Glenn Beck Hosts Conservative Rally; Some Evangelicals Object To Participiation Because of Beck's Mormon Beliefs

Radio and television commentator Glenn Beck is hosting an event tonight at Kennedy Center in Washington, D.C. titled "America's Divine Destiny." Beck's website describes the event as follows:

Guided by uplifting music, nationally-known religious figures from all faiths will unite to deliver messages reminiscent to those given during the struggles of America's earliest days. The event will leave you with a renewed determination to look past the partisan differences and petty problems that fill our airwaves and instead focus our shared values, principles and strong belief that faith can play an essential role in reuniting the country.

CNN reports that this event precedes a rally to be held over the week end at the Lincoln Memorial on the 47th anniversary of Dr. Martin Luther King's "I Have A Dream" speech. The main speaker will be Sarah Palin. However some Christian conservatives have criticized the decision of evangelicals to take part in the Friday event because of Beck's Mormon beliefs. Brannon Howse writes: "The Apostle Paul warns Christians against uniting with unbelievers in spiritual endeavors.... While I applaud and agree with many of Glenn Beck's conservative and constitutional views, that does not give me or any other Bible-believing Christian justification to compromise Biblical truth by spiritually joining Beck." However evangelical activist David Barton defends participation, saying: "Christians concerned about Glenn's faith should judge the tree by its fruits, not its labels."

Staten Island Hosts Its First Official Iftar

SI Live reports on the first ever Iftar to be held at Staten Island (NY)'s Borough Hall.  The Ramadan event was attended by Borough President James P. Molinaro, even though he is an outspoken critic of plans to build a Muslim community center and mosque in lower Manhattan. Some 50 people from Staten Island's five mosques attended the event. Staten Island has some 25,000 Muslim residents. The sundown meal was preceded by a recitation from the Quran and remarks on the significance of Ramadan. Staten Island is the last of the five boroughs of New York City to have an official Iftar event.

O Centro Case Finally Dismissed By Federal District Court

In 2006, in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal , the U.S. Supreme Court ruled that the federal government cannot block a New Mexico church from using a hallucinogenic tea for religious purposes, and remanded the case for further proceedings. (See prior posting.)  Today's Albuquerque Journal reports that the case last week was finally been dismissed by a New Mexico federal district court after the parties entered a 21-page settlement agreement. According to the paper, the agreement specifies procedures for importing hoasca, and for registering, record keeping, inspection, storage and security, as well as agreement on payment of O Centro's attorneys fees.

U.S. Report To U.N. On Human Rights Record Lauds Free Exercise Rights

In 2006, the United Nations General Assembly established the Universal Perioidic Review process through which the human rights records of U.N. member states are assessed every four years. The State Department announced this week that on Aug. 20 the United States submitted its  report (full text) to the U.N. Human Rights Council, reviewing the U.S. human rights record. Here is what the report had to say about relgious freedom in the U.S.:

19. The desire for freedom from religious persecution has brought millions to our shores. Today, freedom of religion protects each individual’s ability to participate in and share the traditions of his or her chosen faith, to change his or her religion, or to choose not to believe or participate in religious practice.

20. Citizens continue to avail themselves of freedom of religion protections in the Constitution and in state and federal law. For example, in a case this year, a Native American primary school student’s right to wear his hair in a braid, in accordance with his family’s religious beliefs, was upheld pursuant to a Texas religious freedom law.

21. The constitutional prohibition on the establishment of a religion by the government, along with robust protections for freedom of speech and association, have helped to create a multi-religious society in which the freedom to choose and practice one’s faith, or to have no faith at all, is secure.

The ACLU issued a press release this week calling the report: "an important step toward turning the Obama administration's stated commitment to protecting human rights into tangible policies." It said however that "the report omits many issues that need significant improvement and doesn't present a full picture of the state of human rights in the U.S." The conservative Christian group Liberty Counsel issued a press release yesterday complaining that: "the report says that it welcomes 'observations and recommendations' from concerned members of the U.N. Human Rights Council, which includes countries such as North Korea, Saudi Arabia and Libya.... The presidency of Barack Obama will be remembered as one that sought to humiliate America by prostrating it before some of the worst human rights violators in the world."

US Bishop Laments "Post-Christian" World

In a strongly worded address delivered to the Canon Law Association of Slovakia on Tuesday (full text), Denver Archbishop Charles J. Chaput argued that events in both the United States and Europe "suggest an emerging, systematic discrimination against the Church that now seems inevitable." Here are a few excerpts:

In general, Catholics have thrived in the United States. The reason is simple. America has always had a broadly Christian and religion-friendly moral foundation, and our public institutions were established as non-sectarian, not antireligious.
 
At the heart of the American experience is an instinctive “biblical realism.” From our Protestant inheritance we have always – at least until now -- understood that sin is real, and men and women can be corrupted by power and prosperity. Americans have often been tempted to see our nation as uniquely destined, or specially anointed by God. But in the habits of daily life, we have always known that the “city of God” is something very distinct from the “city of man.” And we are wary of confusing the two.....
 
Today, in an era of global interconnection, the challenges that confront Catholics in America are much the same as in Europe: We face an aggressively secular political vision and a consumerist economic model that result – in practice, if not in explicit intent -- in a new kind of state encouraged atheism.....

This vision presumes a frankly "post-Christian" world ruled by rationality, technology and good social engineering. Religion has a place in this worldview, but only as an individual lifestyle accessory

LifeSite News yesterday reported on the speech.

Groups Protest Ban On Religion-Based Hiring In Proposed SAMHSA Legislation

Today's New York Times and a press release from World Vision report that over 100 religious organizations have written to every member of Congress objecting to a provision in HR 5466, the proposed SAMHSA Modernization Act of 2010 reauthorizing the Substance Abuse and Mental Health Services Administration.  At issue is a provision (Sec. 501(m)(2)) that would prevent grant recipients under the Act from hiring on the basis of religion. The controversial section reads:

With respect to any activity to be funded (in whole or in part) through an award of a grant, cooperative agreement, or contract under this title or any other statutory authority of the Administration, the Administrator, or the Director of the Center involved ... may not make such an award unless the applicant agrees to refrain from considering religion or any profession of faith when making any employment decision regarding an individual who is or will be assigned to carry out any portion of the activity. This paragraph applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable to a religious corporation, association, educational institution, or society.

Steven McFarland, chief legal counsel at World Vision USA, said that the language would effect "a seismic change in bedrock civil rights law for religious organizations." Among the groups signing the letter are World Vision, the Union of Orthodox Jewish Congregations of America and the U.S. Conference of Catholic Bishops.

New York Bingo Scheme Defrauds Greek Orthodox Diocese

In Queens, New York, three men were indicted last week on 714 gambling related counts in a scheme that defrauded the Greek Orthodox Diocese of America out of hundreds of thousands of dollars.  According to yesterday's Queens Gazette, bingo profits were supposed to go to the Greek Orthodox Diocese, but the affiliated charities were bogus organizations that allowed the three men to take some $830,000 from bingo and illegal side bets for themselves over several years.  The defendants, Spiros Moshopoulos, Tommy Skiada, and Daniella Radulescu were also charged with defrauding the city Department of Consumer Affairs out of some $20,000 in fees.

Egypt Prosecuting Muslim Publisher Over Introduction To Christian Bible

According to Daily News Egypt, Egypt's Prosecutor General on Monday referred Ahmed Abdallah Abo-Islam, a publisher of Islamic books, to a state security court on charges of contempt of the Christian religion.  A complaint had been filed against the publisher by Naguib Gobrael, a Coptic lawyer who is head of the Egyptian Union for Human Rights.  The charges grew out of publication of a copy of the Bible by Abo-Islam with an introduction charging that this is not the authentic Bible, and that the current Christian Bible is fabricated, modified and full of contradictions. The introduction also claims that the Church is deceiving Christians by labeling the Bible as the Holy Book.

FLDS Defendant Will Challenge Texas Bigamy Statute

At a state court hearing Tuesday in San Angelo, Texas, attorneys for FLDS member Wendell Loy Nielsen said they will challenge the constitutionality of Texas' bigamy statute when Nielsen goes on trial in October. Yesterday's San Angelo (TX) Standard Times reports that the prosecution of Nielsen is the first growing out of the April 2008 raid on the FLDS Yearning for Zion Ranch that does not directly involve sexual assault of a child. He is charged with three counts of bigamy. Each count could bring a sentence of up to ten years in prison.

