29 State AG's File Amicus Brief Supporting National Day of Prayer

Yesterday, 29 state attorneys general joined together in filing an amicus brief (full text) with the 7th Circuit urging it to find that the National Day of Prayer does not violate the Establishment Clause. In a press release, Texas Attorney General Greg Abbott who led the effort said that the district court decision striking down the Day of Prayer statute (see prior posting) also threatens Memorial Day because federal law requests the President to issue a proclamation each year calling on people to use the day to pray for peace. The brief argues that private prayer contemplated by the National Day of Prayer statute is less intrusive than public prayers routinely offered by each branch of the federal government and that there is a long history of prayer proclamations in this country, both at the federal and state levels.

UPDATE: On July 8, sixty-seven members of the US House of Representatives also filed an amicus brief (full text) seeking reversal of the trial court's decision. (ACLJ Release.)

Massachusetts Federal District Court Strikes Down DOMA

In two companion cases today, a Massachusetts federal district judge held Section 3 of the federal Defense of Marriage Act (1 USC Sec. 7) unconstitutional. That section provides that in interpreting any federal statute or regulation, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Gill v. Office of Personnel Management, (D MA, July 8, 2010), is a suit brought by same-sex couples and survivors of deceased same-sex spouses who were denied various federal marriage-based benefits available to heterosexual couples. The court held that DOMA violates the equal protection clause. It held that it need not decide whether to apply strict scrutiny because the statute lacks a rational basis to support it. In the court's view: "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves."

Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, July 8, 2010), was brought by Massachusetts-- which recognizes same-sex marriage-- contending that DOMA violates the 10th Amendment by intruding on areas of exclusive state authority. It also argued that the law exceeds Congress' Spending Clause powers by forcing the state to discriminate against its own citizens in order to receive federal funds. The court agreed with the challenge holding that DOMA imposes an unconstitutional condition on the receipt of federal funds, impermissibly interferes with state domestic relations laws, and regulates Massachusetts "as a state," interfering with its ability to structure its traditional functions. The New York Times reports on today's decisions.

Washington State Pharmacy Board Backs Down On Rules In Pre-Trial Compromise

In 2007, the Washington state Board of Pharmacy adopted a rule requiring pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. In July 2009, the 9th Circuit vacated a preliminary injunction that the district court had imposed. It remanded the case directing the district court to apply a rational basis standard in adjudicating pharmacists' free exercise challenge to the rule. (See prior posting.) Now as the case was about to go to trial on remand, the state Board of Pharmacy has backed down and negotiated a compromise. In a stipulation (full text) filed yesterday by the parties in Stormans Inc. v. Selecky, the Board told the court that on June 29 it had begun a rule-making proceeding to adopt an amended rule that would permit facilitated referrals for all pharmacies and pharmacists when they are unable or unwilling to fill a prescription for any reason, including conscientious reasons. PubliCola yesterday reporting on these developments quotes Lisa Stone, Executive Director of Legal Voice , who complained that the state had "pulled the rug out from under our clients." Becket Fund issued a release supporting the new rule making, saying that "Americans should not be forced out of their professions solely because of their religious beliefs...."

Egypt's Constitutional Court Freezes Ruling Requiring Coptic Church To Remarry Divorced Men

ANSAmed and AFP reported yesterday that Egypt's Constitutional Court has imposed a temporary freeze on a controversial ruling issued earlier this year by the country's High Administrative Court. That ruling, handed down in May (see prior posting), required the Coptic Christian Church to allow remarriages of divorced men. Coptic Church head Pope Shenouda III however announced that he would excommunicate any Coptic priest who remarries divorced men in violation of Church law.

11th Circuit Upholds Limits on Feeding Large Groups In Parks

In First Vagabonds Church of God v. City of Orlando, (11th Cir., July 6, 2010), the 11th Circuit, in a 2-1 decision, reversed the district court (see prior posting) and upheld Orlando, Florida's Large Group Feeding Ordinance against a variety of constitutional attacks. The Ordinance requires a permit to feed more than 25 people in any downtown park, and limits a group to two permits per park in a 12 month period. It was challenged by Food Not Bombs, an activist group that feeds the poor, and by a church that holds Sunday services (including the sharing of food) in a downtown city park. The majority held that the feeding activities do not amount to symbolic expression under the First Amendment because a reasonable observer would not see them as communicative. It rejected a Free Exercise challenge, finding the Ordinance to be a neutral law of general applicability that serves a rational basis. It rejected void-for-vagueness and equal protection challenges. Finally it concluded that the law does not violate the Florida Religious Freedom Restoration Act because it does not substantially burden the church's exercise of its religious belief in sharing food during services. Judge Barrett dissented, arguing that the activist group's activities are expressive conduct protected by the First Amendment.

State In India Wants To End Prohibition; Ignores Baptist Church In Its Plans

In India, the government of the state of Nagaland is moving to lift a ban on the sale of alcohol that was instituted in 1989 after a campaign led by the state's Baptist Church Council. The ban has mainly encouraged home made liquor and bootlegging rather than reducing the incidence of liquor. Cath News India today reports that the government has not included the Baptist Church in its consultations on repeal. The head of the Nagaland Baptist Church Council Prohibition Committee said: "Christians in Nagaland are prepared to fight for prohibition through any democratic means based on moral and spiritual authority." Some 90% of Nagaland's population of around 2 million are Christians, and most of that number are Baptists.

Hawaii Governor Vetoes Civil Unions Bill; Litigation Planned

Hawaii Governor Linda Lingle yesterday vetoed House Bill 444 that would have given partners in both same-sex and opposite-sex civil unions the same benefits and responsibilities that are enjoyed by married couples. In her veto message (full text) and her statement (full text) accompanying it, Lingle decried the manner in which the legislature's vote on the bill took place (background), and called on the legislature to submit the issue of civil unions to Hawaii's voters. Time, reporting on the veto, indicates that the Hawaii Catholic Conference praised the governor's decision. Now the ACLU and other groups supporting civil unions plan to file suit in state court arguing that Hawaii's state constitution assures LGBT families equal rights and benefits with heterosexual families. (KITV News). (See prior related posting.)

Lawsuit Says Public Utilities In Arizona Town Discriminated Against FLDS Apostates

KSCG-TV News yesterday reported on a lawsuit filed last month by the Attorney General of Arizona against the municipal water and electric companies that furnish utilities to residents of Colorado City, Arizona and its twin community, Hildale, Utah. Land in the towns has traditionally been owned by the United Effort Plan Trust of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). FLDS leaders have encouraged their followers to avoid associating with apostates who they describe as tools of the devil. The complaint (full text) in State of Arizona v. Hildale-Colorado City Utilities, (Maricopa Co.Super. Ct. filed 6/25/2010) alleges that defendants have violated the Arizona Fair Housing Act by discriminatorily denying water service and delaying furnishing electrical service to Ronald Cooke because he was an apostate from the FLDS Church. Cooke, who left the Church at age 18 or 19 returned to Colorado City after suffering serious injuries in an accident and moved into an unfinished home there. He needs water for sanitation and electricity for a medical device he uses. Defendants told Cooke he needed a new building permit for his home before he could receive utilities, while no similar requirement was imposed on FLDS members. The lawsuit also alleges failure to accommodate Cook's medical disability. Cooke has filed a similar lawsuit under the federal Fair Housing Act in federal court as well.

