Mixed Response To Schools' Limits On Wearing Rosaries

Catholic News Service this week reported that the Catholic Diocese of Colorado Springs, Colorado has decided not to oppose a decision by some Colorado Springs schools to allow students to wear rosaries only if they are tucked into their shirts. The Diocese said in an Oct. 12 statement: "Because some gangs in the local area have decided to wear rosaries as jewelry as a symbol of their gang affiliation, the diocese does not oppose the decision by some schools in School District 11 to ask students who choose to wear rosaries to keep them inside their shirts."  Last week the ACLU announced it opposed the school's policy and the American Center for Law and Justice sent a letter to the principal of Mann Middle School threatening to sue on behalf of a student if the policy is not changed. (UPI). However Colorado Springs Diocese judicial vicar and chancellor Msgr. Ricardo Coronado-Arrascue said that rosaries are not meant to be jewelry and opposed the use of rosaries to symbolize gang membership.  A memo from Mann Middle School to students and parents said that some Catholics are offended by rosaries being worn like fashion accessories.

Residents Protest Removal of Christian Flag From War Memorial

As previously reported, last month King City, North Carolina's city council voted to remove a Christian flag that had flown at the city's veteran's memorial along with U.S., state and other flags. Today's Daily Tar Heel reports that, in response, residents have been protesting. They placed a new Christian flag there on a temporary stand and are guarding it 24 hours a day. The protest will continue until Oct. 23 when there will be a march through town to support a return of the flag which depicts a soldier kneeling in front of a cross. Also local businesses and homes are now flying the flag and vendors are selling T-shirts and magnets depicting it.  A supporter said: "We are not trying to represent diversity of the world. We are trying to represent the community and the values that the country was founded on."

Chaplain Says DADT Injunction Will Impact Ability To Counsel Soldiers

On Tuesday, a California federal district court in Log Cabin Republicans v. United States, (CD CA, Oct. 12, 2010), held, in a lengthy opinion, that the military's "don't ask, don't tell" policy violates due process and 1st Amendment speech and petition rights of gay and lesbian members of the armed forces. The accompanying 3-page order imposing a permanent injunction bars enforcement of "don't ask, don't tell" and requires the government to discontinue any pending investigation or discharge under the rules.  Baptist Press yesterday interviewed retired Chaplain (Col.) Keith Travis who is now chaplain team leader for the North American Mission Board, who said:

In order to best serve soldiers, our chaplains need to be able to practice their faith freely. Under this order, there's a question as to whether our chaplains would be able to offer the full counsel of Scripture to soldiers who seek their guidance.

CNN reported yesterday that even though the Obama administration opposes "don't ask, don't tell", the Justice Department is likely to seek an emergency stay of the district court's injunction and, if rejected by the district court, to file an appeal with the 9th Circuit.

Ontario High Court Says Allowing Witness To Wear Niqab Requires Contextual Analysis

In Canada yesterday, Ontario's highest appellate court held that a judge conducting a preliminary inquiry in a criminal case has discretion whether or not to permit Muslim women to testify with their face covered.  In The Queen v. N.S., (Ont. Ct. App., Oct. 13, 2010), defendants were charged with criminal sexual assault. The victim, niece and cousin of defendants, asserted the right to continue to wear her niqab, with her face covered, when testifying at the preliminary inquiry. The court said in part:

just as the preliminary inquiry judge has the power to regulate how and when a witness will testify, he or she has the power to determine whether a witness should be required to change his or her attire before testifying.... While it is clear that face to face confrontation between the accused and prosecution witnesses is the accepted norm in Canadian criminal courts, there is no independent constitutional right to a face to face confrontation....  Departures from the traditional face to face public confrontation between accused and witness will run afoul of the Charter only if they result in a denial of a fair trial to the accused...... A minimal interference with cross-examination would not impair an accused's right to a fair trial and would not justify any limitation on the witness's exercise of her right to freedom of religion....