Orthodox Jewish Community In New Jersey Split Over Sex Abuse Charges In State Court

A lengthy article in today's Asbury Park (NJ) Press reports on the rift in Lakewood, New Jersey's Orthodox Jewish community over the process that led to criminal sexual assault and child endangerment charges being brought against Yosef Kolko, a former camp counselor and local yeshiva teacher. The father of the 12-year old child who was the victim of the abuse went directly to Ocean County prosecutors. A number of Orthodox rabbis though say that they favor such charges being handled initially by Jewish religious courts and that the father should have obtained permission from the rabbinical court before filing charges in a civil court against a fellow Jew.

Virginia AG Gives Guidance On Holiday Displays

Virginia's Attorney General last week, at the request of Loudon County officials, issued an official advisory opinion (Opinion 10-067) on permissible holiday displays. The opinion concludes that the state constitution's establishment clause is narrower than the federal one and does not limit holiday displays on public property, though it does prohibit favoritism toward a particular sect or denomination.  Moving to the requirements of the federal establishment clause, the opinion gives the following guidance:

Loudoun County must accommodate religious items within the personal space of employees under certain circumstances. In addition, where the County already has provided a public forum or limited public forum, it will usually lack the right to exclude a religious display of reasonable duration based solely upon content. Even where no such forum previously has been created, the County is free to create a nondiscriminatory forum for recognition of holidays, including Christmas, if it makes clear that the County itself is not communicating a religious message.

Moreover, irrespective of religious accommodation, the County is free to communicate its own recognition of holidays, including Christmas, as long as overtly Christian symbols are balanced with other religious and secular ones in a way that communicates to reasonable, informed observers that the County is not making a religious statement. Because secular symbols can insulate innately religious symbols from constitutional attack, decoration of public buildings with such secular items as lights, candy canes, wreaths, poinsettias, fir trees, snowflakes, and red and green ribbons should raise no serious constitutional objection.

Today's Richmond Times-Dispatch reports on the opinion.

South Carolina AG Says Non-Profit Group's "I Believe" Plates Are Constitutional

Last year a federal district court held that a statute authorizing South Carolina's "I Believe" license plates-- carrying the image of a cross superimposed on a stained glass window-- violates the Establishment Clause.  (See prior posting.) Yesterday's Myrtle Beach (SC) Sun News now however reports that state Attorney General Henry McMaster has issued an opinion ruling that a new plan for similar "I Believe" plates is constitutional. Instead of being specially authorized by statute, this time a private non-profit group has applied for issuance of the plates under a general law that allows non-profit groups to apply for creation of specialty plates by paying $4,000 or collecting at least 400 prepaid orders. (SC Code of Laws Sec. 56-3-8000). The proposed new plate has the group's website URL along the top: http://www.ibelievesc.net/. Below it, the plate depicts a golden sunrise and on the left, and three crosses symbolizing the site of Jesus' crucifixion. South Carolina already has authorized 127 different specialty plates, including 21 created by non-profit groups, including one that reads "In Reason We Trust" created by a secular humanist group. The Aug. 16 Attorney General's Opinion reasoned: "The specialty license program has a secular purpose - allowing all nonprofit organizations to identify themselves by a logo or symbol."

2nd Circuit: Jewish Parole Division Employee May Proceed With Hostile Work Environment Claim

In Leifer v. New York State Divsion of Parole, (2d Cir., Aug. 23, 2010), the U.S. 2nd Circuit Court of Appeals rejected Title VII religious discrimination and retaliation claims by a Jewish employee of the New York Division of Parole. Plaintiff complained that mandatory meetings were scheuduled on the Jewish holiday of Rosh Hashanah in 2001 and Shavuot in 2003. The court concluded that plaintiff's religious exercise was accommodated when he was excused from attending the meetings. He did not show any material change in the terms and conditions of his employment as a result of his missing the meetings. However the court did  conclude that plaintiff was entitled to go to trial on his charge of a hostile work environment. The court said: "Leifer presents evidence of six interactions with his supervisors over a three-year period which implicate his religion.... [A] reasonable jury could find the interactions to be sufficiently hostile to have altered his employment conditions for the worse."

Suit Seeks To Enforce FOIA Request For FBI Records on Surveillance of Muslims

The ACLU of Northern California, the Asian Law Caucus and the San Francisco Bay Guardian yesterday filed a lawsuit against the FBI seeking to enforce Freedom of Information Act requests filed in July asking for records relating to the surveillance of Muslim communities in California. (See prior posting.) The complaint (full text) in ACLU of Northern California v. FBI, (ND CA, filed 8/24/2010), argues that the government surveillance at issue impacts fundamental First Amendment rights of free exercise of religion, freedom of association and freedom of expression. The ACLU announced the filing of the lawsuit in a press release. Illume yesterday reported on the lawsuit.

9th Circuit Reinstates Evangelist's Defamation Claim Against ABC's 20/20

In Price v. Stossel, (9th Cir., Aug. 24, 2010), the U.S. 9th Circuit Court of Appeals reversed a California district court's early-stage dismissal under California's anti-SLAPP statute of a defamation claim by a prosperity gospel evangelist. Dr. Frederick Price brought an action against ABC television correspondent John Stossel and others involved in producing the show 20/20.  On the show, Stossel showed a clip of a sermon by Price in which Price describes a person with substanital wealth. Out of context the show suggested Price was talking about himself when, in fact, the quote was about a hypothetical wealthy person who was spiritally unfulfilled. The 9th Circuit held that for purposes of an anti-SLAPP motion, the court should determine whether the clip as broadcast materially altered the meaning conveyed by the speaker. The district court had erroneously relied on the conclusion that the statement's meaning, while distorted by ABC, was still substantially true. In remanding to the district court, the 9th Circuit said it was expressing no opinion on whether plaintiff could show the other required elements of a defamation claim. OC Weekly yesterday reported on the opinion.

Bonfire Permit Denied To Group Seeking To Burn Qurans As 9/11 Protest

As previously reported, the Dove Outreach Center in Gainesville, Florida has created a furor by announcing its plans to host an International Burn A Quran Day on Sept. 11. The Gainesville Sun reported last week that the city has refused to grant Dove Outreach a permit to have an open bonfire. Under the city's fire code, outdoor burning is prohibited without a permit. This includes burning newspaper, corrugated cardboard, container board or office paper. The church says it will go ahead with the protest without a permit.

Preliminary Injunction Bars Application of Obama Administration Stem Cell Research Guidelines

Yesterday in Sherley v. Sebelius, (D DC, Aug. 23, 2010), the U.S. District Court for the District of Columbia issued a preliminary injunction preventing the Obama administration from applying it Guidelines for Human Stem Cell Research. Those Guidelines expanded federally funded research involving embryonic stem cells. The court concluded that plaintiff's had shown a likelihood of success on the merits on their argument that the Guidelines violate the Dickey-Wicker Amendment that prohibits the use of federal funds for research in which human embryos are destroyed.  The court rejected the government's attempt to distinguish between deriving stem cells from an embryo and conducting research on those stem cells.  The New York Times reports that there is confusion over whether the preliminary injunction impacts research projects already funded. (See prior related posting.)

Compromise Near To Drop Charges Against Westboro Funeral Protester

Sarpy County, Nebraska is close to reaching an agreement with Westboro Baptist Church leader Shirley Phelps-Roper that will lead to dismissing charges of negligent child abuse and disturbing the peace that have been brought against her.  The charges grew out of a 2007 protest at the visitation before the funeral of Iraq war veteran Randy Chaney. Westboro members picket veterans' funerals with signs protesting U.S. tolerance of homosexuality and other activities they consider sinful.  At the protest, Phelps-Roper's ten year old son was standing on an American flag. According to yesterday's Omaha World-Herald and a report from AP, charges of flag mutilation and contributing to the delinquency of a minor have already been dropped because a federal court declared the state's flag mutilation statute unconstitutional. Under the compromise being negotiated, Phelps-Roper will drop the lawsuit she has filed against three Sarpy County Attorneys who are prosecuting her seeking damages for violating her First Amendment rights. She will also drop Sarpy County from a pending federal lawsuit challenging the constituitonality of the state's funeral protest law. Phelps-Roper said: "The deal is 'You stop prosecuting us for our religion, and we'll stop suing you for prosecuting us for our religion'." The family of veteran Randy Chaney is unhappy with the county's decision to drop charges.

