Christian School In California Fires Catholic Employees For Inconsistent Beliefs

Yesterday's Riverside (CA) Press-Enterprise reports that a Christian school in Corona (CA) has fired four teachers and seven other employees-- most of whom are Catholic-- because their religious beliefs do not coincide with those of Crossroads Christian Church that sponsors the 583- student school. Some of the dismissed employees had been with the school as long as 22 years. The school opened in 1979, but the Church did not begin to strictly enforce its requirements that employees attend a "Bible-believing church" until last year.  Senior pastor of the Crossroads Church says Catholic beliefs such as praying to saints and the belief that the in communion the wafer and wine become the body and blood of Jesus are inconsistent with those of Crossroads. Also most of the dismissed employees had not undergone baptism by full body immersion, the only form seen as valid by Crossroads. Experts disagree over whether the firings violate anti-discrimination laws.

Teacher At Muslim University In India Excused From Burqa Requirement

In India, a teacher at Aliah University, West Bengal's first Muslim University, has won her battle to teach without wearing a burqa.  Indian Express reports today that the West Bengal Students' Union had told all teachers to wear burqas to class, but Sirin Middya refused and for three months has not been able to hold class. However on Monday the university administration asked Middya to resume teaching and assured her she would not face problems for not wearing a burqa. The student union agreed that she could resume teaching so long as whatever she wore was "decent." It accused her of "creating an issue" through the media, where none existed.

Morocco Closes Over 1200 Mosques For Safety Reasons

Authorities in Morocco have ordered the complete closure of 1,256 mosques and the partial closure of 416 others for safety reasons.  AFP today reports that the government inspected 19,205 mosques after the collapse of a minaret in February killed 41 and injured 76. The government has set aside $325 million for mosque improvements. 513 mosques will be demolished and rebuilt. Morocco has a total of nearly 48,000 mosques.

DC Circuit Strikes Down National Park Speech Permit Rules

In Boardley v. United States Department of the Interior, (DC Cir., Aug. 6, 2010), the D.C. Circuit Court of Appeals struck down as unconstitutionally overbroad on their face requirements that individuals and small groups obtain a permit before engaging in expressive activities in national parks, even in designated free speech areas. The regulations apply to both public assemblies and distribution of written materials. The lawsuit was filed by a Christian activist who, along with his associates, was stopped from distributing gospel tracts without a permit at the Mt. Rushmore National Memorial. The court left open the possibility that the government can rewrite the rules to make them applicable only to large groups. Fox News yesterday reported on the decision. (See prior related posting.)

New York MTA Accepts Controversial Anti-Mosque Ad After Lawsuit Is Filed

After a lawsuit was filed on Friday, the New York Metropolitan Transit Authority agreed to permit a banner ad on its buses, sponsored by the American Freedom Defense Initiative opposing the proposed mosque and Islamic center near Ground Zero. (Press release from David Yerushalmi law firm). The ad (photo) reads "Why There?",  and equates the"WTC Jihad Attack" with "WTC Mega Mosque". The federal lawsuit (full text of complaint in American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, Aug. 6, 2010), alleges that MTA's objections to the ad for equating the proposed mosque with the 9-11 attack amount to content- and viewpoint-based censorship in violation of the First Amendment and the Equal Protection Clause. The complaint includes examples of other controversial religious and political ads accepted by MTA. Exhibits to the complaint also show various amended versions of the ad submitted during negotiations with MTA-- each changing the way in which the Twin Towers and the plane attack on them are depicted.

Consent Order Allows Kosher Slaughtering To Continue In New Zealand While Suit Is Pending

In New Zealand where the Jewish community has filed suit challenging the government's refusal to exempt kosher slaughtering from a new Animal Welfare Slaughter Code that requires animals be stunned before being killed (see prior posting), the parties have agreed to allow kosher slaughtering to continue while the litigation is pending. NZPA (via Voxy.co.nz) reports that a consent order was issued today by the High Court at Wellington requiring a temporary exemption for kosher slaughtering until the case is decided next year.

Baha'i Leaders In Iran Sentenced To 20 Years

CNN reported yesterday that in Iran, according to the Baha'i International Community, seven top Baha'i leaders who were arrested in 2008 and held without charges have now each been sentenced to 20 years in prison.  During the trial, the accused had only about one hour's access to counsel. Among the charges eventually filed against the leaders were espionage, propaganda activities against the Islamic order, and the establishment of an illegal administration. An appeal of the sentences is being undertaken. Baha'i is Iran's largest non-Muslim minority, and members of the Baha'i faith have traditionally been discriminated against by the government in their religious exercise and in their access to public services.

UAE Islamic Authority Says Workers Can Break Ramadan Fast To Avoid Heat-Related Health Problems

Ramadan begins this week. AFP reports that in the United Arab Emirates, the General Authority for Islamic Affairs and Endowments has issued a ruling that workers facing high heat and humidity can break their Ramadan fast before sundown to avoid health problems. The fatwa says this only applies if the worker starts the day fasting.

Recent Articles of Interest

From SSRN:

• David B. Owens, No Bueno, Buono: An Essay on Salazar v. Buono and Establishment Clause Remedies, (June 7, 2010).
• Rony Guldmann, Beyond the Jurisprudence of Politeness: On the Relativity of Religious Neutrality, (July 20, 2010).
• Ori Aronson, Out of Many: Military Commissions, Religious Tribunals, and the Democratic Virtues of Court Specialization, (Virginia Journal of International Law, Vol. 52, No. 2, 2010).
• Timur Kuran & Scott Lustig, Judicial Biases in the Ottoman Empire: The Roles of Inter-Court Competition and Personal Exchange, (Economic Research Initiatives at Duke, July 22, 2010).
• Mark L. Movsesian, Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence, (Seton Hall Law Review, Forthcoming).
• Ian T. Benson, Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today, (The Ronning Centre Forums II, 2010).
• Ian T. Benson, Is Canada Moving Towards or Away from Religious Inclusivity in the Public Sphere?, (Religion in the Public Square in Canada Conference, 2010).
• Ming Chen, Alienated: A Reworking of the Racialization Thesis after September 11th, (American University Journal of Gender, Social Policy & the Law, Vol. 18, No. 3, p. 101, 2010).
• Shannon Weeks McCormack, Taking the Good with the Bad: Recognizing the Negative Externalities Created by Charities and Their Implications for the Charitable Deduction, (Arizona Law Review, Forthcoming).

From SmartCILP:

• David A. Harris, Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11, 34 N.Y.U. Review of Law & Social Change 123-190 (2010).
• Adam H. Koblenz, Jewish Women Under Siege: The Fight for Survival on the Front Lines of Love and the Law, 9 University of Maryland Law Journal of Race, Religion, Gender & Class 259-301 (2009).
• Steven Menashi, Toward a "More Enlightened and Tolerant View": Educational Choice and the Regulation of Religious Institutions, 66 N.Y.U. Annual Survey of American Law 31-74 (2010).

NYT Reviews Growing Opposition To Mosque Projects Around the Country

Today's New York Times carries a front-page story titled Across Nation, Mosque Projects Meet Opposition. The article observes:

In all of the recent conflicts, opponents have said their problem is Islam itself. They quote passages from the Koran and argue that even the most Americanized Muslim secretly wants to replace the Constitution with Islamic Shariah law.

These local skirmishes make clear that there is now widespread debate about whether the best way to uphold America’s democratic values is to allow Muslims the same religious freedom enjoyed by other Americans, or to pull away the welcome mat from a faith seen as a singular threat.

Illustrating this type of attitude, the Times quotes Diana Serafin, a recently unemployed grandmother who attends Tea Party events, who is part of the opposition to an Islamic center project in Temecula, California:

As a mother and a grandmother, I worry. I learned that in 20 years with the rate of the birth population, we will be overtaken by Islam, and their goal is to get people in Congress and the Supreme Court to see that Shariah is implemented. My children and grandchildren will have to live under that.

I do believe everybody has a right to freedom of religion,” she said. “But Islam is not about a religion. It’s a political government, and it’s 100 percent against our Constitution.

However at a recent rally rally in Temecula, supporters of the mosque outnumbered protesters.