The reconciliation may be very different at a preliminary inquiry, where the witness's credibility is essentially irrelevant, than at trial, where the outcome of the case and the accused's liberty may turn entirely on the witness's credibility....

Perhaps the most difficult aspect of the contextual analysis is that which requires the court to take into account other constitutional values and societal interests.... N.S. is a Muslim, a minority that many believe is unfairly maligned and stereotyped in contemporary Canada. A failure to give adequate consideration to N.S.'s religious beliefs would reflect and, to some extent, legitimize that negative stereotyping. Allowing her to wear a niqab could be seen as a recognition and acceptance of those minority beliefs and practices and, therefore, a reflection of the multi-cultural heritage of Canada recognized in s. 27 of the Charter. Permitting N.S. to wear her niqab would also broaden access to the justice system for those in the position of N.S., by indicating that participation in the justice system would not come at the cost of compromising one's religious beliefs....

There is also a societal interest pointing against a witness wearing a niqab when testifying. Society has a strong interest in the visible administration of criminal justice in open courts where witnesses, lawyers, judges and the accused can be seen and identified by the public.... Attempts to reconcile competing interests using "constructive compromises" might include the use of an all female court staff and a female judge. Those measures might also include, where constitutionally permissible, an order that a witness be cross examined by female counsel....  If necessary, the court could be closed to all male persons other than the accused and his counsel. In this case, resort to the measures outlined above could result in N.S., if she was required to remove her niqab, revealing her face to only one male person, M---d.S., to whom her religious beliefs indicated she should not....

If the judge concludes that the wearing of the niqab in all of the circumstances would infringe the accused's right to make full answer and defence, that right must prevail over the witness's religious freedoms and the witness must be ordered to remove the niqab.

The Toronto Sun reported on the Court of Appeal for Ontario's decision.

Supreme Court Refuses Review In One Case; Permits SG To Argue In Another

Yesterday, the U.S. Supreme Court granted two orders of interest in the church-state/ religious freedom area. (Order list).  It denied certiorari in Association of Christian Schools v. Stearns, (Docket No. 90-1461). In the case, the 9th Circuit rejected constitutional challenges to the University of California's admissions policy.  The University refuses to accept certain high school courses offered by Christian schools as courses that will be counted to qualify students for admission. (See prior posting.)

In Garriott v. Winn  (Docket No. 09-991) along with Arizona Christian School Organization v. Winn (Docket No. 09-987), -- both on the Court's docket for this term-- the Court granted the motion of the Acting Solicitor General to participate in oral argument on the side of appellant. In the case, a 3-judge panel of the 9th Circuit found taxpayer standing and ruled that, as applied, Arizona's tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations" violates the Establishment Clause. The 9th Circuit then denied en banc review, but with 40 pages of opinions. (See prior posting.) The government in its amicus brief filed in the Supreme Court argues both that challengers lack standing to assert their claim and that on the merits the Arizona statute is a constitutionally permissible neutral program that permits individuals to direct aid to religious programs.

School Principal Sues Claiming Religious Discrimination After He Promoted Prayer Breakfast

In Santa Barbara, California, an elementary school principal has filed a lawsuit against the Goleta Union School District charging that the district is attempting to fire him because of his evangelical Protestant religious beliefs.  Principal Craig Richter was disciplined and threatened with contract non-renewal after he appeared in a video promoting the 2010 Santa Barbara Community Prayer Breakfast which had a theme of honoring teachers.  The complaint (full text) in Richter v. Goleta Union School District, (CD CA, filed 10/12/2010), claims that the district took action against him on the grounds that his participation in the video violated church-state restrictions by implying district endorsement of the prayer breakfast. The suit charges violation of Title VII, of California's employment discrimination law and of plaintiff's free speech rights. Alliance Defense Fund issued a press release reporting the filing of the lawsuit.