Bangladesh Court Says College May Not Require Religious Attire

According to yesterday's Jakarta Globe, Bangladesh's High Court has ordered the government to take action against the administrator of Rani Bhabani Women's College for requiring women to wear the burqa, and barring women from playing school sports and attending cultural activities.  The court held that no religious attire of any kind, including skull caps for men, can be required. This follows a decision by the High Court in April that women employed in public educational institutions may not be required to wear the veil, or hijab, against their will. (See prior posting.)

9th Circuit: World Vision Exempt From Title VII Religious Discrimination Ban

The 9th Circuit yesterday, in a 2-1 decision that spawned three lengthy opinions, held that the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act (42 USC 2000e-1) for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

In Spencer v. World Vision Inc., (9th Cir., Aug. 23, 2010), Judge O'Scannlain, writing the opinion for the court, formulated the test for the exemption as follows:

a nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it 1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious.

Judge Kleinfeld concurring formulated the test somewhat differently:

To determine whether an entity is a “religious corporation, association, or society,” determine whether it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.

Judge Berzon, dissenting, wrote:

Section 2000e-1(a) reflects Congress’s recognition that for a small group of employers—organizations devoted to prayer and religious instruction—the requirement to accommodate employees of different faiths could represent an unwarranted intrusion into the organizations’ own freedom of religion. For those groups, on balance, the restriction of the relatively few affected jobs to those with approved religious beliefs is tolerable.

My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles. But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees.

[Thanks to Ted Olsen via Religionlaw for the lead.]

Church Not Entitled To Tax Exemption When House It Owns Is Vacant

The LaCrosse (WI) Tribune reports that a federal district court has rejected a claim by Asbury Methodist Church in LaCrosse that its due process and free exercise rights were infringed when it was denied a tax exemption in 2008 while its property was being converted from a tax exempt parsonage to a tax exempt hospitality house.  Tax officials said that the house was vacant on Jan. 1, 2008 and so was not exempt for that year.  At issue were $4000 in property taxes.

UPDATE: Here is the full text of the opinion on LEXIS: Asbury United Methodist Church v. City of La Crosse, 2010 U.S. Dist. LEXIS 86744 (WD WI, Aug. 23, 2010).

Court Refuses Preliminary Injunction Against Georgia's Ban On Guns In Churches

On June 4 this year, Georgia's governor signed S.B. 308 that was enacted to clarify Georgia's gun laws. Among other things, the new law prohibits the carrying of guns in any house of worship. In July, GeorgiaCarry.org. along with Baptist Tabernacle of Thomaston, Georgia, its pastor and one of its members, filed a lawsuit in state court challenging that portion of the law. (See prior posting.) Along with the complaint, plaintiffs filed a motion for a preliminary injunction. Earlier this month, defendants removed the case to federal court. According to the Atlanta Constitution, the federal court yesterday refused to issue a preliminary injunction against enforcement of the ban. Plaintiffs say that worshipers want to arm themselves for protection, and the church agrees that they should be able to do so. Another argument being pressed by plaintiffs is that under the statute, the church's pastor is barred from bringing a weapon for protection when he is working alone or when he is in the pulpit. The suit raises both free exercise and Second Amendment challenges, and is probably the first suit filed after the U.S. Supreme Court in June in McDonald v. City of Chicago extended Second Amendment to state and local laws.

Debate on RFRA: Hamilton vs. Friedman

PublicSquare.net has posted a 4-part debate between Marci Hamilton and me on the Religious Freedom Restoration Act.  Actually the essays comprising the debate were written a number of months ago-- there was substantial delay in the exchange actually getting posted. So while a few of the references are dated, the basic thrust of the exchange is still relevant.

Kazakhstan Plans Offering of Shariah-Compliant Bonds

UAE's The National reported yesterday that the nation of Kazakhstan, planning its first issuance of government bonds in ten years, will issue Shariah-compliant bonds (Sukuk securities) instead of Euro bonds.  Kazakhstan is trying to become a regional Islamic finance center by 2020.

Suit Claims Religious Discrimination In Barring of Faith-Based Substance Abuse Program From County Jail

Yesterday's Santa Rosa (FL) Press Gazette reports that a federal religious discrimination lawsuit was filed Friday by Milton, Florida's First Apostolic Church seeking to prohibit Santa Rosa County Sheriff Wendell Hall from excluding the church's faith-based Alcohol and Chemical Treatment Series program from the Santa Rosa County Jail. The lawsuit alleges that the decision to remove the Church's volunteers from the jail was taken by the Santa Rosa County Inter Faith Board, and involves a "doctrinal dispute" over proper baptism rites.

Recent Articles of Interest

From SSRN:

• Peter G. Danchin, Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred, (Duke Forum for Law & Social Change, Vol. 2, pp. 5-38, 2010).
• Mary Jean Dolan, Government Identity Speech and Religion: Establishment Clause Limits after Summum, (William & Mary Bill of Rights, Vol. 19, 2010).
• Geoffrey P. Miller, Consent of the Governed in the Hebrew Bible, (NYU School of Law, Public Law Research Paper No. 10-56, Aug. 20, 2010).
• Patrick Macklem, Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe, (August 17, 2010).

From SmartCILP:

• Edward Rubin, Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause, 63 Vanderbilt Law Review 763-811 (2010).
• Glenn A. Trager, Loosing the Dragon: Charismatic Legal Action and the Construction of the Taiping Legal Order [Abstract], 35 Law & Social Inquiry 339-367 (2010).

West Reacts Strongly To Stoning Sentences Under Islamic Law

In its Behind the News section, today's New York Times carries an article exploring the particularly strong reaction in Western countries to two recent cases of execution by stoning under Islamic law. In Afghanistan last week, the Taliban stoned a young couple to death for trying to elope.  Last month international protest arose over the stoning sentence imposed in Iran on a woman accused of adultery. Brazil offered the woman, Sakineh Mohammadi Ashtiani, asylum. Iranian authorities then redefined Ashtiani's crime as murder. Stoning is a legal punishment in Iran, Saudi Arabia, Somalia, Sudan, Pakistan and Nigeria. However it is rarely imposed. Islamic law allows stoning only when four male eyewitnesses testify to the same conduct. Some non-Muslim societies, such as the Kurdish Yazidi, have also imposed the punishment.

Recent Prisoner Free Exercise Cases

In Vazquez v. Ragonese, (3d Cir., Aug. 18, 2010), the 3rd Circuit remanded to the district court for consideration under RLUIPA of a prisoner's claims that prior institutions have failed to forward certain religious items (including oil, soaps, tarot cards and a multi-colored beaded necklace) to him after he was transferred to another institution. The court also remanded for consideration of plaintiff's claim that he is not allowed to purchase or acquire materials he needs for his religious practices.

In Lightner v. Ausmus, 2010 U.S. Dist. LEXIS 85348 (D ID, Aug. 17, 2010), an Idaho federal district court held that the statute of limitations barred a civil rights action by a paroled sex offender who charged that his parole officer would not agree that he could attend a Baptist church, but only gave him permission to attend an LDS church.


In Maxwell v. Hobbs, 2010 U.S. Dist. LEXIS 84931 (ED AR, July 23, 2010), an Arkansas federal magistrate judge recommended dismissal of an inmate's complaint that his free exercise rights were violated when prison officials disapproved the Five Percenter Newspaper he was receiving concluding that it contained gang-related content.
 
In Nichols v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 83006 (D CO, Aug. 12, 2010), a Colorado federal district court rejected a prisoner's claim that he was arbitrarily removed from the Common Fare diet and was not offered a comparable alternative to meet his Christian religious needs. The court concluded that plaintiff's adoption of a whole foods diet was for health reasons, rather than for religious reasons. To the extent there were later religious reasons, plaintiff failed to show that this imposed a substantial burden on his free exercise of religion. Beyond this, the claim was barred by the statute of limitations. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 83693, June 22, 2010. The prisoner who filed the case was Oklahoma City bomber Terry Nichols. (AP report).
 
In Marksberry v. Strode, 2010 U.S. Dist. LEXIS 82482 (WD KY, Aug. 2, 2010), a Kentucky federal district court held that an inmate's 1st Amendment rights were not violated when when a prison official referred to his Rastafarian religious head covering as a "clown hat." In a second case involving a claim by the same prisoner, 2010 U.S. Dist. LEXIS 82481 (WD KY, Aug. 3, 2010), the same judge held that plaintiff's 1st Amendment rights were not violated by a 5-day delay in furnishing him a vegetarian diet and permitting him to wear his "crown" head covering. It also held that the claim is time barred.