California School District Backed In Offering Bible As Literature and History Course

One News Now reports that church members, students, parents and residents from the surrounding cities packed the room in which the board of the Chino Valley Unified School District met last Thursday to support the decision the Board reached last month (One News Now, 7/5) to offer an elective  course in Bible as/in Literature and History in district high schools. The class is authorized in all four of the district's high schools and funds have been donated to cover the cost of the course. School board Vice President James Na at Thursday's meeting said: "[The Bible] will bring greatness in students' lives. I would like to thank God and Christian parents who are going to support this class." A few parents at Thursday's meeting argued that the class was unconstitutional, but board member Na said they misunderstand the class. It will not indoctrinate their children.

Recent Prisoner and Institutionalized Persons Free Exercise Cases

In Ward v. Rabideau, 2010 U.S. Dist. LEXIS 77535 (WD NY, July 30, 2010), a New York federal district judge held that Jewish prisoners had raised material factual issues that preclude summary judgment of defendants on their complaint that inedible and improperly prepared food was served to inmates at Groveland Correctional Facility requesting a kosher diet. Also it held that while provision of a Jewish chaplain is not required if there is an alternative means of worship, here that condition was not met because authorities prevented Jewish inmates from having materials needed for their worship.

In Marzuq v. Albino, 2010 U.S. Dist. LEXIS 77509 (D NJ, July 29, 2010), a New Jersey federal district court dismissed an inmate's Free Exercise complaint with leave to file an amended complaint. Plaintiff claimed he was required to participate in a therapeutic community in violation of his religious beliefs for refusing to participate by having his classification status increased. However he failed to allege what religion he practices or how his beliefs were violated. His retaliation and conspiracy claims were also dismissed.

In Shiple v. Beck, 2010 U.S. Dist. LEXIS 78236 (ND OH, Aug. 2, 2010), an Ohio federal district court rejected an inmate's claim that his free exercise right were violated when a restriction on his commissary rights precluded him from buying reading glasses he needed to read his Bible.

In Alford v. Knight, 2010 U.S. Dist. LEXIS 78607 (ED NC, March 15, 2010), a North Carolina federal magistrate judge permitted plaintiff to proceed in forma pauperis with his claim that while he was residing at a Veterans Center, he was forced to participate in religious activities. He alleges he was required to sit through religious services, was punished for closing his eyes during services and refusing to comment or write religious essays.
In Damron v. Sims, 2010 U.S. Dist. LEXIS 78955 (SD OH, Aug. 5, 2010), and Ohio federal magistrate judge recommended denial of a summary judgment request that the court order accommodation of various Christian Separatist religious practices.

In Kramer v. Wisconsin Department of Corrections, 2010 U.S. Dist. LEXIS 78777 (WD WI, Aug. 3, 2010), a Wisconsin federal district court permitted an inmate to add an establishment clause claim in his lawsuit challenging a refusal of his request for certain religious items and seeking group worship with other Odinists.

In Dempsey v. Cain, 2010 U.S. Dist. LEXIS 78965 (MD LA, Aug. 4, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 78977, July 8, 2010) and dismissed a claim by an inmate that he was deprived of his Bible and other religious materials for several months. The court concluded that the deprivation did not create a substantial burden on plaintiff's free exercise because it did not force him to significantly change his religious behavior or beliefs.

Court OK's Sectarian City Council Invocations

A New York federal district court this week rejected an Establishment Clause challenge to sectarian prayers offered at Town Board meetings in Greece, New York.  In Galloway v. Town of Greece, (WD NY, Aug. 5, 2010), the court, in an 83-page decision, upheld the town's policy of inviting clergy from all denominations in the town to offer an invocation, without any guidance or restriction on the content of their prayer. That policy led to almost all of the prayers being delivered by Christian clergy. The court wrote in part:

[T]he Court has considered the nature of the prayers, and finds that they did not proselytize or advance any one, or disparage any other, faith or belief. It is undisputed that the vast majority of prayers at issue in this case were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ.... Otherwise, though, most of the prayers that Plaintiffs maintain are sectarian are indistinguishable from prayers that they say are non-sectarian....

Plaintiffs maintain ... that sectarian legislative prayers necessarily violate the Establishment Clause.... Plaintiffs contend that prayers may only refer to a "generic God," and must not refer to any particular deity or to any religious belief, such as the Holy Trinity, that is specific to a particular religion or group of religions. Plaintiff's further maintain that to prevent sectarian prayer, the Town must instruct potential prayer-givers to give inclusive ecumenical prayers. The Court disagrees.

It is clear to this Court that Marsh [v. Chambers] does not require that legislative prayer be non-sectarian. To the contrary, Marsh upheld the constitutionality of legislative prayer, thereby specifically carving out a unique exception to the Lemon test, based primarily if not exclusively on the long history of legislative prayer in Congress, which is often overtly sectarian....

The Court also disagrees with Plaintiffs' contention that the Town must, or even can, instruct potential prayer-givers that prayers should be "inclusive and ecumenical." In Lee [v. Weisman], the Supreme Court characterized the defendant school's similar instruction to an invited rabbi as an impermissible attempt by government to control the content of prayer.... The Court finds that the policy requested by Plaintiffs would violate Lee, since it would likewise impose a state-created orthodoxy. In this regard, the Court respectfully disagrees with the Fourth Circuit's decision in Turner [v. City Council of the City of Fredericksburg, Virginia].

Moreover, the Court finds that Plaintiff's proposed non-sectarian policy, which would require Town officials to differentiate between sectarian prayers and non-sectarian prayers, is vague and unworkable, as Pelphrey [v. Cobb County, GA] demonstrates. The instant case illustrates the illusory nature of so-called nonsectarian prayer, since as shown above, many of the prayers that Plaintiffs say are sectarian are indistinguishable from prayers that they say are not.

Alliance Defense Fund issued a press release on the decision. (See prior related posting.)

Suits Against Scientology By 2 Sea Org Members Dismissed Under Ministerial Exception Doctrine

In two related cases brought by a husband and wife, a California federal district court yesterday applied the constitutionally compelled  "ministerial exception" doctrine to dismiss suits against the Church of Scientology alleging violations of the Trafficking Victims Protection Act. The TVPA (18 USC 1589(a)(1)) prohibits knowingly obtaining the labor or services of a person by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person, and permits victims to bring civil actions for damages (18 USC 1595).

In Claire Headley v. Church of Scientology International, (CD CA, Aug. 5, 2010), plaintiff was a member of Scientology's Sea Org. Sea Org members live communally, are assigned physically difficult tasks, and are subject to strict discipline. They are not allowed to raise children and remain Sea Org members. Plaintiff says she had two abortions under the pressure of this policy. In Marc Headley v. Church of Scientology, (CD CA, Aug. 5, 2010), plaintiff was also a Sea Org member and alleged instances of physical abuse and acts of discipline. In dismissing the lawsuits on First Amendment grounds, the court said:

Defendant here represents that the challenged conduct was doctrinally motivated..... Therefore, inquiry into these allegations would entangle the Court in the religious doctrine of Scientology and the doctrinally-motivated practices of the Sea Org. It would also require the Court to analyze the criteria Defendant uses to choose ministers and the reasonableness of the methods used to enforce church policy and encourage members to remain with the organization and the religion itself.... In order to determine whether Defendant’s means of persuading members to remain with the Sea Org, etc. fall within the purview of the TVPA, a trier of fact must inquire into Scientology’s policies, practices, and scriptures.

Today's St. Petersburg Times reports on the decisions. (See prior related posting.)

Will Effective Portions of Arizona's SB 1070 Hit Church Vans?

While portions of Arizona's SB 1070 targeting illegal immigrants was struck down by a federal court last month (full text of decision), other portions of the law have gone into effect. According to New America Media today, church leaders are particularly concerned about one of those provisions that has gone into effect, Sec. 13-2929, which provides:

A. It is unlawful for a person who is in violation of a criminal offense to: 1. Transport or move or attempt to transport or move an alien in this state in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law....