German Magazine Says Catholic Church Is Following Conservatives In Reactions To Abuse Cases

Der Spiegel yesterday carried an analysis of the Vatican's recent actions in priest sexual abuse cases. It argues that there is a power struggle in the Vatican between liberal and conservative forces:

This spring, it looked as though the Catholic Church was finally going to confront charges of sexual abuse head on. Following recent police raids in Belgium, however, the Vatican has once again closed ranks....

The conservatives in the church state see the zero-tolerance policy of US bishops as a means of curtailing the rights of accused priests. By contrast, liberal spirits are pushing to rapidly investigate and refer cases to secular authorities. It currently looks as if the conservatives have regained the upper hand....

German bishops Robert Zollitsch and Reinhard Marx were ... given a dressing down. Benedict reproaches them for not being tender enough with their fellow bishop Walter Mixa when he came under fire amid allegations of violence towards children in his care.

The Holy Father has clearly shown how to treat, in the true Christian spirit, those brothers who have strayed from the flock. He announced that, "following a period of healing and reconciliation," Bishop Mixa, like other retired bishops, would again be available for pastoral duties.

Cath News today however reports that Vatican's Congregation for the Doctrine of the Faith is about to release a set of changes to the Church's internal rules for disciplining priests that will extend the canon law statute of limitations for bringing charges against an abusive priest from 10 years after the victim's 18th birthday to 20 years after. It will also for the first time define child pornography as a grave offense subject to the Congregation's jurisdiction.

5th Circuit Upholds Neutrality Policy For Texas Education Agency Staff

In Comer v. Scott, (5th Cir., July 2, 2010), the 5th Circuit upheld a policy of the Texas Education Agency (TEA) that required its staff to remain neutral and refrain from expressing any opinions on curricular matters subject to the jurisdiction of the Texas State Board of Education. TEA's Director of Science, Christina Comer, was fired for forwarding to 36 science teachers and to leaders of science teacher organizations an announcement about an anti-Creationism talk that was being presented in Austin. Comer challenged the neutrality policy as a violation of the Establishment Clause, arguing that the primary effect of the policy was to endorse or advance religion. The court concluded however:

we find it hard to imagine circumstances in which a TEA employee's inability to publicly speak out for or against a potential subject for the Texas curriculum would be construed or perceived as the State's endorsement of a particular religion.

(See prior related posting.)

Iranian Ministry Sets Acceptable Islamic Male Hair Styles

AOL News today reports that for the first time, Iran's Ministry of Culture and Islamic Guidance has issued a catalogue of acceptable "Islamic" male hair styles. Pony tails, spikes and Mohawks are among those forbidden. Flat tops and Elvis style hair are permitted. A more complete list of acceptable styles will be released later this month at the Modesty and Veil Festival in Tehran.

7th Circuit En Banc Interprets Equal Terms Provision of RLUIPA

In River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, (7th Cir en banc, July 2, 2010), the 7th Circuit in an en banc decision interpreted the equal terms provision of RLUIPA by creating a modified version of the test used by the 3rd Circuit. The 7th Circuit's test treats a regulation as violating the Equal Terms provision "only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory criteria." The 3rd Circuit's test uses "purposes" instead of "criteria" to decide whether there has been discrimination. The court rejected the broader 11th Circuit test for discrimination under RLUIPA. Applying its new test, the en banc court, as did the 3-judge panel, refused to grant a preliminary injunction to permit a church to relocate from a crowded warehouse to property it purchased in an area near a train station zoned for various commercial uses, but not for religious services. Judge Sykes dissented, suggesting an approach that builds on the 11th Circuit's approach.

Report Focuses On Restrictions Limiting Feeding of Homeless

Last week, the National Coalition for the Homeless announced the release of a new report: A Place at the Table: Prohibitions on Sharing Food with People Experiencing Homelessness. According to the press release:

The report argues that targeting churches, service providers and volunteers by placing restrictions on providing food to homeless people is part of a broader trend toward criminalizing homelessness.

The report focuses on areas such as zoning restrictions, limits on use of public property, food safety laws, and police harassment. The report then sets out examples of innovative food programs and proposes various local, state and national legislative actions to help alleviate hunger.

Two Women Appointed Syariah Judges In Malaysia

In a first for Malaysia, Prime Minister Datuk Seri Najib Tun Razak has appointed two women as Syariah Court judges. Bernama reported Saturday that in mid-May 31-year old Suraya Ramli was appointed to the Syariah court in Territory of Putrajaya, while 39-year old Rafidah Abdul Razak was appointed to the court in Kuala Lumpur. The moves were part of the government's program to transform the Syariah judiciary and to enhance justice in cases involving family and women's rights.

Concern Expressed Over Obama Administration's Use of Term "Freedom of Worship"

Sheila Reports today reviews the concerns being expressed in some quarters about change in phraseology by the Obama administration which is often using the term "freedom of worship" instead of "freedom of religion." The State Department says the terms are interchangeable, but others argue that freedom of worship is a much narrower concept. Both the President and Secretary of State Hillary Clinton have used "freedom of worship" in speeches they have delivered.

ACLU Says Catholic Hospitals Violate Law By Refusing Abortions To Save Mothers' Lives

The ACLU announced last week that it has sent a letter (full text) to the Centers for Medicaid and Medicare Services asking it to investigate situations in which religious hospitals refuse to provide emergency reproductive health care. The letter says that refusal of Catholic hospitals to perform abortions that are necessary to save a pregnant woman's life violate provisions of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and the Conditions of Participation of Medicare and Medicaid regulations, 42 C.F.R. § 482.13. The letter cited specific cases of refusal of medical care.

Recent Articles of Interest

From SSRN:

• J. Thomas Oldham, Book Review: 'Almighty God Created the Races' by Fay Botham, (Journal of Law and Religion, Forthcoming).
• Intisar A. Rabb, Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt, (Islamic Law and Society, Vol. 17, pp. 63-125, 2010).
  

From SmartCILP:

• Roberta Rosenthal Kwall, Intellectual Property Law and Jewish Law: A Comparative Perspective on Absolutism (Reviewing David L. Lange and H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment), 22 Yale Journal of Law & Humanities 143-170 (2010).

Recent Prisoner Free Exercise Cases

In Sterr v. Baptista, (9th Cir., July 1, 2010), the 9th Circuit rejected an inmate's claim that prison officials placed substantial burdens on his religious exercise when they restricted vegetation for his Earth-based religion to "grass only" and set a new schedule for using the prison's religious grounds.

In Stevens v. Skolnick, (9th Cir., July 1, 2010), the 9th Circuit concluded that denial of a TRO to an inmate who was refused permission to conduct his daily Native American prayer practice is not an appealable final order.