Federal Government Appeals Cases That Invalidated DOMA

Reuters reports that the Justice Department yesterday filed notices of appeal in two companion rulings by a Massachusetts federal court that held the federal Defense of Marriage Act (DOMA) unconstitutional. (See prior posting.) Even though President Obama opposes DOMA, the Justice Department says it "is defending the statute, as it traditionally does when acts of Congress are challenged." Bay Windows points out that the notices of appeal were filed on the last possible day for doing so.

European Commission To Investigate Italy's Tax Benefits To Church-Owned Commercial Property

Bloomberg News reported yesterday that the European Commission is opening an investigation into tax exemptions that Italy grants to the Catholic Church. In addition to a property tax exemption for non-commercial properties, Italy gives the Church a 50% reduction on the tax imposed on commercial property. European Union regulators say this may amount to an illegal state subsidy if the Church's commercial activities are in competiton with private commercial service providers. In a press release yesterday the European Commission also announced that it would examine Italian laws that protect ecclesiastical institutions (as well as amateur sports clubs) from losing tax exemptions for their property even if they begin to use formerly non-commercial property for commercial purposes.

Suit In Belarus Seeks Religious Burial For Executed Murderer

According to a report published yesterday by Forum 18, in Belarus the mother of convicted murderer Andrei Zhuk who was executed in March has filed a civil suit in Lenin District Court in Minsk seeking to obtain her son's body for religious burial.  The suit against the Ministry of Interior's Department for the Execution of Punishments claims that the refusal to release Zhuk's body or tell his mother where he is buried violates the religious exercise rights of Zhuk's mother protected under Art. 18 of the International Covenant on Civil and Political Rights. Article 21 of the Belarus Constitution obligates the government to guarantee rights specified in the country's international obligations.

Cert. Petition Filed In D.C.Refusal of Marriage Initiative

A petition for certiorari (full text) was filed in the U.S. Supreme Court yesterday seeking review of the D.C. Court of Appeals decision in Jackson v. District of Columbia Board of Elections and Ethics. In the case, D.C.'s highest appellate court, in a 5-4 decision, upheld election officials' refusal to accept a petition seeking an initiative vote to bar D.C. from recognizing same sex marriages. (See prior posting.) The petition asks the Supreme Court to decide whether the D.C. Council violated the Congressionally approved D.C. Charter in limiting the issues that can be put to an initiative vote. An Alliance Defense Fund press release announces the filing of the cert. petition.

Court Says State Agency Can Ban Employee From Giving Faith-Based Counseling

In Moore v. Metropolitan Human Service District, 2010 U.S. Dist. LEXIS 107997 (ED LA, Oct. 8, 2010), a Louisiana federal district court dismissed a Title VII religious discrimination claim brought by a social worker employed by a state agency that provides counseling for patients suffering from addictive disorders. Plaintiff Beulah Moore is also an ordained minister.  The clinic manager at the facility employing Moore ordered her to cease providing spiritual based counseling and prayer in her clinical treatment of clients.  Evidence failed to support broader claims in Moore's complaint that she was also ordered to stop mentioning God at all in the work facility. (See prior related posting.) Moore resigned in a letter stating: "I refuse to be harassed and discriminated against because I speak of God, mention Jesus and have given Spiritual Support to clients on their request." The court concluded that the state agency was justified in restricting Moore's faith-based treatment of clients in order to avoid an Establishment Clause violation.

New Study Examines Assignments of Accused Priests In Chicago

Voice of the Faithful yesterday released a new study titled Priest Work History of Credibly Accused Priests in the Archdiocese of Chicago. It concludes that 60% of Chicago's parishes and institutions had an accused priest working there or in residence at some point in time.  In 2009, 20% still had a credibly accused priest in residence.  Most of the 97 credibly accused priests were assigned to parishes and institutions in a few Chicago zip codes. These appear to be areas with higher concentrations of African-Americans and low median household incomes. A number of parishes and institutions had more than one accused priest assigned to them at the same time.