Church groups often transport their undocumented members to services or spiritual retreats in church vans or buses. The Phoenix Police Department says the provision would not be triggered by a traffic stop of a bus or van for speeding or ignoring a stop sign. But University of Arizona law professor Gabriel Chin says that police could stop a vehicle for suspicion of violating federal laws against harboring undocumented immigrants and then invoke this provision of SB 1070 to charge a state offense.

Southern Baptist Minister In Runoff For U.S. House In Georgia's 7th District

The Macon Telegraph yesterday profiled Rev. Jody Hice who will be one of two candidates in the run-off next Tuesday for the Republican nomination for the U.S. House of Representatives in Georgia's Republican-leaning 7th District that encompasses the eastern suburbs of Atlanta.  Hice, a Southern Baptist, was prominent in battles to display the Ten Commandments in public buildings, and defied the IRS by endorsing 2008 Presidential candidate John McCain from the pulpit. His campaign office features a poster of Jesus kneeling in prayer with one hand outstretched touching the crack in the Liberty Bell. Hice particularly attracted attention with billboards on the Atlanta freeways that show President Obama with a Soviet hammer and sickle. Hice has focused his campaign on fiscal issues, but still maintains his half-hour radio show on the Christian Satellite Network. Some say he violated tax laws on non-profits when in his July 27 broadcast Hice gave a brief update on the runoff and asked for listeners' prayers. Both Hice's Let Freedom Ring Ministries and the network are non-profits. The 7th district's current congressman, Republican John Linder, is retiring. Hice's opponent in the run-off is Rob Woodall, Linder's former chief-of-staff. Woodall was the front-runner in the initial round of primary voting.

French Jews Wage Legal Battle To Reclaim Family Names

London's Jewish Chronicle yesterday reported on the legal battle being waged by some Jews in France who want to reclaim their traditional family name. Many years ago, their parents changed the family name to something that sounds more French to avoid anti-Semitism. French law provides that family names are immutable and must be continued. Foreign-sounding names can be changed, and a person can reclaim a name if it is about to disappear, but only if it is a French name. Now, for example, Olivier Raimbaud wants to reclaim her family name of Rubinstein, and has been filing requests for 25 years with the State Council to do so. When requests are considered, the government insists that the entire family agree to the change. A new group, The Strength of the Name, has recently filed four more requests for individuals at the justice ministry. Some of those seeking a name change are reacting to right-wing politicians like National Front leader Jean-Marie Le Pen who has accused Jews of hiding their identity in order to dominate France.

Australian Judge To Rule On Whether Witness Can Wear Niqab

Controversy over Muslim women wearing the full-face veil has now made its way to Australia.  According to WA Today, the former director of the Muslim Ladies College of Australia, Anwar Sayed, is on trial in a court in Perth for fraudulently obtaining over $750,000 (AU) in public funding. One of the witnesses against him, a tutor at the school, has requested that she be allowed to wear a niqab while on the witness stand. Sayed's attorneys argue that the witness, identified only by her first name, Tasneem, should have to testify with her face uncovered so that the jury can assess her credibility in part by her facial expressions. Prosecutors say that forcing Tanseem to remove the niqab that she usually wears in public would create stress that could affect her facial expressions while testifying. Since the issue has been raised, Sayed has received death threats which police are investigating. And WA Today reports this morning that Sayed has been stabbed after being stopped in his car.  Apparently he was not injured seriously. Meanwhile Sayed's lawyers are suggesting some possible compromises-- testimony by closed circuit television with a female officer present with the witness, or at least a jury instruction on how to take account of the witness' lack of facial expression. The court will rule on the issue August 19. Meanwhile Australian politicians have begun to speak out on both sides of the issue.

Kenya Passes New Constitution Despite Opposition From Churches

The New York Times reports that in yesterday's referendum in Kenya, 67% of the voters approved the country's new constitution (full text of draft document) according to provisional results released today.  The new constitution limits the powers of the president, provides for land reform and creates a bill of rights. As reported by CNN, Kenya's Christian churches had opposed the Constitution because of provisions they say will permit abortion on demand and because of the document's recognition of Muslim Khadis courts. (See prior posting for details.) The U.S. government supported the draft Constitution, but some conservative Christian groups in the United States, particularly the American Center for Law & Justice, opposed the draft. Three conservative members of Congress wrote the State Department's Inspector General in May asking for an investigation of whether there has been a violation of provisions that prohibit spending of U.S. government funds to lobby for or against abortion. (Christian Science Monitor 5/14).

U.S. Court Orders Russia To Return Book Collection To Jewish Group

In Agudas Chasidei Chabad of United States v. Russian Federation, (D DC, July 30, 2010), the DC federal district court found that plaintiff had presented a legally sufficient prima facie case and entered a default judgment against the Russian Federation ordering it to return two collections of valuable religious books and manuscripts (the Library and the Archive) to Chabad. The court concluded that the expropriation of both collections was discriminatory. The Archive was taken by the Soviet Army in World War II from the Nazis who had expropriated it. The court found three separate takings over time of the Library-- one during the Russian Revolution, one when the Soviet government failed to return the books, and a third in 1992 when the Russian Federation closed all legal avenues for retrieval of the collection. Russia had earlier withdrawn from participating further in the litigation, arguing that the court lacked jurisdiction over it and indicating it would not consider any court orders binding on it. The Foreign Sovereign Immunities Act (28 USC 1608(e)) still requires that a claimant establish its right to relief before a default judgment can be entered. The court's order (full text) requires defendants to deliver the collections to the U.S. embassy in Moscow or to a destination of plaintiff's choosing. A press release from Bingham McCutchen LLP that represented plaintiffs reported on the decision. (See prior related posting.)

Religious Leaders React On Both Sides of Prop 8 Decision

USA Today this morning reviews the reaction of a number of religious leaders on both sides of the debate to a California federal district court's ruling yesterday (see prior posting) that Proposition 8, banning same-sex marriage, is unconstitutional. The Mormon Church, one of the strongest supporters of Proposition 8, urged all sides "to act in a spirit of mutual respect and civility toward those with a different opinion" as the debate continues. Rev. Susan Russell, head of Integrity-- an Episcopal group supporting gay rights-- said: "No one has the right to write their theology into our Constitution. (This) should be celebrated by people of all faiths, of any faith and of no faith." The California Catholic Conference said: "That the judge should find the marriage -- civilizations' longstanding public policy -- irrational and discriminatory does a great injustice to the institution itself and ultimately will further encourage the disintegration of mother-father families."

Maryland Court Orders Closure of Chabad Center

A Montgomery County, Maryland state trial judge last week ordered the Chabad Israeli Center in Rockville (MD) to close down for violating a court order that only allowed it to operate Friday evenings and Saturday mornings for Sabbath services. Yesterday The Gazette (suburban Maryland) reported that in fact meetings were held there at other times and a few girls stayed at the residence for a few nights.  The court order limiting the Center's operations came after the Center was cited for violating the city's fire prevention and building codes. The Sabbath operations were conditioned on there being a special fire watch system in place, and attendance was to be limited to 25. A neighborhood committee has been monitoring the Center to see if it complied. The committee's activities have disrupted the lives of the rabbi's family. [Thanks to Steven H. Sholk for the lead.]

Pakistan Court Hears Arguments On Permanently Banning Facebook Over Blasphemous Pages

Pakistan's The News reports today on proceedings in the Lahore High Court seeking a permanent ban on Facebook for again displaying blasphemous material. A temporary ban was placed on the site in May because of a page promoting "Everybody Draw Muhammad" day. (See prior posting.) Now another page is promoting "Everybody Burn Quran" day. It is also claimed that Facebook carried blasphemous caricatures of the Kaaba, Islam's holy site in Mecca. The court gave Telecom Wireless three weeks to inform it of the steps it has taken to make blasphemous material unavailable in the country. In arguing for the ban, the petitioner contended that the U.N. Covenant on Civil and Political Rights requires every country to pass legislation to ban religious hatred, and cited the U.N. Human Rights Commission's resolution on Combatting Defamation of Religions.(See prior posting.)