In Forde v. Baird, 2010 U.S. Dist. LEXIS 63375 (D CT, June 25, 2010), a Connecticut federal district court held that RFRA requires a federal prison to grant an exemption from non-emergency cross-gender pat down searches to a female Muslim inmate whose religion prohibits her from being touched by men outside of her close family.

In Porter v. Beard, 2010 U.S. Dist. LEXIS 63431 (WD PA. June 21, 2010), a Pennsylvania federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 63413, May 12 2010) and allowed an inmate to proceed with claims that his free exercise rights were violated when authorities seized and destroyed his medicine bag.

In Putzer v. Donnelly, 2010 U.S. Dist. LEXIS 63707 (D NV, June 16, 2010), a Nevada federal district court approved a magistrate's recommendations (2010 U.S. Dist. LEXIS 63708, May 11, 2010) and rejected challenges to prison policy that allows one Jewish inmate to light Sabbath candles for all Jews in the prison before Friday evening services that are open to all. Plaintiff claimed he had a right to attend the candle lighting service.

In Kole v. FCI Danbury, 2010 U.S. Dist. LEXIS 63986 (D CT, June 25, 2010), a Connecticut federal district court allowed an inmate to proceed with her RFRA and free exercise challenges to a decision by prison officials to change vendors for Kosher for Passover food, creating a rise in commissary prices for inmate for the food. Plaintiff alleged that the price increase made the food "essentially unavailable" to inmates.

In Gauthier v. Anderson, 2010 U.S. Dist. LEXIS 64190 (WD LA, June 28, 2010), a Louisiana federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 64236, April 21, 2010) and dismissed a frivolous an inmate's complaint that he was not allowed to attend regular church services while he was in lock-down for 2 1/2 months.

In Rouser v. Rutherford, 2010 U.S. Dist. LEXIS 64856 (ED CA, June 28, 2010), a California federal magistrate judge recommended dismissing for lack of evidence and failure to state a claim under RLUIPA and the Free Exercise clause a prisoner's charge that he was disciplined for rules violations solely because of his Wiccan religion. The disciplinary action grew out of a prison riot between several Wicca members and members of a Southern Hispanic gang.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 65356 (WD VA, June 30, 2010), a Virginia federal district court upheld a prison's ban on all Five Percenter publications, even if the particular publication does not advocate violence. The court also dismissed plaintiff's claim to entitlement to the Common Fare Diet, rejecting the magistrate's contrary recommendation.

In Hernandez v. Arizona Department of Corrections, 2010 U.S. Dist. LEXIS 65250 (D AZ, June 11, 2010), an Arizona federal district court permitted an inmate to move ahead against certain defendants on his claim that he is regularly provided kosher food trays that are missing food items and he is not provided with a nutritionally equivalent substitution.

In Belatedly Released Opinion, Judge Says Religion Is Not Basis for Recusal

Last week, a New York federal judge belatedly docketed an opinion that had been prepared in 1998 but not previously released, in which he rejected a motion that he recuse himself because of his religion in a civil rights case against the murderer of an Orthodox Jewish student in the 1991 Crown Height Riot. Defendant in the case based his motion in part on the fact that federal district judge David Trager who was presiding in his trial is an Orthodox Jew. In United States v. Nelson, 2010 U.S. Dist. LEXIS 63814 (ED NY, June 28, 2010), Judge Trager held that religion is an impermissible basis on which to challenge a judge, saying "defendant's argument stands on the same infirm footing as motions that have been made to recuse my African-American and female colleagues in civil rights cases where the victim of the alleged discrimination was black or female." The motion, he said, also implicates Art. VI, clause 3 of the Constitution that bars any religious test for holding public office.

Schools' Released Time Program Challenged

A lawsuit was filed earlier this week in an Indiana federal district court challenging the religious released time program of the Fort Wayne (IN) Community Schools. The complaint (full text) in C.S. v. Fort Wayne Community Schools, (ND IN, filed 6/29/2010), claims that the program violates the Establishment Clause because trailers used for the programs are on school property and apparently obtain electricity from school power sources, and because elementary school students are permitted to attend the religious educational programs without explicit written permission from their parents. Courthouse News Service reports on the case, as does today's Chicago Tribune.

Principals Have No Qualified Immunity For Limiting Student Distribution of Religious Materials

In Morgan v. Swanson, (5th Cir., July 1, 2010), the U.S. 5th Circuit Court of Appeals refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items during school parties and at other non-curricular times. The court held that it is clearly established that the First Amendment applies to student-to-student distribution of non-curricular materials in elementary schools, and that the First Amendment prohibits viewpoint discrimination against religious speech in elementary schools. (See prior related posting.)

UPDATE: An amended opinion was filed on Nov. 29, 2010 adding that nothing in the opinion prevents the district court from granting qualified immunity if the facts show this was something other than non-disruptive student-to-student speech.

Pennsylvania Ban on Blasphemous Business Names Struck Down

In Kalman v. Cortez, (ED PA, June 30, 2010), a Pennsylvania federal district court struck down a Pennsylvania statute (15 Pa. Consol. Stat. 1303(c)(2)(ii)) that prohibits corporate names from containing "[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord's name." The Pennsylvania Corporation Bureau rejected plaintiff's certificate of organization for an LLC that would operate under the name "I Choose Hell Productions LLC". Subsequently the Bureau permitted him to instead use the name "ICH Productions LLC". The court concluded that Pennsylvania's blasphemy statute violates the Establishment Clause, failing all three prongs of the Lemon test. It also held that the law infringes free speech rights as a viewpoint-based restriction, and is invalid under the Central Hudson case even if corporate names are considered commercial speech. Yesterday's Legal Intelligencer reported on the decision. [Thanks to James Maule via Religionlaw for the lead.]

Suit Challenges School's Refusal To Permit Distribution of Bibles

A lawsuit was filed in federal district court in Florida yesterday by a group known as World Changers that was refused permission to hand out Bibles in Collier County, Florida high schools. The complaint (full text) in World Changers of Florida, Inc. v. District School Board of Collier County, Florida, (MC FL, filed 7/1/2010), alleged that in the 2006-07 and 2007-08 school years it was permitted to set up a table on Religious Freedom Day to make Bibles available to students who wished to take them, and 1000 to 2000 students did. However, under a new policy, permission was refused for the 2008-09 school year. The new policy required a determination by a committee of administrators that distribution of literature by outside groups "promote student interests." The suit seeks an injunction, and a declaratory judgement that the school policy is an unconstitutional prior restraint on free speech, that it delegates standardless discretion to the Superintendent, that it is a content and viewpoint based restriction that violates plaintiff's free exercise and equal protection rights. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Overly Broad Zoning Ordinance Is Prior Restraint On Expressive Religious Use of Land

Adhi Parasakthi Charitable, Medical, Educational and Cultural Society of North America v. Township of West Pikeland, (ED PA, June 23, 2010), involves various challenges to actions of a zoning board in a Chester County, Pennsylvania township effectively denying zoning approval to a Hindu group for construction of a temple and auxiliary building. A Pennsylvania federal district court held that "in granting an overly broad amount of discretion to its Zoning Board in deciding whether to allow expressive religious use of land within the Township, Defendant has created a prior restraint on speech in violation of Plaintiff's First Amendment rights."

