offers for sale "I Will Pray" wristbands described as "fashionable", as well as a booklet titled "Students' Rights on Public School Campuses."

Sunday, May 16, 2010

Holder Testifies About Religious-Based Hiring By Funded Faith-Based Groups

The Obama administration has so far not announced an official position on whether it would continue the Bush Administration policy that allowed social-service groups receiving federal faith-based funding to apply religious criteria in hiring. Last Thursday, Attorney General Eric Holder, in testimony before the House Judiciary Committee (after his prepared statement), answered questions from Rep. Robert Scott (D-VA) about the Administration's position on hiring by faith-based groups. A press release from Americans United interprets the somewhat opaque exchange as a commitment by Holder to non-discrimination. Here is the crucial part of the exchange:

Scott: Let’s be clear. Is the policy of this administration to allow discrimination? Is the policy of the administration going to be that discrimination will not be allowed?

Holder: We are -- yes, that is not the view that we share. We do not have a view that discrimination is, is appropriate. And we want to, as I said, interact with these organizations where these issues are presented in such a way that we are acting consistent with the law and acting, again, consistent with what our values are, both as a nation and as an administration.

(See prior related posting.)

Recent Prisoner Free Exercise Cases

In Colvin v. Caruso, (6th Cir., May 13, 2010), a Jewish inmate sued officials in a prior facility in which he had been housed for denying him kosher meals for 16 days, and thereafter on various occasions inadvertently serving him non-kosher food. He also challenged the lack of Jewish services and literature. The U.S. 6th Circuit Court of Appeals dismissed a number of his claims on grounds of mootness, qualified immunity and that isolated incidents did not violate his rights. However the court held that plaintiff should have been permitted to amend his complaint to challenge his removal from the kosher meal program for mere possession of non-kosher food. It also questioned officials' refusal to reinstate plaintiff to the kosher food program based on his knowledge of Judaism rather than the sincerity of his beliefs.

In Richardson v. Walker, 2010 U.S. Dist. LEXIS 44717 (SD IL, May 7, 2010), an Illinois federal district court allowed an inmate to move ahead with his claim that his free exercise rights were infringed when he was subjected to tuberculosis testing that violated his religious beliefs.

In Mansker v. McKinzy, 2010 U.S. Dist. LEXIS 44909 (ED CA, May 6, 2010), a California federal magistrate judge recommended dismissal of a Wiccan inmate's 1st Amendment and RLUIPA claims that he was prevented from attending religious services on several occasions. He did not allege that his religion required regular attendance at services, and thus did not adequately allege a substantial burden on his free exercise rights.

In El-Shaddai v. Clark, 2010 U.S. Dist. LEXIS 46304 (ED CA, April 12, 2010), a California magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint that his free exercise rights were violated when authorities refused to process his appeals requesting receipt of prayer oils he had ordered.

In Le'Taxione X v. Rochon, 2010 U.S. Dist. LEXIS 46165 (WD WA, May 11, 2010), a Washington federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 46300, April 9, 2010), and dismissed free exercise claims by a Nation of Islam prisoner. Plaintiff had objected to officials insisting that the day room door remain open during Ramadan services. Accommodations made to provide NOI separate Al-Jumu'ah services and study groups mooted a second free exercise claim.

In Espinosa v. Addams, 2010 U.S. Dist. LEXIS 46177 (ED CA, April 8, 2010), a California federal magistrate judge dismissed an inmate's complaint that his free exercise and free speech rights were violated when the prison contraband rules were invoked to prevent his access to a Wiccan book his family had purchased that containted partial nudity.

In Young v. Kadien, 2010 U.S. Dist. LEXIS 46685 (WD NY, May 5, 2010), a New York federal district court allowed an inmate who practiced the religion of "Creator of Heaven and Earth and All Things Beautiful" to move ahead with his RLUIPA claim regarding his right to grow his hair and beard for religious reasons.

In Simpson v. Feltsen, 2010 U.S. Dist. LEXIS 46323 (ED CA, April 9, 2010), a California federal district court held plaintiff's charge that prison officials harassed him about his dreadlocks did not state a free exercise claim.

In Tapp v. Proto, 2010 U.S. Dist. LEXIS 47075 (ED PA, May 12, 2010), a Pennsylvania federal district court rejected a Black Jewish inmate's claims that his right to religious expression was violated when officials took time to investigate his religious needs in the first two weeks of his commitment, and when they thereafter failed to provide enough menu variety and consistent food preparation.

In Phillips v. Ayers, 2010 U.S. Dist. LEXIS 47281 (CD CA, May 12, 2010), a California federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 47263, Jan. 14, 2010) and refused to dismiss a claim that denying use of the prison chapel for Muslim worship without a sponsor violated RLUIPA.