California Federal District Court Strikes Down Proposition 8, The State's Ban On Same-Sex Marriage

In a 138-page opinion today, a federal district court in San Francisco held that California's Proposition 8 that bans same-sex marriage is unconstitutional. In Perry v. Schwarzenegger,(ND CA, Aug. 4, 2010), the court held that

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same sex couples and has not suffered any demonstrated harm as a result....Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

In approaching the substantive due process argument, the court said that

the parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.....

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.... Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.....

The court concluded that domestic partnerships do not fulfill the state's due process obligation, because they "do not provide the same social meaning as marriage."

Moving to the equal protection issue, the court said:

The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present.....

Ultimately the court avoided deciding whether that history of discrimination triggered a strict scrutiny review, because, in its view, Proposition 8 failed even the rational basis test. The court rejected a series of purported justification for treating same-sex couples differently.  It said the evidence showed that same-sex marriage has no adverse effect on society or the institution of marriage and that "tradition alone ... cannot form a rational basis for a law."  Proponents also argued that Proposition 8 protects the First Amendment freedom of those who oppose same-sex marriage. The court responded:

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying ..., those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.....

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples..... Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate..... [M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation..... Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

Proponents of Prop 8, Anticipating Loss, File Advance Motion For Stay Pending Appeal

The federal district court for the Northern District of California has announced that it will issue its decision in Perry v. Schwarzenegger-- the challenge to the constituitonality of California's Proposition 8 banning same sex marriage-- today. In anticipation of the decision, yesterday proponents of Proposition 8 (apparently anticipating a loss) filed a Motion for Stay Pending Appeal accompanied by a memorandum in support of the motion. (Full text of filing.) Plaintiffs responded today with a letter (full text) saying they intend to respond if a response is warranted and asked to be heard on the motion. Today's Silicon Valley Mercury News reports on the filing.

Chelsea Clinton's Interfaith Marriage, and Presiding Rabbi, Subject of NYT Articles

Today's New York Times in two articles explores aspects of Chelsea Clinton's interfaith marriage last week end.  One article explores the conflicted feelings in the Jewish community over the marriage-- pride in the societal openness reflected by the marriage, but concern that interfaith marriages undermine the passing on of Jewish tradition. The second article explores the spiritual journey of Rabbi James Ponet, who co-officiated at the wedding. Indifferent about Judaism before college, he became obsessed with religion in college. He studied at Hebrew Union College for the rabbinate, spent eight years in Israel studying and returned to Yale as a deeply observant rabbi. About five years ago, however, he went through another change in which at least his outward observance lessened. He is described as deeply Jewish, but also very interested in other traditions.

New Twist In Rifqa Bary Case; Parents, Girl Disagree Over Cancer Treatment

Yesterday's Columbus Dispatch reports on the latest twist in the case of Rifqa Bary, the 17-year old who ran away from her home in Ohio to Florida last year saying her father threatened to kill her for converting from Islam to Christianity. The parents denied the claim as Rifqa was returned to Ohio but placed in foster care. (See prior posting.) Now it turns out that Rifqa has had a bout with uterine cancer. She underwent surgery, and her physician recommended that it be followed by 45 weeks of chemotherapy even though she is disease-free according to available imaging techniques. Her parents support that recommendation, but Rifqa, who turns 18 next week, opposes that course of treatment, though she will continue to consult her doctors.  Yesterday an Ohio juvenile court magistrate ruled that Rifqa is mature enough to make the treatment decision for herself, and said the court cannot order treatment because Rifqa's health is not in immediate danger. Rifqa's parents claim the decision to end chemotherapy came after Rifqa attended a faith-healing event. Rifqa's attorneys, however, say she went to a "prayer conference" shortly after her diagnosis. She had multiple surgeries and began chemotherapy, but it made her weak and sick.

Former Commissioners Question Dominance of One Church On City's Human Rights Commission

In Sioux City, Iowa, two former members of the city's Human Rights Commission told City Council on Monday that they are concerned about the lack of diversity in membership on the Commission.  Yesterday's Sioux City Journal reports that of the eleven current members of the Commission, 5 are members of Cornerstone World Outreach Church, and one is a former member. The issue arose in connection with Council's approval of the appointment of a new member of the Commission to replace an individual who had resigned. A column in yesterday's Sioux City Journal speculates that World Outreach Church is possibly attempting to "pack" the Commission in order to further its views in sexual orientation discrimination cases that come before the Commission.

Mayor Bloomberg Lauds Religious Liberty While Others Challenge Mosque Decision

Following yesterday's vote by the New York City Landmarks Preservation Commission that essentially refused to block plans to build a mosque and Islamic Center near Ground Zero, New York mayor Michael Bloomberg, in view of the Statue of Liberty and surrounded by religious leaders on Governors' Island, praised the Commission's decision and gave an impassioned defense of the American tradition of religious liberty. Here are some excerpts, but the full text is worth reading:

Of all our precious freedoms, the most important may be the freedom to worship as we wish. And it is a freedom that, even here in a City that is rooted in Dutch tolerance, was hard-won over many years. In the mid-1650s, the small Jewish community living in Lower Manhattan petitioned Dutch Governor Peter Stuyvesant for the right to build a synagogue – and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion..... In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion – and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780's.... 

This morning, the City's Landmark Preservation Commission unanimously voted not to extend landmark status to the building on Park Place where the mosque and community center are planned..... The simple fact is this building is private property, and the owners have a right to use the building as a house of worship. The government has no right whatsoever to deny that right....This nation was founded on the principle that the government must never choose between religions, or favor one over another. The World Trade Center Site will forever hold a special place in our City, in our hearts. But we would be untrue to the best part of ourselves – and who we are as New Yorkers and Americans – if we said 'no' to a mosque in Lower Manhattan.

Meanwhile, the American Center for Law & Justice, which represents a New York firefighter who survived 9-11, announced it would file a petition in state court challenging the Commission's vote as an abuse of discretion.

UPDATE: Here is the full text of the complaint in ACLJ's lawsuit challenging the Commission's decision. The case is Brown v. New York City Landmarks Preservation Commission, (Sup. Ct. NY County, filed 8/4/2010).

NYC Landmark Board Rejects Landmarking For Controversial Islamic Center Site

New York City's Landmarks Preservation Commission this morning paved the way for construction of a controversial Islamic Center  and mosque two blocks from Ground Zero in lower Manhattan.  According to CNN, the Commission voted 9-0 against landmark status for a building that developers plan to demolish to make room for the planned Center. Opponents of the mosque saw landmark status as a way of preventing the construction because it would have barred developers from demolishing or significantly altering the exterior of the building.  New York Mayor Michael Bloomberg and other city leaders support the building of the Islamic Center which is designed to show the face of moderate Islam. Some other politicians, however, have turned the proposal into a political issue, calling its location a provocation. (See prior posting.)

Florida Prisons To Begin Kosher Food Program On Trial Basis

JTA reported yesterday that Florida Governor Charlie Crist has recently signed a directive ordering the state Department of Corrections to provide a kosher food plan for state prison inmates.  A release last month from the Aleph Institute, a Chabad group that serves the needs of Jewish prisoners, says it will begin a 6-month trial of the program at a unit of the South Florida Reception Center in Miami. That trial begins August 16. In 2007, the state ended its previous Jewish Dietary Accommodation program in its prisons. (See prior posting.) [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Court Says Redacted Holiday Card Form Violated Free Speech

In Pounds v. Katy Independent School District, 2010 U.S. Dist. LEXIS 77175 (SD TX, July 30, 2010), a Texas federal district court granted a motion to reconsider its earlier decision involving a First Amendment challenge to a holiday card fundraising project at a Texas elementary school. The project permitted parents to order Christmas, Hanukkah or Kwanzaa cards featuring their child's artwork and containing one of a number of pre-set greetings. In sending home the order form supplied by an outside company, the school blacked out one message choice-- a religious quotations from the New Testament. The court held that the school's admitted viewpoint discrimination violated parents' First Amendment free speech rights and was not justified by an attempt to avoid an Establishment Clause violation. It concluded that use of the "unredacted [order] form could not fairly have been characterized as a government endorsement of any of the messages." (See prior related posting.)

