Religion Clause

Thursday, June 24, 2010

Native Americans Seek To Stop Reservoir Construction At Cemetery Site

In Santee, California, efforts are underway on several fronts to prevent the Padre Dam Municipal Water Board from proceeding with construction of a reservoir and pipeline in an area that was a burial ground for the Viejas Band of Kumeyaay Indians. East County Magazine reported yesterday that after human remains and artifacts were discovered, a state Superior Court judge issued a temporary restraining order to stop construction on part of the project. The Viejas Tribe plans to seek an extension of the order to the entire construction site at a hearing on Friday. On June 17, the California Native American Heritage Commission ruled the site to be a sanctified cemetery and ceremonial site, and requested a halt to construction while mitigation measures, including tribal monitoring during grading activities, are considered. However construction continued until the state Attorney General threatened to file suit to stop further damage to the area while the Water District reviews the Commission's proposed mitigation measures. Padre Dam authorities say construction is necessary to protect against firestorms and delays cost some $150,000 per month. It says moving the project to a new site would cost $10 million.

New York Legislature Passes Anti-Bullying Bill

WGRZ News reports that on Tuesday the New York state Senate passed by a vote of 58-3 an anti-bullying bill, the Dignity For All Students Act. The bill which was previously approved by the state Assembly bars discrimination or harassment of students by school employees or other students. It provides:

No student shall be subjected to harassment by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function.

The bill, which will now go to Gov. Patterson for his signature, also requires school boards to develop policies and guidelines to foster a school environment free from harassment and discrimination.

Archdiocese Accused of Fraud In Sex Abuse Lawsuit Seeking To Skirt Statute of Limitations

USA Today reports on a lawsuit filed Tuesday against the Catholic Archdiocese of Los Angeles (CA) alleging fraud and negligence in allowing Rev. Jeffrey Newell to continue to serve as a priest long after sex abuse charges against Newell were reported to church officials in 1994. Plaintiff alleges he was defrauded into not suing earlier because he believed the Archdiocese had prevented Newell from ever working around children as it promised to do. While Newell was removed from the Los Angeles archdiocese and transferred to Tijuana, Mexico a year before the victim reported the abuse, he continues to hold daily Mass there with drums and electric bass. He says he has led a chaste life for the last 20 years. By using fraud, plaintiff and others who have invoked a similar theory, get around statute of limitations problems, since fraud tolls the statute and individuals have three years after discovering they were a victim of fraud to sue.

Wednesday, June 23, 2010

Court Refuses To Halt Civil Rights Investigation of Home School Group

A state trial court judge in Hamilton County, Indiana has refused to intervene to prevent the Indiana Civil Rights Commission from investigating discrimination charges against a home schooling organization. According to today's Indianapolis Star, the Fishers Adolescent Catholic Enrichment Society (FACES), which organizes group activities for home-schooled children, claims that the burden of the Civil Rights investigation on the small group violates its members freedom of religion and association. The investigation grows out of a mother's complaint that the group refused to accommodate her daughter's food allergy to chicken at a 2008 All Souls' Day Masquerade Ball. The group expelled the girl's family after they filed a discrimination complaint. The court held that FACES has suffered no harm that would justify judicial intervention, even though it has suspended its activities because of the litigation. (See prior related posting.)

Volunteer Police Chaplain Fired Over Ties To Holy Land Foundation Case

Last December, the Illinois State Police appointed seven clergy to be volunteer police chaplains. However, according to today's Chicago Tribune, detailed background checks were not carried out at the time. Now one of those appointed as a Muslim chaplain, Sheikh Kifah Mustapha, associate director of the Mosque Foundation in Bridgeview, has had his appointment revoked. It turns out he was named as an unindicted co-conspirator in the case against Holy Land Foundation for Relief and Development, the Muslim charity whose founders were convicted of sending funds to Hamas. (See prior posting.) Mustapha helped raise funds in Chicago for the Holy Land Foundation. Today the Council on American Islamic Relations will hold a press conference to object to the State Police action against Mustapha.

High School Diplomas Drop "In the Year of Our Lord"

Today's New Haven (CT) Register reports that after receiving a complaint last year, this year for the first time the diplomas awarded by New Haven, Connecticut high schools have dropped the phrase "in the year of our Lord". The city said that none of its other public documents use the phrase in reciting dates, while school superintendent Reginald Mayo said: "I'm surprised it took this long for someone to notice it. We certainly don’t want to offend anyone."

Gay Pride Organizers Seek To Exclude Anti-Gay Christian Evangelist

In Minneapolis (MN), organizers of a gay pride festival expected to draw 200,000 people want the Minneapolis Park Board to bar a Christian evangelist from handing out literature at the event. According to yesterday's Minneapolis Star Tribune, the Park Board denied a booth to evangelist Brian Johnson, but approved a request that he be allowed to hand out anti-gay literature at Twin Cities Pride, saying that since it is a public event he is free to share his views so long as he does not disturb others. However festival organizers say they will file suit in federal court today seeking an injunction. They say Johnson is welcome to attend, but not to hand out literature, relying on the Supreme Court decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston that allowed St. Patrick's Day Parade organizers to exclude an LGBT group from marching. The Park Board says, however, that the case is inapplicable; since Johnson was denied a booth at Twin Cities Pride, he is not part of the event.

UPDATE: Our Twin Cities (6/24) reports that organizers of the Twin Cities Pride Festival have filed a lawsuit in federal court seeking an emergency order to reverse the decision of the Minneapolis Park and Recreation Board that would allow homosexual critic Brian Johnson to hand out at the festival written materials supporting his message of sin and repentance.

UPDATE2: On Top Magazine (6/26) reports that federal district court judge John Tunheim has refused to bar Brian Johnson from Loring Park during the Gay Pride event. Event organizers said: "As long as Mr. Johnson and his family do not create a disturbance, they can walk the Festival and distribute their leaflets and Bibles to willing attendees. But should their behavior be as troubling as it was at last year's festival, we shall ask Minneapolis Police to remove them."

Court Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Heineman, (D NE, June 21, 2010), a Nebraska federal district court upheld the constitutionality of the Nebraska Funeral Picketing Law. In so doing, the court refused a request by Shirley Phelps-Roper, a member of Westboro Baptist Church, to issue a preliminary injunction against enforcement of the statute . Westboro members often picket funerals of veterans carrying signs proclaiming that God is punishing America for its sins, which include tolerating homosexuality. The court distinguished the 8th Circuit's decision (see prior posting) striking down Missouri's funeral picketing law, saying:

The government interest underlying the NFPL is distinguishable from, and more significant than, the government interest underlying the statute addressed in [Phelps-Roper v.] Nixon. There, the Eighth Circuit ruled that a state’s interest in protecting funeral attendees as a group was outweighed by Phelps-Roper’s First Amendment right.... However, it is not apparent that the ruling in Nixon would apply to a statute designed to protect a much narrower group: family members of the deceased.

