Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Tuesday, June 22, 2010
Court Upholds Texas Rejection of Graduate Program In Creation Science
The court rejected ICRGS' claim that the Board engaged in "viewpoint discrimination", finding no animus toward any religious viewpoint. Applying a "rational basis" standard, the court rejected claims that the Board violated ICRGS' free exercise and free speech rights, as well as claims under the Texas Religious Freedom Restoration Act, and the equal protection and due process clauses of the 14th Amendment. The court concluded that the Board's "decision is rationally related to the State's legitimate interest in protecting the public by preserving the integrity of educational degrees." (See prior related posting.)
Rubashkin To Be Sentenced To 27 Years In Financial Fraud Case
The court rejected a number of arguments for a downward departure in sentencing, including that "Defendant did not commit the offense conduct for personal gain or out of a sense of greed, but rather, 'in order to continue what he viewed as the critical Lubavitch mission of providing Kosher food to the Jewish community.'" It also rejected government arguments for an upward departure, but said it reserved the right to consider an upward departure if it is required to re-sentence Rubashkin. Despite this threat, according to the New York Times Rubashkin will appeal the decision to challenge the court's interpretation of the Sentencing Guidelines. Rubashkin supporters have conducted an extensive campaign on Rubashkin's behalf, arguing that he has been unfairly treated. (See prior posting.)
Monday, June 21, 2010
USCIRF Urges Obama To Publicly Raise Human Rights Concerns With Russian Leader
RLUIPA Lawsuit Filed By Hasidic Group Against New York Village
Louisiana Passes Religious Freedom Act
Recent Articles of Interest
From SSRN:
- Frederick Mark Gedicks, God of Our Fathers, Gods for Ourselves: Fundamentalism and Postmodern Belief, (William & Mary Bill of Rights Journal, Vol. 18, pp. 901-914, 2010).
- Carl H. Esbeck, Taxpayer Standing from Flast to Hein, (Mississippi Law Journal Online, Vol. 80, 2010).
- Karima Bennoune, Remembering the Other's Others: Theorizing the Approach of International Law to Muslim Fundamentalism, (Columbia Human Rights Law Review, Vol. 41, pp. 635-698, 2010).
- Saadiya Suleman, Freedom of Religion and Anti Conversion Laws in India: An Overview, (ILI Law Review, Vol. 1, No. 1, p. 106, 2010).
From SmartCILP:
- Carolyn Evans, Constitutional Narratives: Constitutional Adjudication on the Religion Clauses in Australia and Malaysia, 23 Emory International Law Review 437-468 (2009).
- Russell Powell, Zakat: Drawing Insights for Legal Theory and Economic Policy from Islamic Jurisprudence, 7 Pittsburgh Tax Review 43-99 (2009).
- Asifa Quraishi, Taking Shari'a Seriously (Reviewing Noah Feldman, The Fall and Rise of the Islamic State), 26 Constitutional Commentary 297-311 (2010).
- John Witte, Jr. & M. Christian Green, Religious Freedom, Democracy, and International Human Rights, 23 Emory International Law Review 583-608 (2009).
Sunday, June 20, 2010
Recent Prisoner Free Exercise Cases
In Meyer v. Wisconsin Department of Corrections, 2010 U.S. Dist. LEXIS 59437 (WD WI, June 16, 2010), a Wisconsin federal district court rejected an inmate's free exercise and RLUIPA challenges to the prison's refusal to furnish him an emblem of the "world tree" as a symbol of his claimed religion, Shamanism. The court said plaintiff could have reverted to the classification of Paganism as his religious preference and received a blank Book of Shadows in which he could have drawn a world tree emblem. There was no evidence that this would have been a substantial burden.
In Rosales v. Abbott, 2010 U.S. Dist. LEXIS 59809 (WD TX, June 16, 2010), a Texas federal magistrate judge recommended rejecting a Muslim inmate's objection that he was not permitted to change his name in accordance with religious practice. The court concluded that the Texas statute barring name changes by felons does not violate plaintiff's free exercise rights.