Church Sues Challenging Georgia City's Zoning Law

Last month, a church in Avondale Estates, Georgia filed a federal lawsuit challenging both on their face and as applied the city's zoning ordinance which requires churches to obtain a conditional use permit in order to locate anywhere in the city. The ordinance also requires religious institutions to be located on at least 3 acres and have 100 feet of public street frontage. The complaint (full text) in Christ Liberty Family Center v. City of Avondale Estates, Georgia (ND GA, filed July 23, 2010), alleges that the city allows other similar non-religious assembles in four of its districts-- including the central business district where the church leased property -- without requiring this type of permit or imposing the same acreage and frontage requirements. The suit alleges that the ordinance violates RLUIPA, the First and 14th Amendments and the free exercise provisions of the Georgia constitution. Plaintiff has also filed a motion for a preliminary injunction, including a memorandum in support. (Full text). Alliance Defense Fund issued a press release on the case.

Church-State Expert From Now Defunct AJCongress Hired By American Jewish Committee

JTA yesterday reported that following the suspension of activities by the American Jewish Congress, largely for financial reasons (see prior posting), its long-time general counsel and co-executive director, Marc Stern, has been hired by AJCongress' traditional rival, the American Jewish Committee. Stern, who was with AJCongress for 33 years, is known for his expertise on church-state issues as well as on the international law of warfare and other constitutional matters. American Jewish Committee yesterday issued a press release announcing the move. A spokesman said that Stern's hiring has no connection to rumored merger talks between the two groups, and that no merger talks are now going on.

Tajikistan Tries To Keep Control Over Muslim Education

Radio Free Europe today reports on efforts by the government of Tajikistan to keep control over Islamic education in the country. All teachers must be licensed by the state, and the government regularly conducts raids on mosques and private homes where they suspect unlicensed classes are being held or underground madrassahs have been created. Government officials say their actions are aimed at preventing the spread of religious extremism, but they have been widely criticized as violating religious freedom.  Apparently demand for religious classes outstrips the supply of state-approved schools. So the Education Ministry recently introduced a course in Knowledge of Islam into state schools. Religious leaders say these once-a-week classes are not enough. Many parents send their children to unofficial classes in homes of local mullahs and local mosques because they are convenient and free.The country's 20 official madrassahs charge tuition and offer a range of secular courses as well as religious ones.

Canada Orders Investigation After Veiled Women Permittted To Board Plane Without Facial Identification

Canada's Transport Minister John Baird said on Sunday (full text of statement ) that he has ordered an investigation of whether airlines are properly applying the country's Identity Screening Regulations after the media reported widely on a YouTube video showing two veiled women boarding a plane in Montreal without being asked to show their faces.  CTV News (which links to the video) reports that it was posted on YouTube under the caption: "A major Canadian airline risks your safety, pandering to Muslim sensibilities." Many viewers of the clip on YouTube wrote inflammatory comments.

3rd Circuit Says Prison Can Bar Muslim Women Employees From Wearing Khimars

In Equal Employment Opportunity Commission v. The Geo Group, Inc., (3d Cir., Aug. 2, 2010), the 3rd Circuit held, in a 2-1 decision, held that a private company which operated a prison under contract with the state did not violate Title VII of the 1964 Civil Rights Act when it refused to accommodate Muslim women employees by allowing them to wear khimars (Muslim scarfs). Geo policy permitted hats or other head coverings only if they were issued with a uniform.  The majority affirmed the grant of summary judgment for Geo, concluding that while this is a close case, the policy should be upheld.  It relied on testimony that the khimar posed a risk because it could be used to smuggle in contraband, it can be used to conceal the identity of the wearer, and it could be used against a prison employee in an attack. Judge Tashima dissented, contending that the majority "makes a shambles of our Title VII religious accommodation jurisprudence." He argued that on the basis of the record, a reasonable jury could find that GEO did not make a good faith effort to reasonably accommodate plaintiffs religious practices. AP yesterday reported on the decision.

Backing of Geert Wilders' Party Is Key To New Coalition Government Agreement In Netherlands

Bloomberg News reports that in the Netherlands, after seven weeks of deadlock, a preliminary agreement to form a government was finally been reached when Geert Wilders' anti-immigrant Freedom Party delegates agreed to back a minority government of Liberals and Christian Democrats.Wilders is known for his anti-Muslim statements and his attempts to limit the influence of Islam in the country. (See prior posting.) Wilders will not hold a ministerial position in the government, and will thus remain free to continue to promote his anti-Islamic views.

Paper Begins Series on the Catholic Church In Cuba

Yesterday's National Catholic Register carries the first in a three-part series on the Catholic Church in Cuba. The Church is the only national institution that functions independently of the government. In the 1960's, the government confiscated Church properties. However in the 1990's the government's attitude toward the Church began to change, culminating in a Papal visit by Pope John Paul.  The article summarizes the situation:  "Since 1998, the regime has alternated between allowing, even endorsing, Catholic expressions of identity and belief and brutally persecuting Christians who ask for more freedom — against the backdrop of a populace mostly concerned with financial survival."

Trial Set To Start In Long-Pending Establishment Clause Challenge To "Waldorf" Schools

Today's Sacramento Bee reports that a federal court trial is scheduled to begin Aug. 31 in a challenge to two Northern California school districts that have created "Waldorf" schools. The lawsuit, originally filed in 1998 has gone through a number of appeals. It alleges that "Waldorf "schools violate the Establishment Clause as well as church-state separation provisions of the California Constitution. Twin Ridges School District opened a Waldorf-inspired charter school in 1995; a Sacramento elementary school was converted to Waldorf Methods in 1996. According to a 1998 press release from People for Legal and Nonsectarian Schools (PLANS), the group which filed the lawsuit:

Waldorf schools were founded in 1919 in Stuttgart, Germany, by Austrian-born New-Age guru Rudolf Steiner (1861-1925). After Steiner's attempt to found a spiritually-oriented political party had failed, he turned to education as a way to carry on his work by preparing souls for reincarnation as the leaders of the next epoch of history. There are now over 500 private Waldorf schools world-wide, including about 150 in the U.S., with philosophical guidance from the international Anthroposophical Society centered in Dornach, Switzerland. In recent years Rudolf Steiner College, a teacher training seminary in Fair Oaks, CA, has led a campaign to establish Waldorf programs in public schools. The charter school movement has accelerated this process.

Parental interest in Waldorf schools is growing, and Sacramento opened a small public high school based on the system three years ago. Proponents say Waldorf is a holistic approach to education that has art infused into the curriculum.

Fired Rastafarian Prison Guards Sue Alleging Discrimination

Saturday's Philadelphia Inquirer reported on a lawsuit filed by three former prison guards who are followers of the Rastafarian faith against Community Education Centers that operates Delaware County's (PA) prison. The guards were fired after they refused for religious reasons to cut their hair, in violation of the prison's grooming policy. The guards argue that they should be allowed to put their hair up in buns, as women correctional officers are permitted to do. Their lawsuit charges religious, sexual and racial discrimination.

Recent Articles of Interest

From SSRN:

• Christina E. Wells, Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment, (University of Missouri School of Law Legal Studies Research Paper No. 2010-14, July 27, 2010).
• Jeff Redding, Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems, (Journal of Islamic State Practices in International Law, Vol. 6, No. 1, 2010).
• Robert C. Blitt, One New President, One New Patriarch and a Generous Disregard for the Constitution: A Recipe for the Continuing Decline of Secular Russia, (University of Tennessee Legal Studies Research Paper No. 107, July 27, 2010).
• Victor M. Muniz-Fraticelli, The Problem of Pluralist Authority, (July 28, 2010).
• Anita L. Allen, Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice?, (U of Penn Law School, Public Law Research Paper No. 10-25, July 27, 2010).
• Simon Butt, Islam, the State and the Constitutional Court in Indonesia, (Pacific Rim Law & Policy Journal, Vol. 19, No. 2, pp. 279-301, 2010).

From SmartCILP:

• Tim Newton, Has Evolution Disproved God?: The Fallacies in the Apparent Triumph of Soft Science, 4 Liberty University Law Review 1-95 (2009).