Westboro Leader In Interview Justifies Picketing Of Soldiers' Funerals

The Huffington Post on Friday carried an interview by investigative reporter Joshua Kors of Pastor Fred Phelps of the Westboro Baptist Church in which Phelps justifies his group's confrontational picketing of veterans' funerals and other venues. Here are a few excerpts:

Phelps: The mission of the church is to preach to a doomed world, to let them know about the second coming of Jesus. It's not going to be pretty. Look at the world of Noah. In his day there were 12 to 16 billion people on Earth, and only eight got out of that flood alive. The world is going to be devoured by fire. ...

The message we have is simple: the sodomites have taken over the country, and this country has given itself over to immorality. We want to warn the nation, let them know that God is not going to let this country get by with that kind of degeneracy. So what's the right forum to preach that message?

Kors: People would say funerals are not the right forum. And why soldiers' funerals?

Phelps: Soldiers' funerals are the right place. The Lord has killed him. The soldier shouldn't be there dead. But this is the God that delivered ten different plagues -- and nothing worked. So here we are....

Kors: What happens to homosexuals when they die?

Phelps: These fags are going to hell. And I'm supposed to be quiet about that? I'm supposed to get lockjaw? The Bible's just full of hell, the wrath of God.

Kors: On TV, in movies, hell is always portrayed as full of flames and snakes.

Phelps: That's right. Hell is the place where the worm eats on fags, and the fire is never quenched. Indescribable pain. The Lord Jesus said that. And he knows because he's had a front row seat since the creation of Adam. What you need to do is get a Bible and look up Luke, Chapter 16. These fags are going to hell, and instead of squawking like crybabies, they ought to be so thankful that at no expense to them, we've dedicated time and resources to preach to them. People say we're "disturbing the peace." Don't you understand: we've done 40,000 of these pickets, and we'd be in jail if we were disturbing the peace.

Court Enforces Restrictive Covenant To Bar Construction of Chabad Center

In Criscenzo v. Chabad-Lubavitch of  the Shoreline, Inc., (CT Super. Ct., Aug. 13, 2010), a Connecticut trial court judge enforced a restrictive covenant in a deed to bar Chabad Lubavitch from building a Chabad center to be used as a synagogue, school and activity center on residential property in the town of Guilford.  The Guilford Planning and Zoning Commission had granted a special permit for the construction. The court rejected challenges to plaintiffs' ability to bring the challenge as well as a claim of change of circumstances. The New Haven Register reported on the decision yesterday.

Magistrate Rejects Challenge To North Dakota Ten Commandments Monument

In Red River Freethinkers v. City of Fargo, (D ND, Aug. 16, 2010), a North Dakota federal magistrate judge recommended that a lawsuit seeking removal of a Ten Commandments monument from the civic plaza, land owned by the city of Fargo, be dismissed. In 2005, the court rejected an Establishment Clause challenge to the monument by the same plaintiffs. Then the Freethinkers proposed donating a companion monument with language rejecting the notion that the U.S. is a Christian nation, but agreed that their monument offer would be withdrawn if the city moved the Ten Commandments to private property. The City Commission agreed to this, but changed its mind when 5200 signatures were collected for an initiated ordinance to keep the monument on city land. Council adopted an ordinance to keep the Ten Commandments and this lawsuit followed.

According to the court, plaintiff contends that "the City acted with an 'overt religious purpose' in reversing its decision to move the Ten Commandments monument to private property and has 'transformed' the previously constitutional display of a mixed secular and religious expression to one with an unconstitutional, religious purpose by adopting the initiated ordinance." However the court disagreed, concluding:

Freethinkers’ amended complaint asserts that, by adopting the initiated ordinance, the City adopted the alleged religious motivations of the petition promoters. This conclusory assumption is not supported by any allegations of fact.

The court also concluded that even if it did invalidate the ordinance, that would not necessarily lead to removal of the Ten Commandments monument. The city would still be free to leave the monument in place. The Crookston (ND) Daily Times reports on the decision.

UPDATE: The court adopted the magistrate's recommendations at Red River Freethinkers v. City of Fargo, 2010 U.S. Dist. LEXIS 93819 (D ND, Sept. 8, 2010).

EEOC Lawsuit Charges Failure To Accommodate Employee's Sabbath

The EEOC announced in an Aug. 12 press release that it has filed suit in a North Carolina federal district court against Measurement, Inc., an educational company, charging that it fired an employee rather than accommodate her religious needs to avoid work on Saturdays.  Jacqueline Dukes is a member of the Christian denomination Children of Yisrael which observes the Sabbath from sundown Friday to sundown on Saturday.  In Sept. 2008 Dukes was told that she would have to work on Saturdays on a new project. The EEOC complaint charges that Measurement could have accommodate Dukes by permitting her to switch shifts with other employees.

Preliminary Injunction Denied In Suit By Counseling Student Objecting To Remediation Plan

In Keeton v. Anderson-Wiley, (SD GA, Aug. 20, 2010), a Georgia federal district court refused to issue a preliminary injunction in a suit by a graduate student in counseling at Augusta State University who was required to complete a Remediation Plan regarding counseling of homosexual clients in order to remain in the program. The action was taken after the faculty expressed concern that student Jennifer Keeton might not be able to separate her personal, religious-based views on homosexuality from her professional counseling duties. Keeton alleged that the school's action violated her free speech, free exercise, equal protection and due process rights. (See prior posting.)

Judge Hall, emphasizing that "despite any suggestion to the contrary, this is not a case pitting Christianity against homosexuality" said that he "will not, especially at this early stage of the litigation, serve as an 'ersatz dean'."  The court continued:

the Remediation Plan was imposed upon Plaintiff not because of mere disagreement with her viewpoints, but because of Plaintiff's inability to resist imposing her moral viewpoint on counselees, a position contrary to the ethical rules incorporated into the ASU counseling program's curriculum....  [I]ncorporation of the ACA [American Counseling Association] Ethical Code into the ASU counseling program's curriculum, and requiring students to adhere to the Code as a curricular requirement, appears at this time to be "reasonably related to legitimate pedagogical concerns"....

To the extent that Defendants compel Plaintiff to speak at all by requiring that she "affirm" GLBTQ conduct in a counseling setting, they demand nothing more than Plaintiff's adherence to the ACA Code of Ethics....

Yesterday's Augusta Chronicle reports on the decision.

Malaysian Appellate Court Says Status As Muslim Up To Syariah Court

According to Bernama, Malaysia's Court of Appeal ruled yesterday that only the Syariah Court has jurisdiction to determine whether someone is Muslim.  The ruling came in an appeal of a 2005 lower court decision refusing to turn the body of former army commando and famed Mt. Everest climber M. Moorthy over to his Hindu wife for burial. (See prior posting.) The Kuala Lumpur Islamic Affairs Religious Council obtained an ex-parte order from the Syariah Court stating that Moorthy had embraced Islam prior to his death and it buried him in a Muslim cemetery. The Court of Appeal said that Moorthy's widow can apply to the Syariah Court to have the ex parte order set aside.  The widow's attorney said he would file for leave to appeal to the Federal Court.

US Soldiers Pressured To Attend Commanding General's Religious Concerts

Talk To Action reported Thursday on a series of Commanding General's Spiritual Fitness Concerts at Fort Eustice and Fort Lee, both Army bases in Virginia. Supposedly attendance is voluntary, but soldiers feel pressured to attend. It is reported that in May an NCO put group of soliders at Ft. Eustice on lockdown and required them to do maintenance work for opting out of attendance. Maj. Gen. James E. Chambers began the concert series which was supposed to have performers from different religious traditions. However all the concerts have featured evangelical Christina performers, who also read from the Bible and gave Christian testimony between songs. The Military Religious Freedom Foundation is looking into the cost of the concerts that featured nationally known Christian artists. [Thanks to Dispatches from the Culture Wars for the lead via Scott Mange.]

Evangelist Franklin Graham Says President Obama Was Born A Muslim But Has Now Accepted Jesus Christ

In a rather surprising interview (video) with CNN's John King yesterday, a leading Christian evangelist, Franklin Graham, made these comments on President Obama's religious beliefs (excerpts as reported by ABC News):

I think the president's problem is that he was born a Muslim, his father was a Muslim. The seed of Islam is passed through the father like the seed of Judaism is passed through the mother. He was born a Muslim, his father gave him an Islamic name.