In Carney v. Hogan, 2010 U.S. Dist. LEXIS 59440 (ND NY, June 15, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 59439, March 30, 2010) and permitted plaintiff to move ahead with his complaint that the Sex Offender Treatment Program violates his free exercise rights by requiring his participation in faith-based programs as a condition of his release from civil confinement. However the court held that defendants had qualified immunity from damage actions. Only plaintiff's claim for injunctive relief
can proceed.
In Merrell v. Lawler, 2010 U.S. Dist. LEXIS 60088 (MD PA, June 16, 2010), a Pennsylvania federal district court allowed an inmate to move ahead with his claim that his free exercise rights were infringed when he was not permitted to attend religious services in the prison chapel.
In Kramer v. Raemisch, 2010 U.S. Dist. LEXIS 60235 (WD WI, June 16, 2010), a Wisconsin federal district court refused to permit inmates in different Wisconsin prisons who allege various restrictions on their ability to practice Odinism to join their claims in a single lawsuit. They claimed they were denied the right to engage in group religious exercise, to possess various religious items and to consume pork as part of a religious diet and at religious feasts.
7th Circuit: "Deific Decree Exception" In Insanity Defense Has Establishment Problems
[T]o distinguish between "deific" and all other delusions and confine the insanity defense to the former would present serious questions under the First Amendment’s establishment clause, and it is notable therefore that Judge Cardozo placed his emphasis on a defendant’s inability to appreciate his act as being morally wrong, whatever the source of his moral beliefs.
9th Circuit Says Amended Mining Plan For Sacred Mt. Tenabo Violates NEPA
New Zealand Court Faces Religious Accommodation Issue In Community Service Sentence
Saturday, June 19, 2010
6th Circuit Permits Evangelist To Distribute Literature On Outskirts of Arab Festival
Meanwhile the Detroit Free Press reports that on Friday four Christian missionaries with a group called Acts 17 Apolegitics were arrested at the Festival on charges of disorderly conduct.
Groups Suggest Questions For Kagan On Establishment and Free Exercise
Quebec Court Orders Exemption From Religious Culture Course For Catholic School
Suit Planned Against Legion of Christ Over Sex Abuse
Friday, June 18, 2010
New Jersey Rabbi Pleads Guilty To Money Laundering
Priest Publicly Challenges La Crosse Diocese's Standards In Reviewing Abuse Charges
The Diocese of LaCrosse yesterday issued a Media Statement in response, calling Connell's statement a "personal highly technical opinion of church law." It says that it is fully complying with the Charter for the Protection of Children and Young People , and that a review of cases before the Review Board found none in which "a finding of insufficiency was based upon any canonical technicality." It says its standard of proof is one of "sufficiently confirmed." A May 11 letter (full text) from Msgr. Richard W. Gilles, the La Crosse Diocesan Administrator to the USCCB National Review Board says that the Diocese has consulted with its own canonist, Father Michael Gorman. The letter continues: "While Father Gorman points out some ambiguities which could give rise to some confusion about the burden of proof, Father Gorman does not share Father Connell’s views and opinions."
Lawsuit Challenges Coney Island Concerts Invoking Protection of Nearby Religious Services
RLUIPA Suits Settled-- Shabbos House OK'd; Prayer Breakfast Will Move
Meanwhile, in Phoenix, Arizona, CrossRoads United Methodist Church has settled its RLUIPA suit against the city challenging a zoning decision. Yesterday's Arizona Republic reports that under the agreement, the church will move the location of its Saturday pancake breakfast service within six months. In the meantime, the service will be moved from outside to inside the church. The city's Board of Adjustment had agreed with neighbors that the church was operating a charity dining hall in violation of residential zoning restrictions by holding its weekly service that offered an egg, pancake and bacon breakfast along with song and prayer.