Israeli Government Wants Church of Holy Sepulchre To Pay Water Bills-- But Legal Complications Exist

Asia News reported Friday that in Israel, authorities in Jerusalem want the church of the Holy Sepulchre to begin paying for water that has traditionally been supplied to it without charge and, in addition, to pay for past water usage back to 1967.  Authorities threaten to cut off the church's water supply if  the bills are not paid.  Historically since at least 1917 the British Mandatory Government, the Jordanians and then the Israelis have supplied water to the church free of charge. There are also significant legal issues regarding exactly who is responsible for the bills. While government notices have been sent to "the church of the Holy Sepulchre," no such entity exists. Instead, under a complicated status quo agreement, use of the church is divided among numerous groups. As summarized by Wikipedia: "The primary custodians are the Eastern Orthodox, Armenian Apostolic, and Roman Catholic Churches, with the Greek Orthodox Church having the lion's share. In the 19th century, the Coptic Orthodox, the Ethiopian Orthodox and the Syriac Orthodox acquired lesser responsibilities, which include shrines and other structures within and around the building. Times and places of worship for each community are strictly regulated in common areas." All of this means that if the Israeli government is serious, it will have to reach agreements with the various groups about splitting the cost of water used in the common areas, and will have to install separate water meters in other parts of the building.

Lawsuit Challenges LA's Enforcement of Limits On Pot Dispensaries Against Rastafarian Temple

In Los Angeles, California last week, a state court lawsuit was filed by marijuana activist Ed Forchion (also known as NJWeedman) seeking to prevent the enforcement of the city's recently enacted Ordinance 181069 against his Rastafarian Temple. As described by NORML, the new ordinance seeks to limit the number of legally zoned pot dispensaries to fewer than 100. The complaint (full text) in Liberty Bell Temple II v. City of Los Angeles alleges that Rastafarians smoke marijuana as part of their religious rituals. Earlier this month, Los Angeles police raided Forchion's Rastafarian temple, seized marijuana it found there along with other items, and charged Forchion and Charquant Leyou with violating the Los Angeles Municipal Code. The lawsuit alleges that "The action of enforcement that occurred on July 14, 2010 are [sic.] clear violations of the Religious Freedom Restoration Act (RFRA) 42 U.S.C. 2000bb and the California Constitution's right to Due Process under the law." A press release issued by Forchion yesterday says in part: "I left the restrictive confines of the state of New Jersey to enjoy a new found freedom here in California. Per my now famous Hollywood Hemp Mansion Parties, I have been trying to live a good life and leave behind my days of activism, but this new assault on my rights now leaves me no choice but to legally battle coast to coast!"

Estate of Suicide Victim Sues Catholic Diocese For Negligence

AP reported Friday that the estate of a priest abuse victim who committed suicide has filed a lawsuit in a Pennsylvania state court against the Roman Catholic Diocese of Pittsburgh alleging that the suicide resulted from the diocese ending payments for mental health treatments of the victim.  39-year old Michael Unglo, abused as an altar boy in the 1980's, had attempted suicide twice before. The suit, seeking at least $50,000 in damages, alleges negligence on the part of the diocese which says it has already spent $300,000 for Unglo's treatment. The diocese continus to pay health insurance costs and a stipend for the former priest who has been convicted for molesting another boy.

Recent Prisoner Free Exercise Cases

In Smith v. Thompson, 2010 U.S. Dist. LEXIS 74666 (ED KY, July 23, 2010), a Kentucky federal district court rejected a prisoner's free exercise, RLUIPA and other challenges to a prison policy that prevents him from wearing his wedding right that contains stones which are contraband. Plaintiff alleged that he and his wife, as members of the African Methodist Episcopal Church, have entered into holy vows that  prohibit the removal and/or substitution of rings exchanged during their wedding ceremony. Among other things, the court concluded that plaintiff's contentions were not consistent with church doctrine.

In Rodriguez v. Wells, 2010 U.S. Dist. LEXIS 76764 (SD GA, July 29, 2010), a Georgia federal district court adopted a magistrate's recommendations (2010 U.S. Dist LEXIS 76770, June 30, 2010) and dismissed claims by a prisoner that the state prison system should offer kosher meals consistent with Jewish and Muslim dietary restriction. It also held that plaintiff had failed to exhaust his administrative remedies in objecting to being disciplined for boycotting three specific meals as part of a group demonstration. In a related case, Eraso v. Wells, 2010 U.S. Dist. LEXIS 76762 (SD GA, July 29, 2010), the court also adopted the magistrate's recommendations (2010 U.S. Dist. LEXIS 76760, June 25, 2010) and held that a complaint about lack of kosher food could not properly be raised in a habeas corpus proceeding, and in any case plaintiff had failed to exhaust administrative remedies.

In McCoy v. Frazier, 2010 U.S. Dist. LEXIS 76702 (ED VA, July 2, 2010), a Virgina federal district judge dismissed an inmate's free exercise challenge to a prison security rule that precludes Muslim prisoners from praying (or otherwise speaking) in Arabic (which their supervisor cannot understand) when the service includes inmates from different housing units and different security levels.

In Allen v. White, 2010 U.S. Dist. LEXIS 75884 (WD OK, July 27, 2010) a federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 75665, April 22, 2010), and denied without prejudice a preliminary injunction to an inmate who wanted a Mesoamerican diet which conforms with his Aztec/Santeria beliefs, as well as ritual items, including incense, drums, animal pelts, and materials to build a fire pit, and certain books that are required by such beliefs. He also sought an injunction to prevent authorities from retaliating against him by transferring him to another institution. The court also denied his request to appoint counsel.

In Funderburk v. Nevens, 2010 U.S. Dist. LEXIS 75171 (D NV, July 26, 2010), a Nevada federal district court held that prison authorities had adequately accommodated plaintiff's participation in the Ramadan fast by providing pre-dawn and post-sunset meals.

In Jones v. Correctional Care Solutions, 2010 U.S. Dist. LEXIS 74647 (D SC, July 23, 2010), a South Carolina federal district court adopted a magistrate's recommendations and dismissed an inmate's objections to the fact that inmates observing Ramadan receive only snacks in addition to the dinner tray rather than an additional full lunch tray as well to eat then.

In Rouser v. Tilton, 2010 U.S. Dist. LEXIS 74629 (ED CA, July 23, 2010),a California federal magistrate judge in a recommendation to the court rejected claims by a Wiccan inmate regarding various interferences with his ability to practice his religion. Among other things, the opinion held that claims under RLUIPA for monetary damages are not available in personal capacity suits against officials and are barred by the 11th Amendment in official capacity suits.

In Sherman-Bey v. Marshall, 2010 U.S. Dist. LEXIS 74558 (CD CA, July 22, 2010), a California federal magistrate judge rejected objections by an inmate who is a member of the Moorish Science Temple of America to a prison ban on wearing of red clothing (except in sporting events). Plaintiff wanted to obtain a red fez, while prison rules permitted only white or gray ones. It also rejected complaints that there were no services, separate from Muslim ones, for Moorish Science adherents, and that prison rules permitted only five kinds of scented oils. The decision however granted plaintiff the right to file an amended complaint.

School Conservator's Remark In Firing Principal Did Not Violate Establishment Clause

In Brown v. North Panola School District, 2010 U.S. Dist. LEXIS 76419 (ND MS, July 28, 2010), the former principal of Como Elementary School in Como, Mississippi challenged on various First Amendment and other grounds her firing by a state Conservator who was appointed to take over the low-performing school district that included the school. The court rejected the argument that a comment the Conservator made when informing plaintiff of her non-renewal as principal violated the Establishment Clause.  The Conservator told plaintiff: "when God moves someone from one place, doors are opened in others and some things happen for the good." The court concluded that this "stray remark" did not amount to the state endorsing the Conservator's religious views.

