Opponent Criticizes Massachusetts Governor For Statements At Muslim Forum

In Massachusetts, state Treasurer Timothy Cahill who is running as an Independent candidate for governor this fall has strongly criticized Gov. Deval Patrick for his performance last Saturday at a forum at the Islamic Society of Boston Cultural Center in Roxbury. Some 1100 people attended the event at the Center that was opened last year. Yesterday's Worcester Telegram & Gazette reported on developments. According to last Sunday's Boston Herald, Patrick was given one minute to answer yes or no to seven questions. He answered yes to all, promising among other things to move on cultural awareness training for law enforcement officers and to urge public and private employers to accommodate Muslims' need to attend religious services on Fridays. Cahill yesterday issued a statement that says in part: "Governor Patrick should stop playing politics with terrorism and focus on protecting all the citizens of this Commonwealth.... Now is the time for Governor Patrick to look radical Islamic terrorism full in the face, call it what it is...."

Activist Challenges Illinois Tourism Grant To Restore Bald Knob Cross

Chicago activist Rob Sherman is pressuring a group that has restored the Bald Knob Cross of Peace, in the Ozark Mountains in southern Illinois, to return the $20,000 from a state grant that was used for part of the cost of the renovations. WSIL-TV reported yesterday that Sherman argues the grant to the Friends of Bald Knob Cross from the Illinois Department of Commerce and Economic Opportunity violates Art. X, Sec. 3 of the Illinois Constitution that prohibits state grants for sectarian purposes. The Cross, which stands 1000 feet above sea level was originally completed in 1963 and was a popular tourist attraction. It fell into disrepair and disputes arose among board members that led to litigation which was settled only at the end of 2008. The Cross was reconstructed last year. (History.) A member of the Bald Knob Cross Transitional Board says that the grant was given to promote tourism, and that it has brought hundreds of thousands of tourists to the hill outside Alto Pass, Illinois. Sherman says he will file suit if the funds are not returned within 30 days. He also urged return of $5000 that Union County contributed toward the Cross restoration.

Court Orders Hearing On Preliminary Injunction In Challenge To NY Housing Project

In Broadway Triangle Community Coalition v. Bloomberg, (Sup. Ct. NY, May 20, 2010), a New York state trial court ordered that a further hearing be held next month on a motion for a preliminary injunction to stop a housing development in the Williamsburg section of Brooklyn. Plaintiffs claim that the city's selection in a no-bid process of a Hasidic Jewish organization to develop affordable housing, along with related rezoning, violates the Equal Protection clauses of the U.S. and New York Constitutions, Title VI of the Civil Rights Act of 1964, the Federal Fair Housing Act, and the New York State and New York City Human Rights Laws. The suit grows out of long-running tensions between the Hispanic and the Hasidic communities in the area. (See prior posting.) Plaintiffs challenge a preference to be given to residents in a community district that is largely white, and also claim that plans to build primarily large apartments and to avoid high-rise buildings will favor Hasidic Jews who will not use elevators on the Sabbath and who generally have large families. Plaintiffs want to increase the height of planned buildings and add smaller apartments (which are in great demand on the Public Housing Waiting List). The New York Times last week reported on the court's decision.

Court Refuses To Add State As Party In Challenge To Released Time Program

In Moss v. Spartanburg County School District No. 7, 2010 U.S. Dist. LEXIS 51359 (D SC, May 25, 2010), a South Carolina federal district court has denied a motion by the Spartanburg (SC) School District to join the state of South Carolina as a defendant in the lawsuit against the school district over its released time program. The lawsuit is an Establishment Clause challenge to the school district's program of released time for religious education, under which grades assigned by the released time teachers are, without further review, added to the student's official school transcript and used to satisfy an elective requirement. (See prior posting.) The court concluded that the state is not a necessary party since the challenge is to the local policy as applied, not to the state statute. The court also denied permissive joinder because it is only available for plaintiffs to use. However, the court noted that the state, which has not attempted to intervene, may file an amicus brief, which would not jeopardize its sovereign immunity if it wishes to express its views. The court did agree that it would give the South Carolina Attorney General notice of the constitutional issue raised in the case.

New Controversy Over Muhammad Cartoon-- This Time In South African Paper

A new controversy over a newspaper's publication of a drawing of the Prophet Muhammad has erupted, this time over a cartoon published in the May 21 edition of South Africa's Mail & Guardian. As described by the paper's editor Nic Dawes, the cartoon shows "the Prophet Muhammad reclining on a therapist's couch and saying sadly 'Other prophets' followers have a sense of humour'." (Link to cartoon.) The Mail & Guardian reported last week that as the drawing was appearing, the Council of Muslim Theologians tried unsuccessfully to get a South African court to enjoin its publication. The Council said violent reaction to the cartoon was possible. The court refused to interdict publication because the cartoon was already available in the paper's online edition and at some outlets. The paper's editor defended the cartoon, drawn by Zapiro, as "a contribution to the global debate" about depictions of Muhammad. The award winning Zapiro's cartoons have offended many targets of his drawings. London's Guardian yesterday also reported on the controversy.

UPDATE: On May 28, cartoonist Zapiro responded to the controversy with a new cartoon strip depicting his "tough week." The strip does not contain any depictions of Muhammad. The Mail & Guardian on Thursday released a statement after meeting with members of the Muslim community agreeing to review its editorial policy "in light of the injury caused by the cartoon." During the review period it will not publish any depictions of Muhammad.

Proposed Amendment Would Allow Military Chaplains To Close Prayers With Sectarian Language

Rep. Michele Bachman (R-MN) has introduced in the House Rules Committee an amendment to H.R. 5136, the proposed 2011 Defense Authorization Act, that would give all military chaplains the prerogative, if called on to lead a prayer outside of a religious service, "to close that prayer according to the dictates of the Chaplain's conscience." (Full text of proposed amendment.) In the 2007 Defense Authorization Act, the House version included a provision to permit a military chaplain "to pray according to the dictates of the chaplain’s own conscience, except as must be limited by military necessity." (See prior posting.) This did not make it into the final bill. Bachman's current proposal focuses only on the closing of the prayer, not its entire content, and thus seems directed primarily at permitting the phrase "in Jesus name" to be added at the end. God and Country blog reports on the proposed amendment. The Secular Coalition yesterday issued a release opposing the amendment. [Thanks also to Scott Mange for a lead on this.]

UPDATE: Beliefnet reports that on May 27, Rep. Bachman's amendment was rejected by the House as not relevant to the bill.