Thursday, June 17, 2010
Lawsuit Charges Anti-Muslim Discrimination In Naturalization Approvals
In Israel, Demonstrators Back Dissident Haredi Parents Defying High Court
Today, according to the Jerusalem Post, tens of thousands of haredi (strictly Orthodox Jews) demonstrated in Bnei Brak and Jerusalem in support of the Hasidic parents. Prison officials say that special arrangements have been made at both men's and women's prisons to allow the parents to maintain their strictly Orthodox life style while in jail.
European Court Says Poland Forced Student To Indirectly Reveal Religious Beliefs
Trial Judge Hears Closing Arguments In Challenge To California's Prop 8
UPDATE: Here are the full transcripts of the closing arguments via the Sacramento News & Review.
CAIR Says U.S. Muslims Stranded Abroad After Being Placed on No-Fly List
Wednesday, June 16, 2010
President Announces Religious Freedom Appointees
At the same time, the President announced two appointments to the U.S. Commission on International Religious Freedom. One is Felice D. Gaer who has seved a number of terms on USCIRF. Gaer directs the Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish Committee. The second appointee, new to USCIRF, is Dr. William J. Shaw, Immediate Past President of the National Baptist Convention, USA. Inc. and Pastor of White Rock Baptist Church in Philadelphia. Under the International Religious Freedom Act, Sec. 201, three Commissioners are selected by the President, three by the Senate and three by the House.
Norwegian Judges Can Wear Religious Clothing
Religious Liberty Legal Scholar Named President of Catholic University
Australian Court Expands Asset Freeze In Suit By Donors To Fraudulent Religious Group
Religious Billboards Said To Violate Highway Beautification Act
Tuesday, June 15, 2010
Greece May Drop Religious Oath Requirements
Appeal In Sale of Historic African-American Synagogue Argued
Appeal Filed In Nampa Classical Academy Case
Egypt Drafting New Mariage Law After Court Upsets Coptic Church Rules
Churches Help Out Cash-Strapped Public Schools; Get Access To Families
Monday, June 14, 2010
Israel's High Court Voids Special Payments To Married Yeshiva Students
New York Mets Sued By Kosher Food Vendor Over Sabbath Operations
Gangs Using Rosaries As Identifiers
Recent Articles of Interest
From SSRN:
- Ed Morgan, The UN's Book of Judges, (Global Governance, Vol. 16, No. 2, p. 160, April-June 2010).
- David E. Guinn, Religion, Law and Violence: The State's Efforts at Taming the Beast, (Blackwell Companion To Religion and Violence, Andrew R. Murphy, ed., Forthcoming).
From SmartCILP:
- Robert J. D'Agostino, Selman and Kitzmiller and the Imposition of Darwinian Orthodoxy, 2010 BYU Education & Law Journal 1-79.
- Michael H. Lubetsky, Trandafir Competition Winner. Losing Interest: Financial Alchemy in Islamic, Talmudic, & Western Law, 19 Transnational Law & Contemporary Problems 231-260 (2010).
- Martha McCarthy, When Government Expression Collides With the Establishment Clause, 2010 BYU Education & Law Journal 113-128.
Sunday, June 13, 2010
Hawaii Governor Talks With Rabbis In Deciding On Civil Union Bill
Court Says Reasonableness of Religious Accommodation Is Jury Issue
Recent Prisoner Free Exercise Cases
In Strope v. Cummings, (10th Cir., June 9, 2010), the 10th Circuit rejected an inmate's complaints alleging deficiencies in the prison's kosher diet, interference with access to scheduled religious services and retaliatory transfer between cell units.
In Gonzalez v. Mullen, 2010 U.S. Dist. LEXIS 55947 (ND CA, May 14, 2010), a California federal district court held that an inmate who objected that he was not allowed to have his cassette player to use to play religious tapes failed to state a cognizable free exercise claim. Prison rules allowed one audio entertainment device, and plaintiff chose a CD player.