Relying instead on a 6th Circuit decision upholding Ohio's funeral picketing law (see prior posting), the court concluded that Nebraska's law:

is narrowly tailored to serve a significant government interest, i.e., the protection of family members attending funeral and burial services, and leaves ample alternative channels for Phelps-Roper’s communications that are protected by the First Amendment.

Yesterday's Wichita (KS) Eagle reports on the decision.

Tuesday, June 22, 2010

Michigan High Court Rejects Catholic School's Zoning Appeal

In Shepherd Montessori Center Milan v. Ann Arbor Charter Township, (MI Sup. Ct., June 18, 2010), the Michigan Supreme Court rejected a Catholic school's claim that the denial of its zoning variance request amounted to an infringement of its equal protection rights. The Court rejected plaintiff's claim that the Township treated it differently than similarly situated entities and also rejected the school's charge that the Zoning Board of Appeals "discriminatorily applied the facially neutral zoning ordinance against it because of its religious affiliation." The Court said:

ZBA member Laporte validly questioned plaintiff's attorney about the basis for the assertion that religious use should be favored over secular uses. Nothing in the exchange demonstrates bias against Catholics or Catholic primary education. The questions were asked to clarify plaintiff’s attorney’s own statements. Nothing in the minutes of the ZBA hearing supports the conclusion that the ZBA denied plaintiff the variance because of a bias against plaintiff's religious affiliation.

Zoo Enjoined From Barring Religious Group's Sale of T-Shirts

In Higher Taste v. City of Tacoma, 2010 U.S. Dist. LEXIS 60638 (WD WA, June 4, 2010), a Washington federal district court issued a preliminary injunction prohibiting the enforcement of a resolution adopted by the Metro Park District of Tacoma restricting the sale of goods in the entrance area of the Point Defiance Zoo and Aquarium. Plaintiff, Higher Taste, is a religious organization whose purpose is "to propagate, through the dissemination of educational literature and other expressive items, such as message-bearing T-shirts, the principles of non-violence, animal protection, vegetarianism, and spiritual ecology (as set forth in the Vedic literatures of ancient India)...." The Park District's resolution barred Higher Taste from selling their T-shirts, or distributing them in exchange for a voluntary contribution, on the walkway leading to the front of the zoo. The court concluded that the Park District had not met its burden of showing that its restriction is narrowly tailored to meet its significant interests in park aesthetics and public safety.

Court Upholds Texas Rejection of Graduate Program In Creation Science

In Institute for Creation Research Graduate School v. Texas Higher Education Coordinating Board, (WD TX, June 18, 2010), a Texas federal district court upheld the Texas Higher Education Coordinating Board's refusal to grant the Institute of Creation Research Graduate School a certificate of authority to offer a Master of Science degree with a major in Science Education. The Texas Education Code (Sec. 61.301) authorizes the Board to regulate the use of "academic terminology" in order "to prevent deception of the public resulting from the conferring and use of fraudulent or substandard college and university degrees." The Board denied ICRGS's application because its curriculum which was designed to promote "scientific creationism" and "Biblical creationism" does not adequately cover the breadth of knowledge of the discipline taught. The Board's decision was based on the conclusion by the Commissioner of Higher Education that the school's program "inadequately covers key areas of science and their methodologies and rejects one of the foundational theories of modern science," and thus "cannot be properly designated as either 'science' or 'science education.'"

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

Yesterday Iowa federal district judge Linda Reade released a 52-page Sentencing Memorandum in the case of United States v. Rubashkin. In it she concludes that at the hearing scheduled for today she will impose a sentence of 27 years in prison, followed by five years of supervised release, on Sholom Rubashkin who was convicted on 86 counts of financial fraud. Rubashkin, former vice president of the kosher meat processing firm Agriprocesors in Postville, Iowa, will also be ordered to pay restitution totalling $26.85 million to two banks and a livestock supplier. The sentence imposed is at the low end of the Federal Sentencing Guidelines range for the crime and offender characteristics involved as computed by the court, but is two years more than the prosecution requested. (See prior posting).

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

Russian President Dmitry Medvedev will be in the United States this week to promote Russian-US economic ties. Tomorrow he visits California's Silicon Valley and on Thursday he will meet with President Obama in Washington. (Business Week). Last week, Leonard Leo, recently re-elected chairman of the U.S. Commission on International Religious Freedom, wrote President Obama urging him to publicly raise religious freedom and other human rights issues with the Russian leader. (Full text of letter.) The letter urges the President to press for reform of Russia's law on extremism and "to protest the impunity accorded to Russian officials and others who commit gross human rights violations as well as violent hate crimes against members of Russia’s religious and ethnic minorities...." The letter goes on to express concern that "the de facto favored status of the Moscow Patriarchate Russian Orthodox Church results in difficulties for minority religious communities, particularly those officially deemed non-traditional, such as the non-Moscow Patriarchate Russian Orthodox and Protestant communities."

RLUIPA Lawsuit Filed By Hasidic Group Against New York Village

A lawsuit has been filed against the village of South Blooming Grove, New York by a Satmar Hasidic group that wants to restore an old club house at a former resort on Lake Anne. Today's Hudson Valley Times Herald-Record reports that the lawsuit, originally filed in state court but transferred to federal court on the judge's order, claims that the village's refusal to consider Sheri Torah's application violates RLUIPA. The village says the application by the Jewish group raises questions. Originally Sheri Torah sought to build a synagogue, then it asked for a special use permit to build a yeshiva, and finally it filed a site plan for a subdivision with more than 500 homes. Sheri Torah, a group opposed to the leadership in the nearby Satmar community of Kiryas Joel, is associated with a group of investors who have been trying for years to develop the 800 acres-- nearly half the land in the village-- that belonged to the former resort on Lake Anne. The village's attorney accuses Sheri Torah of trying to bully their way to get land use approval. According to Wikipedia , South Blooming Grove was incorprated in 2006 to check expansion of the Satmar Hasidim in Kiryas Joel. Since then, two other RLUIPA lawsuits have been filed against it.