Texas Board of Education Member Will Propose New Establishment Clause Focus In Social Studies

This week, the Texas State Board of Education resumes deliberations on revisions to the state's social studies curriculum. In March, the Board approved a number of changes that will require more conservative approaches to history and economics. (See prior posting.) Yesterday's Dallas Morning News reported that Don McLeroy, a leading social conservative on the board, has distributed several amendments that he wants added before this week's final vote on the standards. One of the proposals-- for the 8th grade history curriculum-- would call for students to: "contrast the Founders' intent relative to the wording of the First Amendment's Establishment Clause and Free Exercise Clause, with the popular term 'Separation of church and state.' " This reflects conservative contentions that the doctrine of separation of church and state was added by judges and was not part of the drafters' original intent. Earlier the Board rejected a proposal that, in contrast, would have had high schoolers study the reasons the Founders barred the government from promoting religion.

Arizona Governor Signs Bill Giving New Religious Land Use Protections

The Arizona Republic reports that Gov. Jan Brewer on Wednesday signed House Bill 2596 that gives added protections from land use regulations to religious institutions. It prohibits zoning regulations that impose an unreasonable burden on the exercise of religion, even if the government has a compelling interest, unless the proposed religious exercise violates religion-neutral zoning standards in effect when the zoning application was made; there are toxic hazards on adjacent property; or a suitable alternative location is available. It also bans discrimination or unequal treatment of religious institutions, even if the government has a compelling interest. Finally it bars total exclusion of a religious institution from a political jurisdiction or unreasonable limits on religious institutions, again regardless of any compelling interest. The statute also allows cities to exempt, on a case-by-case basis, churches or charter schools from existing statutory restrictions on their locating near businesses that sell liquor, if they are located in an entertainment district.

Saturday, May 15, 2010

Patriarchate In Republic of Georgia Wants Legislation To Protect Against Religious Insult

Today's Georgian Times reports that the Patriarchate of the Orthodox Church in the Republic of Georgia has called on the government to enact legislation to protect the religious feelings of the population. The Patriarchate's statement stems from an incident last week at a televised debate over the book Saidumlo Siroba-- a collection of stories about incest, blasphemy and the like. As reported by the Georgian Times earlier this week, the debate led to scuffles between members of the right-wing Public Orthodox Movement and free speech proponents. The book's title is a pun on the Georgian term for The Last Supper.

6th Circuit Denies Motions To File Amicus Briefs In Ministerial Exception Rehearing Bid

In March, the 6th Circuit in EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act. (See prior posting.) The court reasoned that they are not "ministerial employees" who are excepted from coverage. Only those who teach primarily religious subjects or who have a central spiritual or pastoral mission are covered by the ministerial exception. Last month, the parochial school filed a motion (full text) seeking an en banc rehearing, arguing that the 6th Circuit should not adopt the "primary duties" test to determine whether the ministerial exception applies, or, if it does, should not use a quantitative test in determining primary duties. A dozen religious organizations, representing a number of religious traditions, sought to file a total of four amicus briefs supporting the petition for an en banc rehearing. (Full text of briefs 1, 2, 3, 4 .). In an unusual move, the 6th Circuit, without explanation, refused to permit the amicus briefs to be filed. (Full text of order.) [Thanks to Luke Goodrich of the Beckett Fund for the lead and the documents.]

Friday, May 14, 2010

Split 6th Circuit Panel Denies Rehearing In 10 Commandments Case

In a 2-1 decision issued in January, the U.S. 6th Circuit Court of Appeals rejected an Establishment Clause challenge to a "Foundations of American Law and Government" display (including the 10 Commandments) that had bee placed in the Grayson County, Kentucky courthouse. The majority held that challengers failed to show a religious purpose in approving the display. (See prior posting.) Today in American Civil Liberties Union of Kentucky v. Grayson County, Kentucky, (6th Cir., May 14, 2010), the 6th Circuit by the same 2-1 vote denied a rehearing in the case. The ACLU claimed that a genuine issue of material fact should lead to vacating the summary judgment award. It focused on statements made by the county's Judge Executive at the time the county removed the Ten Commandments document from the display in order to comply with a preliminary injunction that had been issued by a federal district court. In written opinions denying the rehearing, the majority said that the alleged statements did not show a religious purpose. Judge Moore, dissenting, argued that in context the remarks could demonstrate a religious purpose. Liberty Counsel issued a press release on today's action by the court.

Canadian Court Hearing Arguments On Conscience Rights For Marriage Commissioners

Today's Vancouver Sun reports that for the first time in 20 years, the government of Canada's province of Saskatchewan has invoked the Constitutional Questions Act to obtain an opinion from the Court of Appeal on the constitutionality of proposed legislation. At issue are two alternative drafts of proposed legislation that would permit some or all of the province's 326 marriage commissioners to refuse to perform marriage ceremonies that are contrary to their religious beliefs. One draft would limit the exemption to individuals who were commissioners in 2004 when the province authorized same-sex marriages. The other draft would cover all commissioners.

Regina lawyer Mike Megaw was appointed by the government to argue in favor of the constitutionality of the law. Eighteen other individuals and groups were allowed to intervene in the case. Yesterday the court heard six hours of argument, and returns today to hear the remaining presentations. Some of the arguments yesterday focused on the breadth of the proposed law. It is not limited to same-sex marriage, and some claim that it could allow refusals on religious grounds to perform interracial marriages or marriages between people of different castes as well. (See prior related posting.)