Cuba's Raul Castro Negotiates With Catholic Church Over Political Prisoners

Yesterday's Miami (FL) Herald reports on talks held by Cuban leader Raul Castro with the Cuban Catholic Church's Cardinal Jaime Ortega on the fate of political prisoners. Analysts say the talks are noteworthy because they represent Cuba's acceptance of the Catholic Church as a middleman for the resolution of important issues in the country.

College Graduation Prayers Generate Faculty Complaints

The Montana ACLU has written higher education officials relaying complaints of several faculty at Montana State University-Northern over the invocation and benediction delivered at this year's graduation ceremony. (Full text of letter.) Pastor Tim Zerger, a Christian evangelical minister affiliated with Community Alliance Church, delivered prayers that were seen by numerous faculty as proselytizing. Faculty attendance at graduation is mandatory. The ACLU argues that the sectarian prayers violated both the federal Constitution's Establishment Clause, and Art. X, Sec. 7 of the Montana Constitution that provides in part: "Attendance shall not be required at any religious service. No sectarian tenets shall be advocated in any public educational institution in the state." A press release issued Tuesday by the ACLU says the group is asking the Montana University System Board of Regents to investigate and take action to prevent similar constitutional breaches in the future.

Church Members Fail To Show "Proper Purpose" To Inspect Certain Church Records

In Two Rivers Baptist Church v. Sutton, (TN App., May 20, 2010), 54 members of the church who had sued the senior pastor and other church officers in a dispute over governance of the church sought various church records under Tennessee's non-profit corporation law. The court held that the members may obtain certain basic records-- such as the charter, bylaws, resolutions and minutes-- which the statute gives them an absolute right to inspect. Enforcing the right does not entangle the court in religious affairs in violation of the ecclesiastical abstention doctrine. However, as to items such as accounting records and membership lists, the statute requires that members show a "proper purpose." The claim that the members were protecting their property rights in the church building and its funds did not meet this standard since members individually have no property right in the corporation's assets.

Times Square Bombing Suspect Gets Halal Food

AOL News reports that last week a federal magistrate judge granted a request by accused Times Square bomber Faisal Shahzad that he be served halal food at the federal-run Metropolitan Correctional Center in Manhattan. In federal prison, Muslims requesting a halal diet are served kosher food which meets the same criteria. The article gives details of a typical day's menu.

Military Religious Freedom Advocate Mikey Weinstein Profiled

Foreign Policy yesterday carried a profile of Mikey Weinstein, founder of the Military Religious Freedom Foundation. It says:

Although he is frequently attacked for waging a war on Christianity, all but a fraction of Weinstein's clients are practicing Catholics and Protestants of mainline denominations who claim to be targeted by proselytizing evangelical superiors. The root of the problem, Weinstein believes, is a cluster of well-funded groups dedicated to Christianizing the military and proselytizing abroad.

MMRF is currently preparing to file suit on behalf of Zachari Klawonn, a Muslim Army specialist at Fort Hood who says he has been harassed and threatened after the shooting massacre at Ft. Hood last November by Maj. Nidal Hasan. Klawonn says even before that, he constantly suffered cultural and religious discrimination. Commanders at Ft. Hood deny the charges, saying they have responded quickly to claims of anti-Muslim bigotry.

Hindu Group In India Opposes State's Construction of Buddha Park

In the Indian city of Patna (in the state of Bihar), the state government plans to tear down an old Hindu Shiva temple on the site of the former Bankipore jail in order to build a Buddha Park. Today's Times of India reports that Bharat Sadhu Samaj has decided to launch a statewide protest. It says the plans to build meditation centers and a 200 foot high statute of Buddha on 22 acres of state land is inconsistent with India's Constitution. Section 27 of India's Constitution provides: "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."

Group Urges States Not To Contract To Send Inmates To Planned Christian Prison

As reported last November, a non-profit Texas-based prisons ministry, Corrections Concepts Inc., plans to build a private all-Christian 600-bed prison in Wakita, Oklahoma. The facility will be for men near the end of their sentences who volunteer to be housed there and agree to participate in its program. The ministry has recently announced that discussions are underway with Oklahoma, Kansas and California regarding contracts to house their prisoners in the new facility. In a press release yesterday, Americans United said that it has written officials in the three states urging them to refuse to send prisoners to Corrections Concepts. The identical letters argue that state funding for prisoners in religious facilities would violate the Establishment Clause. The Oklahoma Department of Corrections has already decided not to send prisoners, bu discussions are continuing with the Oklahoma Office of Juvenile Affairs.

To Help In Deciding, Judge Visits Church Where Graduation Is Scheduled

In Bridgeport, Connecticut, federal district judge Janet Hall is hearing the lawsuit against the Enfield (CT) Public Schools brought by the ACLU and Americans United. The suit challenges Enfield's plans to hold this year's graduation ceremonies for two high schools in First Cathedral Church in Bloomfield (CT). (See prior posting.) Yesterday's Hartford Courant reported that Judge Hall, after hearing the last witnesses, took a tour of the Church, taking notes as she walked through. She was accompanied by court staff, lawyers for both sides, and two newspaper reporters. Much of the case apparently turns on the feasibility of the Church's removing or covering all the religious symbols.

Kenya Court Says Kadhis Courts Inconsistent With Other Parts of Constitution

In Kenya, the Nairobi High Court sitting as a Constitutional Court yesterday struck down the provision in the current Kenya Constitution that provides for Kadhis courts (Sec. 66). The court's opinion (excerpts) holds that Section 66 is inconsistent with Sec. 82 that bars discriminatory laws. Among the conclusions in the Court's 144-page opinion are:

the financial maintenance and support of the Kadhis' courts from public coffers amounts to segregation, is sectarian discriminatory and unjust ... and amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion (secularism) and is therefore contrary to the universal norms and principles of liberty and freedom of religion envisaged under sections 70, 78 and 82 of the Constitution....

the entrenchment of the Kadhis' courts in the Constitution elevates and uplifts the Islamic religion over and above the other religions in Kenya which is inconsistent with section 78 and 82 of the Constitution....

Yesterday's Daily Nation, reporting on the decision, says that the Court has raised a question about the scheduled August 4 referendum on a new Constitution, since that draft also includes Kadhis courts. (See prior posting.) The High Court in its decision held that whether provisions in the proposed document are a problem is not ripe for determination. The Daily Nation reports that opponents of the draft constitution are calling for an immediate suspension of the planned referendum.