OSCE Review Conference Session Focuses On Religious Freedom

The Review Conference of the Organization for Cooperation and Security in Europe (OSCE) began in Warsaw, Poland on Sept. 30 and ran until Oct. 8.  Other portions of the Review Conference will be held later this month and next month ahead of the OSCE Summit to be held in early December. The Warsaw segment focused on the human rights commitments of the 56 member countries. (Press release). The dozens of documents (links to full texts) from Working Session 2 focus on freedom of thought, conscience and religion.  Numerous statements were submitted by governments and NGOs.

In Israel, Teenager Sues For Right To Become A Rabbi

In Israel, a 14-year old boy, hoping to become Israel's youngest rabbi, has filed suit in the Supreme Court to force the Chief Rabbinate to grade an ordination exam which he took. According to Arutz Sheva yesterday, Chief Ashkenazi Rabbi Yona Metzger gave Moshe Raziel Sharify permission to take the exam, despite his age and despite opposition from Chief Sephardi Rabbi Shlomo Amar.  However now the Rabbinate is refusing to grade the exam, saying that its internal rules require a person to be at least 22 years old to become a rabbi. Apparently Sharify is a child prodigy who has been tested on his knowledge of Jewish law by several respected rabbis, including the head of Jerusalem's religious court.

First Responder Sues Ground Zero Mosque Developers For Emotional Distress; Counter Suit Filed

According to the Huffington Post yesterday, 9-11 first responder Vincent Forras has filed a state court class action against the developers of the proposed Ground Zero mosque seeking damages of $350 million for infliction of emotional distress and assault. The complaint (full text) in Forras v. Rauf (apparently filed in mid-September) alleges that for people who live, work or often visit the area around ground zero, many of whom were first responders, the mosque project is "a nuisance, a terror risk and a conscious and/or negligent desire to inflict additional psychological terrorism and emotional distress...."  The complaint goes on to allege:

Defendants’ actions and decisions to erect a Mosque at or near the site of a terrorist attack where nearly 3,000 Americans lost their lives as a result of radical Islamic terrorists’ actions is careless, negligent, and unlawful in that as a result of Defendants’ ties to terrorist organizations, Defendants have increased the access of terrorists and the likelihood of attacks on Ground Zero. Defendants, given their professed role as clergy, and as professed people of faith, and as citizens of the City of New York and property owners, owe a duty of care to Lead Plaintiff and other members of the class, particularly under these unique circumstances.

Yesterday's New York Post reports that defendants are seeking to have the lawsuit dismissed on free exercise of religion grounds. UPI reported yesterday that Imam Feisal Abdul Rauf and Park51, defendants in the lawsuit, have also responded with a counter-suit claiming that the action against them is motivated by "blind bigotry."  The counter suit asks for $50,000 in damages plus attorneys' fees.

Court Says Undue Hardship In Accommodating Refusal To Handle Domestic Partnerships Must Go To Jury