In Sparks v. Dennehy, 2009 U.S. Dist. LEXIS 127259 (D MA, Oct. 20, 2009), a Massachusetts federal magistrate judge recommended that plaintiff be permitted to move ahead with equal protection, Free exercise and RLUIPA challenges to the failure of the Massachusetts Department of Corrections to recognize Asatru/Ordinism/Wotanism as a religion, which would give adherents access to group worship, outside clergy and religious literature.
In Eastwood v. Kicklighter, 2010 U.S. Dist. LEXIS 56697 (WD VA, June 8, 2010), a Virginia federal district court rejected an inmate's claims that he was terminated from a vocational class in retaliation for his attendance at a Kairos religious service.
In Mitchell v. Quarterman, 2010 U.S. Dist. LEXIS 56618, (ED TX, June 9, 2010), a Texas federal district court adopted the recommendations of a federal magistrate judge (2010 U.S. Dist. LEXIS 56620, May 11, 2010) rejecting an inmate's claim that his being observed by female officers while showering and using the toilet amounts to a "substantial burden" on his exercise of his religious beliefs. Maintenance of security in prison, and offering equal opportunity to female correction officers, were held to be compelling interests.
In Burriola v. Nevada Department of Corrections, 2010 U.S. Dist. LEXIS 57396 (D NV, June 8, 2010), a Nevada federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 57421, Feb. 8, 2010) and dismissed an inmate's Free Exercise and RLUIPA challenges to a prison rule that permits him to possess no more than ten magazines. Plaintiff, a Seventh Day Adventist, argued that distribution of religious periodicals is part of his faith, and he needs numerous copies (he was in possession of 50 copies that were confiscated) because the need to distribute literature may arise at any time and place.
In Gundlah v. Pallito, 2010 Vt. Super. LEXIS 12 (VT Super., March 18, 2010), a Vermont prisoner who was sent to Florida for confinement pursuant to the Interstate Corrections Compact sued in Vermont challenging Florida's policy of not serving kosher meals in its prisons. A Vermont trial court held that even though the claim has constitutional dimensions, this is merely a dispute over conditions of confinement in Florida, and is to be resolved by the Florida Department of Corrections under Florida law.
In Levesque v. New Hampshire, 2010 U.S. Dist. LEXIS 57278 (D NH, June 9, 20010), a New Hampshire federal district court adopted a magistrate's recommendations ( 2010 U.S. Dist. LEXIS 57249, May 12, 2010), rejecting an inmate's claim that his mental health treatment amounts to coercive religious programming, and finding instead that it is an entirely secular medical treatment.
Rehearing Petition Filed In Challenge To Prayer and Presidential Oath At Inauguration
European Court Holds Russia Violated ECHR In Dissolving Moscow Jehovah's Witnesses
The domestic courts did not adduce "relevant and sufficient" reasons to show that the applicant community forced families to break up, that it infringed the rights and freedoms of its members or third parties, that it incited its followers to commit suicide or refuse medical care, that it impinged on the rights of non-Witness parents or their children, or that it encouraged members to refuse to fulfil any duties established by law. The sanction pronounced by the domestic courts was excessively severe in view of the lack of flexibility in the domestic law and disproportionate to whatever legitimate aim was pursued.The Court also held that the length of the proceedings against the organization-- six years-- violated Article VI of the Convention (right to a fair trial within a reasonable time). A press release from the Court summarizes the decision. [Thanks to Institute on Religion & Public Policy for the lead.]
Saturday, June 12, 2010
Newly Released Kagan Memos Show Her Involvement In Religious Freedom Issues
In the case, Smith v. Fair Employment and Housing Commission, the California Supreme Court rejected a RFRA claim brought by a landlady who claimed that complying with a state law prohibiting discrimination in accommodations on the basis of marital status would violate her religion. The plurality opinion of three Justices reasoned that the law did not "substantially burden" her religion, as RFRA requires, because she could earn a living in some other way than by leasing apartments....The New York Times today reports on this memo. Two other memos show Kagan's involvement in religious freedom issues, but shed less light on her personal views. In one (full text) she discusses a proposed Executive Order on religious expression in the federal workplace, writing:
The plurality's reasoning seems to me quite outrageous almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state. Taken seriously, this kind of reasoning could strip RFRA of any real meaning.