UPDATE: The Daily Nation reports that on May 25, Kenya's Attorney General filed an appeal of the decision.

Suit Threatened Over Student Who Is Disciplined For Wearing Rosary Beads

The American Center for Law & Justice (press release) is threatening to file a lawsuit against Schenectady, New York school officials on behalf of a middle school student who was sent home for wearing a Rosary outside of his shirt. The plastic Rosary is made of light purple beads and a white Crucifix. The school's dress code defines items made of beads as gang-related symbols. According to a Demand Letter (full text) sent to the Oneida Middle School principal and other District officials, Raymond Hosier wears the Rosary in memory of his deceased brother and deceased uncle. The ACLJ letter argues that the school's dress code is unconstitutionally vague and, as applied, infringes Hosier's free speech rights.

School Responds To No-Prayer Injunction By Ending Review of Student Graduation Speeches

Earlier this month, 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. (See prior posting.) In response to the court ruling, the Greenwood Community School Corporation announced that this year school "officials will not review the speeches of the four student speakers which will allow them to voice their opinions with no restrictions." In the past, the school principal had reviewed a written copy of students' remarks. The school board statement urged speakers to be responsible and respectful of others. According to AP, school officials say speakers, however, will not be stopped even if they use profane language or deliver politically charged speeches.

Defendant Sentenced For Cyber Attack On Scientology Website

A press release from the Church of Scientology reports that yesterday a Los Angeles federal district court sentenced Brian Thomas Mettenbrink, convicted of engaging in a cyber attack on Scientology's website, to 12 months in prison and payment of $20,000 restitution. Judge Gary Allen Feess imposed a sentence that is an upward departure from the Federal Sentencing Guidelines to protect the public from further criminal conduct. Mettenbrink is the second member of the anti-Scientology group Anonymous to be sentenced for the January 2008 attack. (See prior posting.) The court also required that during probation after serving his prison sentence, Mettenbrink must remain at least 100 yards away from any Church of Scientology.

US Amicus Brief To High Court Favors Vatican In Abuse Lawsuit

Last week, the United States filed an amicus brief (full text) with the U.S. Supreme Court after being invited to express its views on whether certiorari should be granted in Holy See v. Doe, (Docket No. 09-1). In the case, the 9th Circuit held that the "tortious act" exception in the Foreign Sovereign Immunities Act means that the Vatican is not shielded from a claim by a victim of sexual abuse based on the doctrine of respondeat superior. That exception (28 USC 1605(a)(5)) allows a suit (with certain exceptions) against a foreign state for damages "caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment". (See prior posting.)

The United States in its amicus brief essentially sided with the Vatican, but urged that instead of granting a full hearing on the appeal, the Court should grant cert, vacate the judgment of the Court of Appeals and remand for further consideration. The U.S. urged, that if the Court is not willing to do this, it should deny certiorari. More specifically, the Justice Department argued that the 9th Circuit was wrong in holding that the sexual abuse was within the priest's "scope of employment" under Oregon law, a prerequisite for liability under the doctrine of respondeat superior. It argued further that the 9th Circuit "erred in conflating the FSIA's jurisdictional scope-of-employment inquiry with the separate question of respondeat superior liability under state substantive law." Today's Cath News reports on the filing of the brief.

Czech President, Prague Archbishop Sign Agreement On Joint Care of Cathedral

In the Czech Republic yesterday, an 18-year long dispute between the government and the Catholic Church over the ownership of St. Vitus Cathedral at Prague Castle was resolved with the signing of an agreement by Czech President Vaclav Klaus and Prague Archbishop Dominik Duka. Ceske Noviny yesterday reported that under the agreement, a council will be set up to provide for management of the cathedral. Its members-- government and church officials-- will be the holders of the seven keys to the room in the cathedral's St. Wenceslas Chapel where coronation jewels are preserved. In signing the agreement, President Klaus said:

The court dispute about the cathedral and some other real estate at Prague Castle has been terminated by the declaration we have just signed. As it has been for long past centuries, the state and the Catholic Church will by joint forces take care of the cathedral that they together consider an exceptional national symbol in its historical, spiritual and cultural sense.

(See prior related posting.)

Supreme Court Agrees To Review Arizona Tuition Tax Credit

The U.S. Supreme today agreed to review two consolidated cases involving an Establishment Clause challenge to Arizona's school tuition tax credit program. It granted certiorari in Arizona Christian School Tuition Organization v. Winn, (Docket No. 09-987, cert. granted 5/24/2010) and in Garriott v. Winn, (Docket No. 09-991, cert. granted 5/24/2010), consolidating the two cases for a total of one hour of oral argument. (Order List.) The cases were decided in a single opinion below. A 3-judge panel of the 9th Circuit found taxpayer standing and ruled that, as applied, Arizona's tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations" violates the Establishment Clause. (See prior posting.) The 9th Circuit then denied en banc review, but with 40 pages of opinions. (See prior posting.) SCOTUS Blog has links to the petitions for and opposed to granting cert. and the amicus briefs.

Supreme Court Grants Cert. In RLUIPA Damages Case

The U.S. Supreme Court this morning granted certiorari in Sossamon v. Texas, (Docket No. 08-1438, cert. granted 5/24/2010). (Order List.) The suit was brought by an inmate who objected to the prison's policy of prohibiting congregational worship in the prison's chapel. He claimed that alternative worship venues do not give him access to Christian symbols or furnishings such as an altar or cross. The Supreme Court's grant of review was limited to the question of: "Whether an individual may sue a State or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc et seq. (2000 ed.)."

In the case, the 5th Circuit held (see prior posting) that official-capacity damage actions are barred by the state's sovereign immunity. Agreeing with the 4th Circuit, it concluded that RLUIPA did not clearly alert the state of Texas that it would waive sovereign immunity for damage actions by accepting federal funding. The 5th Circuit also held that damages under RLUIPA are not available in suits against officials in their individual capacities. It reasoned that because RLUIPA was enacted under Congress' Spending Clause Powers, only the governmental recipient of the grant may be liable for a violation. The Supreme Court did not grant cert. to review that port of the holding. SCOTUS blog has links to the petitions for and against cert. and amicus filings in the case.