Louisiana Passes Religious Freedom Act

The Louisiana legislature has passed and sent to Gov. Bobby Jindal for his signature SB 606, the Preservation of Religious Freedom Act. As reported by the Baton Rouge Advocate, final enactment came yesterday as the state Senate voted 30-6 to concur in House changes. (Vote history). The bill provides that state and local governments must show both a compelling interest and use the least restrictive means before they may substantially burden a person's exercise of religion, even through a facially neutral rule or a rule of general applicability. Opponents say the law will open floodgates for costly lawsuits.

Sunday, June 20, 2010

Recent Prisoner Free Exercise Cases

In Powell v. Raemisch, 2010 U.S. Dist. LEXIS 57798 (WD WI, June 11, 2010), a Wisconsin federal district court permitted a Muslim inmate to proceed with free exercise and RLUIPA claims alleging that he was denied Ramadan meal bags for 18 days during Ramadan in 2009.

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

In Wilson v. Gaetz, (7th Cir., June 17, 2010), the U.S. 7th Circuit Court of Appeals has raised an interesting Establishment Clause concern over a traditional aspect of the insanity defense. The case involved a murder defendant who suffered from delusions about a sinister Catholic conspiracy. A famous 1915 New York case decided by then-Judge Cardozo created the "deific decree" exception to the principle that an insanity defense requires that the defendant show his mental illness prevented him from appreciating the wrongfulness of his act. Cardozo argued that "if ... there is an insane delusion that God has appeared to the defendant and ordained the commission of a crime, ... it cannot be said of the offender that he knows the act to be wrong" even though he knows that it is illegal. Here the 7th Circuit observed:

[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

In Te-Moak Tribe of Western Shoshone of Western Nevada v. U.S. Department of the Interior, (9th Cir., June 18, 2010), the 9th Circuit held that the Bureau of Land Management's approval of an amendment to a phased exploration project on sacred Indian land in Nevada violated the National Environmental Policy Act. Cortez Gold Mines, Inc. plans to explore for minerals in the area that is traditionally linked to the religion and culture of the Te-Moak and other Western Shoshone tribes. In particular, Mount Tenabo, traditionally used for prayer and meditation, is considered the source of life by the tribes and figures in their creation stories. The court concluded that the BLM's required Environmental Assessment of the amendment to the project failed to adequately consider the cumulative impacts to Cultural Resources and Native American Religious Concerns of the proposal. However the court concluded that the project did not violate either the National Historic Preservation Act or the Federal Land Policy and Management Act. After consultation with the Tribe, BLM has already designated Horse Canyon and parts of Mount Tenabo-- both within the project area-- as eligible for inclusion on the National Register of Historic Places. Courthouse News reports on the decision.

New Zealand Court Faces Religious Accommodation Issue In Community Service Sentence

New Zealand's Dominion Post yesterday reported on an unusual religious accommodation issue that has arisen in a community service sentence imposed by a New Zealand court on a recent Muslim convert. Last December, Jason Osborne was sentenced to 300 hours of community work for failure to pay $15,334 of fines. His probation officer assigned him to work in the recycling area of a rubbish dump and Osborne refused. Corrections officials claim Osborne told them he needed to pray 5 times each day and could not do so in front of non-Muslims. Osborne however says his only objection was that at the rubbish dump he could not find a clean enough place to pray at the twice-per day prayer times during his work schedule. After being threatened with prison if he did not complete his community service, Osborne found a different probation officer who allows him to do his community work as Splash Planet, and he has completed 50 hours during the past three weeks. On Thursday he appeared in court in Hastings to plead guilty to not completing his community work. After holding him in custody over night, the court released him on bail for eight weeks for him to complete his 300 hours of service.

Saturday, June 19, 2010

6th Circuit Permits Evangelist To Distribute Literature On Outskirts of Arab Festival

In Saieg v. City of Dearborn, (6th Cir., June 17, 2010), the U.S. 6th Circuit Court of Appeals issued an injunction pending appeal to permit a Christian evangelist to distribute religious literature on the streets in the "outer perimeter" or "buffer zone" of the 2010 Dearborn Arab International Festival this week. A federal district court had upheld festival rules that required literature distribution take place only from a booth in the vendor area. (See prior posting.) The 6th Circuit said that prior case law supports restricting leaflet distribution among crowds in the core area of the Festival, but not in the surrounding streets. The Thomas More Law Center issued a release on the decision and the Detroit Free Press reports on the decision.

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

A release yesterday from the Religious Action Center for Reform Judaism reports that 21 religious and secular organizations have sent a joint letter to the Senate Judiciary Committee suggesting questions that should be asked during the Elena Kagan hearings on the Supreme Court nominee's views on the First Amendment religion clauses. Among other things, the five questions focus on instituitonal as well as individual religious liberty concerns, questions of taxpayer standing and the nominee's broader views about the Court's religion clause jurisprudence.

Quebec Court Orders Exemption From Religious Culture Course For Catholic School

In Canada, a Quebec Superior Court yesterday ordered the provincial government to grant an exemption from the mandatory course in Ethics and Religious Culture to a private Catholic high school. In a reform implemented last year, Quebec required both public schools and private religious schools (most of which receive some government funding) to offer a course in Ethics and Religious Culture covering Christianity, Judaism, aboriginal spirituality, Islam, Hinduism and Buddhism. (See prior posting.) The Montreal Gazette reports that Loyola High School has won the right to teach about other religions and ethical creeds from a Catholic perspective rather than following the secular teaching guidelines created by the Education Department. The court ruled that otherwise the province would be infringing the school's religious freedom guaranteed by the Quebec Charter of Human Rights and Freedoms. The court wrote: "The obligation imposed on Loyola to teach the ethics and religious culture course in a lay fashion assumes a totalitarian character essentially equivalent to Galileo’s being ordered by the Inquisition to deny the Copernican universe." A broader challenge to the new course filed by parents was rejected last year. (See prior posting.)

Suit Planned Against Legion of Christ Over Sex Abuse

AP reports that a Mexican man, Jose Raul Gonzalez, plans to file suit on Monday against the Legion of Christ claiming that the now-deceased priest who founded the religious order was his father and sexually molested him. Gonzalez' mother, Blanca Lara Gutierrez, claims that Legion founder Rev. Marcial Maciel-- posing as an oil company employee and CIA agent-- fathered two children with her, adopted another, and proceeded to abuse two of the three children. The suit, charging fraud and negligence, will be filed in Connecticut where the Legion's U.S. headquarters are located. Plaintiff Gonzalez says that Maciel promised him and his brothers a trust fund. Gonzalez previously asked the Legion for $26 million to remain quiet about his charges against Maciel.