In Slater v. Douglas County, (D OR, Sept. 24, 2010), an Oregon federal district court refused to grant either plaintiff's or defendant's motions for summary judgment in an employment discrimination case, sending to a jury trial the question of whether accommodating a county employee's religious beliefs would have posed an undue hardship under state or federal employment discrimination laws.  The suit was brought by a former employee of the Douglas County, Oregon County Clerk's Office.  Plaintiff Kathy Slater was fired from her position after she objected to being involved in registering domestic partnerships under Oregon's Domestic Partnership Law. Doing so would have violated her religious belief that homosexuality is a sin. The court concluded that the county's offer to help Slater transfer to a position in another county department if one became available was an insufficient effort at accommodation of her religious beliefs. However it was unable to determine the question of undue hardship on the record before it. The court did reject the county's argument that accommodating Slater's religious beliefs would have violated the Establishment Clause because the county would have been supporting the employee's religious beliefs. [Thanks to Volokh Conspiracy via Alliance Alert for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Patrick McKinley Brennan, Human Law and Natural Law in the Catholic Tradition: Authoritative Guides to the Good Life, (in Teaching the Tradition: A Disciplinary Approach to the Catholic Intellectual Tradition, J. Piderit, M. Morey, eds., Oxford University Press, 2011).
• Hadley Friedland & Frederick C. DeCoste, Not So Naked After All: A Review Essay of Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation by Frances Widdowson & Albert Howard, (Ottawa Law Review, Vol. 41, No. 2, pp. 59-77, 2010).
• Corey L. Brettschneider, A Transformative Theory of Religious Freedom: Promoting the Reasons for Rights,(Political Theory, Vol. 38, No 2, April 2010).
• Shelly Kreiczer-Levy, Religiously Inspired Gender-Bias Disinheritance – What’s Law Got to Do with It?, (Creighton Law Review, Vol. 43, No. 3, p. 669, 2010).
• Mohammad Omar Farooq, Qiyas (Analogical Reasoning) and Commodification of Women: Applying Commerce-Related Concepts to Marital Relationship in Orthodox Islamic Law, (October 9, 2010).
• Benjamin C. Zipursky, Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law, (DePaul Law Review, Forthcoming).
• Nick J. Sciullo, Amos Lee’s 'Street Corner Preacher' Through Michel Foucault’s Critique of Scientific Knowledge: A Critique of Legal Knowledge, (The Critical Legal Studies Journal, Vol. 4, No. 1, 2010).

From SmartCILP and elsewhere:

• David A. Simon, In Search of (Maintaining) the Truth: the Use of Copyright Law by Religious Organizations, 16 Michigan Telecommunications & Technology Law Review 355-417 (2010).
• The October 2010 issue of Church & State has recently appeared.

New Books:

• Ran Hirschl, Constitutional Theocracy, (Harvard Univ. Press, Nov. 2010).
• Jason W. Stevens, God-Fearing and Free: A Spiritual History of America's Cold War, (Harvard Univ. Press, Nov. 2010).
• Eugene M. Avrutin, Jews and the Imperial State: Identification Politics in Tsarist Russia,(Cornell Univ. Press, 2010).
• Eamon Duffy, Fires of Faith: Catholic England under Mary Tudor, (Yale Univ. Press, Sept. 2010).

Suit Says County Sign Control Ordinance Is Unconstitutional

A federal court challenge to a Berkeley County, South Carolina sign control ordinance was filed last week.  The complaint (full text) in Moultrie v. Berkeley County, South Carolina, (D SC, filed 10/5/2010), argues that by providing exemptions for political signs (as well as for "for sale" and "for lease" signs) but not for signs expressing religious messages, the county has violate the free expression, free exercise and equal protection rights of plaintiff who was cited after he failed to obtain permits for seven signs containing Biblical references that he placed on his own property. Plaintiff alleges that the county ordinance is a prior restraint, as well as an over-broad content-based regulation. Last week, the Rutherford Institute issued a press release announcing the filing of the lawsuit. Friday's Charleston (SC) Post and Courier reports on the case.

In Turkey, University Faculty Cannot Remove Students Who Wear Muslim Headscarves

Despite a 2008 ruling by Turkey's Constitutional Court that appears to hold that Turkey's constitution bars the wearing of Muslim head scarves at universities (see prior posting), Turkey's Higher Education Board (YOK) recently notified Istanbul University that instructors can no longer take disciplinary action against students who wear them.  Instead of removing offending students from class, instructors can only report them to the dean. Reporting on YOK's ruling, Hurriyet Daily News last week called it a "don't ask don't tell solution" to a "heavily symbolic legal, political and social dilemma." An op ed today by Richard Peres in Turkey's English language daily, Today's Zaman, makes some interesting observations on the possibility of Turkish women taking a lesson from developments that led to the 1964 Civil Rights Act in the United States.