Malaysian Woman Challenges Ban On Non-Muslim Lawyers Practicing In Syariah Court

In Malaysia, Victoria Jayaseele Martin, a non-Muslim woman who earned a Diploma in Syariah Law and Practice in 2004 from the International Islamic University Malaysia, is challenging the requirement imposed by the Federal Territory of Kuala Lumpur that only Muslims can be admitted to practice before its Syariah Court. Bernama reports today that a High Court judge has granted Martin leave to file a mandamus action to require the Federal Territory Religious Council to allow her to practice before the religious court. In allowing Martin to proceed, the High Court rejected arguments that only the Syariah Court had jurisdiction to hear her application. According to today's Malaysia Star, Martin contends that Rule 10 of the Peguam Syarie Rules 1993 that limits Syariah practice to Muslims is unconstitutional and not authorized by the Administration of Islamic Law (Federal Territories) Act 1993.

Vermont Catholic Diocese Settles All Past Clergy Abuse Lawsuits For Over $20M

The Roman Catholic Diocese of Burlington, the diocese that covers the state of Vermont, has settled the 26 pending clergy sex abuse cases that have been filed against the Diocese for a total of $17.65 million. Three other cases that have gone to trial and are currently on appeal to the Vermont Supreme Court were also settled for undisclosed amounts-- said by Barre Montpielier (VT) Times Argus to total at least $3 million. The settlements were announced in a letter (full text) yesterday posted on the Diocese website. To pay for the settlements, the Diocese will sell its 32-acre headquarters overlooking Lake Champlain, and will move to other offices. It will also sell 26-acre Camp Holy Cross located on Colchester's Malletts Bay. In the meantime it has obtained an interim loan using the properties as collateral and has depleted its unrestricted reserves to cover the costs.

Debate Over Permitting Stores To Open On Holidays Becomes Contentious

In Canada, Toronto's City Council voted to defer further discussion of a proposed amendment that would allow all retail stores to remain open 365 days per year. Yesterday's Toronto Globe & Mail reports that the proposal was put forward by Council's economic development committee in order to equalize the playing field for all retailers. Presently stores in some tourist areas have no restrictions, while stores elsewhere in the city must close on nine public holidays. However the debate became contentious when North York council member Giorgio Mammoliti-- a candidate for mayor in the upcoming October elections-- pressed to still restrict stores from opening on Good Friday and Easter. He said: "Those of us that believe in God know that there are certain days that we're not supposed to be working and we are supposed to be with our families." That brought a response from council member Raymond Cho who asked Mammoliti whether he would be working only for Christians when he became mayor. Some Council members hope for a less charged debate if the amendment is deferred until after the election.

11th Circuit: Muslim's Employment Discrimination Claim Not Supported

In MackMuhammad v. Cagle's Inc., (11th Cir., May 12, 2010), the 11th Circuit Court of Appeals affirmed the dismissal of a religious discrimination in employment and hostile work environment suit brought by a Muslim man who was rejected for a superintendent's position at a poultry plant. The court said plaintiff had not demonstrated he was qualified for the position, or that similarly situated non-Muslim employees were treated more favorably. It also rejected his claim that references to him in the workplace as "Bin Laden" and jokes about his refusal to eat pork amounted to a hostile work environment. Finally, it dismissed his state law intentional infliction of emotional distress claim.

Thursday, May 13, 2010

Two Clergy Sexual Abuse Cases Filed In Florida

The Orlando (FL) Sentinel reports that a new clergy abuse lawsuit was filed yesterday in Orange County, Florida against the Catholic Diocese of Orlando and the Diocese of Gary, Indiana. It accuses former priest Richard Emerson, who was on temporary assignment from Indiana, of abusing the plaintiff in the late 1980's and early 1990's. A second lawsuit was filed in Orange County earlier this month involving allegations against former priest Vernon H. Uhran by an Orlando man who claimed that in 1970, when plaintiff was a 14-year old altar boy, Uhran repeatedly sexually abused him after plying him with alcohol during a spiritual retreat to a beach.

Anonymous Letter Claims To Be From Veteran Who Stole Sunrise Rock Cross

Yesterday's Barstow, California Desert Dispatch published an anonymous letter claiming to explain the theft earlier this week of the Cross on Sunrise Rock in the Mojave National Preserve World War I memorial. (See prior posting.) The newspaper, which said it could not verify the validity of the letter, reported it was transmitted by an anonymous caller who claimed it was written by the person directly responsible for the theft. The letter writer, claiming to be a veteran, said his decision to "lovingly" move the cross was impelled by language in the Supreme Court's recent decision permitting it to remain. (See prior posting.) The letter read in part:

5. The cross was erected illegally on public land in 1998 by a private individual named Henry Sandoz. Since then the government has actively worked to promote the continued existence of the cross, even as it excluded other monuments from differing religions. This favoritism and exclusion clearly violates the establishment clause of the US Constitution.
6. Anthony Kennedy desecrated and marginalized the memory and sacrifice of all those non-Christians that died in WWI when he wrote: '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.' The irony and tragedy of that statement is unique.