The order recognizes constraints on such expression, imposed by the government's interests in workplace efficiency and the Establishment Clause's prohibition on endorsement of religion. But the order tries to show ... that within these constraints, there is substantial room for discussion of religious matters.... [T]he Department of Justice as a whole is quite negative about the order. DOJ believes that the document does not give enough weight to establishment clause concerns ... [or] to what it has called "sound employment policy," including interests in workplace efficiency. In sum, DOJ believes the document conveys a tone that is too permissive of employee religious expression.Kagan's third memo (full text) reacted to requests that the White House examine an FBI search of World Christian Church and an associated university. Some of those complaining claimed the federal government was trying "to totally regulate all Christian education." [Thanks to Christopher Lund via Religionlaw for the lead.]
Friday, June 11, 2010
Pope's Homily Ending Year For Priests Addresses Abuse Scandal, Catholic Theology
Fashioning much of his homily around the text of the 23rd Psalm, the Pope also attacked the Deism of the Enlightenment period:It was to be expected that this new radiance of the priesthood would not be pleasing to the "enemy"; he would have rather preferred to see it disappear, so that God would ultimately be driven out of the world. And so it happened that, in this very year of joy for the sacrament of the priesthood, the sins of priests came to light – particularly the abuse of the little ones, in which the priesthood, whose task is to manifest God’s concern for our good, turns into its very opposite.
We too insistently beg forgiveness from God and from the persons involved, while promising to do everything possible to ensure that such abuse will never occur again; and that in admitting men to priestly ministry and in their formation we will do everything we can to weigh the authenticity of their vocation and make every effort to accompany priests along their journey, so that the Lord will protect them and watch over them in troubled situations and amid life’s dangers.
Had the Year for Priests been a glorification of our individual human performance, it would have been ruined by these events. But for us what happened was precisely the opposite: we grew in gratitude for God’s gift, a gift concealed in “earthen vessels” which ever anew, even amid human weakness, makes his love concretely present in this world. So let us look upon all that happened as a summons to purification, as a task which we bring to the future and which makes us acknowledge and love all the more the great gift we have received from God.
God personally looks after me, after us, after all mankind.... He is not a distant God, for whom my life is worthless. The world’s religions, as far as we can see, have always known that in the end there is only one God. But this God was distant. Evidently he had abandoned the world to other powers and forces, to other divinities. It was with these that one had to deal. The one God was good, yet aloof. He was not dangerous, nor was he very helpful. Consequently one didn't need to worry about him. He did not lord it over us.
Oddly, this kind of thinking re-emerged during the Enlightenment. There was still a recognition that the world presupposes a Creator. Yet this God, after making the world, had evidently withdrawn from it. The world itself had a certain set of laws by which it ran, and God did not, could not, intervene in them. God was only a remote cause. Many perhaps did not even want God to look after them. They did not want God to get in the way. But wherever God’s loving concern is perceived as getting in the way, human beings go awry.
Court Upholds Limit On Leafleting By Christian Group At Arab Festival
Excusing Potential Jurors With Religious Holiday Conflict Is OK'd
On appeal, defendant argued that "the trial court's actions systematically and entirely excluded members of a cognizable group (observant members of the Jewish faith) from the jury." The appeals court rejected defendant's claim that he was denied an impartial jury. It said:
Not all potential Jewish jurors were excused from serving on the case. The three jurors were not removed because of any perceived bias. Nor were they improperly removed by the State exercising peremptory challenges based on religious affiliations.