Israeli Right Wingers Say They Will Protest Bar Mitzvah of Rahm Emanuel's Son

The Jerusalem Post reports that White House chief-of-staff Rahm Emanuel arrived in Israel on Friday. He has made the trip for a long-planned Bar Mitzvah of his son Zach and his nephew Noah. Plans had been to hold the ceremonies at Jerusalem's Western Wall over Memorial Day week end. CBS News reported last week, however, that two Israeli right wing politicians, Baruch Marzel and Itamar Ben-Gvir, who disagree strongly with President Obama's Israel policy and hold Emanuel responsible for it, plan to disrupt the event. They wrote to Emanuel: "We promise to accompany your son's bar mitzvah events in Israel, we will make sure to receive you as you deserve to be received ... with catcalls and disgust." They say they would be happy if Zach came alone to the Western Wall without his father, but that they have no choice but to demonstrate if his father is there also. In light of these developments, it is unclear now where the Bar Mitzvah ceremonies will be held.

Recent Articles of Interest

From SSRN:

• Ian S. Speir, Clemency in Jewish Law, (May 18, 2010).
• Ellen P. Aprill, An Overview of Tax Issues for Synagogues (and Other Religious Congregations), (Loyola-LA Legal Studies Paper No. 2010-24, May 19, 2010).
• Kristen Stilt, How is Islam the Solution?: Constitutional Visions of Contemporary Islamists, (Texas International Law Journal, Forthcoming).
• Jeff Redding, Dignity, Legal Pluralism, and Same-Sex Marriage, (Brooklyn Law Review , Vol. 75, 2010).
• Hussin Iza, Where is the Local Online? Internet Fatwa and the Making of New Muslim Spaces, (Western Political Science Association 2010 Annual Meeting Paper).
• Mohamad Mova Al 'Afghani, Religious Freedom in Indonesia Before and after Constitutional Amendments, (Critical Thinkers For Islamic Reform, Brainbow Press, 2009).
• Michael Young, In Defense of the Constitutionality of Critically Discussing Religion and Ethics in Schools in Light of Free Exercise and Parental Rights, (Ohio State Law Journal, Vol. 70, p. 1565, 2009).
• Aziz Z. Huq, Modeling Terrorist Radicalization, Duke Journal of Law and Social Change, Forthcoming).

From SmartCILP:

• Nancy D. Perkins, Form and Norm: The Transformative Potential of Sub-National Environmental Solidarity, 20 Fordham Environmental Law Review 469-514 (2010).

South Dakota Tea Party Candidate For Governor Presses For Religion, Church Endorsements

In South Dakota's June 8 primary, 5 candidates are competing for the Republican nomination for Governor. According to today's Argus Leader, the two with the most money behind them are Lt. Gov. Dennis Daugaard and Senate Majority Leader Dave Knudson. However they are being challenged by Tea Party candidate Gordon Howie, a state senator from Rapid City. His Pledge To South Dakota includes a promise that he "will not expel God from South Dakota." Earlier this month (press release), he issued a challenge to South Dakota churches and pastors to become politically active, saying: "Pastors and their congregations have been muzzled on Sunday mornings by the threat that their taxation status requires an enforced silence on who to vote for, and why." Today's Rapid City Journal reports that on May 15, Rev. H. Wayne Williams, pastor of Liberty Baptist Tabernacle in Rapid City, took up Howie's challenge by officially endorsing Howie for governor during a church service.

Recent Prisoner Free Exercise Cases

In Barhite v. Caruso, (6th Cir., May 14, 2010), the 6th Circuit rejected a prisoners free exercise and RLUIPA claims objecting to prison officials confiscating from him numerous photos of scantily clad young women. Plaintiff failed to allege that the photos were related to the practice of his Mormon religion. Instead he essentially alleged an equal protection discrimination claim, asserting that the photos were taken from him shortly after raids on an FLDS compound in Texas. However, he failed to allege that non-Mormon sex offenders were permitted to have similar photos.

In Burchett v. Bromps, (9th Cir., May 21, 2010), the 9th Circuit held that plaintiff should be permitted to amend his pleadings to pursue an Establishment Clause claim against the Washington state community corrections officer supervising the community-placement portion of his criminal sentence. Plaintiff alleged that the officer prohibited him from attending a Seventh Day Adventist Church and granted him permission to attend only an Assembly of God church.

In Robinson v. Delgado, 2010 U.S. Dist. LEXIS 47818 (ND CA, May 13, 2010), a California federal magistrate judge permitted an inmate who was a member of the House of Yahweh Yadhaim religion, to proceed with his claim that he should be permitted a kosher diet, and that the prison's vegetarian meals are not kosher.

In Perezo v. Williams, 2010 U.S. Dist. LEXIS 48248 (ND TX, May 17, 2010), a Texas federal court dismissed a frivolous an inmate's claim that his free exercise rights were violated because he is not permitted to take his Bible with him into the recreation yard for his one hour of recreation.

In Native American Council of Tribes v. Weber, 2010 U.S. Dist. LEXIS 48969 (D SD, May 18, 2010), a South Dakota federal district court held that plaintiff organization lacks standing to bring a suit under RLUIPA challenging the decision to remove tobacco from Native American ceremonies in the South Dakota State Penitentiary.

In Eichler v. Tilton, 2010 U.S. Dist. LEXIS 48623 (ED CA, April 21, 2010), a California federal magistrate judge held that an inmate needs to amend his complaint to clarify his claim that his religious rights are being infringed when prison officials refused to permit him to practice yoga.

In Gordon v. Caruso, 2010 U.S. Dist. LEXIS 49430 (WD MI, May 19,2010), a Michigan federal district court refused to dismiss claims by an inmate who was a member of the white-supremacist Asatru faith that his free exercise rights and his rights under RLUIPA were violated when officials prohibited Asatru group worship. Defendants had not shown that there were no less restrictive alternatives available to deal with officials' concerns.

In Sandeford v. Plummer, 2010 U.S. Dist. LEXIS 49315 (ND CA, April 26, 2010), a California federal district court refused to grant a prisoner's motion for reconsideration of the court's previous summary judgement against him (see prior posting) on his complaints of being denied an Islamic diet, of improper observances of Ramadan and Eid, denial of an imam for spiritual guidance and refusing to allow him to wear a Kufi prayer cap.

California Reacting To New Texas Textbook Changes

AP and Fox News report that last Monday, the California state Senate Appropriations Committee voted 6-3 (bill history) to approve and send S.B. 1451 on to the full state Senate. The bill is designed to prevent California from adopting textbooks that contain the controversial changes approved last week by the Texas State Board of Education. (See prior posting.) The bill would require that the California State Board of Education notify chairs of the Senate and Assembly education committees, as well as the state Secretary of Education, of textbook content that appears to be the result of the Texas changes. California Chronicle reports it is expected that the state Senate will pass the bill this week. Here are some of the legislative findings included in the latest version of the bill:

(h) Although not yet formally adopted, it is widely presumed that the proposed changes to Texas' social studies curriculum will have a national impact on textbook content since Texas is the second largest purchaser of textbooks in the United States, second only to California.