Friday, June 18, 2010

New Jersey Rabbi Pleads Guilty To Money Laundering

The Newark (NJ) Star-Ledger reports that yesterday Rabbi Eliahu Ben Haim, former head of a prominent synagogue in Deal, New Jersey, plead guilty in a New Jersey federal district court to money laundering charges. Ben Haim was one of five rabbis from the Syrian Jewish community and 39 others arrested last year in a high profile federal investigation of public corruption and money laundering. (See prior posting.) The rabbi used religious charities to launder $1.5 million purportedly from illegal activities provided to him by a government informant. According to a plea agreement, Ben Haim will cooperate in an investigation of his past tax returns, but he did not agree to cooperate in the prosecution of others in the case. Ben Haim remains free on $1.5 million bail.

Priest Publicly Challenges La Crosse Diocese's Standards In Reviewing Abuse Charges

Yesterday's Milwaukee (WI) Journal Sentinel reports that James Connell, a priest and canon lawyer who serves on the Archdiocese of Milwaukee Review Board has issued an open letter (full text) complaining that the standard of proof used by the Diocese of La Crosse's Child Sexual Abuse Review Board in evaluating whether to pursue a case against a priest or deacon is too high. He says that the Vatican requires any sexual abuse charge against a priest that "has a semblance of truth" to be referred to the Vatican's Congregation for the Doctrine of the Faith. (Vatican Guide).(See prior related posting.) However the La Crosse Diocesan Review Board that assists the Bishop in assessing charges apparently uses a standard of "moral certitude which excludes every prudent doubt or every doubt founded on positive reasons." Connell says that data for La Crosse shows a substantially higher percentage of unsubstantiated charges of abuse that the national average, and that this might be due to using too high a threshold in evaluating evidence. Connell went public after three months of trying to get the Diocese to make changes.

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

In Brooklyn, New York, opponents of a proposed $64 million amphitheater project in Coney Island's Asser Levy Park filed suit in state court yesterday, invoking a city law designed to protect religious congregations. (See prior related posting.) The law prohibits amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. An Orthodox synagogue, Sea Breeze Jewish Center, which is 300 feet from the park, has services every day. In the summer, evening services run until 10:00 p.m. Already police do not issue sound permits for the park for Friday and Saturday nights because of larger services at the synagogue on the Sabbath. But up to now synagogue members have not complained about concerts on other nights in the park's existing band shell. Now however, according to the New York Daily News, these weekday concert are being challenged. At stake are this year's free summer concerts (schedule), including ones by the Beach Boys and Neil Sedaka. A hearing is scheduled for June 30; the Neil Sedaka concert is scheduled for July 15. Plaintiffs say if they win on these concerts, that should establish precedent for stopping the entire amphitheater project.

RLUIPA Suits Settled-- Shabbos House OK'd; Prayer Breakfast Will Move

AP yesterday reported that the village of Sufferin, New York has settled a RLUIPA lawsuit brought against it by the Department of Justice chllenging the village's refusal to grant a zoning variance to permit the operation of a "Shabbos House" near Good Samaritan Hospital. The Shabbos House allows observant Jews to stay within walking distance of the hospital so they can visit patients without violating Jewish religious law that bars driving and use of money on the Sabbath. The settlement allows up to 14 people to stay overnight at the Shabbos House. The operator of the facility, Bikur Cholim, Inc., agreed to apply for a site-plan approval and comply with any instructions. The village attorney said the house has been operating throughout the four-year lawsuit without any incidents. A separate suit brought by Bikur Cholim was also settled. (See prior related posting.)

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

The ACLU of Southern California yesterday announced that it has filed a lawsuit against the Citizenship and Immigration Service alleging that the naturalization application of a 50-year old Egyptian Muslim man was wrongfully denied. It claims that USCIS's action in the case of Tarek Hamdi is part of a broader pattern of discrimination against Muslims who are seeking citizenship. The complaint (full text) in Hamdi v. United States Citizenship and Immigration Service, (SD CA, filed 6/16/2010), alleges that USCIS determined that Hamdi was ineligible for naturalization because of false statements on his application and during interviews. At issue is Hamdi's failure to disclose, in response to a question on the naturalization application, an "association" with Benevolence International Foundation, an Islamic charity which the Treasury Department has designated as financing terrorism. Hamdi made a single donation to the charity in 2000, and says that he did not regard this as "associating" him with the group. The lawsuit claims that applying the question on associations to charitable organizations to which an individual has made a donation is unconstitutional because it is void for vagueness. The Riverside (CA) Press-Enterprise reports on the case.

In Israel, Demonstrators Back Dissident Haredi Parents Defying High Court

On Tuesday, according to the Jerusalem Post, Israel's High Court ruled that a group of parents of the Slonim Hasidic sect will be imprisoned for two weeks for contempt if they do not obey the court's previous order (background) to send their girls back to a school where they study together Sephardi students. However the parents remain adamant. Beit Ya'acov school in Emmanuel removed a physical separation that had been built for some 70 students pursuing the Hasidic track of studies after the High Court ruled that it amounted to illegal discrimination. The parents have refused to return their girls to the school unless all the students' parents agree to a very stringent code of conduct and dress. Their attempts to send the girls to school outside of Emmanuel have been rejected by the Education Ministry. A member of the parents' committee said: "This is a battle over the Jewish religion, and the guardians of the religion, who have won all their past battles, will be victorious here, too."

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

In Grzelak v. Poland, (ECHR, June 15, 2010), the European Court of Human Rights by a vote of 6-1 held that a Polish school violated the European Convention on Human Rights when it failed to offer an ethics class for a student who opted out of the school's religious education class. The Court held that the absence of a grade for Religion/Ethics on the student's school certificates would be understood by any reasonable person as an indication that the student did not take widely available religious education classes, and would lead to the conclusion that he was likely a person without religious beliefs. By indirectly requiring the student to reveal his religious beliefs, the school violated Article 14 (prohibition on religious discrimination) taken in conjunction with Article 9 (freedom of thought, conscience and religion) of the Convention. In the case, the student argued that because most state schools in Poland do not provide separate ethics courses, non-Catholic parents often end up sending their children to religious instruction classes with which they disagree. Baltic Review reports on the decision.