Methodist Minister, Reform Rabbi Co-Officiate At Clinton-Mezvinsky Wedding

UPI reports on the Rhinebeck, New York wedding earlier this evening of Mark Mezvinsky and Chelsea Clinton, daughter of former President Bill Clinton and Secretary of State Hillary Rodham Clinton. Speculation over the nature of the wedding ceremony that would join together interfaith couple ended as it was announced that Methodist minister William S. Shillady and Rabbi James Ponet co-officiated. Shillady is executive director of the United Methodist City Society. Ponet, a Reform rabbi, is Jewish chaplain at Yale University and heads Yale's Joseph Slifka Center for Jewish Life. The United Methodist Church leaves the question of mixed-faith ceremonies to local pastors and allows ministers to adapt the wedding ceremony to some extent. (See prior posting.) Reform rabbis may decide as a matter of individual conscience whether or not to officiate at interfaith marriages, though the Reform movement's rabbinical organization opposes participation in mixed marriage ceremonies. (FAQ from Union for Reform Judaism). UPI also reported that the wedding menu included vegan fare for Chelsea Clinton. Of course that would also satisfy concerns of some Jewish participants who observe Kosher dietary laws.

ADL Surprisingly Opposes Islamic Center Near Ground Zero

The New York Times reports that in a surprising move yesterday, the Anti-Defamation League came out in opposition to the proposed building of an Islamic center and mosque two blocks from Ground Zero in lower Manhattan, calling instead for an alternative location to b e found.. (Full text of ADL statement). Supporters of the planned $100 million complex that will contain prayer space, a performing arts center, a pool and a restaurant, see it as an attempt to build a national model of moderate Islam. However, the proposal has become increasingly controversial, especially as Republicans around the country began to use it as a campaign issue.  Sarah Palin has called it an "unnecessary provocation." While the ADL continued to criticize opposition based on religious bigotry, now ADL national director Abraham Foxman says that the location is offensive to families of 9-11 victims. He remarked: "Their anguish entitles them to positions that others would categorize as irrational or bigoted." According to the Times, the ADL's statement could constitute "a turning point in the battle over the project." Among those highly critical of the ADL's new statement is columnist Paul Krugman.

New Jersey Commission Supports More Aid To Non-Public Schools

On July 20, New Jersey Gov. Chris Christie released the report of the Governor’s Study Commission on New Jersey’s Nonpublic Schools. Titled Quality Education for All of New Jersey’s Children: The Importance of Supporting the Complementary Relationship Between New Jersey’ s Public and Nonpublic Schools, the report recommends a number of steps to enhance aid to students in private schools, including various tax credits and scholarships. Concluding that its recommendations can be carried out in a manner consistent with case law on aid to religious schools, the  report says:

Between 2004-2009 nonpublic enrollment declined 29,810 – and those students entered the public system at a cost of approximately $430-490 million to the taxpayer this year. Taxpayers cannot sustain the impact of that, proven by the fact that the state budget this year cut from education spending almost that exact amount. That is not a coincidence: it is a consequence.

Yesterday's New Jersey Jewish Standard summarizes the commission's recommendations.

University of Illinois Keeps Catholic Thought Prof At Least For Next Semester

Yesterday's Chronicle of Higher Education reports that the University of Illinois at Urbana-Champlain will retain an adjunct professor who teaches courses on Introduction to Catholicism and Modern Catholic Thought pending completion of a review by a faculty Committee on Academic Freedom and Tenure. Earlier the University had indicated it would not keep Kenneth Howell on in a teaching position this fall, apparently in reaction to a student complaint that an e-mail sent by Howell explaining how homosexual conduct would be viewed under natural law theory amounted to hate speech. (See prior posting.) That University decision led to a barrage of e-mails protesting the action. While the University will retain Howell for the coming semester, at the same time it is changing the arrangement under which Howell's $10,000 salary came from the church-supported Newman Center, which also selected instructors who would teach Catholic studies courses.

6th Circuit Denies En Banc Review In Ten Commandments Case

The U.S. 6th Circuit Court of Appeals yesterday denied en banc review in ACLU of Kentucky v. McCreary County (full text of court order). In the case, a majority of a 6th Circuit panel (see prior posting) approved issuance of a permanent injunction against display of the 10 Commandments along with other historical documents that refer to God in two Kentucky county court houses. In 2005, the U.S. Supreme Court found the display violated the Establishment Clause, but later litigation focused on whether the counties had changed their religious purposes for the display. A majority of the panel agreed with the district court that resolutions adopted in 2005 were adopted only as a litigating position. However the panel decision produced three separate opinions. [Thanks to Peter Irons for the lead.]

Swiss Schools Fine Muslim Parents Who Refuse Mixed Swim Classes For Young Girls

Today's Sydney Morning Herald in a story from AFP reports that authorities in Basel, Switzerland have fined five Muslim families that have refused on religious grounds to permit their daughters, all under ten years of age, to attend compulsory mixed-gender swimming classes. The schools offer separate classes for boys and girls who have reached the age of puberty, but the head of the city's education department says that mixed classes for younger children were justified after consultations with religious organizations. Each family was fined 350 Swiss Francs ($335 US).

EEOC Says Store Should Have Accommodated Jehovah's Witness' Beliefs

The Charlotte (NC) Business Journal reports that the EEOC yesterday filed a lawsuit against Belk, Inc. in a North Carolina federal district court charging religious discrimination by one of Belk's stores in Raleigh (NC). The suit alleges that Belk wrongfully fired employee Myra Jones-Abid after she refused to wear a Santa hat and apron while working in the store's gift wrapping section. Jones-Abid is a Jehovah's Witness. Her religion prohibits celebration of holidays, including birthdays and Christmas. The EEOC claims that Belk had an obligation to accommodate Jones-Abid's religious beliefs.

Bangladesh Supreme Court Appellate Division Restores Constitutional Provision On Secularism

The Financial Express reports that on Tuesday, the Appellate Division of Bangladesh's Supreme Court upheld, with certain modifications, a High Court decision that declared illegal the Fifth Amendment to Bangladesh's Constitution. The decision restores various articles of the 1972 Constitution, including those that affirm principles of secularism. According to the Financial Express:

The verdict paves the way for restoration of Article 12 of the original Constitution that says: The principle of secularism shall be realized by the elimination of - (a) communalism in all its forms; (b) the granting by the State of political status in favour of any religion; (c) the abuse of religion for political purposes; (d) any discrimination against, or prosecution of persons practising a particular religion.

The verdict makes way for dropping clause (2) of Article 25 that says the State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.

Following the verdict, Article 38 with proviso will be restored. Article 38 says "Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order: "Provided that no persons shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has or its object, or pursues, a political purpose."

The Financial Express reports separately that Bangladesh's Parliament has created a 15-member committee to prepare a draft amended Constitution to comply with the Court's order. DNA India reports however that Parliament is unlikely to ban ban religious parties or drop the Islamic verse "Bismillahir Rahmani Rahim" from the preamble of the constitution (See prior related posting.)

Settlement Reached In High Schooler's Suit Against Science Teacher Who Taught Religion In Class

Today's Columbus (OH) Dispatch reports on the settlement of a federal lawsuit brought by the family of a high school student against Mount Vernon, Ohio high school teacher John Freshwater. The lawsuit alleged violations of the Establishment Clause. Copies of the Ten Commandments were posted in Freshwater's classroom. He kept his personal Bible on his desk, and a box of Bibles were stored in the back of the classroom for use by the school's Fellowship of Christian Athletes for which Freshwater served as faculty advisor. The student also alleged a battery growing out of an experiment with a Tesla coil which allegedly left a mark on his arm in the shape of a Christian cross. (See prior posting.) Attorneys for the insurance carrier for the school and teacher have not released details of the settlement, which must still receive court approval. Currently Freshwater is on administrative leave, fighting attempts of the school board to fire him for teaching religion in his science class.

New Zealand Jewish Community Preparing To Sue Over Ban On Kosher Slaughter

JTA today reports that the Jewish community in New Zealand is preparing to file a lawsuit challenging the government's recent decision refusing to exempt kosher slaughter from a new Animal Welfare Slaughter Code that requires animals be stunned before being killed. (See prior posting.) Attempts to convince the Agriculture Minister to reverse the ban have not succeeded. The lawsuit will likely claim that the ban violates religious freedom protected by New Zealand's Bill of Rights Act . The Animal Welfare Act of 1999, Sec. 73, provides that in proposing a Code under the Act, the National Animal Welfare Advisory Committee is to consider, among other things, the requirements of religious and cultural practices.