Geert Wilders' Party Makes Strong Showing In Dutch Elections
Court Rejects Landowner's RLUIPA Challenge To Mixed Use Zoning Ordinance
Ecclesiastical Abstention Doctrine Bars Court From Deciding Governance Dispute
Judge, Wife of Tony Blair, Cleared Over Sentencing Comments
Thursday, June 10, 2010
Virginia Supreme Court Says Division Statute Does Not Apply To Episcopal Church Split
$1 In Damages Awarded In Claim That Police ID Card Containted Mark of the Beast
Lawsuit Challenges Health Care Reform As Infringement of Religious Beliefs
15. ... believes in natural forms of healing and trusting in God to protect her from illness or injury and to heal her of any afflictions, no matter the severity of the health issue, and does not need, or want to be forced to buy, health insurance coverage.Similar allegation are set out as to two other plaintiffs.
16. In addition, Seven-Sky has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a back-up plan.
6th Circuit Upholds Permanent Injunction Against McCreary County's Ten Commandments Display
Judge Gibbons issued a concurring opinion concluding that new resolutions passed by the counties in 2005 did not eliminate their religious purposes. However she said she would not reach the question of whether the 2007 resolution eliminated the religious purpose because procedurally the defendants never appealed the trial court's ruling on a motion in which that resolution was first brought to the attention of the district court.
Judge Ryan issued a strong dissent, saying: "I humbly associate myself with Justice Scalia's powerful and logically compelling explanation in McCreary IV that the displays in question do not violate the First Amendment and never did." He urged fellow judges to grant en banc review in the case. In a press release, Liberty Counsel which represents defendants indicated it would file a motion for review.
Pro-Muslim Ad Campaign Launched In Britain
Arizona Charges Against Former FLDS Leader Warren Jeffs Dropped
Mormon Church Agrees To Penalty For Late Reporting of Prop 8 Contributions
Suit Claims Humane Society Discriminated In Firing Muslim Veterinarian
Wednesday, June 09, 2010
EPA Presses Amish Farmers To Lessen Run-Offs Into Chesapeake Bay
Librarian Loses Suit Claiming University Was Hostile To His Christian Beliefs
Savage cannot show that OSU made his working conditions so intolerable that a reasonable person in his position would have felt compelled to resign. Although the controversy that erupted over his book recommendation resulted in faculty members publicly criticizing his judgment and professionalism, these members had no power over Savage’s job and no ability to discipline or fire him.
2nd Circuit Says School Closing Did Not Violate Establishment Clause
As long as the plan affords any realized tax savings to taxpayers generally and without regard to religion, plaintiffs cannot plausibly allege that either the purpose or the primary effect of the plan is to establish religion. The fact that a large number of Orthodox Jewish taxpayers may freely choose to spend their tax savings from the plan on religious education for their children warrants no different conclusion because the plan itself does nothing to reward or even encourage such a consumption choice.(See prior related posting.)
Critics Question State Funds To Christian Counseling Clinic Owned By Member of Congress
Group Urges End To Limits On Use of Meeting Facilities For Religious Purposes
Enfield School Board Changes Its Mind-- Will Appeal Church Graduation Ban
UPDATE: On June 14, the Second Circuit denied Enfield's request to lift the temporary injunction issued by the district court, noting that the school board had already decided to hold graduation on school premises for this year. The district court will hear arguments on whether or not to permanently enjoin use of First Cathedral for graduations before next year's graduation ceremonies take place. (AP).
Korea's Constitutional Court Says Pre-Embryos Are Not Humans
The ruling came in a case filed by a married couple from whom three embryos had been produced in vitro. One was implanted in the wife, and the other two were to be used for research pursuant to a consent originally filed by the couple. The couple, however, changed their minds and brought suit to vindicate the rights of the remaining embryos. Joining them as plaintiffs were eleven others, including doctors, ethicists and philosophers. The two embryos were also named as plaintiffs. The Life Committee of the Catholic Diocese of Seoul denounced the Court's decision. Various aspects of the decision are reported on by The Hankyoreh (May 28); Korea Times (May 27); JoongAng Daily (May 28); and CathNews (May 31).