Trial Judge Hears Closing Arguments In Challenge To California's Prop 8

Yesterday in federal district court in San Francisco, Judge Vaugh Walker heard closing arguments in Perry v. Schwarzenegger, the federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. The Washington Post and the San Francisco Chronicle report on the arguments in which Charles J. Cooper, arguing on behalf of supporters of Proposition 8, focused on the procreative role of marriage. In the two and one-half week trial, Cooper called only two witnesses, political scientist Kenneth Miller who said that gays and lesbians were not in need of special protection to vindicate their political rights, and author David Blankenhorn who testified that same-sex marriage could impact the number of marriages between men and women. David Boies and Theodore Olson, attorneys for the challengers, presented most of the witnesses in the 12-day trial in January-- same-sex couples and eight academics. In his closing argument, Olson contended that Proposition 8 involved discrimination on the basis of gender and focused on the 1967 Supreme Court decision in Loving v. Virginia which struck down state bans on interracial marriages. (See prior related posting.)

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

On Tuesday, the Council on American-Islamic Relations wrote Attorney General Eric Holder (full text of letter) complaining about cases of U.S. citizens who, while traveling abroad, have been placed on the U.S. no-fly list and have been delayed or prevented from returning home. The New York Times Tuesday ran an article about a 26-year old American Muslim from Virginia who has now been stranded in Cairo, Egypt for six weeks. He was placed on the no-fly list and questioned by FBI agents as he was trying to return to the U.S. from an 18-month stay in Yemen. CAIR says that in one case, a man questioned by the FBI in Cairo was pressured to spy on the American Muslim community when and if he is allowed to return to the U.S. Yesterday, CAIR issued a press release and held a news conference on the issue.

Wednesday, June 16, 2010

President Announces Religious Freedom Appointees

President Obama yesterday announced his intent to appoint Suzan Johnson Cook to the vacant position of Ambassador-At-Large for International Religious Freedom. Dr. Cook is the Founder and President of Wisdom Worldwide Center, and has also served as the Senior Pastor of Bronx Christian Fellowship Baptist Church in New York City since 1996. Religious freedom advocates have been pressing for Obama to fill this position. (See prior posting.)

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

Norway's National Court Administration ruled yesterday that judges and other court officials can wear religious dress during court sessions. This includes the Muslim hijab (headscarf) and the national costume of the indigenous Sami people. Europe News reports that the ruling departs from an initial proposal that would have banned all religious clothing. Under yesterday's ruling, if a party to the case objects to the clothing, the court official can be recused.

Religious Liberty Legal Scholar Named President of Catholic University

Catholic University announced yesterday that Boston College Law School Dean John H. Garvey has been selected as Catholic University's next president. Garvey is a leading scholar on religious liberty and church-state issues. Among his publications are a casebook titled Religion and the Constitution, co-authored with Michael McConnell and Thomas Berg, and over a dozen articles on religious liberty and Establishment Clause issues. (Full bibliography.)

Australian Court Expands Asset Freeze In Suit By Donors To Fraudulent Religious Group

In the Australian city of Adelaide, a district court has expanded a freeze on the assets of three leaders of Agape Ministries. ABC News reports that the court has frozen all the assets in Australia of Agape's leaders, Rocco Leo, and Joseph and Marieantoinette Veneziano. The freeze comes in a lawsuit by two plaintiffs who claim they gave $400,000 and over $1 million, respectively, to Agape based on false promises. According to the lawsuit, Agape told its members they needed to contribute funds to relocate all members to a South Pacific island to protect them from microchips the government was planning to implant in all humans. Members were told they would go to hell if the chips were implanted, but that if they refused the government would put them in concentration camps and gas or behead them.

Religious Billboards Said To Violate Highway Beautification Act

Last Saturday's Bowling Green, Kentucky Daily News reports on the lawsuit originally filed in 2008 by the Kentucky Department of Transportation against farmer Jimmy Harston over billboards with religious messages that Harston has erected on private property next to Interstate 65. Carrying messages such as "Jesus Died for Our Sins", the signs sit on property that Harston leases from landowners. However the federal Highway Beautification Act (23 USC Sec. 131) provides for a reduction of federal highway funds to states that do not effectively control outdoor advertising signs along Interstate highways. Harston says his signs are not for profit and should not be covered by the ban. However he lost the lawsuit against him in 2008, and the decision is currently on appeal. A state legislator has proposed a bill to exempt Harston's billboards from the federal restriction.

Tuesday, June 15, 2010

Greece May Drop Religious Oath Requirements

Under pressure from the European Union, Greece's Justice Ministry is drafting a new law that will do away with required religious oaths for members of Parliament, witnesses at trials, soldiers and various public officials. Kathimerini reported yesterday that the Church of Greece has dropped its opposition to the change. The EU says that requiring the oath infringes individual rights, and that even the option to abstain, or instead take a political oath, that exists in some situations in Greece still infringes privacy rights by forcing individuals to identify as non-believers.

Appeal In Sale of Historic African-American Synagogue Argued

Today's Wall Street Journal reports that oral arguments were heard earlier this month by a New York state appellate court in a challenge to the sale of a Harlem townhouse that for over 40 years was home to a historic Black Hebrew congregation. The New York City congregation, known as Commandment Keepers Ethiopian Hebrew Congregation of the Living God, the Pillar and Ground of Truth, is considered the oldest African-American synagogue in the United States. Most of its members traced their origins to ancient Israelites. In 2007, one faction of the congregation, claiming to represent the last nine members, sold the building to a developer for $1.625 million. Another faction that includes the grandson of the founding rabbi filed suit to recover the deed to the building, saying that it was not consulted. In a 2008 decision, a trial court judge refused to overturn the sale, even though he questioned whether it should have taken place. Last month, the developer who had purchased the building resold it for $1.85 million to writer Darryl Pinckney and British poet James Fenton.

Appeal Filed In Nampa Classical Academy Case

Yesterday a Notice of Appeal was filed in Nampa Classical Academy v. Goesling, appealing an Idaho federal district court's denial of a preliminary injunction to the 9th Circuit. In the case, the trial court rejected a challenge by a state-funded charter school to a state policy that barred its use of the Bible, the Koran and other sectarian books as primary source teaching material. The district court held that the charter school is itself a political subdivision and has no rights to assert against the state that is controlling the content of governmental speech. (See prior posting.) According to a press release from Alliance Defense Fund, the appeal claims that the local school district, not the state's Public Charter School Commission, is the body that has the right to make decisions on implementing state curriculum standards.