7. Justice Kennedy’s words in particular and others like them from the other Justices caused me to act.

8. At the time of its removal there was nothing to identify the cross as a memorial of any kind, and the simple fact of the matter is that the only thing it represented was an oddly placed tribute to Christ. This cross evoked nothing of the sort that Justice Kennedy writes of, it was in the end simply a cross in the desert....
12. We as a nation need to change the dialogue and stop pretending that this is about a war memorial. If it is a memorial, then we need to stop arguing about the cross and instead place a proper memorial on that site, one that respects Christians and non-Christians alike, and one that is actually recognizable as a war memorial.

13. If an appropriate and permanent non-sectarian memorial is placed at the site the cross will be immediately returned to Mr. Sandoz.

14. Alternatively, if a place can be found that memorializes the Christian Veterans of WWI that is not on public land the Cross will promptly be forwarded with care and reverence for installation at the private site.

[Thanks to Scott Mange for the lead.]

UPDATE: The May 16 San Bernadino Sun reports that rewards for return of the stolen cross now total $125,000.

Remedies Imposed In Muslim Charity's Challenge To Terrorist Designation

In KindHearts for Charitable Humanitarian Development, Inc. v. Geithner, (ND OH, May 10, 2010), an Ohio federal district court issued an opinion on the appropriate remedy in a Muslim charity's challenge to the procedures used by the U.S. Treasury's Office of Foreign Assets Control in designating the charity a Global Terrorist Group. Last August, the court held that the government should have obtained a search warrant; that OFAC had applied vague criteria and did not give the charity adequate notice and opportunity to be heard; and had improperly blocked access to funds for KindHearts to use to pay its counsel. (See prior posting.) In October it issued a preliminary injunction against further action pending the cout's decision on a remedy. (See prior posting.) This week, in fashioning a remedy, the court refused to invalidate the order blocking KindHearts' assets, and instead decided to hold a post-seizure probable cause review as a remedy for the warrantless seizure and continuing retention of KindHearts' assets. At the hearing the government will be required to show that it had reasonable ground to believe that KindHearts was subject to designation as a terrorist group. Also it may cure its Fourth Amendment violation by showing probable cause for the original seizure.

As to the failure to give notice and opportunity to be heard, the court imposed as a remedy a remand. The court will hold an ex parte, in camera meeting with the government to decide what classified evidence will give KindHearts adequate notice. It also remanded to the Office of Foreign Asset Control for further consideration the issue of payment of attorneys' fees from blocked assets. IPS reports on the decision.

NGO's Oppose 5 Countries Running For Seats On UN Human Rights Council

The United Nations General Assembly is scheduled today to elect 14 new members to the 47-member Human Rights Council. UN Watch reports that human rights groups are calling on UN members to reject 5 of the 14 countries that are running unopposed. They say that Libya, Angola, Mauritania, Qatar and Malaysia all have poor human rights records. A particularly strong appeal has been made by 37 NGO's urging the defeat of Libya's candidacy. (Full text of NGO letter.)

New York Church Designated As Landmark Over Leaders' Objections

New York City Council yesterday approved landmark designation for the historic West Park Presbyterian Church at Amsterdam Ave. and 86th St. According to the New York Times, preservationists have waged a 20-year battle to save the Romanesque Revival building which has been closed for two years because of physical deterioration. Church leaders wanted to tear down part of the building and develop the site. The church's pastor, Rev. Dr. Robert L. Brashear said: "Forced landmarking has the effect of imposing the governmental idea of mission on the congregation. There is a profound church-state issue here." It will cost $11 to $12 million to restore the church.

Evangelicals Call For "Just Assimilation" Immigration Policy

A Statement (full text) released om Tuesday and signed by six leading evangelical leaders calls for a "just assimilation immigration policy." It says in part:

We must first secure our borders before we can implement a broader just assimilation immigration policy. Secure borders are not closed borders....
After securing our borders, we should allow the millions of undocumented and otherwise law-abiding persons living in our midst to come out of the shadows. The pathway for earned legal citizenship or temporary residency should involve a program of legalization for undocumented persons in the United States, subject to appropriate penalties, waiting periods, background checks, evidence of moral character, a commitment to full participation in American society through an understanding of the English language, the rights and duties of citizens and the structure of America’s government, and the embrace of American values.

We must return to a rational immigration policy that acknowledges that we are both a nation of immigrants and a nation of laws. It is our obligation to provide a just solution to those people who are currently undocumented under the present policy. That solution is neither amnesty nor mass deportation.

Among the signers of the statement were Liberty Counsel's Matt Staver, and Southern Baptist Convention's Richard Land. Also signing was the head of the National Hispanic Christian Leadership Conference.