Atheist School Proposal Welcome Under Britain's New Education Policy

Yesterday's London Telegraph reports that Britain's Education Secretary Michael Grove says he would be interested in looking at proposals by individuals such as atheist Prof. Ricard Dawkins for the creation of a "free thinking" school. Around one-third of the government funded schools in Britain are faith schools. The government has published a plan to give parents' groups, teachers and charities powers to open their own schools at taxpayers' expense. Saying that an atheist school would not be his personal preference, he emphasized that nevertheless it is consistent with the new policy of providing the greatest degree of choice to parents.

Most of University's Speaker Policy Survives Facial Challenge By Christian Preacher

In Sonnier v. Crain, (5th Cir., July 27, 2010), the 5th Circuit Court of Appeals , in a 2-1 decision, rejected a facial challenge to most parts of Louisiana State University's speaker policy, applying the test that a facial challenge will succeed only if there is no set of circumstances under which the policy would be valid. In a suit brought by an itinerant Christian preacher who wanted to deliver a religious message to students, the court upheld the denial of a preliminary injunction to prevent enforcement of (1) the school's seven-day advance notice requirement for a permit; (2) a two-hour, once-per week limitation for each speaker or organization; (3) the collection of personal information before issuing a permit; and (4) the limitation of speech to three specific campus locations. However it enjoined enforcement of the school's requirement that speakers pay a security fee at the discretion of the University.

Judge Dennis dissented arguing that at the preliminary injunction stage, the court should have considered the speech policy as applied as well as the facial challenge to it.  He concluded that all portions of the policy were unconstitutional as applied to plaintiff.  He also argued that the majority used the wrong test in determining facial validity. Finally he concluded that the University's restrictions are not narrowly tailored to serve a significant governmental interest.

77' Cross Goes Up In Texas Subdivision Prayer Garden

Following a settlement last March of a lawsuit attempting to prevent The Coming King Foundation (TCKF) from placing a 77-foot tall cross in a Kerrville, Texas subdivision (see prior posting), on Tuesday the $2 million, 70-ton sculpture was erected overlooking Texas I-10, half way between the Atlantic and Pacific Oceans. A press release from TCKF says the sculpture called The Empty Cross, which is part of a 23-acre sculpture prayer garden, will be admission free. However, over $2 million still needs to be raised in order to build a parking lot entrance and interior roads that will allow the park to be opened to the public. In the meantime, guided tours are available, as is live streaming video of the Cross.

Court Upholds Dismissal of Counseling Student Who Would Not Counsel Gays

In Ward v. Wilbanks, (ED MI, July 26 2010), a Michigan federal district court upheld Eastern Michigan University's dismissal of a student from its graduate program in counseling because of her objections to counseling clients on their same-sex relationships, in violation of professional counseling standards. Julea Ward's Christian beliefs precluded her from affirming relationships which she believed were inconsistent with Biblical teachings. The court concluded that the university's policy is not a speech code, but is an integral part of the curriculum. It held that in a university setting, restricting or compelling speech that occurs in a classroom as part of the curriculum will be upheld so long as it serves a rational pedagogical purpose. According to the court:

The University had a rational basis for adopting the ACA Code of Ethics into its counseling program, not the least of which was the desire to offer an accredited program. Furthermore, the University had a rational basis for requiring its students to counsel clients without imposing their personal values. In the case of Ms. Ward, the University determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs - including homosexual relationships. The University offered Ms. Ward the opportunity for a remediation plan, which she rejected. Her refusal to attempt learning to counsel all clients within their own value systems is a failure to complete an academic requirement of the program.

Additionally, the court rejected Ward's free exercise and Establishment Clause claims:

Plaintiff was not required to change her views or religious beliefs; she was required to set them aside in the counselor-client relationship – a neutral, generally applicable expectation of all counselors-to-be under the ACA standard.

It concluded that the program requirements were secular in purpose and effect and did not involve excessive entanglement. It went on:

Although plaintiff’s complaint that defendants demonstrated hostility, arrogance, and offensiveness during the formal and informal reviews is well taken, the court finds that neither this behavior nor the curriculum requirements satisfy the level of hostility required to establish a religion of secularism....

Finally the court rejected plaintiff's equal protection claim:

Both sides’ positions eventually hardened due to the confrontational atmosphere, culminating in the “theological bout” during the formal hearing. Nevertheless, the court does not perceive any maliciousness in defendants’ behavior amounting to a constitutional violation.

Alliance Defense Fund which represented the student said in a release yesterday that it would appeal the decision. (See prior related posting.) Today's Inside Higher Ed reports on the decision.

ACLU FOIA Request Seeks To Uncover FBI "Muslim Mapping"

In a press release yesterday, the ACLU announced coordinated Freedom of Information Act requests in 29  states and the District of Columbia asking the FBI  to release records on its collection and use of information on ethnic-oriented businesses, behaviors, lifestyle characteristics and cultural traditions in communities with concentrated ethnic populations. According to the Los Angeles Daily News, an ACLU staff attorney said that it fears the FBI engaging in "Muslim mapping," the "singling out individuals for investigation, surveillance, and data-gathering based solely on their religion or ethnicity."

9th Circuit Says Ghanaian Baptist Preacher Entitled To Asylum

In Afriyie v. Holder, (9th Cir., July 26, 2010), the 9th Circuit held that a citizen of Ghana should have been granted asylum in the United States based on his persecution in Ghana by private parties who objected to his proselytizing as a Baptist preacher in predominately Muslim areas of the country. Persecution by private parties is a basis for asylum if the government is unable or unwilling to control the persecution. The court concluded that reporting persecution to the government is not essential to demonstrating that the government is unable or unwilling to protect a person from private actors. It is enough to show a lack of police resources that result in the police being unable to provide protection. The court also remanded for further findings appellant's claim for relief under the Convention Against Torture. Courthouse News Service reports on the decision.

Muslim Employees Prevail In Two EEOC Cases Involving Religious Accommodation

Muslim employees of two different companies have obtained favorable results after filing complaints with the EEOC. In one case, according to BNA's Daily Labor Report Monday, Swedish-based Electrolux Group has decided to change the evening shift meal breaks during Ramadan this year so employees will be able to break their fast and still abide by company rules that prohibit food on the production floor.

In an unrelated case, also reported by BNA's Daily Labor Report on Monday, White Lodging Services, Inc. which manages the Louisville (KY) Downtown Marriott has settled a lawsuit brought by the EEOC on behalf of four Muslim women who were denied job interviews in 2005 when they would not remove their hijabs. Marriott dress policy did not allow employees to wear head coverings that were not part of their uniforms, and the housekeeping manager who rejected the women was not aware of the significance of the hijab. The company will pay $10,000 to settle with each of the women, and will provide equal opportunity training for Hotel employees. (EEOC press release, 7/21). [Thanks to Steven H. Sholk for the lead.]

Utah High Court Reverses FLDS Leader Warren Jeff's Conviction

The Utah Supreme Court today reversed the rape as an accomplice conviction of FLDS leader Warren Jeffs. (See prior posting.)  In State of Utah v. Jeffs, (UT Sup. Ct., July 27, 2010), a unanimous court held that the jury had been improperly instructed on the issue of consent. Jeff's conviction grew out of his role in the compelled marriage of a 14-year old, Elissa Wall,  to her nineteen-year-old first cousin, Allen Steed. Utah law provides that intercourse with a minor is non-consensual where the actor occupied a position of special trust in relation to the victim. The trial court erroneously instructed the jury that this referred to whether Jeffs, the accomplice, occupied a position of trust, instead of whether Steed, the person having intercourse with Wall, occupied such a position. The court also clarified the state of mind requirement in order to convict Jeffs as an accomplice. He must have been aware, at a minimum, of a substantial and unjustifiable risk that his actions would result in rape being committed by another person. And where the charge is aiding another, rather than soliciting, encouraging or commanding the action, the accomplice must have acted intentionally. The Salt Lake Tribune reports on the decision.

UPDATE: AP (7/28) reports that Texas and federal authorities still have charges pending against Jeffs who could now be tried under those indictments. Meanwhile KSL News has Elissa Wall's reaction to the decision. Wall is in a witness protection program.