Egypt Drafting New Mariage Law After Court Upsets Coptic Church Rules

Egypt's Justice Ministry yesterday announced that a 30-person committee has been appointed to draft a new marriage and divorce law to cover the country's minority non-Muslim religious groups. AP reports that the move responds to anger from Egypt's Coptic Christian Church over a Supreme Administrative Court decision last month holding that divorced Copts have a right to remarry in the Church even when that violates Church law. (See prior posting.) Justice Minister Mahmoud Marei said the new law would "ensure everyone's right to worship God according to their own set of rules."

Churches Help Out Cash-Strapped Public Schools; Get Access To Families

Yesterday's Wall Street Journal reports that as public schools experience increased budget cuts, they are looking for private sector partnerships. In some places, churches have stepped in to become those partners. When Lakeland, Florida's Combee Elementary School had its budget for essential supplies cut by a third, a local Baptist church "adopted" the school. First Baptist Church at the Mall, a 9000-member congregation, stocked a resource room with $5000 worth of supplies, sends in math and English tutors, caters spaghetti dinners at evening events and buys sneakers for students who cannot afford them. The Church's pastor, Dave McClamma, says: "We have inroads into public schools that we had not had before. By befriending the students, we have the opportunity to visit homes to talk to parents about Jesus Christ." Last Christmas, the school connected the Church with 30 families who agreed to visits at home by the Church. The pastor says 13 of those families "came to the Lord." School principal Steve Comparato says he would welcome congregations of any faith as sponsors, but added: "My personal conviction is that I hope through this they'll know Jesus and they'll get saved." [Thanks to Glenn Katon for the lead.]

Monday, June 14, 2010

Israel's High Court Voids Special Payments To Married Yeshiva Students

Israel's Supreme Court today struck down a provision in the country's Minimum Income Guarantee Law that assures special financial benefits for married kollel yeshiva students but does not give comparable stipends to students studying in secular institutions. The current law gives benefits to married couples who do not work, who have three or more children and who do not own an automobile. Around 10,000 students currently receive these payments. Haaretz, Jerusalem Post and YNet News all report on the 6-1 decision by the Court. Supreme Court president Dorit Beinisch's majority opinion said that the special treatment of kollel students violate basic principles of equality. It ordered that the provision for these payments be removed from the 2011 State Budget. Interior Minister Eli Yishai of the religious Shas Party criticized the ruling as discriminatory against the haredi (strictly Orthodox) population and said legislation would be introduced to restore the stipends. Today's opinion came in a case originally filed ten years ago by Arnon Yekutieli, a proponent of secular rights and a former deputy mayor of Jerusalem. He died in 2001

New York Mets Sued By Kosher Food Vendor Over Sabbath Operations

A lawsuit was filed last week against the New York Mets by Kosher Sports, Inc., a kosher food vendor that sells hot dogs, hamburgers, knishes, beer and other food from three portable stands at Citi Field. According to yesterday's New York Post, Kosher Sports claims it has approval from Star-K, its kosher certifying agency, to sell food at baseball games on Friday nights and Saturday afternoons, the Jewish Sabbath. It says that its 10-year contract with Citi Field also permits this. Kosher Sports' lawsuit claims that the Mets, whose owners are Jewish, has nevertheless barred the vendor from selling food on the Sabbath, causing it to lose $500,000 in profits last year. The suit seeks $1 million in damages. Star-K's Rabbi Shmuel Heinemann denies that he has approved Kosher Sports' operation on the Sabbath. [Thanks to Steven H. Sholk and to Joel Katz (Relig. & State In Israel) for the lead.]

Gangs Using Rosaries As Identifiers

While the recent case of a Schenectady, New York school principal who invoked the school's anti-gang paraphernalia ban to suspended a 13-year old student for wearing a rosary outside of his shirt has led to widespread criticism of school authorities, it turns out the principal may have been onto something. Alexandria, Louisiana Town Talk reported Saturday that in fact many gangs have turned to rosaries as a gang symbol after schools began prohibiting bandannas, specific clothing and hairstyles. The gangs tell their members to invoke religious freedom if they are called in by the school principal. According to a San Antonio (TX) Police Department handbook, gang members not only wear certain colors, but they also arrange beads to signal their rank. Jared Lewis, a former California police officer, says that rosaries are most popular among Latino gang members. He says that the Latin Kings gang use colored beads to mark members' rank in the gang-- five black and five gold beads for members; two gold beads for top dogs; while assassins wear all black. Members of the Netas, an East Coast gang with origins in Puerto Rico, wear 78 red, white and blue beads to symbolize the 78 towns in Puerto Rico. Prospective members wear all white beads before they join the gang.

Sunday, June 13, 2010

Hawaii Governor Talks With Rabbis In Deciding On Civil Union Bill

AP reported yesterday that Hawaii Governor Linda Lingle, who is Jewish and is a Republican, has recently met with two rabbis as she is considering whether to sign or veto HB 444, a bill passed by the Hawaii legislature that allows civil unions for same-sex as well as opposite-sex couples. (Background from Wikipedia.) The two rabbis are on opposite sides of the issue. Rabbi Itchel Krasnjansky who leads Hawaii's Orthodox Jewish Habad movement, says that the Torah teaches that homosexuality, and by extension same-sex marriage, should not be condoned or legalized. However Reform Rabbi Peter Schaktman-- whose Temple Gov. Lingle attends-- says Judaism teaches that all people regardless of sexual orientation are "children of God" and they should not face discrimination. He argues: "Civil unions are a legal arrangement. Therefore, anyone who uses religion to oppose civil unions is purely using religion to further homophobia."

Court Says Reasonableness of Religious Accommodation Is Jury Issue

In Haliye v. Celestica Corp., (D MN, June 10, 2010), Muslim plaintiffs sued their former employer and a temporary employment agency under Title VII of the 1964 Civil Rights Act claiming that defendants discriminated against them on the basis of their religion and failed to accommodate their religious duty to pray five times each day. A Minnesota federal district court refused to grant summary judgment to defendants, concluding that factual issues remained for the jury as to the reasonableness of the religious accommodations offered by defendants. The company had offered to change plaintiffs to a different shift. The temp agency offered alternative assignments to plaintiffs.

Recent Prisoner Free Exercise Cases

In Hodgson v. Fabian, (8th Cir., June 7, 2010), the 8th Circuit rejected a Wiccan inmate's challenges under RLUIPA and the First Amendment to limits on his keeping prayer oil in his cell and limits on the herbs he can purchase and on smudging and incense burning inside. It also rejected his complaints about delay in receiving his religious mail.