New Details of Elena Kagan's Bat Mitzvah Are Revealed

The New York Times published details yesterday of Supreme Court nominee Elena Kagan's campaign as a 12-year girl old for more women's equality in Jewish religious life. Kagan's family belonged to the Orthodox, but progressive, Lincoln Square Synagogue, headed at that time by Rabbi Shlomo Riskin. A star Hebrew school pupil, Kagan convinced Rabbi Riskin to allow her to have the first formal Bat Mitzvah at a synagogue that previously only celebrated the Bar Mitzvah-- for boys. Kagan wanted a service identical to the Bar Mitzvah, at which she would read from the Torah on Saturday morning. However she had to negotiate for something less. Her ceremony was on Friday night, where she read from the Book of Ruth and gave a talk analyzing it. Rabbi Riskin, who now lives in Israel, says: "We crafted a lovely service, but I don't think I satisfied her completely. But she certainly raised my consciousness."

Wednesday, May 12, 2010

Protesters Prevent Cartoonist Vilks From Completing Talk On Art and Free Speech at Uppsala University

The Swedish cartoonist Lars Vilks was prevented by protesters from completing a lecture on art and free speech at Sweden's Uppsala University yesterday. Vilks' 2007 depiction of the head of the Prophet Muhammad on the body of a dog resulted in protests and death threats. (See prior posting.) In March, a U.S. woman was indicted for conspiracy to kill Vilks. CNN reports that at Uppsala, five audience members began protesting loudly before Vilks started his talk to the philosophy department. Police calmed the protesters, but as Vilks showed a film with sexual content, particularly a photo of naked gay men wearing masks representing the Prophet Muhammad, 15 to 20 members of the audience became loud and tried to attack him. (Tundra Tabloid). Vilks was taken by police to a nearby room for protection, and did not return to finish his talk. Sweden's The Local reports that three suspects have been arrested in the incident, but were then released.

Court Refuses To Dismiss Chabad's Claims Against Historic Commission Members

In Chabad Lubavitch of Litchfield County v. Borough of Lichtfield, Connecticut, 2010 U.S. Dist. LEXIS 45677 (D CT, May 7, 2010), a Connecticut federal district court held that a town and its Historic District Commission lack standing to move to dismiss civil rights claims brought against three members of the Historic District Commission in their individual capacities. At issue was Chabad's request for approval of its plans to restore and add onto a Victorian house on the edge of the District for use as as a synagogue, community center and for classes. (See prior posting.) The Commission denied Chabad a Certificate of Appropriateness for its site plan. Chabad brought claims under 42 USC 1985(3) and 1986 charging that three Commission members conspired and neglected to prevent a conspiracy to infringe its free exercise and associational rights.

British Police Recognize Pagan Officers Association

According to yesterday's London Times, Britain's Home Office has formally recognized the Pagan Police Association as a "diversity staff support organization." This means that Pagan police officers will be allowed to take off Pagan holidays as part of their annual leave. However the Home Office refused the Association's request for funding. Leave for Pagan officers on Samhain (Halloween) may create problems since traditionally police leaves are cancelled on that day because of the high incidence of vandalism. [Thanks to Scott Mange for the lead.]

Town's Emergency 911 Prayer Group Helps As Bad Weather Threatens

Yesterday's Tulsa World reports that in Miami, Oklahoma, ten churches participate in an Emergency 911 prayer group set up by the city's emergency management coordinator, and approved by its city manager, two years ago. The group was activated on Monday when forecasters said there was a threat of severe thunder storms. Emergency Management Coordinator Glenna Longan said that the town has not been hit by a severe storm since the group was formed. She says the group prepares the town in a spiritual sense for possible natural disasters. It also helps spread the word that severe weather is on the way and preparations should begin.

Indian Tribe Now Excluded From Sacred Site In California Marine Life Protection Initiative

Under California's Marine Life Protection Act Initiative, new regulations that became effective on May 1 set aside 21 Marine Protected Areas. The San Francisco Bay Independent Media Center yesterday reported that on April 30, Native American tribal leaders held a ceremony to bless a site that is sacred to the Kashia Tribe of Pomo Indians who are now excluded from gathering seaweed and fishing in the area. The site on Stewarts Point (called "Danaka" by the tribe) is referenced in the tribe's creation story. Some 25 tribes are pressuring California to address tribal ceremonial and subsistence rights as part of the MLPA process.

French Parliament Adopts Non-Binding Resolution Opposing the Burqa

In another step toward outlawing the wearing of the burqa in France, yesterday the French National Assembly, the country's Parliament, adopted by a vote of 434-0 a non-binding resolution declaring that "radical practices which violate the dignity and equality between men and women, such as the wearing of the full veil, are contrary to the values of the republic." AFP reports that 30 Communist members in the 577-seat National Assembly walked out in protest of the vote. The Sarkozy government is moving ahead with a bill that will formally ban the burqa in public (see prior posting), though the Socialist opposition, in order to avoid a court challenge, wants the ban limited to wearing of the burqa in state institutions. The government's bill will cover wealthy foreign tourists who currently often frequent shops in Paris while fully veiled.