Recent Prisoner Free Exercise Cases

In a long opinion in Smith v. Artus, 2010 U.S. Dist. LEXIS 104660 (ND NY, Sept. 30, 2010), a New York court ultimately rejected challenges by a Muslim inmate to prison policies that prevented him from engaging in demonstrative prayer in the prison recreation yard when recreation times coincided with his obligation for Salaah prayer. While the court questioned the constitutionality of the rule, it found qualified immunity for defendants from damages and found that claims for equitable relief were moot. The court also rejected a challenge to prison rules that prohibited inmates from attending congregate religious services while in the Special Housing Unit.


In Montague v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 104394 (MD TN,Sept. 30, 2010), a Tennessee federal magistrate judge recommended dismissal of an inmate' claim against a company authorized to deliver food packages to inmates. Plaintiff claimed he did not receive a Christmas gift package sent to him by his relatives.


In Reeder v. Hogan, 2010 U.S. Dist. LEXIS 105024 (ND NY, Sept. 29, 2010), a New York federal district court held that an inmate sufficiently alleged a complaint against one defendant over failure to receive proper meals during Ramadan. The magistrate's recommendations are at 2010 U.S. Dist. LEXIS 104686, Aug. 27, 2010.


In Jenkins v. Vail, 2010 U.S. Dist. LEXIS 98187 (ED WA, Sept. 17, 2010), a Washington federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 103989, Aug. 4, 2010) and rejected a Muslim inmate's claims that his free exercise rights and rights under RLUIPA were infringed by rules that required him to either work or engage in educational programming in prison for a non-Islamic government.


In Johnson v. Rock, 2010 U.S. Dist. LEXIS 104685 (ND NY, Sept. 30, 2010), a New York federal district court adopted a magistrate' recommendations (2010 U.S. Dist. LEXIS 104672, March 30, 2010) and rejected a Muslim inmate's complaint that he was subjected to a restricted diet during Ramadan.


In Milstead v. Guyer, 2010 U.S. Dist. LEXIS 105044 (D ID, Sept. 29, 2010), an Idaho federal district court refused to permit a former inmate, now on parole, to withdraw from a settlement agreement he had reached on complaints about prison rules limiting the amount of religious and legal materials he could keep in his cell.  The court refused to permit plaintiff to add claims regarding conditions of his parole that prevented him, as a sexual offender, from attending church services where children are present. The court encouraged plaintiff to work with his parole officer to determine what religious services were available for him to attend.


In Wiideman v. Baker, 2010 U.S. Dist. LEXIS 106301 (D NV, Sept. 20, 2010), a Nevada federal district court allowed an inmate to move ahead with his free exercise and RLUIPA claims that he is denied Asatru reading material, including the Bible of Odinism.


In Jones v. Hobbs, 2010 U.S. Dist. LEXIS 105799 (ED AK, Oct. 1, 2010), a federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 106431, Sept. 13, 2010), and refused to dismiss an inmate's First Amendment individual capacity claims alleging a 16-month denial of a religiously required vegan diet. However the court dismissed plaintiff's RLUIPA claim for damages against defendants in their individual capacities.

Topeka Has Strained Relationship With Westboro Baptist Church Leaders

Today's New York Times explores the relationship between the city of Topeka, Kansas and the Phelps family, leaders of the Westboro Baptist Church that was at the center of a Supreme Court argument last week over free speech rights. (See prior posting.) Here are some excerpts from the Times account:

The city has tried and failed for decades to rid itself of the Phelpses, or at the very least to quiet them a bit. There have been counterprotests, violent attacks and endless rounds of legal efforts trying to silence them or force them out. But much to the embarrassment of the conflict-averse residents of this capital city of about 125,000, Mr. Phelps remains perhaps Topeka’s most famous resident....

But as the years of conflict have turned to decades, the city has settled into a tenuous, if mutually disdainful, co-existence with the Phelpses. The children of Mr. Phelps work white-collar jobs: 11 of the 13 are lawyers, including the three daughters who appeared before the Supreme Court on Wednesday. (Mr. Phelps was disbarred in 1979.) His 56 grandchildren and 9 great-grandchildren attend public school.