Now it's obvious that the president has renounced the prophet Mohammed, and he has renounced Islam, and he has accepted Jesus Christ. That's what he says he has done. I cannot say that he hasn't. So I just have to believe that the president is what he has said.

Time's Cover Story Asks Whether US Is Islamophobic

The cover of this week's Time magazine features the question: "Is America Islamophobic?" The lead story, abridged online, observes in part:

Although the American strain of Islamophobia lacks some of the traditional elements of religious persecution — there's no sign that violence against Muslims is on the rise, for instance — there's plenty of anecdotal evidence that hate speech against Muslims and Islam is growing both more widespread and more heated. Meanwhile, a new TIME–Abt SRBI poll found that 46% of Americans believe Islam is more likely than other faiths to encourage violence against nonbelievers.

Accompanying the lead article is "A Brief History of Intolerance in America" and a video titled "Inside the Park51 Mosque" in which Muslims in Lower Manhattan discuss how Islam is viewed in the U.S.

FLDS Wants Utah High Court To Stay Trustee's Action On UEP Trust

The Salt Lake Tribune reports that members of the FLDS church filed a petition with the Utah Supreme Court yesterday asking it to stay, pending its decision in the matter, all but the most necessary acts regarding the United Effort Plan Trust which is being reformed under trial court supervision. The UEP trust holds almost all the property in the twin FLDS towns of Hilldale, Utah and Colorado City, Arizona. At issue is a July 27 order by trial court judge Denise Lindberg that gives acts of the court-appointed fiduciary managing the trust the force of court orders. A trial court hearing is scheduled for Sept. 21 on a final subdivision plat for the land filed by trustee Bruce Wisan that will move land from communal to individual ownership. The FLDS petition to the Utah Supreme Court urges in part: "The fiduciary has made it clear that he intends to force FLDS members to take back in their own names what they have given to the Lord, even though their faith prevents them from doing so and requires that they honor their consecration. This is nothing short of a government-imposed religious test." (See prior related posting.)

Pew Poll Shows More Americans Think Obama Is Muslim

Yesterday the Pew Forum on Religion and Public Life released a new poll on Religion, Politics and the President. The finding making the most headlines (ABC News) is that a growing number of Americans incorrectly believe that President Obama is Muslim. 18% of those responding say Obama is a Muslim (up from 11% in March); 34% say Obama is a Christian; and 43% say they don't know.

The Press Gaggle aboard Air Force One yesterday (full text) included a lengthy exchange between reporters and Deputy Press Secretary Bill Burton about this part of the poll. Here is a portion of the exchange:

Q The Pew poll came out today and there’s some numbers on there that are interesting -- one showing that the number of Americans who believe that the President is Muslim has gone up, while the number of Americans who believe the President is Christian has gone down. What do you guys make of that?

MR. BURTON: Well, I think ... for most Americans, ... what they’re focused on is ... important issues like what’s happening in Iraq and Afghanistan, what’s going on in the economy, what are we doing to create jobs -- all these different issues.

And so the President is obviously a -- is Christian. He prays every day. He communicates with his religious advisor every single day. There’s a group of pastors that he takes counsel from on a regular basis. And his faith is very important to him, but it’s not something that is a topic of conversation every single day.

The poll also covered other aspects of religion and politics. 52% of the respondents said that churches should keep out of politics, while 43% say that houses of worship should express their views on social and political issues. 61% say it is important that members of Congress have strong religious beliefs. Only 46% of White Evangelical Protestants in the poll saw the Republican Party as friendly to religion. Republicans have made gains among all religious groups except for Hispanic Catholics.

City Incurs High Legal Fees Battling Hindu Woman Over Assessment To Remove Tree

WLS-AM 890 reported yesterday that the city of Evanston, Illinois has incurred some $40,000 in legal fees seeking to collect a $635 special assessment against Padma Rao who refused to pay on religious grounds.  The assessment involved an alley paving project, and required the removal of a tree that stood near Rao's condominium.  Rao and her mother say that removal of the tree violates principles of their Hindu religion which bars the needless killing of any living thing and prohibits Hindus from participating or acquiescing in needless killings. Rao has consistently lost in the courts and now may face the condo being auctioned off at a tax sale.

Muslim Disney Employee Files EEOC Complaint Over Wearing Hijab

The Orange County (CA) Register reported on Wednesday that a Muslim employee at a cafe in a Disneyland resort hotel has filed a compliant with the EEOC charging discrimination. Imane Boudlal says she was sent home four times for attempting to wear a hijab in her work as a hostess at Storytellers Cafe in Disney's Grand Californian Hotel.  Disney, which has a strict dress code, says it offered Boudlal a behind-the-scenes job temporarily while an accommodation was worked out, but she refused.  Boudlal says she wrote Disney requesting permission to wear the headscarf, but received no response. So she filed her discrimination complaint and held a press conference to call attention to the issue. Disney says the hotel union with which it is in a contract battle is using this issue to distract attention from the real issues faced by their members.

Court Refuses To Issue Preliminary Injunction Against University's Speaker Rules

In McGlone v. Bell, 2010 U.S. Dist. LEXIS 84578 (MD TN, Aug. 16, 2010), a Tennessee federal district court refused to grant a preliminary injunction in a suit brought by a Christian evangelist challenging Tennessee Technological University's policy on outside speakers' use of campus facilities.  The policy requires application 14-business days in advance by outside speakers or groups that want to use campus facilities to speak or hand out literature. The court held:

The campus use policy is content-neutral, and it specifically permits individuals and groups to express religious messages on campus. ... [It] is not vague and it does not place unbridled discretion in TTU officials to restrict speech. Rather, the policy places explicit limitations on the discretion that may be exercised by those charged with approving or denying applications for registration. The policy specifies nine (9) circumstances under which an application for registration may be denied. These specified circumstances constitute reasonable time, place, and manner restrictions, and the policy is narrowly tailored to serve the significant governmental interests of TTU in promoting the orderly conduct of activities on campus and preventing the interruption of the university's normal educational mission. The policy also leaves open ample alternative channels of communication....

By ignoring the application requirement entirely, the plaintiff precluded campus officials from considering, in light of the policy's requirements, the plaintiff's desire to speak, to display signs, and to distribute literature on the TTU campus. Thus, the plaintiff has not shown that the campus use policy was applied to him, and he has not suffered any concrete and particularized harm that is actual or imminent resulting directly from the application of the policy to him.... The plaintiff's failure to show a concrete and particularized injury that is actual or imminent undercuts his facial constitutional challenge as well.

The court also dismissed on qualified immunity grounds claims against University officials in their individual capacities.

New York's Ban On Sunday Service of Process Only Applies If Service Interrupts Person's Sabbath

New York's General Business Law, Sec. 11, prohibits service of process in civil cases on Sundays. However in Carbon Capital Management, LLC v American Express Co., (Sup. Ct. NY Nassau, July 29, 2010), a New York trial court upheld the validity of service on Sunday on the concierge in defendant's apartment builiding. The court said that the section is designed to avoid interrupting a person on that individual's day of rest. The court continued:

Where the process server delivers the summons on Sunday to a person ... in defendant's household, it may be assumed that their Sabbath day has been interrupted to the same extent as that of the defendant. However, where the person ... is the concierge in a multiple dwelling, it is clear that the concierge's Sabbath is not being interrupted.... If defendant did not want to be disturbed with legal matters on Sunday, he had simply to instruct his concierge to hold any summonses or other documents which might be delivered.

... Were this court to construe § 11 as prohibiting service of process on Sunday, regardless of whether the repose or religious liberty of defendant or anyone in his household was effected, the statute might well run afoul of the establishment clause. Finding a service void under such circumstances could be seen as declaring Sunday to be the official day of rest, regardless of whether it was so observed by the defendant. To avoid "constitutional doubts," the court must reject this construction of the statute...

Last Catholic Adoption Agency In Britain Loses Attempt To Operate Without Placements To Same-Sex Couples

Today's London Telegraph reports that the last Catholic adoption agency operating in Britain has lost its attempt to continue to operate while refusing to place children with same-sex couples. Since the Equality Act Sexual Orientation Regulations came into effect (see prior posting), eleven Catholic adoption agencies have either closed down or severed their ties with the church. Catholic Care was the last hold out and had hoped to obtain an exemption. Britain's Charity Commission, ruling in a case that was on remand after an earlier appeal to the High Court (see prior posting), held that the Catholic agency did not have strong enough reasons to justify the request that it be allowed to limit its services. In its decision (full text) dated July 21, but only published today, the Charity Commission said that it "recognises the valuable work carried out by the charity and regrets that the charity consider that, if it is unable to discriminate, it will have to close its adoption service." Catholic Care says it will now seek to register as an adoption support agency to serve adoptees who are seeking information about their background and also to support parents already approved by the agency. The Charity Commission today also issued a release summarizing its decision.