On plaintiff's free exercise and RLUIPA claims, the court held that there are factual disputes which a jury must decide as to whether the Township's zoning law was applied discriminatorily. The court rejected equal protection and due process claims brought by plaintiffs. Some of plaintiffs' proposed construction violated a restrictive covenant on the property. The court held that plaintiffs lacked standing to bring a RLUIPA challenge to the Zoning Board's enforcement of the restrictive covenant, since any burden on plaintiff's free exercise of religion is caused by the restrictive covenant and not by Zoning Board action.

NY City Council Saves Concerts As Court Enjoins Them For Being Too Close To Synagogues

The New York Post and the Brooklyn Eagle report that a Brooklyn court yesterday issued a temporary injunction against the long-running summer concert series in Coney Island's Asser Levy Park. Two synagogues sued, claiming that the concerts violate a city ban against amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. The suit is part of a broader effort to stop development of a $64 million amphitheater project for the park. (See prior posting.) However City Council this week took action to save the summer concert series. It passed a law, which the mayor intends to sign, creating a 90-day pilot program under which amphitheaters, open air band shells and stadiums the right to get permits for concerts even if they are in violation of the 500-foot rule. The bill expires in 90 days, but drafters hope that a permanent solution will be worked out by then.

Appeal Filed In Delaware School Board Invocation Case

Today's Delaware Online reports that an appeal has been filed with the Third Circuit in Doe v. Indian River School District. In the case, a Delaware federal district court upheld against an Establishment Clause attack the policy of the Indian River School Board to open its meetings with a prayer delivered by members of the school board on a rotating basis, or if the board member prefers, a moment of silence. The district court applied precedent relating to prayers opening sessions of legislative bodies. (See prior posting.)

Ecclesiastical Abstention Doctrine Does Not Bar Negligent Supervision Claim Against Church

In Erdman v. Chapel Hill Presbyterian Church, (WA Ct. App., June 29, 2010), a Washington state appellate court held that the ecclesiastical abstention doctrine does not bar a church employee's claim for negligent supervision and retention claims against a church based on alleged physical intimidation and verbal abuse by its pastor. Plaintiff, a Church elder employed as the Church's Executive for Stewardship, was in a dispute with the pastor over whether tours of religious and historical sites led by him jeopardized the church's tax exempt status. Nor are plaintiff's Title VII claims for sexual harassment. However the court dismissed various other claims by plaintiff.

Appeal In Italian Crucifix Case Heard By European Court's Grand Chamber

Yesterday, the 19-judge Grand Chamber of the European Court of Human Rights heard an appeal from a November ruling by a 7-judge panel that held crucifixes in public school classrooms in Italy violate protections in the European Convention on Human Rights. The ECHR panel found that crucifixes in classrooms infringe protections of thought, conscience and religion and the right of parents to educate their children according to their convictions. (See prior posting.) Both the European Centre for Law and Justice and AP report on yesterday's appeal in the case of Lautsi v. Italy . Joining Italy in the appeal were Armenia, Bulgaria, Lithuania, Cyprus, Greece, Malta, Monaco, San Marino, Romania and Russia. Italian courts had held that the crucifix is part of the Italian national identity, and not an attempt to convert students. An amicus brief supporting Italy's position was filed in the case by a group of over 50 law professors from across Europe. The amicus effort was coordinated by Notre Dame law professor Paolo Carozza and the Becket Fund for Religious Liberty. (Notre Dame News, 6/7).

Kagan Gets Some Questions on Religion Clauses

On Day 3 of her confirmation hearings, Supreme Court nominee Elena Kagan was asked questions about the Establishment and Free Exercise clauses, and about standing to raise Establishment Clause issues. Blog from the Capital has an unofficial transcript of the exchanges between Kagan and Senators Feinstein, Cardin and Coburn. Kagan explained her understanding of the religion clauses in part as follows:

In general, I think, what both First Amendment clauses are designed to do - and this is the way in which they work hand in hand with each other - what they're both designed to do is to ensure that you have full rights as an American citizen. You are a part of this country, no matter what your religion is, and to ensure that religion just never functions as a way to put people because of their religious belief or because of their religious practice at some disadvantage with respect to any of the rights of American citizenship. So, I think that that's the sort of overall purpose of both parts of the amendment.

The full transcripts are worth reading.

Supreme Court Refuses Review Of School Rules On Distributing Materials

On Monday, the U.S. Supreme Court denied certiorari in Morgan v. Plano Independent School District, (Docket No. 09-1131). (Order List.) In the case, the U.S. 5th Circuit Court of Appeals found that rules adopted in 2005 by a Texas school district restricting the times and places at which students can distribute written materials are constitutional, at least on their face. At issue were students who wished to distribute religious-themed candy canes and tickets to church musical and drama programs. (See prior posting.) Dallas Morning News on Monday reported on the court's action.

Groups Urge Congressional Hearings on Faith Based Initiative

On June 18, thirty national organizations comprising the Coalition Against Religious Discrimination, sent a letter (full text) to the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary Committee urging it to hold hearings on the current status of the Faith-Based Initiative. The letter reads in part:

As a candidate, President Obama promised to reinstate constitutionally required religious liberty protections and end federally funded religious discrimination in the Faith-Based Initiative. Yet, eighteen months after President Obama’s inauguration, the White House and all the federal agencies are still operating under the same inadequate safeguards against proselytizing and insufficient constitutional protections imposed by the previous Administration.

[Thanks to Michael Lieberman for the lead.]

Court Says Pooled Investment Funds Are Part of Delaware Diocese Bankruptcy Estate

In In re Catholic Diocese of Wilmington, Inc., (DE Bankr., June 28, 2010), a Delaware federal bankruptcy court held that funds in a pooled investment program operated by the Catholic Diocese of Wilmington are part of the bankruptcy estate. Individual parishes have over $2.3 million of their funds invested in the pool, while various Catholic charitable and educational organizations have over $25.8 million and the Catholic Diocese Foundation has $45 million there. These 31 participants in the pooled investment program claimed that a trust relationship existed so that their invested funds belong to them and are not property of the diocese. The court held that a trust exists, but that their funds are comingled with funds of the diocese that are also part of the pooled investment vehicle, and that these participants (with the exception of one parish) have not carried their burden of identifying and tracing the funds that belong to them. So these funds become part of the total pool that will be divided among some 140 sexual abuse victims who have sued the diocese. The parishes and institutions with funds in the pool will also have claims and will share pro rata with abuse claimants and other creditors. Bloomberg Businessweek, reporting on the decision, quotes an attorney for sex abuse victims who have sued the diocese who calls the result "a great victory for all the survivors of sexual abuse in the diocese."

Prop 8 Opponents Say CLS v. Martinez Supports Them

Earlier this month, lawyers made their closing argument in Perry v. Schwarzenegger, a federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. A decision has not yet been handed down in the case. (See prior posting.) Plaintiffs, who claim that gays and lesbians are a protected class for constitutional purposes, say language in Monday's Supreme Court decision in Christian Legal Society v. Martinez supports their position. The Recorder yesterday reported that lawyers for those challenging Proposition 8 wrote a letter (full text) to U.S. District Judge Vaughn Walker, bringing the Supreme Court's language to his attention. The letter reads in part:

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: "Our decisions have declined to distinguish between status and conduct in this context."