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

Last week, Michael Newdow filed a Petition for Panel Rehearing or Rehearing En Banc with the D.C. Circuit in Newdow v. Roberts, an Establishment Clause challenge to prayer and use of "so help me God" in the oath at Presidential inauguration ceremonies. Last month, the D.C. Circuit dismissed the lawsuit. Two judges held that the case was moot and that plaintiffs lacked standing, while the third would have dismissed on the merits. (See prior posting.) [Thanks to Bob Ritter for the lead.]

European Court Holds Russia Violated ECHR In Dissolving Moscow Jehovah's Witnesses

In Jehovah's Witnesses of Moscow v. Russia, (ECHR, June 10, 2010), the European Court of Human Rights held that an order by a Russian court dissolving the Moscow branch of the Jehovah's Witnesses and placing a permanent ban on its activities violates Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights read in light of Article 11 (freedom of assembly and association). The government's refusal to re-register the organization under the 1997 Religions Act had no legal basis and also violates ECHR Article 11 read in light of Article 9. The Court found that:

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

Supreme Court nominee Elena Kagan's views on religious freedom issues may have been fleshed out a bit in the release yesterday by the Clinton Library of 74 boxes of files (some 43,000 pages) of documents relating to Kagan's service from 1995-1999 with the White House in Domestic Policy positions. This supplements other files released earlier this month. (Links to all documents released.) The memo (full text) that is most revealing of Kagan's personal views is one suggesting that the Solicitor General's office should consider supporting a petition for certiorari filed in the U.S. Supreme Court in a housing case. Here is a portion of what Kagan had to say in the memo:

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 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 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 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

AP reports that Pope Benedict XVI delivered a homily this morning (full text) at a Mass in St. Peter's Square, concelebrated by 15,000 priests, to mark the end of the Vatican's Year for Priests. The Pope directly addressed the Church's sex abuse scandal, saying:

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.

Fashioning much of his homily around the text of the 23rd Psalm, the Pope also attacked the Deism of the Enlightenment period:

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

In Saieg v. Haddad, 2010 U.S. Dist. LEXIS 56331 (ED MI, June 7, 2010), a Michigan federal district court upheld as a valid "time, place and manner regulation" a requirement that any literature distribution at the annual Dearborn, Michigan Arab International Festival must take place from a booth in the vendor area. Dearborn has one of the largest Muslim populations in the United States. Plaintiff, founder of a ministry whose purpose is to proclaim the Christian Gospel to Muslims, sought to continue Arab Christian Perspective's pre-2009 practice of handing out literature while roaming the public sidewalks at the Festival. Festival organizers furnished plaintiff a booth, free of charge. Also, plaintiff and his associates can "mingle throughout the Festival and talk to people. Additionally, while circulating freely, they will be able to wear pins containing a message. The sole issue of contention is leafleting." The court concluded that the restriction is content-neutral, is narrowly tailored to serve a significant governmental interest and leaves open ample alternative channels for communication. The court also rejected a selective enforcement claim against the city.

Excusing Potential Jurors With Religious Holiday Conflict Is OK'd

In State of New Jersey v. Banks, (NJ App., June 9, 2010), the defendant appealed his murder conviction, challenging the trial judge's exclusion of three prospective jurors who said they could not attend the trial on one of the days it was scheduled because of their observance of Yom Kippur. At trial, when defense counsel objected that the judge's actions were excluding everyone who is Jewish, the judge responded: "There are Jewish people who I am sure do not honor the holiday and they are welcome to sit. We are not closed for court. I honor any kind of holiday of a person who has religious observance."

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

Yesterday's New York Times and the London's Financial Times report that Parliamentary elections in the Netherlands on Wednesday resulted in a surprisingly strong showing for the anti-immigration Freedom Party of Geert Wilders. The party, coming in third, won 16% of the vote and captured 24 seats in the 150-seat House of Representatives, the main chamber of Parliament. The largest number of seats-- 31-- went to the Liberal Party, but it now needs coalition partners to capture a majority. Wilders is pressing to become part of the coalition government. As election results were announced late Wednesday, Wilders said: "More safety, less crime, less immigration and less Islam is what the Netherlands has chosen. We would love to govern. I don’t think other parties can ignore us." Meanwhile, Wilders is facing charges in the Netherlands of inciting hatred and and discrimination against Muslims and non-Western immigrants, and insulting Muslims, growing out of the anti-Muslim film, Fitna, that he produced. (See prior posting.)

Court Rejects Landowner's RLUIPA Challenge To Mixed Use Zoning Ordinance

In Dixon v. Town of Coats, 2010 U.S. Dist. LEXIS 56740 (ED NC, June 9, 2010), a North Carolina federal district court rejected a RLUIPA challenge as well as federal and state constitutional challenges to a zoning ordinance that excluded religious assemblies from a six-block Mixed Use Village in downtown Coats, North Carolina. The court held that while a landowner who intends to rent his property to a Christian church has standing to bring a "substantial burden" claim under RLUIPA, the exclusion of churches from one area does not place a substantial burden on free exercise when other ares in the Town are available for churches. The court also rejected plaintiff's claim under the "equal terms" provision of RLUIPA, holding that the plaintiff must be "a religious assembly or institution" to bring a claim under this section. The court went on to reject federal and state free exercise claims and a federal equal protection claim.

Ecclesiastical Abstention Doctrine Bars Court From Deciding Governance Dispute

In Rentz v. Werner, (WA App., June 7, 2010), a Washington state appellate court held that the ecclesiastical abstention doctrine precludes the court from adjudicating a dispute between former members of the Aquarian Foundation, a spiritualist church headquartered in Seattle, Washington, and the church’s current minister. At issue is the interpretation of the church's articles of incorporation and bylaws. Plaintiffs allege that the minister improperly expelled them and others from church membership. The minister argues that she is president of the congregation and its minister for life, and that those she expelled were committing heresy. The court concluded that the issues raised in the litigation go to the core of the church's ecclesiastical affairs, and that the First Amendment protects against judicial interference in religious belief and practice whether the church is congregational or hierarchical.