(i) As proposed, the revisions are a sharp departure from widely accepted historical teachings that are driven by an inappropriate ideological desire to influence academic content standards for children in public schools.

(j) The proposed changes in Texas, if adopted and subsequently reflected in textbooks nationwide, pose a serious threat to Sections 51204.5, 60040, 60041, 60043, and 60044 of the Education Code as well as a threat to the apolitical nature of public school governance and academic content standards in California.

Georgia Governor Signs New Disclosure Law On Kosher Foods

On Thursday, Georgia's governor, Sonny Purdue, signed into law H.B. 1345 which revises the state's provisions relating to the sale of kosher food. An ACLU press release reports on developments. Georgia's previous Kosher Food Labeling Act required that any food sold as kosher must meet "Orthodox Hebrew religious rules and requirements." Last August, the ACLU filed a lawsuit on behalf of a rabbi who wanted to certify food establishments as kosher using the standards of the Conservative Jewish movement. (See prior posting.) The new law will permit this. It requires that "a person who makes a representation regarding kosher food shall prominently and conspicuously display on the premises on which the food is sold, in a location readily visible to the consumer, a completed kosher food disclosure statement..." The disclosure statement requires 15 to 19 specific representations relating the foods sold. When unpackaged kosher food is involved, additional disclosures must be made regarding the identity and affiliations of the supervising rabbi or agency.

Court Says Challenge To Tax Code Parsonage Allowance Can Move Forward

In Freedom from Religion Foundation, Inc. v. Geithner, (ED CA, May 21, 2010), plaintiffs are challenging two provisions of the Internal Revenue Code on Establishment Clause grounds. Section 107 exempts from income the rental value of a parsonage, or the amount of a parsonage allowance, furnished to a member of the clergy as compensation for service performed in the exercise of a religious ministry. Section 265(a)(6) allows a member of the clergy to claim interest and property taxes as deductions, even though the money used to pay such amounts was received from a church in the form of a tax-exempt §107 allowance. (See prior posting.) In Friday's decision, a California federal district court, after finding that plaintiffs had standing to bring the lawsuit, allowed the challenge to Section 107 to proceed, but dismissed the challenge to Section 265(a)(6). The court also dismissed on 11th Amendment immunity grounds the claims under the California Constitution (but not the federal Establishment Clause claims) challenging California's parallel provisions.

The court held that plaintiffs adequately alleged that Section 107 has the unconstitutional effect of advancing religion. It provides a blanket exemption from taxable income for ministers' housing that is not available to similarly situated secular employees, and allows them to receive a tax-free housing allowance that is not available to other taxpayers. The section also provides a benefit to religion itself, since churches can pay ministers lower salaries when part of their compensation is tax-free. This special benefit for clergy and religion cannot be justified as an accommodation to protect free exercise. However, plaintiffs did not allege sufficient facts to show that the predominant effect of § 265(a)(6) favors religion. It merely gives ministers the same incentive to purchase a home that is available to other taxpayers. [Thanks to Michael Gompertz for the lead.]

Texas Board of Education Adopts More Conservative Social Studies Curriculum

In two party-line 9 to 5 votes yesterday, the Republican majority on the Texas State Board of Education adopted controversial changes to the state's social study guidelines that reflect a more socially conservative viewpoint. AP reports that over 200 amendments were offered this week to draft standards that had been prepared over the last 18 months by groups of teachers and university faculty. Today's Dallas Morning News quotes board member Don McLeroy who said the changes are an attempt to balance a curriculum that has been slanted toward liberal viewpoints. One of the curriculum changes involves students' approach to religious liberty and church-state separation. According to a release from the Texas Education Agency, the following will be added to the Government curriculum standards:

Examine the reasons the Founding Fathers protected religious freedom in America and guaranteed its free exercise by saying that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, and compare and contrast this to the phrase "separation of church and state."

Responding to criticism of earlier changes (see prior posting), the Board restored Thomas Jefferson to the list of political philosophers that students will study in world history. He was already included in the U.S. History and the Government curricula.

Teachers Suspended Over Charge Of Sprinkling Holy Water On Colleague

Yesterday's South Florida Times reports on the investigation of two reading teachers growing out of an incident at Blanche Ely High School in March. The two, who are Christian, are charged with bullying and harassment for sprinkling their colleague Schandra Rodriguez with holy water. Apparently the problem began when Rodriguez was having a boisterous discussion with her students about the January Haiti Earthquake. One student suggested that the earthquake was the wrath of God growing out of a supposed pact Haitian rebel leaders made with Satan in a voodoo ceremony over 200 years ago. Rodriguez, an atheist, responded by discussing with her students her lack of belief in God and the Bible. Overhearing the discussion, teachers Leslie Rainer and Djuna Robinson came into the room. A student said: "Sounds like somebody needs some holy water." At that point, Robinson, in the doorway, retrieved and displayed a small bottle of liquid, which Robinson's lawyer says was perfume. He says there was no sprinkling of water, and that Rodriguez's complaint may have been motivated by other issues. At any rate, while the investigation of the incident is pending, both Ranier and Robinson have been removed from the classroom, and Ranier has been demoted. [Thanks to Scott Mange for the lead.]

Court Says Woman's Muslim Faith Relevant To Her Emotional Distress Claim

In Jama v. United States, (WD WA, May 17, 2010), a Muslim woman brought various challenges to the manner in which law enforcement officers searched her apartment in a raid seeking evidence of khat distribution. During the raid, police officers forced plaintiff to remain outside her apartment in a nightgown without her head covered. In an earlier decision (see prior posting), the court concluded that police and DEA officials had qualified immunity to plaintiff's Religious Freedom Restoration Act claim. In the current decision, the court rejected plaintiff's Fourth Amendment claims. However it held that plaintiff did properly plead a claim for the common law tort of outrage-- which requires intentional or reckless infliction of emotional distress. The court said in part:

Taking the facts in the light most favorable to Plaintiff, a rational jury could find that federal officials, who enjoyed a position of power over Plaintiff while conducting the search in this case, forced her to appear in a state of relative undress before unrelated men for a significant period of time. They forced her to appear in this state of undress even though she had modest clothing in the very apartment that officers were searching. A rational jury could find that police officers therefore unnecessarily degraded Plaintiff, and that this behavior ought "to be regarded as atrocious, and utterly intolerable in a civilized community." ... A rational jury could also find that federal agents knew full well that Plaintiff’s Muslim faith made her particularly susceptible to emotional distress under these circumstances.