Kagan's Religion Comes Up In Unusual Contexts At Confirmation Hearings

JTA reports that at the Senate Judiciary Committee hearings yesterday on the Supreme Court nomination of Elena Kagan, the nominee referenced her religion in two unusual contexts. Sen. Chuck Grassley (R-Iowa) questioned Kagan on remarks she made at Harvard Law School welcoming Israeli Supreme Court Judge Aharon Barak in which she called the activist jurist her "judicial hero." (See prior posting.) Responding to Grassley's concerns, Kagan said that her admiration does not mean she wants to adopt Barak's views in the United States. Instead, she said, she admired his role in creating an independent judiciary for Israel and assuring that it "would become a very strong rule of law nation." Then she added: "As you know, I don't think it's a secret I am Jewish. The State of Israel has meant a lot to me and my family. And – and I admire Justice Barak for what he's done for the State of Israel and ensuring an independent judiciary."

At another point in the hearing, Sen. Lindsey Graham (R-SC) began to question Kagan about terrorism issues, focusing on the arrest in Detroit last Christmas Day of an attempted airline bomber. Graham asked: "Where were you on Christmas Day?" Kagan responded humorously: "Like all Jews, I was probably at a Chinese restaurant."

Don Byrd is live blogging from the hearings on church-state issues that arise.

En Banc Rehearing Denied In Challenge To Inauguration Prayer and Oath

Yesterday the D.C. Circuit Court of Appeals denied a panel rehearing and also denied an en banc rehearing in Newdow v. Roberts. The case is an Establishment Clause challenge to prayer and use of "so help me God" in the oath at Presidential inauguration ceremonies. In May's panel decision dismissing the case, two judges held that it was moot and that plaintiffs lacked standing, while the third judge would have dismissed on the merits. (See prior posting.) [Thanks to Bob Ritter for the lead.]

Reasons For Belgian Raid On Church Headquarters Disclosed

Today's New York Times reports new information explaining the raids by Belgian police last week on church offices and a cathedral in the Archdiocese of Malines-Brussels. The Pope criticized police tactics. (See prior posting.) The Times reports that the raids stemmed from a formal accusation by Godelieve Halsberghe, former head of an internal church commission handling sexual abuse cases, that the Church was hiding information. Investigators seized two truckloads of files, many relating to 475 complaints filed since April when Bishop Roger Vangheluwe resigned after admitting to sexually abusing a young man decades ago. (Background.) Investigators are comparing records to see if some complaints were kept from the church's commission. Prosecutors are also considering whether to move against those who knew children were being abused and took no action to protect them.

New Australian Prime Minister Says She Will Not Pretend Religious Beliefs For Votes

In Australia last week, the governing Labor Party changed its leaders, naming Julia Gillard as Prime Minister-- the first woman to hold that post. (Huffington Post). Gillard is expected to call elections for as early as August. (news.com.au). The Australian today reports on a refreshing honesty by Gillard in responding to views about her religious beliefs. When asked during a radio interview how she would attract Christian voters and whether she believes in God, she responded:

I'm not a religious person. I was brought up in the Baptist Church but during my adult life I've, you know, found a different path. I'm of course a great respecter of religious beliefs, but they're not my beliefs. I am not going to pretend a faith I don't feel. And for people of faith the greatest compliment I could pay to them is to respect their genuinely held beliefs and not to engage in some pretence about mine. I think it's not the right thing....

For, you know, people of faith what I would say to them is I grew up in a Christian Church, a Christian background, a Baptist Church, I won prizes for catechism for being able to remember Bible verses. I am steeped in that tradition but I've made decisions in my adult life about my own views.... What I can say to Australians broadly of course is that I believe you can be a person of strong principle and values from a variety of perspectives. And I've outlined mine to you.

Advocacy Groups React To CLS v. Martinez

Many advocacy groups and interested parties have issued statements on yesterday's Supreme Court decision in Christian Legal Society v. Martinez. Here is a sampling:

• ACLU
• Alliance Defense Fund
• American Center for Law & Justice
• American Jewish Committee
• Americans United for Separation of Church and State
• Baptist Joint Committee
• Becket Fund for Religious Liberty
• Christian Legal Society
• Foundation for Individual Rights in Education
• Hastings College of Law
• Interfaith Alliance
• Union of Orthodox Jewish Congregations

Citizens Link suggests that the decision may have limited impact because few if any other schools have an "all-comers" rule for student groups. Most have a rule that bars discrimination on specified grounds, such as race, religion, gender and sexual orientation. The majority avoided passing on the constitutionality of this sort of rule. The Chronicle of Higher Education also reviews reactions to the decision.

Report Released on Canadian Zoning Laws and Religious Freedom

The Evangelical Fellowship of Canada announced yesterday the release of a report titled Zoned Out: Religious Freedom in the Municipality. The report outlines the protections for religious freedom in Canada and focuses on municipal zoning laws that may violate the religious freedom of congregations seeking to relocate.

Cert. Denied In Abuse Suit Against Vatican

The Supreme Court yesterday denied certiorari in Holy See v. Doe, (Docket No. 90-1). (Order List.) In the case, a Seattle man is attempting to hold the Vatican liable for abuse by a priest in the 1960's. The 9th Circuit held that plaintiff could proceed against the Vatican on a respondeat superior theory under the Foreign Sovereign Immunity Act's tortious act exception. (See prior posting.) Reporting on the Supreme Court's refusal to review which allows the lawsuit to move to trial, AP quoted plaintiff's attorney who hopes now to be able to depose Vatican officials.

Supreme Court Upholds Hastings Law School's All-Comers Policy for Registered Student Organizations

The U.S. Supreme Court today in a 5-4 decision upheld the non-discrimination policy of Hastings College of Law that requires registered student organizations to allow any student to participate. The policy was challenged by the Christian Legal Society which requires members to sign a Statement of Faith and abide by it, so that non-Christians and those who engage in "unrepentant homosexual conduct" are excluded. Registered student organizations get the advantage of being able to meet on school premises, and of communicating with its member through sending e-mails to the student body and through other official forums.

In Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez, (Sup. Ct., June 28, 2010), CLS argued that all-comers rule violates its rights to free speech, expressive association and free exercise of religion. The majority ruled only on the "all comers" rule that the parties specified applied in their stipulation of facts. It refused to pass on the question of whether the narrower non-discrimination policy as written that prohibits discrimination only on specified bases, including religion and sexual orientation, is unconstitutional because it targets beliefs based on religion or having to do with particular kinds of sexual behavior.

The majority in an opinion written by Justice Ginsburg, held that Hastings' policy is a reasonable, viewpoint-neutral condition on access to a limited public forum for registered student organizations. She summarized:

The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

Responding to concerns about a takeover of a group by opponents who wish to sabotage it, Justice Ginsburg wrote that membership or leadership positions can be conditioned on "requirements designed to ensure that students join because of their commitment to a group’s vitality, not its demise."