10th Circuit Says Utah Highway Patrol Cross Memorials Violate Establishment Clause

In American Atheists, Inc. v. Duncan, (10th Cir., Aug. 18, 2010), the U.S. 10th Circuit Court of Appeals held that the Utah Highway Patrol Association violated the Establishment Clause when it put up on public land some 13 crosses, each 12 feet high, as memorials to Utah Highway Patrol members who were killed in the line of duty. The court concluded that the Christian crosses,as permanent displays on government land, were government speech, even though the UHPA, a private group, retained ownership of the memorials. The court went on to find that the memorials violated the Lemon test because "the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity."  The court said:

We agree that a reasonable observer would recognize these memorial crosses as symbols of death. However, we do not agree that this nullifies their religious sectarian content because a memorial cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Christian....

The court also was unpersuaded by the argument that a reasonable observer would not see the crosses as an endorsement of Christianity because a majority of Utahans are Mormons and do not revere the cross as a symbol of their faith. (See prior related posting.) Yesterday's Christian Science Monitor reported on the decision.

Australian Judge Says Witness Cannot Wear Niqab

In a widely followed case in Perth, Australia (see prior posting), a District Court judge has ruled that a female witness may not testify wearing a niqab. However the court will consult with the woman's attorneys about other ways to accommodate her concerns about modesty. The defendant in the case, the former director of the Muslim Ladies College, is charged with stealing public funds by artificially inflating the number of students at his school.  He argued that the jury needs to be able to see the face of the witness, identified only as Tasneem, to assess her credibility. WA Today reports today that after the decision, Tasneem issued a lengthy statement which read in part:

I appreciate my request to wear my niqab in court has stirred much public debate, however, I would emphasise that this was not a demand, I merely asked to dress as I normally would in front of people I do not know.....  Like many Australians I believe in God and for me wearing the niqab serves as a constant reminder that I am accountable for my actions. I respect that other women who share my religion do not share this particular belief and that interpretations surrounding Islamic dress standards do differ. Therefore I understand this can be confusing for non-Muslims as they witness varying degrees of cover and I accept the full cover I choose to wear can be confronting to some.... I regret that this case has ignited the debate as to whether the burqa should be banned in Australia. This would be a step backward for Australia and would only further widen the division between Muslim and non-Muslim Australians.

Maryland Farms Cater To Muslim Immigrants For Slaughter of Goats

Today's Washington Post reports on the booming business-- especially before Ramadan and other feasts-- of farmers in Maryland who sells goats to Muslim immigrants who want to slaughter them in accordance with their own Halal traditions. The federal Meat Inspection Act permits this, so long as the customer buys the animal alive and slaughters it without help from the farmer. Many customers buy a goat and instead of slaughtering it on the farm, take it home for slaughter in their bathtub or garage. However some new modern slaughter houses also cater to Muslims wishing to kill their own animals.

Federal Circuit Says "Church" Satus Under Internal Revenue Code Requires Regular Communal Worship

In Foundation of Human Understanding v. United States, (Fed. Cir., Aug. 16, 2010), the U.S. Court of Appeals for the Federal Circuit held that the Foundation of Human Understanding, while retaining its 501(c)(3) non-profit status, did not qualify as a "church" for purposes of Sec. 170(b)(1)(A)(i) of the Internal Revenue Code.  The court held that in order to meet the definition of a church, a religious organization must show that it has a body of believers who assemble regularly for communal worship. Seminars across the country do not satisfy this test. The Foundation's radio and Internet ministry also were not enough to meet the associational test: "The fact that all the listeners simultaneously received the Foundation’s message over the radio or the Internet does not mean that those members associated with each other and worshiped communally." Failure to meet the definition of a church can subject a non-profit organization to the private foundation rules of IRC Sec. 509. (See prior posting.) Yesterday's National Law Journal reported on the decision. [Thanks to Joel Sogol via Religionlaw for the lead.]

Bosnian Parliament To Consider Ban On Niqab

A release from the Islamic Human Rights Commission (IHRC) published yesterday in BikyaMasr reports that the Central Parliament in Bosnia is about to consider a bill to ban Muslim women from wearing the full face veil in public.  The proposed law, which would fine women 50 Euros for violations, bans clothing that prevents identification.  The bill was initially put forward by the Bosnian Serb party of Independent Social Democrats in April and had been scheduled for debate in July.  That debate was postponed to Sept. 1 when a veiled female human rights activist attended the July session of Parliament as an observer. Opponents are campaigning against the bill, using the slogan: "Our Niqab, Our Choice, Our Right." IHRC argues that the proposed ban violates the International Covenant on Civil and Political Rights.

Senate Follows House In Adopting Resolution On Religous Minorities In Iraq

The U.S. Commission on International Religious Freedom yesterday issued a release applauding the U.S. Senate's Aug. 5 adoption of S. Res. 322, expressing concern about the plight of religious minorities in Iraq. The House of Representatives adopted a similar resolution, H.Res. 944, last February.

Establishment Clause Challenge To Illinois Capital Appropriations Bill Fails

In Sherman v. Quinn, 2010 U.S. Dist. LEXIS 83313 (CD IL, Aug. 16, 2010), an Illinois federal district court has dismissed both facial and as-applied Establishment Clause challenges to Illinois 2009 capital appropriations bill.  Activist Rob Sherman had sought to enjoin appropriations to 176 groups. (See prior posting). After dismissing some of the claims on 11th Amendment grounds, the court held that plaintiff lacks taxpayer standing to mount a broad facial challenge to the legislature's appropriation of $2.23 billion for the governor to distribute to community-based human services providers. Plaintiff argued merely that the law might be administered unconstitutionally. The court rejected plaintiff's as-applied challenge to 176 specific line items because no funds have yet been expended. Finally the court rejected plaintiff's facial challenge to those line items, finding that they meet the Lemon test for secular purpose and effect and no excessive entanglement. The court concluded: "If, after the money in these provisions has been disbursed, Plaintiff discovers that something potentially unconstitutional is underfoot, he may raise an as-applied challenge to the provisions."

Dearborn, MI High School Football Coaches Accommodate Ramadan

At Dearborn, Michigan's Fordson High School, where 95% of the football team's players are Muslim, coach Walter Zaban has made some unusual changes to the practice schedule to accommodate the Ramadan fasting by his players. The Detroit News reported last week that most of last week's practices began at 11:00 p.m. so coaches and players could eat and drink and complete their meals about an hour before starting their practice. At Dearborn High School, where a smaller percentage of players are Muslim, practices have been rescheduled to run from 5:00 p.m. to 10:30 p.m. Some of the players say they do not fast on actual game days, and make that up by fasting extra days after the end of Ramadan.

Missouri Federal District Court Strikes Down MO Funeral Picketing Law

In Phelps-Roper v. Koster, (WD MO, Aug. 16, 2010), a Missouri federal district court ruled that Missouri's statutes barring protests near a funeral are unconstitutional. Missouri enacted two versions of the statute-- the narrower version to take effect if the broader version is declared unconstitutional. The court concluded that both versions violated the free speech rights of members of the Westboro Baptist Church who picket funerals of U.S. soldiers carrying signs opposing homosexuality and other conduct the picketers deem sinful. The court rejected the argument that all the signs carried by Westboro members are unprotected "fighting words." AT least some of the messages are entitled to First Amendment protection. The court concluded that the state law is not narrowly tailored to serve a significant governmental interest. The outcome in this case was signaled by a 2007 decision of the Eight Circuit in the same case holding that plaintiff was entitled to a preliminary injunction because she had demonstrated a fair chance of succeeding on the merits of her claim. (See prior posting.) AP reports on Monday's decision.