Meanwhile yesterday, the Council of Europe announced in a press release that its Parliamentary Assembly's Committee on Culture, Science and Education has adopted a resolution opposing a general ban on the niqab or burqa for women who "genuinely and freely desire" to wear it. It said a more limited ban for security purposes or where public or professional functions call for religious neutrality or showing of one's face may be justified. However a broader ban may violate freedom of religion protected by the European Convention on Human Rights.

Muslim Police Officer's Religious Discrimination Claim Dismissed

In Wallace v. City of Philadelphia, (ED PA, April 26, 2010), a Pennsylvania federal district court held that a Muslim police officer's request to wear his beard longer than permitted by police department policy could not be reasonably accommodated without imposing an undue burden on the city. It therefore dismissed plaintiff's Title VII religious discrimination claim as well as his claim under the Pennsylvania Human Relations Act. Police Department policy permitted officers to wear beards up to one-quarter inch in length for medical or religious reasons. Plaintiff was eventually terminated for refusing to comply with this limitation. The court observed that "to permit employees to mark themselves uniquely in the name of religious accommodation, at the cost of maintaining an employer's neutrality and uniformity, may ask too much." [Thanks to Volokh Conspiracy for the lead.]

Tuesday, May 11, 2010

Sunrise Rock Cross-- Focus of SCOTUS Decision-- Stolen By Vandals

The Cross on Sunrise Rock in Mojave National Preserve-- the focus of a recent Supreme Court decision-- has been torn down by vandals. CNN reports that the 6-foot high metal cross that served as a memorial to those killed in World War I was removed Sunday night from its difficult-to-reach site in the California desert. Last month the U.S. Supreme Court issued a fragmented ruling in the Establishment Clause challenge to the cross, which had been transferred to the VFW in order to avoid constitutional issues. The Supreme Court's decision in Salazar v. Buono permitted the cross to remain, at least for now. The National Park Service is investigating the incident, but no arrests had been made as of Tuesday morning. [Thanks to James Maule via Religionlaw for the lead.]

Religious Advocacy Groups Issue Statements On Kagan Nomination

A number of religious advocacy groups have issued statements commenting on President Obama's nomination of Elena Kagan to the U.S. Supreme Court. The Baptist Joint Committee said it hopes Kagan, if confirmed, "will protect our most fundamental freedom — religious freedom — with a commitment to principles of both no establishment and free exercise embodied in our 'first freedom'." Catholic Families for America opposed the nomination, saying it had "'grave concerns' about her promotion of same-sex 'marriage' and abortion, as well as a 'dangerous internationalism' that has become fashionable among leftist jurists." The American Jewish Committee welcomed the nomination, saying: "We commend President Obama on nominating Elena Kagan, whose strong legal credentials make her a worthy candidate for the U.S. Supreme Court."

Americans United for Separation of Church and State said: "We simply don’t know much about Elena Kagan’s views on church-state separation.... It's the job of the Senate Judiciary Committee to fill in the picture by asking her questions about how religion and government should interact." Liberty Counsel also raised questions: "The Senate should press hard to question Elena Kagan on her judicial philosophy. The public deserves to know whether Kagan will use her transnational law philosophy as a lens through which she views the Constitution. And the public needs to know whether her personal views will trump the Constitution, as they appeared to do when she banned military recruiters from campus."

The Jewish Council for Public Affairs release said: "Supreme Court nominees should be held the highest standard and be fully committed to protecting justice for all and our nation's core values described in the Constitution and the Bill of Rights.... We encourage Senators to give Ms. Kagan full and fair consideration and hope all sides keep discussions and debate civil." The Muslim Public Affairs Council said: "We call upon Ms. Kagan, if she is confirmed, to follow in the footsteps of Justice Stevens in his commitment to preserving individual freedoms, checking executive power, and upholding the rule of law which have made America a better place for over 35 years."

In Ontario Unemployed Teachers Are Changing Religion To Improve Job Chances

Toronto's Catholic District School Board, like most other Catholic school boards in Canada, requires that all teachers it hires for its schools must be Catholic-- a practice permitted under Ontario's Human Rights Code. Yesterday the Toronto Globe & Mail and Parentcentral.ca both report that increasingly unemployed, non-religious teachers are turning to Catholicism in order to get a teaching position. They are becoming increasingly involved in order to obtain a pastoral letter of recommendation from their parish priest. Ontario has twice as many teachers as teaching positions available. At least some of the teachers are apparently going through the motions of religious observance only so they can qualify for a teaching position. The superintendent of human resources for the Board doubts that teachers who were once practicing Catholics have disingenuous reasons for returning to their faith, and says those converting are generally interviewed during the conversion process.

First Freedom Center Has New President

Yesterday's Richmond Times-Dispatch reports that Randolph Marshall Bell, former
ambassador-at-large and special envoy for Holocaust issues for the State Department from 2002 to 2003, has become president of the First Freedom Center. The Center is devoted to increasing understanding and respect for religious liberty. Bell wants to expand the organization's national and international educational efforts, and expand the Center's use of electronic media to reach out to more schools and universities.