Justices Stevens and Kennedy filed separate concurring opinions. Justice Stevens argued that even as written, the non-discrimination policy is constitutional. Justice Kennedy emphasized the informal learning that is furthered through student interaction by the all-comers policy.

Justice Alito wrote a dissent, joined by Chief Justice Roberts and Justices Scalia and Thomas. The dissent argued that the Court should focus on the non-discrimination policy as written, since that was the policy originally invoked to deny CLS registration. That policy, the dissent argues, amounts to viewpoint discrimination since only religious groups are required to admit students who do not share their views. Political groups or groups formed around other causes can limit membership. The dissent goes on to argue that even limiting the analysis to the broader all-comers rule, the policy is unconstitutional. It was adopted as a pretext to suppress a particular viewpoint and it is not reasonable in light of the purposes of the student organization policy which is promoting diversity among student organizations.

Pakistan Monitoring Major Websites For Sacrilegious Content

According to Salon, the Pakistan Telecommunications Authority under order from the Ministry of Information Technology is monitoring seven major websites for sacrilegious content. The sites being monitored are: Yahoo, Google, MSN, Hotmail, YouTube, Amazon and Bing. It will block links on these sites to offensive content. It is also completely blocking access to 17 other less well-known websites, including islamexposed.blogspot.com. The action was taken in response to an order by a court in the city of Bahawalpur, and follows a court-ordered temporary ban on access to Facebook last month. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Brian Michael McCall, Consulting the Architect when Problems Arise – The Divine Law, (June 24, 2010).
• Eugene Volokh, Freedom of Speech and the Intentional Infliction of Emotional Distress Tort. Cardozo Law Review, UCLA School of Law Research Paper No. 10-14 (2010).

From SmartCILP:

• Kyle Persaud, A Permit to Practice Religion for Some But Not for Others: How the Federal Government Violates Religious Freedom When It Grants Eagle Feathers Only to Indian Tribe Members, 36 Ohio Northern University Law Review 115-138 (2010).

Belgian Police Search of Cathedral and Church Offices Condemned

Yesterday, according to Zenit, Pope Benedict XVI in a letter to Belgian Archbishop André-Joseph Léonard condemned the methods used last Thursday by Belgian police in searching the headquarters of the Archdiocese of Malines-Brussels in a sexual abuse investigation. As described by Zenit:

The police arrived at 10:30 Thursday morning to the headquarters of the Archdiocese of Malines-Brussels, where the bishops of Belgium were meeting for their monthly meeting. The authorities detained the bishops at the headquarters for nine hours as they searched the offices and the Cathedral of Malines.

At that time they drilled holes in the two graves of cardinals Jozef Ernest Van Roey and Leon Joseph Suenens, deceased archbishops of Malines-Brussels, located in the crypt of the cathedral, and then sent cameras down in search of hidden documents.

In addition to the headquarters of the archbishopric of Brussels, the authorities seized some 500 confidential files In Leuven, Belgium, from the office of Peter Adriaensses, president of the commission for the treatment of sexual abuses. The home of former archbishop of Malines-Brussels, Cardinal Godfried Danneels, was also searched.

Compromise Lets Israel's High Court Release School Parents From Jail

In Israel, a compromise has led to the release from jail of the fathers of 35 girls enrolled in the Beit Ya'acov school in the town of Emmanuel. As previously reported, Israel's High Court ruled that a group of parents of the Slonim Hasidic sect would be imprisoned for two weeks for contempt if they did not obey the court's previous order to send their girls back to a school where they study together with Sephardi girls. Ultimately only the father's were jailed. According to today's Jerusalem Post and Haaretz, under the compromise all the girls will spend this week's last three days of the school year together hearing lectures about unity. Everyone agrees that this satisfies the Court's order. Then over the summer, the parties will meet to work out a more permanent solution. The Jerusalem Post says that the agreement calls for the right of Ashkenazi Hasidic parents to establish a new school next year. The haredi community calls the compromise a victory by religious forces over the state's secular institutions. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Recent Prisoner Free Exercise Cases

In Gunn v. Kentucky Department of Corrections, 2010 U.S. Dist. LEXIS 60530 (WD KY, June 18, 2010), a Kentucky federal district court rejected an inmate's equal protection, free exercise and RLUIPA claims growing out of his treatment by the prison chaplain. Plaintiff was required to sit in an assigned seat in the chapel because of his security status, and on one occasion was escorted out and not allowed to return to services after they had begun.

In Jackson v. Raemisch, 2010 U.S. Dist. LEXIS 61130 (WD WI, June 21, 2010), a Wisconsin federal district court dismissed a suit by a Muslim inmate formerly employed in the prison's food service area where inmates were not permitted to pray. The court held that plaintiff's RLUIPA claim for injunctive relief to allow prayer was mooted because he no longer works for food services. Defendants were granted qualified immunity as to plaintiff's claim for damages under the First Amendment. Plaintiff's equal protection claim was dismissed for lack of evidence. However he was permitted to pursue a claim for retaliation.

In Jones v. McFadden, 2010 U.S. Dist. LEXIS 61559 (ED CA, May 27, 2010), a California federal magistrate judge dismissed a complaint by a Muslim inmate that breakfast pastries served to inmates during a lock down contained pork products. The court held that mere negligence in checking the ingredients before serving them to Muslim inmates did not support a free exercise claim. A conscious or intentional act is required.

In Smith v. Marshall, 2010 U.S. Dist. LEXIS 61323 (CD CA, June 21, 2010), a California federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 61371, May 11, 2010) and dismissed a complaint by a Muslim prisoner that he was denied prayer oil purchased for him by a third party because he had met his limit for receiving packages, and in buying prayer oil himself (which was allowed) he was required to pay use tax.

In Allen v. Weimer, 2010 Kan. App. Unpub. LEXIS 458, (KS Ct. App., June 18, 2010), a Kansas appellate court held that an inmate who was dismissed from his prison job with a private employer could not validly claim violation of his religious rights when he untruthfully represented that he could work 8-hour days, even though he knew his religious call out was during that 8-hour period.

In Johnson v. Delaunay, 2010 U.S. Dist. LEXIS 62038 (SD NY, June 18, 2010), a New York federal district court upheld a Department of Corrections policy that permits an inmate to participate in a religion's programs only if the individual is registered in the Department of Corrections database as belonging to that religion. It also rejected damage claims on sovereign immunity grounds.

In Cooper v. Evans, 2010 U.S. Dist. LEXIS 61998 (SD IL, May 28, 2010), an Illinois federal magistrate judge refused to dismiss an inmate's claims that he was denied a lacto-ovo diet required by his Buddhist religious beliefs. The court rejected defendants' claims that plaintiff failed to exhaust his administrative remedies.

In Raheem v. Miller, 2010 U.S. Dist. LEXIS 62230 (WD OK, June 23, 2010), an Oklahoma federal district court adopted the recommendations of a magistrate (2010 U.S. Dist. LEXIS 62148, May 14, 2010) and permitted an inmate to proceed with some of his RLUIPA claims based on denial of a kosher/halal diet. However the court dismissed his claim seeking damages for emotional distress.