North Carolina Appeals Court Says Presbyterian College's Police Force Violates Establishment Clause

In State of North Carolina v. Yencer, (NC App., Aug. 17, 2010), the North Carolina Court of Appeals held that the campus police force at religiously-affiliated Davidson College is unconstitutional because it violates the Establishment Clause for the state to delegate discretionary police powers to a religious institution. The holding came in response to a motion by a defendant in an impaired driving case who sought to suppress evidence obtained by campus police officers.  In reaching its conclusion, the Court of Appeals indicated it felt bound by two earlier North Carolina Supreme Court decisions that had reached a similar result as to the police forces at Campbell University and Pfeiffer University. The court expressed doubt whether it would have reached the same conclusion regarding Presbyterian Church affiliated Davidson College if it were not bound by state Supreme Court precedent.  It cited U.S. Supreme Court cases upholding grants to church-affiliated colleges that are not pervasively sectarian.  The Court of Appeals encouraged the state Supreme Court to grant review to consider the case without the constraints of precedent faced by the court of appeals. North Carolina's Campus Police Act under which the Davidson College police force was certified was enacted by the legislature specifically to assure that colleges originally established by or affiliated with religious institutions could have police forces. Yesterday's Raleigh (NC)News & Observer reported on the court's decision.

Court Rejects Challenge By Donors and Diocese To Plans For Sale of Catholic High School

In Anderson v. Loretto High School, (CA App., Aug. 10, 2010), a California appellate court concluded that the Roman Catholic Bishop of Sacramento and seven donors to a $4.5 million capital campaign of a Catholic high school are  not entitled to a temporary restraining order or preliminary injunction to require the proceeds of the sale of the school to a private company to be held in escrow.  The Loretto Sisters who operated the school plan to use the proceeds of the sale to pay off debts and provide retirement benefits for members of their religious order.  The school closed because of declining enrollments several years after the capital improvements were made. Plaintiffs sued to require that a portion of the sale price of the school be devoted to the education of women of high school age attending Catholic school in Sacramento. The court concluded that plaintiffs had not shown they were likely to succeed on the merits of their claims under the California non-profit corporation law. There was no showing that donors had intended their contributions to be restricted beyond their initial application to capital improvements of the school.  There was no improper diversion of those contributions. Today's California Catholic Daily reports on the decision and gives additional background.

Christian Student Disrupts Muslim Worship At Nigerian University

A Christian law student at Nigeria's University of Ibadan has created a campus furor by intruding on a Muslim worship service shouting that those in attendance should accept Jesus.  Next reports that the incident occurred last Friday, the first Friday of Ramadan, at a Jumat service led by the university's Chief Imam. The female law student, Seun Bunmi Adegunsoye, entered the service dressed like a Mulim and began shouting: "Except you accept Christ in your life, you are not safe.... Allah is not God; Jesus is Lord." The University's Vice Chancellor quickly intervened to calm tensions and promised a full investigation. However the president of the University's Muslim Student Society says the incident was an attempt to perpetuate a religious crisis in Nigeria. He objects to the release of Ms. Adegunsoye to her parents, saying: "The terrorist is let loose despite the heinous crime she had committed." Muslim students are planning a protest and are demanding that examinations, scheduled to begin at the Law School yesterday, be postponed until Ms. Adegunsoye is brought to justice.

Heated Debate on 10 Commandments Proposal At Marion, IL City Council

WSIL TV News today reports on a rather heated exchange last night at a meeting of the Marion, Illinois City Council.  A large crowd came to the meeting to support a proposal by Marion resident Ken Kessler who wants a Ten Commandments monument to be placed on the town's Tower Square. Chicago atheist and activist Rob Sherman, who has filed lawsuits on other church-state issues (see prior posting), showed up to oppose the idea. Responding to Sherman's opposition, Council member Jay Rix said: "You make me sick to my stomach." Supporting the Ten Commandments proposal, Mayor Bob Butler said: "In God's will this will be done." Opponent Sherman says that if the city tries to sell off a portion of the town square to make it private property before erecting the monument, he may attempt to outbid supporters so he could put up a monument supporting atheism. Sherman wants the Ten Commandments monument put up only on church or other private property.

Sen. Reid Opposes Ground Zero Mosque As Republicans Make It A Campaign Issue

Republicans are making a campaign issue out of President Obama's statement (see prior posting) that Muslims have the right to build a mosque and community center near New York's Ground Zero. The Los Angeles Times reports yesterday that Senate majority leader, Nevada Sen. Harry Reid, responded to demands of his Republican opponent, Sharron Angle, that he take a stand.  Yesterday he issued a statement through an aide reading:

The 1st Amendment protects freedom of religion. Sen. Reid respects that, but thinks that the mosque should be built someplace else.

By issuing the statement as an e-mail from an aide, Reid avoided giving Republicans video of his openly disagreeing with President Obama who has raised millions of dollars in campaign funds for Reid. Meanwhile, Fox News reports yesterday that Republicans are now targeting Republican Sen. Charles Schumer for not speaking out on the issue.

9th Circuit Stays Order Striking Down Proposition 8; Seeks Briefing On Standing

The U.S. 9th Circuit Court of Appeals today in Perry v. Schwarzenegger entered an order (full text) granting a stay during the appeal process of the district court's order that enjoined enforcement of California's Proposition 8. (See prior posting.) The court also ordered that the appeal be expedited and that it be scheduled for argument during the week of December 6, 2010.  Finally, it ordered appellants to include in their opening brief a discussion of why the appeal should not be dismissed for lack of standing.  The stay means that same-sex marriages will continue to be banned in California, at least until the federal appeals court rules in the case.  The San Francisco Chronicle, reporting on the decision, said that several counties had been planning to keep clerks' offices open late on Wednesday to handle the expected rush of same-sex couples seeking to be married. [Thanks to Empty Wheel for posting the text of the order.]

Israeli Court In Middle of Dispute Over Removal of Tombstones From Area Said To Contain No Graves

According to last Friday's New York Times, in Israel last week, a Jerusalem district court initially agreed with the city and the Israel Antiquities Authority that the Aqsa Foundation had placed tombstones on top of an area of the former Ma'man Allah Cemetery where there were no graves in an attempt to prevent construction by the Simon Wiesenthal Center of a Museum of Tolerance. When the project was announced, Muslim objections were voiced because the parking lot which was the site of the proposed building had nearly a century ago been part of a Muslim cemetery. (See prior posting.)  The Wiesenthal Center says there are no human remains in the part where it plans to build. With the consent of the city, the Aqsa Foundation has been restoring an adjacent area.  Apparently the Foundation brought 300 tombstones into the Wiesenthal Center construction area, outside the portion on which the Foundation was supposed to be working. Last Monday, with consent by the court, city authorities began to clear out those tombstones. A Muslim sheik tried to stop the work and was injured. The Foundation went back to court last Wednesday and on Thursday the court called on both sides to return with further evidence.

Tanzanian Court Dismisses Illegal Preaching Charges Against Two Evangelists

BosNewsLife reports that a court in Dar Es Salaam, Tanzania yesterday dismissed charges of "illegal preaching" against two Anglican evangelists who have been held since October 2009.  Apparently Muslims invited evangelists Eleutery Kobelo and Cecil Simbaulanga to engage in a religious debate in a neutral venue in Dar Es Salaam. When they arrived, however, security agents arrested them. Apparently no prosecution witnesses showed up in court to support the charges, so the case was closed.

New North Carolina Law Allows 2 Excused School Absences For Religious Holidays

Yesterday's Charlotte (NC) Observer reports on a new law signed last month by North Carolina's governor that requires public schools and colleges in the state to adopt rules giving students a minimum of two excused absences each academic year for religious observances required by the student's faith.  Session Law 2010-112 allows schools to require prior written notice of absences for religious reasons, and requires that students be given an opportunity to make up tests and other work missed due to an excused absence for a religious observance. Rep. Rick Glazier, who co-sponsored the bill, says: "It has to be a bona fide holiday; you don't get to just take the day off because you want to pray at home."

Recent Articles of Interest

From SSRN:

• Toni M. Massaro, Christian Legal Society v. Martinez: Six Frames, (Arizona Legal Studies Discussion Paper No. 10-27, Aug. 12, 2010).
• Geoffrey P. Miller, Nomadism, Dependency, Slavery and Nationhood: Comparative Politics in the Book of Exodus, (NYU School of Law, Public Law Research Paper No. 10-49, Aug. 11, 2010).
• Geoffrey P. Miller, Leadership, Self-Governance and Nationhood in the Hebrew Bible, (NYU School of Law, Public Law Research Paper No. 10-50, Aug. 11, 2010).
• Geoffrey P. Miller, Revelation and Legitimacy in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-52, Aug. 12, 2010).
• Charles J. Russo & William E. Thro, Preserving Orthodoxy on Secular Campuses: The Right of Student Religious Organizations to Exclude Non-Believers, (Education Law Reporter, Vol. 250, p. 497, January 2010).