Monday, May 10, 2010

Elena Kagan Nominated By Obama To Supreme Court [UPDATED]

The White House this morning announced President Barack Obama's nomination of Solicitor General and former Harvard Law School Dean Elena Kagan to the U.S. Supreme Court to replace retiring Associate Justice John Paul Stevens. (Full text of remarks by President and Kagan.) The New York Times today has an extensive background article on Kagan along with the full text of her confirmation hearings for Solicitor General. If confirmed, she will become the third Jewish Justice (along with Justices Ginsburg and Breyer). This will mark the first time that three members of the Jewish faith sit on the Supreme Court at the same time. Also, with Justice Stevens retirement, it will mark the first time that the high court has had no Protestant justices. (See prior posting.) One of the anecdotes recounted by the Times is Kagan's clash, as a 12 or 13 year old, with her rabbi over what the content of her bat mitzvah ceremony would be.

Much of Kagan's published scholarly writings (full list at pp. 52-53 of Hearings) focus on the constitutional issues surrounding the regulation of hate speech. These include: The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Supreme Court Review 29 [Hein-on-Line link]; Regulation of Hate Speech and Pornography After R.A.V., 60 Univ. Chi. L. Rev. 873 (1993) [LEXIS link]; When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 UC Davis L. Rev. 957 (1996); and Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996) [LEXIS link].

During Kagan's confirmation hearings for Solicitor General, she was questioned (Hearings at pp. 97-98) about a memo she wrote as a law clerk for Supreme Court Justice Thurgood Marshall suggesting that government funding through the Adolescent Family Life Act for faith-based social service organizations to discourage teen pregnancy was improper because inevitably religious teaching would be injected into the organizations' social services. At her hearings, she rejected her earlier position, saying in written answers that her earlier view was "deeply mistaken" and that she now believes that it is incorrect to presume that a religious organization will use grant funds in an impermissible way to further religion.

Swedish Law Firm Sues Government For Discrimination After Muslim Lawyer Is Removed From Case

In Sweden, a law firm has filed an unusual discrimination lawsuit against the state according to Saturday's The Local. Last fall, a Muslim lawyer from the firm of Salmi & Partners was appointed by the country's Migration Board to represent an Egyptian Christian and his family who were seeking asylum because of persecution by Muslims in Egypt. The asylum applicant, however, objected to having a Muslim lawyer appointed. While the Board refused, on appeal the Supreme Migration Court agreed that a non-Muslim lawyer should be appointed for him, saying that given the grounds on which he was seeking asylum his concerns were understandable. Now Salmi & Partners is seeking damages of 100,000 kroner from the state, arguing that the ruling will deter law firms from hiring Muslims for fear that it could reduce their chances of obtaining appointments from the Migration Board. The firm is also seeking leave to appeal the Supreme Migration Court's ruling to the Supreme Administrative Court.

Court Settles Dispute Between Church and Its Former Treasurer

In Casa de Oracion, Church of God of Prophecy v. Carrasco, 2010 Cal. App. Unpub. LEXIS 3333 (CA 6th App., May 7, 2010), a California Court of Appeals upheld a trial court's resolution of a dispute between a San Jose church and its former treasurer. Applying neutral principles, the court found that the unincorporated Church of Prophecy changed its status to a corporation knonw as Casa de Oracion and the corporation became the owner of the church's property. The court also found that Sam Carrasco was properly removed as treasurer of the church, and that the trial court properly ordered him to deposit church funds with the court.

Sunday, May 09, 2010

Recent Prisoner Free Exercise Cases

In Munson v. Norris, (8th Cir., May 3, 2010), the 8th Circuit Court of Appeals affirmed a trial court's instructions to the jury on the elements of an Establishment Clause claim by a paroled prisoner who exhibited sexual deviancy. Plaintiff claimed he was forced to recite a prayer at the end of 12-step meetings that were part of his parole. Despite concern about the trial court's instruction that plaintiff had to show he was damaged, the court concluded that this did not rise to the level of plain error and affirmed the jury verdict that found no Establishment Clause violation.

In Smith v. Ludwick, 2010 U.S. Dist. LEXIS 42396 (ED MI, April 30, 2010), a Michigan federal district court dismissed an inmate's habeas corpus action in which he complained that he was denied the right to participate in the kosher meal program. Habeas is not available to challenge conditions of confinement, as opposed to the length or duration of a sentence.

In George v. Morgan, 2010 U.S. Dist. LEXIS 42667 (D DE, April 30, 2010), a Delaware federal district judge permitted an inmate to proceed with his claim that he was n ot allowed to attend chapel services or receive spiritual counseling. He also claimed that prison officials punished him for praying in his cell, telling him that talking to God is a sign of being crazy.

In Ramziddin v. Monmouth County Sheriff Department, 2010 U.S. Dist. LEXIS 42798 (D NJ, April 30, 2010), a New Jersey federal district court dismissed without prejudice a Muslim pre-trial detainee's clams that correctional officials violated his free exercise rights when they confiscated his prayer rug for security reasons, limited the areas in which he could wear his kufi, failed to serve meals that conform to his religious preferences, and forced him to pray in "awkward and unsanitary" conditions in the multi-purpose room or in cells.