In Amaker v. Goord, 2010 U.S. Dist. LEXIS 62350 (WD NY, June 23, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 62349, March 25, 2010) and found that the New York Department of Corrections violated RLUIPA when it allowed Rastafarians to wear dreadlocks, but did not permit them to be worn by members of other religious groups. Prison officials argued that wearing of dreadlocks by plaintiffs who were members of Nation of Islam was not required by their religious faith. The court concluded however that officials may not impose restrictions based on governmental assessments of the validity to a religious denomination of a particular practice.

Religious Limits On Arbitrators Invalidated By British Appellate Court

In Jivraj v. Hashwani, (EWCA, June 22, 2010), Britain's Court of Appeal held that Britain's Employment Equality (Religion and Belief) Regulations 2003 invalidate a provision in a private commercial arbitration provision requiring that arbitrators are to be drawn from members of a particular religious community. The agreement provided that "All arbitrators shall be respected members of the Ismaili community and holders of high office within the community." The trial court had held that arbitrators were not in an employment relationship and thus were not covered by the non-discrimination regulations. The Court of Appeal reversed, finding that so long as the relationship grew out of a contract, it was covered. Lexology reports on the decision.

Britain To Appoint Its First Catholic Woman As Ambassador to the Vatican

London's Sunday Telegraph today reports that Britain's coalition government will reach out to Catholics through a high profile appointment for Britain's next ambassador to the Vatican. The Foreign Secretary has endorsed naming former Conservative MP Ann Widdecombe, who would be the first Roman Catholic woman to hold the position. No Catholic held the ambassadorial position before 2006, when the current British ambassador to the Vatican, Francis Campbell, was appointed. Widdecombe, who is fluent in Latin, is an outspoken defender of the Church's traditional teachings. She converted to Catholicism in 1993 after the Church of England voted to ordain women priests. The nomination must be sent to the Vatican for final approval, and will be announced formally later this summer. The current ambassador will resign after the Pope's visit to Britain in September.

DC Circuit: Researchers Have Standing To Challenge Change In Stem Cell Grant Policy

In Sherley v. Sebelius, (DC Cir., June 25, 2010), the U.S. Court of Appeals for the D.C. Circuit, reversing the trial court, held that two doctors who specialize in adult stem cell research have "competitor standing" to challenge the Obama administration's lifting of limitations on NIH funding of embryonic stem cell research. Plaintiffs are injured because they will now find the application process for stem cell research more comeptitive, and will need to invest more time and resources to craft successful grant applications. The court did not pass on the merits of the claim that the new NIH Guidelines are in violation of Congressional limits on the use of Department of Health and Human Services funds to support research that will harm or destroy human embryos. The district court had denied standing to all plaintiffs, including the Christian Medical Association and a Christian adoption agency. (See prior posting.) Reuters reports on the decision. Alliance Defense Fund issued a press release on the decision, as did Advocates International.

$1.15M Settlement Reached In Church Zoning Case

Alliance Defense Fund announced Friday that a $1.15 million settlement had been reached in St. Benedict Center v. Town of Richmond, a suit in New Hampshire state court in which a conservative Catholic religious organization brought constitutional and RLUIPA challenges to various zoning rulings restricting its building of a chapel and religious school. (Full text of complaint.) In October, the court granted summary judgment to St Benedict holding that the requirement that a house of worship obtain a special zoning exception is an unconstitutional prior restraint on speech and that various conditions imposed on St Benedict's site plan violate the "substantial burden" provisions of RLUIPA. However the court held that individual members of the Planning Board and Zoning Board of Appeal had absolute judicial immunity for their actions, despite allegations that the Planning Board chairman was motivated by his disagreement with St. Benedict's teachings on abortion, homosexual behavior, pornography and divorce. (Full text of decision.) (See prior posting.)

In April, the parties submitted a proposed settlement, but nearby landowners intervened to object to the settlement. The court ordered the town's Board of Selectmen to confer with town zoning bodies on the matter. Now, apparently after such consultation, a settlement has been reached. In addition to payment of damages and attorneys fees, the town has agreed to a separate settlement that makes completion of the Church and school building possible.

Pagan Group Is Suing To Obtain Property Tax Exemption

Today's Greene County (NY) Daily Mail reports on the long-running controversy between a Pagan sect and the town of Catskill over whether an historic inn owned by the sect is entitled to a tax exemption. The Maetreum of Cybele, Magna Mater, a 501(c)(3) religious organization, purchased the former Central House in 2002. It uses it as a convent to house priestesses, as well as hosting public events and providing temporary housing and other services to the needy. The Maetreum was granted a tax exemption in 2006, but it was taken away a year later because of a split in the group. Apparently the town now argues that the property should be classified as an inn or lodge, whie the Maetreum insists that it is a religious retreat center for pagans. The Maetreum filed suit in state court last year to regain its tax exemption, and an initial hearing was held last December. Currently discovery is ongoing.

Concerns of Britain's Office for Judicial Complaints Over Judge's Comments Are Disclosed

Britain's National Secular Society (NSS) reports today that a press release earlier this month by Britain's Office for Judicial Complaints (OJC) clearing part-time judge Cheri Booth (wife of former Prime Minister Tony Blair) of charges of judicial misconduct omitted concerns that OJC had about her conduct. In sentencing a Muslim man in an assault case, Booth said she was imposing a suspended sentence because he is a religious person. An OJC statement said that Booth's comments did not constitute judicial misconduct and that no disciplinary action is necessary. (See prior posting.) However, a letter to NSS, the group which originally filed the complaint against Booth, said: "The Lord Chancellor and Lord Chief Justice have expressed some concern about the impact Recorder Booth [sic] comments may have had on the public perception of the judiciary and the sentencing process. All judges must, of course, be very mindful of how they express themselves when dealing with sensitive issues of equality and diversity so as not to create the impression that some individuals can expect more leniency than others." It also disclosed that Booth would receive "informal advice from a senior judge."

Court Says Hawaii Church's Challenge To Cannabis Laws Is Not Ripe

In Oklevueha Native American Church of Hawaii v. Holder, 2010 U.S. Dist. LEXIS 61844 (D HI, June 22, 2010), an Hawaii federal district court dismissed on ripeness grounds a pre-enforcement challenge to federal drug laws by a church that uses cannabis in its religious ceremonies and by its spiritual leader. In the amended complaint involved in the case, plaintiffs allege that the church's 250 members fear criminal prosecution for cultivating, consuming, possessing, and distributing cannabis. However, according to the court, plaintiffs allege neither a concrete plan to violate federal drug laws nor a specific threat of law enforcement against them. The complaint also failed to describe in sufficient detail plaintiffs' use of cannabis, how they acquire it and their future intent. Plaintiffs also sought return or compensation for $7000 worth of cannabis seized from FedEx in transit to plaintiffs. The court concluded that plaintiffs' tort claims for theft and conversion are barred by sovereign immunity and the Supremacy Clause. However the court left open for further proceedings claims under the federal Religious Freedom Restoration Act for return of the cannabis or compensation. (See prior related posting.)