[Thanks to Volokh Conspiracy for the lead.]

EEOC Settles One Religious Discrimination Suit; Files Another

The federal Equal Employment Opportunity Commission today announced the settlement of one religious discrimination lawsuit and the filing of another. The Pollard Agency, an Alabama-based security company, has agreed to pay $49,566 to settle a lawsuit charging it with refusing to accommodate a security guard's religious practices. According to today's press release, the lawsuit was brought on behalf of Marian Lawson, a Mennonite Baptist whose religious practice required her to wear a headscarf. Lawson was fired from a client assignment in Georgia. The settlement also calls for EEO training, reporting and posting. In the settlement, Pollard denies wrongdoing. (See prior related posting.)

A second press release announces the filing of a lawsuit in Arizona federal district court against Orkin Pest Control. The company is charged with denying jobs to older workers and favoring Church of Jesus Christ of Latter-Day Saints applicants, particularly returned missionaries. It also allegedly retaliated against an applicant who complained to corporate headquarters about the policy. The Complaint charges that Orkin advertised on Craig's List for a recruiter to assist in hiring LDS missionaries for seasonal positions, saying that the jobs were great for returning LDS missionaries (who are usually young people). The lawsuit was filed on behalf of 51-year old Thomas Kokezas who was not hired after being asked his age in an interview.

Stolen Sunrise Rock Cross Replacement-- Up Again, Down Again

In a posting last night, updated this morning, I chronicled the reappearance of the Sunrise Rock Cross at the Mojave War Memorial after the original Cross-- the subject of a recent Supreme Court decision-- was stolen. Now, according to the San Diego Union Tribune , the National Park Service took down the replacement yesterday afternoon after determining that it was not the original Cross. The new cross was six inches taller than the original and was freshly painted. Four new holes were drilled to replace bolts cut off by thieves when they took the original. A Park Service spokesperson gave two reasons for removal of the replacement cross. First the government is still under court order not to display a cross on Sunrise Rock, at least prior to any transfer of the land to the VFW. Second, the new Cross is illegal since the person erecting it did not follow Park Service regulations to obtain permission to put up a new memorial in a national park. [Thanks to Scott Mange for the lead.]

Court Protects Geithner From Questioning In Bailout Establishment Clause Challenge

In Murray v. U.S. Department of Treasury, 2010 U.S. Dist. LEXIS 48692 (ED MI, May 18, 2010), a Michigan federal magistrate judge refused to permit plaintiff to take the deposition of Treasury Secretary Timothy Geithner and granted Geithner a protective order barring plaintiff from deposing him. The decision comes in a lawsuit challenging on Establishment Clause grounds the federal bailout of the insurance giant AIG. Plaintiff alleged that because AIG is the market leader in Sharia-compliant financing, the bailout unconstitutionally uses federal funds to support Islamic religious activity. (See prior posting.) The court said in part: "Plaintiff has failed to cite any case law supporting his assertion that Defendant Secretary Geithner's reasoning and decision-making process, beyond what is available in the public record, is relevant to Plaintiff's Establishment Clause claims."

School Prevails In Requiring Cap and Gown Over Lakota Regalia For Part of Graduation

In Dreaming Bear v. Fleming, 2010 U.S. Dist. LEXIS 48970 (D SD, May 18, 2010), a South Dakota federal district court refused a Lakota Sioux high school student's request for a preliminary injunction that would excuse him from his high school's requirement that he wear a cap and gown at graduation while receiving his diploma. Aloysius Dreaming Bear, a member of the Oglala Sioux Tribe, planned to wear his traditional Lakota regalia to graduation. Oelrichs High School officials said he could do so, but that he had to wear a cap and gown over his traditional clothing during the time he walked across the stage to receive his diploma. He could remove the cap and gown as he exited the stage. The school already has scheduled traditional Lakota feather and plume ceremonies in the school gymnasium preceding graduation, and each student who wishes to do so will receive traditional star quilts after leaving the stage during graduation. The court held that the graduation ceremony is school-sponsored speech. The school board may impose restrictions on it that are reasonably related to educational concerns. The cap and gown met that requirement as a universally recognized symbol that demonstrates the unity of the class and celebrates academic achievement.

Mormon Missionaries Encountering Resistance Over Arizona Immigration Law

Yesterday's Arizona Republic reports that Mormon missionaries in the state are encountering resistance from Latinos they are seeking to convert because the sponsor of the state's controversial new immigration law (SB 1070) is a Mormon. Also some recent Latino converts are leaving their new faith over the issue. The LDS Church views Arizona's 1.8 million Latinos as crucial to the church's continued growth. There are 51 Spanish-speaking LDS congregations in Arizona. State Senator Russell Pearce, a Republican from Mesa and chief proponent of the new immigration legislation, has said that his efforts against illegal immigrants in the state is based in part on the LDS Church's 12th Article of Faith that calls for "obeying, honoring and sustaining the law." Kim Farah, a spokeswoman for the LDS Church in Salt Lake City, said that Mormon elected officials do not represent the position of the Church which has not taken a position on immigration. Church leaders have urged compassion and careful reflection on immigration issues.

New Russian Law Restores Properties To Churches

Interfax reported yesterday that the government committee of the Russian Federation has signed into law a new bill that allows communities to transfer back to religious organizations without charge property that was originally part of a religious complex. Apparently the bill is designed to deal with movie theaters and shops built during Soviet times on the land of monasteries, where those building have now been turned back into use as a church. It applies only to buildings converted back to religious purposes before the date of passage of the new law.

10th Circuit Upholds Drug Charges; Alleged Religious Beliefs Found Insincere

In United States v. Quaintance, (10th Cir., May 19, 2010), the U.S. 10th Circuit Court of Appeals upheld an Arizona federal district court's refusal to dismiss the indictments of Danuel and Mary Quaintance for conspiracy and possession with intent to distribute marijuana. (See prior posting.) The appellate court rejected the Quaintance's RFRA defense, agreeing with the district court that the defendants' religious beliefs were not sincere. The Court of Appeals held that because this finding stands, it need not address the trial court's alternative holding that defendants' beliefs were not "religious" beliefs.