In Ind v. Colorado Department of Corrections, 2010 U.S. Dist. LEXIS 43312 (D CO, March 23, 2010), a Colorado federal magistrate judge recommend that an inmate who followed a branch of the Christian Identity Movement be allowed to proceed with his RLUIPA claims for an injunction stemming from his allegations that he was denied the opportunity to take communion alone in his cell and was denied religious texts. It held that one of the defendants had qualified immunity as to damage claims.

In Greenfield v. Corzine, 2010 U.S. Dist. LEXIS 44433 (D NJ, May 6, 2010), a New Jersey federal district court held that a civil committee under the Sexually Violent Predator Act failed to allege sufficient facts to state a free exercise claim when he alleged only that he was denied the right to participate in religious services while he was in "map" for 60 days in 2006. Also the statute of limitations had run on the claim.

In Rouser v. White, 2010 U.S. Dist. LEXIS 44151 (ED CA, April 15, 2010), a California federal district court issued a preliminary injunction in a lawsuit filed by a Wiccan prisoner alleging various infringements of his rights under the free exercise clause and RLUIPA. The injunction required that prison officials allow plaintiff to keep and maintain religious texts (including but not limited to A Witches' Bible Compleat (the "Wiccan Bible"), that they allow him to obtain group Wiccan items before Wiccan group services; that they do not take or destroy plaintiff's religious articles; that plaintiff be provided a way to order and receive religious items; that officials announce Wiccan services to the same extent they announce services for the mainstream faiths; that plaintiff be allowed to access the outdoor, nature-based religious area when Wiccan services are scheduled; and that plaintiff be given access to the fire pit during religious services.

Court Rejects Constitutional Argument Against Limit On Child's Religious Exposure

A Chicago trial court judge has rejected constitutional arguments by law student Joseph Reyes who, in a widely publicized custody case, defied a court order that he not expose his daughter to any religion other than Judaism. (See prior posting.) Reyes argued that the order was unconstitutional because the order was too vague, and that the court cannot constitutionally determine what constitutes the Jewish religion. According to WGN News, on Friday the court ruled that Reyes must stand trial for contempt. Rejecting Reyes' arguments, the court said that it can properly adjudicate religious disputes in the best interest of the child. The final decree dissolving the couple's marriage eliminated the restriction on Reyes. (See prior posting.)

Arizona Eliminates Last Limits on Sunday Liquor Sales

The Verde (AZ) Independent reports that on Thursday Arizona Gov. Jan Brewer signed HB 2143 that eliminates the ban on early morning Sunday liquor sales. Church goers have been protected from liquor temptations by the ban on sales before 10:00 a.m. Now, when the new law takes effect at the end of July, liquor sales on Sunday will be no different than on other days-- beginning at 6:00 a.m.

Court Overrules Jewish Cemetery's Objections To Moving of Body

An Allegheny County, Pennsylvania court has overruled the objections of a Jewish cemetery and permitted the body of a man who died almost 45 years ago to be reburied elsewhere as requested by his family. Yesterday's Pittsburgh Post-Gazette reports on the dispute between the Orthodox Jewish Poale Zedeck cemetery and Howard Tobin's widow (recently deceased)and daughter, who want their husband and father moved to the Star of David section of Homewood Cemetery where Tobin's widow also bought plots for herself and their son who died in 2008. The cemetery's refusal is based on Jewish religious law that only allows bodies to be moved for limited reasons. The court said that the family's interest outweighs that of the cemetery.

Saturday, May 08, 2010

Establishment Claim Against Charter School Proceeds, But Students May Not Intervene

In ACLU v. Tarek ibn Ziyad Academy, (D MN, May 7, 2010), a Minnesota federal district court refused to dismiss the ACLU's claim against individual board members of a charter school in a suit that alleged the school is in fact sectarian and promotes Islam in violation of the Establishment Clause. The court held that the complaint sets forth sufficient facts to state a claim aginst individual defendants, and that they do not have qualified immunity as to the claims. It held that the school itself is not immune from suit under the 11th Amendment because under Minnesota law school boards are treated as municipalities, not as an arm of the state. The court also allowed cross claims for indemnification against TiZA filed by its sponsor and the state Commissioner of Education to proceed.

Finally the court denied an application by ten TiZA students and four of their parents to intervene to protect the school's accommodation of their free exercise of religion. The court held that any injury to the students that might result from a settlement of the lawsuit by TiZA is too remote and speculative, and that any impairment of their rights might well be traceable to TiZA rather than plaintiffs. It also held that the students had delayed too long in filing a motion to intervene. However, the court granted the students permission to file an amicus brief in the case. The Minneapolis Star Tribune reported on the decision. (See prior related posting.)

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.

Friday, May 07, 2010

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.]

Thursday, May 06, 2010

"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.

Wednesday, May 05, 2010

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.

Tuesday, May 04, 2010

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.

Monday, May 03, 2010

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.