Judge, Wife of Tony Blair, Cleared Over Sentencing Comments

UK Press Association yesterday reported that Britain's Office for Judicial Complaints cleared Cherie Blair, wife of former Prime Minister Tony Blair, of charges of judicial misconduct. (OJC Statement, 6/10). Blair sits as a part-time judge at Inner London Crown Court, using her maiden name, Cherie Booth. As previously reported, Booth sentencing defendant Shamso Miah in an assault case, told him: "I am going to suspend this sentence for the period of two years based on the fact you are a religious person and have not been in trouble before. You are a religious man and you know this is not acceptable behaviour." Both the National Secular Society and the British Humanist Association complained that Blair acted in a discriminatory manner in suggesting that a non-religious person would have been treated more harshly. At the same time, some in Britain on the political right charged bias in favor of Muslims.

Thursday, June 10, 2010

Virginia Supreme Court Says Division Statute Does Not Apply To Episcopal Church Split

Today in Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, (VA Sup. Ct., June 10, 2010), the Virginia Supreme Court reversed a decision of the state's circuit court (see prior posting) and held that Virginia's 1867 "Division Statute" does not apply to nine congregations that broke away from The Episcopal Church and affiliated with the Convocation of Anglicans in North America. The statute, Va. Code § 57-9(A), provides: "If a division has ... occurred ... in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority ..., determine to which branch of the church ... such congregation shall thereafter belong." The Supreme Court held that while there had been a "division" in The Episcopal Church, the Convocation of Anglicans in North America is not a "branch" of The Episcopal Church. This holding revived the declaratory judgment actions that had been filed to determine ownership under real property and contract law of the property of the break-away congregations. [Thanks to Bob Tuttle for the lead.]

$1 In Damages Awarded In Claim That Police ID Card Containted Mark of the Beast

In Brooklyn, New York, a federal judge has awarded damages of only $1 to a school safety officer who was suspended from her job after she refused to be fingerprinted or accept the New York Police Department's new biometric identification card with embedded computer chips. Velma Craig, a nondenominational Christian, believes the card contains the "mark of the beast", warned against in the Book of Revelation. Today's New York Times reports that in 2007, the court granted summary judgment to Craig, finding that the city had "utterly failed" to explain why it could not have accommodated Craig's religious beliefs. Damages were left to a later phase. Last month the court appointed a lawyer for Craig, but he asked to be dismissed after Craig refused to cooperate in preparation for the damages trial. Then, when Craig asked for a delay in the jury trial that was set to start yesterday, the court ruled that if she did not proceed on her own, it would merely award her $1 in damages. Craig agreed to that, but said she would appeal.

Lawsuit Challenges Health Care Reform As Infringement of Religious Beliefs

Yesterday, the American Center for Law & Justice, on behalf of five plaintiffs, filed a federal lawsuit challenging the constitutionality of the individual mandate imposed by the recently enacted health care reform legislation. (Press release.) In addition to claiming that this portion of the Patient Protection and Affordable Care Act exceeds Congress' power under the Commerce Clause, the lawsuit alleges that the new law violates the rights of three of the plaintiffs under the Religious Freedom Restoration Act. The complaint (full text) in Seven-Sky v. Holder, (DDC, filed 6/9/2010) alleges, for example, that plaintiff Susan Seven-Sky, a chiropractor and massage therapist:

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.

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.

Similar allegation are set out as to two other plaintiffs.

6th Circuit Upholds Permanent Injunction Against McCreary County's Ten Commandments Display

While in 2005, the U.S. Supreme Court upheld a preliminary injunction barring the a display of the Ten Commandments along with other historical documents that refer to God in two Kentucky county courthouses, it turns out that decision hardly ended the litigation. A majority of the Supreme Court concluded that the "Foundations of American Law and Government" displays violated the Establishment Clause because their predominant purpose was the advancement of religion. (See prior posting.) However Justice Souter added: "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." That led the counties to continue to pass new resolutions setting forth secular purposes for the displays. Yesterday in American Civil Liberties Union of Kentucky v. McCreary County, Kentucky, (6th Cir., June 9, 2010), a majority of a 6th Circuit panel agreed with the district court that resolutions adopted in 2005 were adopted only as a litigating position, and affirmed the district court's grant of a permanent injunction. (See prior posting.) Judge Clay's opinion for the court said that while a later 2007 resolution was technically not before the court, it too was inadequate to change the counties' original purpose.

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

Politics Daily reported yesterday on a new advertising campaign in Britain aimed at improving the public perception of Islam. Ads running on buses, in subway stations and on a fleet of cabs emphasize the way in which contemporary Muslims balance their religious traditions with human rights concerns and social responsibility. One ad, for example, shows a female lawyer wearing a headscarf, and carries the message: "I believe in women's rights. So did Muhammad." Another shows a male charity worker with the caption, "I believe in social justice. So did Muhammad." Photos of posters are at the Inspired by Muhammad website. The ad campaign is sponsored by the Exploring Islam Foundation.

Arizona Charges Against Former FLDS Leader Warren Jeffs Dropped

Yesterday's Salt Lake Tribune reports that, upon the motion of the prosecutor, an Arizona court has dismissed the two charges of sexual conduct with a minor pending in Arizona against former FLDS leader Warren Jeffs. Jeffs, who headed the polygamous FLDS sect, has already been sentenced to two 5-year to life sentences in Utah on charges of rape as an accomplice. (See prior posting.) Those convictions are on appeal to the Utah Supreme Court. (See prior posting.) Sexual assault and bigamy charges against him are pending in Texas. (See prior posting.) According to USA Today, the prosecution decided to drop Arizona charges in part because victims no longer wish to pursue the case and in part because Jeffs has already spent more time in jail in Arizona awaiting trial than he could receive if convicted. Jeffs' attorney said he believes that the Arizona charges were dropped because of alleged false statements made in the Utah trial by the chief witness against Jeffs, Elissa Wall. Meanwhile, Jeffs' attorney said they would oppose Jeffs' extradition to Texas while Jeffs' appeal is still pending in Utah.

Mormon Church Agrees To Penalty For Late Reporting of Prop 8 Contributions

The Mormon Church has agreed to pay a proposed $5,539 monetary penalty to California's Fair Political Practices Committee (FPPC) for failing to properly report contributions of $36,968 (including staff time) it made in 2008 to support the passage of Proposition 8, California's ban on same-sex marriage. CBS News reported yesterday that the Church was late in reporting contributions it made to the Protect Marriage Coalition. During the last two weeks of the campaign, it failed to comply with the daily reporting requirements. A statement by the Human Rights Campaign argued that the Church's violations were likely purposeful. The FPPC will vote at its meeting today on whether to approve the proposed fine agreed to by the FPPC Executive Director.