Islamic Scholars Debate UAE's New Law On Organ Transplants

The National yesterday reported on a debate among Islamic scholars over a new legal instrument released this week by the United Arab Emirates permitting organ transplants from patients who are brain dead, but whose heart is still beating with the assistance of a ventilator. A number of other Muslim countries have permitted organ transplants, but some scholars insist that under Islamic law a person is dead only when he or she is no longer breathing. In 2008, Dubai's General Authority for Islamic Affairs and Charitable Activities published a fatwa on its website approving organ donation.

Lawsuit Dismissed After School Board Broadens Anti-Bullying Instruction

In Alameda, California, a group of parents dismissed their lawsuit against the Alameda Unified School District after the board of education agreed to a change one of the safe-schools anti-bullying and diversity lessons. According to a press release from Pacific Justice Institute, parents were seeking to have their young children excused from the class that focused on bullying of gays and lesbians. They argued that the anti-bullying focus on only one group was an attempt to teach young children that "the LGBT lifestyle is both moral and normative." A public records request showed that the vast majority of harassment complaints involved opposite sex and racial harassment and there had been no complaints during the past 18 months on bullying in the elementary grades due to sexual orientation. The schools agreed to change their anti-bullying curriculum to cover all categories-- gender, race, religion, nationality and disability.

Group Asks IRS To Invetigate Church's Online Endorsement of Candidate

Americans United this week wrote the Internal Revenue Service (full text of letter) asking it to investigate a Los Angeles church that endorsed a Neighborhood City Council candidate through postings on the church's website and through Twitter. According to AU (press release), Oasis Church used its website to ask its members to vote in the May 13 Greater Wilshire Neighborhood City Council elections for Alex Jones-Moreno, the church's director of social justice, who was running for reelection. On election day, the church sent out eight tweets on Twitter, most of which urged readers to vote for Jones-Moreno. Under Section 501(c)(3) of the Internal Revenue Code, non-profits are prohibited from participating in any political campaign on behalf of a candidate for elective publid office.

Pakistan Blocking Facebook and YouTube Over Blasphemous Material

In Pakistan yesterday, the Lahore High Court ordered the Ministry of Information Technology and the Pakistan Telecommunication Authority (PTA) to block all access to Facebook's website pending another court hearing on May 31. Pakistan's Express Tribune reported that the order stems from concern over a Facebook page that hosts publicity for the May 20th "Everybody Draw Muhammad" Day. (See prior posting.) PTA attempted to block access to the specific Facebook page two days ago, but apparently it was still accessible at the court hearing. PTI has now ordered access to the entire site blocked, and has set up a toll free number and website to report if objectionable material is still available. (Dawn). Meanwhile Bloomberg reports that PTI is broadening its crackdown, and has now also blocked access to YouTube and 450 other websites carrying blasphemous material. Pakistan Internet traffic has dropped 25% since Facebook and YouTube were blocked.

Caretakers Ready To Erect New Cross On Sunrise Rock When Replacement Appears [UPDATED]

Fox News reported yesterday that the long-time caretakers of the Mojave Desert Veterans' Memorial have constructed an exact replica of the 7-foot cross that was recently stolen from the site and are ready to put it up if the Department of Justice approves. However, on Wednesday night, according to another Fox News report, a different cross reappeared on Sunrise Rock. The National Park Service is evaluating the Cross to see if it is the original one that has been returned, or a new one. That may determine whether it stays. God and Country blog reports on the latest developments.

Congress attempted to transfer the land on which the cross was constructed to the VFW to avoid an Establishment Clause challenge. In a fragmented decision last month, the U.S. Supreme Court sent the challenge to the land transfer back to the lower courts. (See prior posting.) While the cross was still missing, Hiram Sasser, the director of litigation for Liberty Legal Institute, which is representing the VFW, said the theft may have made it simpler to resolve the case on remand. He said: "If there's no cross there, does that mean that the land transfer goes through, it becomes property of the VFW, and we can put the cross back up?" Justice Roberts, in his concurring opinion last month in Salazar v. Buono, said:

At oral argument, respondent’s counsel stated that it "likely would be consistent with the injunction" for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them, with the VFW immediately raising the cross again.... I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it.

Meanwhile, on its website Liberty Legal Institute-- in an appeal that seems at odds with its litigation director's theory-- is asking for contributions to help reinstall the memorial on Sunrise Rock, apparently while the litigation proceeds and before the land is formally transferred to VFW. That appeal may now be unnecessary, depending on the Park Service's decision on the cross that has now reappeared.

Court Again Rejects Housing Act Challenge To Homeless Shelter Activities

Last September, an Idaho federal district court held that the homeless shelter component of the Boise Rescue Mission is not a "dwelling" and therefore is not subject to the religious anti-discrimination provisions of the federal Fair Housing Act. It also held that both in the homeless shelter and in the Rescue Mission's second component-- a residential recovery program for individuals with drug or alcohol dependency-- the Religious Freedom Restoration Act bars application of the Fair Housing Act to prohibit the Rescue Mission's religious activities or religious favoritism of certain participants. (See prior posting.) Following that decision, plaintiffs filed a motion to alter or amend the judgment, arguing that RFRA does not apply to suits between private parties, as opposed to a suit against the government. Last week, in Intermountain Fair Housing Council v. Boise Rescue Mission, Inc., 2010 U.S. Dist. LEXIS 48065 (D ID, May 12, 2010), the same Idaho federal district court held it need not decide whether RFRA applies, since the Rescue Mission's activities are protected by the Free Exercise clause of the First Amendment which also bars application of the Fair Housing Act here. It concluded, as it did in its prior decision, that some religious activities-- including those challenged here-- cannot be infringed even if the government has a compelling interest. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Court Rejects Charter School Challenge To Ban On Classroom Use of Bible

In Nampa Classical Academy v. Goesling, (D ID, May 17, 2010), an Idaho federal district court dismissed a challenge by a state funded charter school and two of its teachers to a policy adopted by the Idaho Public Charter School Commission. The Commission adopted the view of the state attorney general that the use of religious documents or texts in a public charter school classroom would violate Art. IX, Sec. 6 of the Idaho Constitution. That section prohibits the use of sectarian books or documents in public school classrooms. Teachers at the Academy wanted to use primary source documents-- including the Bible and the Koran-- in teaching their courses and argued that the ban violated their and their students' 1st and 14th Amendment rights.