Secularists Begin Billboard Campaign Objecting To "Under God" in Pledge

The North Carolina Secular Association this week, in time for Independence Day, launched a billboard ad campaign objecting to the phrase "under God" in the Pledge of Allegiance. Yesterday's Christian Post carries a photo of the billboard that appears throughout the state. It superimposes the phrase "One Nation Indivisible" (leaving out "under God") on an American flag. One of the billboards is on Charlotte's Billy Graham Highway. Similar campaigns have been undertaken in other states. (My Fox Tampa Bay).

New Focus On Elena Kagan's Religious Liberty and Church-State Views

As hearings on the nomination of Elena Kagan for the Supreme Court approach, more focus is now being given to her views on religious liberty and church-state separation. Brookings Institution fellow Melissa Rogers suggests that Kagan may be more sympathetic to free exercise claims than is Justice Stevens whom she is replacing.

Americans United for Separation of Church and State has written to the Chairman and Ranking Member of the Senate Judiciary Committee raising concerns about Kagan's "views on the critical relationship between religious liberty claims and civil rights laws" and about "her position on core Establishment Clause values, such as the principle that the government may not fund 'pervasively sectarian' organizations." (Press release, full text of letter).

Several Jewish groups have weighed in on the Kagan nomination. The Union of Orthodox Jewish Congregations wrote to to members of the Senate Judiciary Committee saying that "Kagan has demonstrated a reassuring appreciation for the rights guaranteed by the Free-Exercise clause and a growing respect for a balanced approach to the Establishment Clause which allows for appropriate government support for the work of religious organizations." (Press release, full text of letter). The Religious Action Center for Reform Judaism wrote members of the Judiciary Committee recommending a number of questions that should be asked of Kagan. They cover not just church-state matters, but also issues such as the death penalty, corporate election contributions, abortion, gay marriage, environmental laws and Presidential powers. (Full text of letter). The Rabbinical Alliance of America (representing 850 right wing Orthodox rabbis) issued a strong statement denouncing the Kagan nomination, releasing it through Christian Newswire.

The Secular Coalition for America issued a statement opposing the Kagan nomination "until she makes her support for church-state separation much more clear and emphatic." It also sent a letter to the chairman of the Senate Judiciary Committee with suggested questions for Kagan.

Meanwhile, US News & World Report says that one of the key issues that Republican Judiciary Committee members will raise with Kagan is her praise in 2006 for activist Israeli Supreme Court Judge Aharon Barak. In presenting Barak with an award at Harvard Law School, Kagan called him "my judicial hero."

The Judiciary Committee hearings begin on Monday, June 28. The Committee has extensive materials on the nomination posted on its website. The hearings will also be webcast through the Committees website.

Hindu American Leader Writes On Political Candidates From Dharma Faiths

An op-ed by Aseem Shulka, co-founder of the Hindu American Foundation, published Wednesday by the Washington Post, laments the fact that the two best known Indian-American political figures, both with backgrounds in Dharma faiths, emphasize their Christianity. Governor of Louisiana, Bobby Jindal, who grew up in a Hindu family, converted to Catholicism while in High School. Nikki Haley, winner of the Republican gubernatorial primary in South Carolina this week, who at one time melded her Sikh heritage with her husband's Methodist faith, has increasingly emphasized her evangelical Christian beliefs. Shulka writes:

Jindal and Haley, as brilliant and dynamic trailblazers, have thrown open the doors to political office, laying waste to minefields of ethnic slurs and perverse allegations that naysayers put in their way. Race is not an impediment to high office, and that is something to celebrate, no doubt. But in their public remonstrations of their parent's faiths, Jindal and Haley tell well over three million Hindu and Sikh Americans that their time has not yet come as people of faith. And in their absolute denial of their religious heritage, they deny something far greater: a society that privileges pluralism, that no one religion has the monopoly on Truth, and that Hindus, Sikhs, Muslims, Pagans, agnostics and atheists may invest differently towards the afterlife, but can live in this life with all of the humanity, generosity and yes, frailty of any of those that presume to lead our states or nation today.

Supreme Court Rejects Facial Challenge To Release of Petition Signers, But Says As-Applied Challenge May Win

The U.S. Supreme Court today by an 8-1 vote rejected a facial challenge to Washington state's Public Records Act, but left open the possibility that a pending as-applied challenge could succeed. At issue in Doe v. Reed, (S. Ct., June 24, 2010), are objections to the release of the names of signers of a petition seeking a referendum to overturn Washington's expansion of the rights of domestic partners. The Court concluded that the state's interest in protecting the integrity of the electoral process is strong enough to justify the public release of most referendum petitions. But here plaintiffs claim that the objective of those seeking release is to post the names of signers on the Internet and urge backers of the domestic partnership bill to contact and harass them. Courts may prohibit disclosure if the signers can show a reasonable probability they will face harassment, threats or reprisals from either government officials or private parties.

While there was broad agreement on the result, the case produced six separate opinions, including a dissent by Justice Thomas who argued that the facial challenge should succeed because there are always less restrictive means for the state to use to preserve the integrity of the referendum process. Various concurring opinions differed on the strength of the remaining as-applied challenge in the case. (See prior related posting.) The Wall Street Journal reports on today's decision.

FLDS Member Gets 17 Years For Sexual Assault of Minor In Celestial Marriage

A Texas trial court judge yesterday sentenced FLDS member Abram Harker Jeffs to 17 years in prison and a $10,000 fine for sexual assault of a child. Jeffs was convicted of assaulting a 15-year old with whom he had entered a "spiritual" or "celestial" marriage while he was legally married to another woman. Jeff has three other wives and children in other states. Yesterday's San Angelo Standard Times reports that Jeffs could have received up to life in prison, and that the sentence he received is the lowest first-degree felony sentence yet for a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Much of the evidence in Jeffs' trial was seized in the high-profile April 2008 raid of the FLDS Yearning for Zion Ranch.

Fired Prison Chaplain States Valid 1st Amendment Claim

In Holmgren v. State of Minnesota, (MN Ct. App., June 22, 2010, a Minnesota state appellate court held that a former prison chaplain's First Amendment free expression may have been violated when she was fired for speaking out against a new program being considered by the state which she believed would violate the Establishment Clause. Kristine Holmgren, employed as a non-denominational chaplain at the state's Shakopee facility, learned that the state-funded InnerChange Initiative Program was being considered for Shakopee. She believed the program's purpose was to convert inmates to Christianity using state dollars, and knew that a similar program was under court challenge in Iowa. (See prior posting.) She pressed the warden on the issue, including at a staff meeting, for which the warden fired her.

The court denied defendant's motion for summary judgment, concluding that the facts alleged by Holmgren were sufficient to establish a First Amendment violation. She at least raised a factual question as to whether she was speaking as a citizen rather than as part of her employment duties. Her criticisms involved a matter of public concern, and her right to speak about the issue outweighs the state's interest in an orderly work place. Defendant does not have qualified immunity because case law clearly establishes Holmgren's right not to be fired for raising potentially illegal conduct by government officials.

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.

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.

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.