Suit Challenges Library Meeting Room Rules

Last week, Ilene Vick, author of the book Personality Based Evangelism, filed a federal lawsuit against the Putnam County, Tennessee Library challenging its rules on use of its meeting rooms. The complaint (full text) in Vick v. Putnam County, (MD TN, filed 8/12/2010), alleges that plaintiff was denied use of the Library's meeting room to hold a small group discussion on the ideas in her book. Library rules an use of meeting rooms for "social, political, partisan or religious purposes." The lawsuit claims that the policy infringes plaintiff's free speech rights, as well as her due process and equal protection rights. It claims tat the policy is unconstitutionally vague and overbroad, and discriminates on the basis of the content of speech and the viewpoint of the speaker. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Nelson v. Runnels, 2010 U.S. Dist. LEXIS 82080 (ED CA, Aug. 11, 2010), a California federal magistrate judge recommended denial of defendants' motion for summary judgment, concluding that genuine issues of material fact remain as to an inmate's First Amendment claims that he was denied the right to attend religious services on two occasions in retaliation for his filing administrative grievances. Prison authorities say he did not sign up to attend as required by prison regulations.

In Myers v. Scribner, 2010 U.S. Dist. LEXIS 81962 (SD CA, Aug. 10, 2010), a California federal district court adopted recommendations of a magistrate (2010 U.S. Dist. LEXIS 81961, May 24, 2010) and dismissed for failure to exhaust administrative remedies an inmate's complaint that he was not permitted to organize a Christian-based celebratory feast marking the Last Supper to be attended by 800 inmates.

In Sturdevant v. Holder, 2010 U.S. Dist. LEXIS 81184 (ND WV, Aug. 10, 2010), a West Virginia federal court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 81185, Jan. 10, 2010) and dismissed on the merits a Native American inmate's claim that he was hindered in his religious practice of weekly sweat lodge ceremonies, pipe ceremonies, and yearly pow-wow feasts.

In Taylor v. Halladay, 2010 U.S. Dist. LEXIS 81060 (ND NY, Aug. 9, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 81193, July 1,2010)dismissing a prisoner's case. However the magistrate had recommended that plaintiff be permitted to file an amended complaint asserting that his First Amendment rights were violated when because of his administrative confinement in a special housing unit he was unable to attend religious programming.

In Gabriel v. Gusman, 2010 U.S. Dist. LEXIS 80332 (ED LA, Aug. 10, 2010), a Louisiana federal district court adopted a magistrate' recommendations (2010 U.S. Dist. LEXIS 80264, July 16, 2010), and dismissed a Baptist inmate's complaint that the prison offered no religious programs or communal services. Plaintiff has a Bible and is permitted to practice his religion on his own.

In Lewis v. Ryan, 2010 U.S. Dist. LEXIS 80624 (D AZ, July 9, 2010), an Arizona federal district court rejected an inmate's free exercise complaint that he was not allowed to use his retention funds to make a contribution to a charity of his choice. He was allowed to make some donations, and ones of his choice from his spendable account funds.

In Jordan v. Caruso, 2010 U.S. Dist. LEXIS 80487 (WD MI, Aug. 10, 2010), a Michigan federal district court rejected a Jewish prisoner's challenge to the prison's group worship policy that allowed group worship only if at least five prisoners request it and which denied him participation by teleconference in a service elsewhere. However the court permitted plaintiff to move ahead with his challenge to the requirement he work on the Sabbath and rules that mandate he wait 90 days before requesting a new work schedule even for religious reasons. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 80486, Jan. 28, 2010).

Church Wins In Its RLUIPA and Constitutional Challenges To Zoning Denial

In a lengthy opinion, a New York federal district court in Fortress Bible Church v. Feiner, 2010 U.S. Dist. LEXIS 82043 (SDNY, Aug. 11, 2010), held that the Town of Greenburgh, New York violated RLUIPA's "substantial burden" provisions, as well as the free exercise and equal protection provisions of the U.S. and New York constitutions, in denying an application by Fortress Bible Church to build a new facility to house the church and its school, the Fortress Christian Academy. After making 622 findings of fact, the court found "overwhelming evidence of ... intentional delay, hostility and bias toward the Church's application...." The court ordered town officials to approve the Church's site plan, to grant zoning variances and waivers, and to issue a building permit.

Biblical References In School Board Member's Speech Did Not Violate Establishment Clause

In Rodriguez v. Jurupa Unified School District, (CA App., Aug. 10, 2010), a California state appellate court dismissed an establishment clause claim brought by a member of a school board who was censured by the board for sexual harassment. Plaintiff had claimed that comments by the school board president made when the censure motion was being considered-- comments drawing an analogy to events in the Biblical Garden of Eden-- violated the Establishment Clauses of the state and federal constitutions. The court disagreed, holding that the comments had a secular purpose and effect and did not unduly entangle the government with religion.

Court Orders Mets To Allow Kosher Vendor To Operate On Sabbath While Suit Is Pending

A New York federal district judge on Friday ordered the New York Mets to allow Kosher Sports to sell kosher hot dogs and other items at Friday night and Saturday afternoon games at Citi Field while a lawsuit is pending.  Yesterday's New York Daily News reports on developments in the damage suit brought by the food vendor that says it lost a half million dollars when it was banned from operating on those days. The Mets say the food cannot be kosher if the vendor sells it on the Sabbath. Kosher Sports says it sells food to non-Jews as well under its 10 year contract with the Mets.  According to today's New York Post, the Mets claim any damages were caused by Aramark, another vendor that refused to supply Kosher Sports with carts on Friday nights and Saturdays. In issuing the temporary order, federal district judge Jack Weinstein said he could not get involved in a dispute over rabbinical law. (See prior related posting.) [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Consent Decree Filed In DOJ's Suit Against Restaurant Charging Falun Gong Discrimination

The U.S. Department of Justice announced Thursday that it had filed a consent decree in its religious discrimination action against a Flushing, NY restaurant that ejected ten patrons on three separate occasions in 2008 because they were wearing shirts displaying beliefs of the Falun Gong movement. Lucky Joy Restaurant, Inc. and its president Xiao Rong admit that they refused service to Falun Gong practitioners.  The consent decree, which must still receive court approval, enjoins defendants from discriminating on the basis of religion, religious expression, religious dress or association with Falun Gong. Restaurant staff will also attend training on the legal requirements of non-discrimination in public accommodations, and a non-discrimination policy will be posted in the restaurant in English and Chinese. (See prior related posting.) In China, the government began a campaign in 1999 to ban Falun Gong. (Background).

President Hosts Iftar At White House; Supports Right To Build Mosque Near Ground Zero

Last night, President Barack Obama hosted an Iftar-- a meal to break the Ramadan fast-- at the White House.  In his remarks (full text), the President focused on the importance of faith and religious free exercise in America, and came out in support of the right of Muslim groups to build a controversial mosque and community center near Ground Zero in New York City.  Here are some excerpts from his remarks:

Here at the White House, we have a tradition of hosting iftars that goes back several years, just as we host Christmas parties and seders and Diwali celebrations. And these events celebrate the role of faith in the lives of the American people. They remind us of the basic truth that we are all children of God, and we all draw strength and a sense of purpose from our beliefs.

These events are also an affirmation of who we are as Americans. Our Founders understood that the best way to honor the place of faith in the lives of our people was to protect their freedom to practice religion.....  Indeed, over the course of our history, religion has flourished within our borders precisely because Americans have had the right to worship as they choose -– including the right to believe in no religion at all..... Now, that's not to say that religion is without controversy. Recently, attention has been focused on the construction of mosques in certain communities -– particularly New York.  Now, we must all recognize and respect the sensitivities surrounding the development of Lower Manhattan....

But let me be clear. As a citizen, and as President, I believe that Muslims have the same right to practice their religion as everyone else in this country. (Applause.) And that includes the right to build a place of worship and a community center on private property in Lower Manhattan, in accordance with local laws and ordinances. This is America. And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are. The writ of the Founders must endure.

The New York Times reports that leading Republicans quickly criticized Obama's statement and earlier today the President "recalibrated" his remarks, saying:

I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there. I was commenting very specifically on the right people have that dates back to our founding. That’s what our country is about.