The court held that the charter school itself is a political subdivision of the State and therefore has no privileges or immunities to invoke against the State. It held defendants had qualified immunity as to claims by other plaintiffs. Here it is the defendants-- state school officials-- who are the speakers, and they have the right to lawfully control the content of their speech. They are adhering to the Establishment Clause by barring use of religious texts in publicly funded schools. Idaho Press Tribune reports on the decision. (See prior related posting.)

The Charter Commission will hold a previously scheduled hearing on June 11 on revoking the Academy's charter, in part because the Commission believes the school has not complied with the order to avoid using religious documents.

In Uzbekistan, Police Raid On Large Protestant Congregation

Forum 18 reports that in Uzbekistan on Sunday, the police, National Security Service secret police, Tax Inspectorate, Fire Brigade, and Sanitary-Epidemiological Service all raided Church of Christ, one of the largest Protestant congregations in Tashkent. The Russian-language Full Gospel congregation has been registered with the state since 1999. The five-hour raid began Sunday morning one hour after services began. Computers, books and documents (including permission forms signed by parents) were seized. Eight church members, including the church's assistant pastor, were arrested and held for 24 hours. Shortly after their release yesterday, an initial hearing was held in District Court. Their trial is scheduled to continue today. It is not clear what charges have been brought, but the prosecution says it has a letter from a father charging the church with forcing his children to convert. This is the latest in a series of similar raids against Protestant churches in the country. Government officials refuse to discuss the raid.

British Court Dismisses Libel Action By Sikh Leader

A High Court in Britain yesterday dismissed a libel action against free lance journalist Hardeep Singh brought by religious leader Sant Baba Jeet Singh Ji Maharaj. London's Press Gazette and Journalism.co report on the decision. Jeet Singh is the head of Nirmal Kutia Johal, a Nirmal Sikh institution. In an August 2007 article in the Sikh Times, Hardeep Singh accused Jeet Singh of being an impostor and leading a cult. He charged this disturbed the peace in the Sikh community of High Wycombe, promoted blasphemy and encouraged the abuse of women. The Sikh Times has already withdrawn the article and apologized. Hardeep Singh pled justification, fair comment and qualified privilege. The court dismissed the action saying that issues of a religious or doctrinal nature permeate the proceedings. The court would be required to interpret Sikh doctrine to determine whether the charges that Jeet Singh was an impostor were defamatory.

Preliminary Injunction Denied Against Community College Graduation Prayer

Yesterday's Orange County (CA) Register reports that a California federal district judge last week refused to issue a temporary injunction against graduation prayer at two California community colleges. The lawsuit against the South Orange Community College District was filed by faculty and students at Saddleback College. The court said that plaintiffs did not show that they would suffer irreparable injury if the traditional non-sectarian invocation was delivered at graduation. The requested preliminary injunction would have stopped the practice while the lawsuit is pending.

Charges Dropped Against British Street Preacher

In Britain, charges under the Public Order Act have been dropped against a Baptist street preacher who was briefly arrested by police in Workington after he condemned homosexuality as a sin in a conversation with a shopper, and then began a sermon on drunkenness and adultery. (See prior posting.) The Public Order Act was passed originally to deal with football hooligans. Sunday's London Mail and yesterday's LifeSite News reported that the Crown Prosecution Service decided to drop charges against street preacher Dale Mcalpine for insufficient evidence. Mcalpine says he is considering a possible lawsuit against the police with the assistance of the Christian Institute. [Thanks to Scott Idleman via Religionlaw for the lead.]

Vatican Files Motions To Dismiss U.S. Lawsuit Against It

Yesterday, the Vatican filed two motions to dismiss the clergy sexual abuse lawsuit that has been brought against it in federal court in Kentucky. The suit alleges that the Holy See is liable, under the doctrine of respondeat superior, for failure of clergy in the United States to warn parishioners that their children would be under the care of known pedophiles, and for the failure of U.S. bishops to report suspected abusers to civil authorities. (See prior posting.) One motion to dismiss focuses heavily on statute of limitations arguments. The Vatican's 56-page Memorandum (full text) supporting this motion sets out at length the Vatican's contention that the statute of limitations was not tolled. In addition to the statute of limitations, the Memorandum argues that the underlying claims fail because there are no allegations that supervisors had prior knowledge that the priests in question posed a danger to children. As to plaintiffs' international law claims , the Memorandum argues that neither the Universal Declaration of Human Rights nor the Convention on the Rights of the Child creates a private right of action. Finally the Vatican argues that clergy owed no fiduciary duty to plaintiffs.

The second motion to dismiss for lack of subject matter jurisdiction focuses on the argument that the Archbishop of Louisville was not an "employee" of the Vatican, so that the respondeat superior claim that is the basis for jurisdiction under the Foreign Sovereign Immunities Act collapses. The Vatican's 53-page Memorandum (full text) in support of this motion also deals with plaintiffs' focus on the Vatican's document Crimen sollicitationis, and argues that the document did not preclude the Bishop from reporting abuse to civil authorities. An AP article over the week end that quoted the Vatican's lead attorney in the U.S., Jeffrey Lena, previewed these arguments.

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.

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."

Recent Articles and Books of Interest

From SSRN:

• Steven Lubet, Why the Dreyfus Affair Does and Doesn't Matter, (Green Bag, Vol. 13, No. 2, p. 331, 2010).
• Timothy Stewart-Winter & Simon Stern, Picturing Same-Sex Marriage in the Antebellum United States: The Union of 'Two Most Excellent Men' in Longstreet's 'A Sage Conversation', (Journal of the History of Sexuality, Vol. 19, No. 2, pp. 197-222, May 2010).
• Gail F. Mason, Hate Crime Laws in Australia: Are They Achieving Their Goals?, (Criminal Law Journal, Vol. 33, No. 6, pp. 326-340, 2009).
• Mark J. Cowan, Nonprofits and the Sales and Use Tax, (Florida Tax Review, Forthcoming).

Recent Books:

• Amy Scobee, Scientology: Abuse At the Top, (Scobee Publishing, May 2010).
• Melanie Phillips, The World Turned Upside Down: The Global Battle over God, Truth, and Power, (Encounter Books, April 2010).
• S.E. Cupp, Losing Our Religion: The Liberal Media's Attack on Christianity, (Threshold Editions, April 2010).
• Ian Johnson, A Mosque in Munich: Nazis, the CIA, and the Rise of the Muslim Brotherhood in the West, (Houghton Mifflin Harcourt, May 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.

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.]

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.