Gender Discrimination Claim By Former Pastor Dismissed Under Ministerial Exception Doctrine

In Barton v. Mikelhayes, 2010 U.S. Dist. LEXIS 107233 (ND NY, Oct. 7, 2010), a New York federal district court applied the ministerial exception doctrine to dismiss a Title VII gender discrimination complaint brought by Todd David Barton, a former minister in the United Methodist Church, whose pastoral license was withdrawn by the bishop.  The Church claimed that the action was taken, pursuant to its Book of Discipline, because of patterns of behavior by Barton that undermined the ministry of his church's Lead Pastor. The court said: 

[I]n order to decide the case ... the Court would be forced to question the Church's administration in order to decide whether Plaintiff's pastoral license was revoked due to his violation of the United Methodist Church's governing doctrine, as Defendant claims, or whether the Defendant's reasons for deciding that Plaintiff violated the doctrine were actually "not only erroneous, but also pretextual" as Plaintiff claims. This question cannot not be answered by the Court without impermissible entanglement with the United Methodist Church's religious doctrine.

British Court Orders Muslim Woman To Remove Veil, But Allows Testimony From Behind Screen

In England, according to Sunday's London Express, the Leicester magistrate's court has rendered a controversial decision by requiring a Muslim woman to uncover her face to testify in court, but permitting her to testify from behind a screen where only the judges could see her. The woman, Georgiana Richards, was pregnant and brought domestic violence charges against her ex-partner, Ismail Mangera who was ultimately found guilty of punching Richards and scrawling abusive language on her front door.  Richards criticized the court for requiring her to uncover her face,  while Tory MP Phillip Hollobone said the court did not go far enough and should have required Richards to testify in open court with her face uncovered.

2nd Circuit Voids Vermont's "Vanity" License Plate Law That Excludes Religious References

In Byrne v. Rutledge, (2d Cir., Oct. 8, 2010), the U.S. 2nd Circuit Court of Appeals held that Vermont's statute that allows for "vanity" license plates, but does not permit the issuance of plates that refer to a religion or deity, is unconstitutional.  The court concluded that by allowing residents to select combinations of letters and numbers that convey a message on a variety of topics, including statements of personal philosophy, taste, inspirational messages and affiliation with causes, but not allowing religious references, the state has engaged in viewpoint discrimination. The court also found the statute unconstitutional as applied.  In this case, a resident applied for a license plate reading JN36TN. The state refused to issue it because the applicant informed them that he intended the plate to refer to a Biblical verse, John 3:16.  However, had the applicant supplied a secular meaning for the numbers and letters, the state would have issued the plate.  The court found that interpreted this way, the statute fails to further a legitimate governmental interest and constitutes an unreasonable restriction on expression. New York Law Journal reports on the decision.

Woman Arrested For Destroying Offensive Jesus Depiction In Museum Display

As reported by Fox News, since Sept. 11, the Loveland, Colorado Museum Gallery, a tax funded museum, has hosted a show titled "The Legend of Bud Shark & His Indelible Ink." It is a display of 82 prints by ten artists who have worked with Colorado printer Bud Shark. One of the prints is a 12-panel lithograph by Stanford University Professor Enrique Chagoya called "The Misadventures of Romantic Cannibals."  Huffington Post has a photo of all the panels in its report on the show. While the show spent four months at the Museum of Contemporary Art in Denver without incident, in Loveland it has triggered protests as a Loveland City Council member and the media say that one of Chagoya' panels depicts Jesus having oral sex. However City Council voted 6-3 not to take up complaints about the exhibit.  According to AP, on Wednesday, a 56-year old Montana woman, Kathleen Folden,who is a long-haul trucker, drove to Loveland and using a crowbar, broke the plexiglass case housing the panels and ripped up the offending panel.  Here is a photo of the print after the attack. Police arrested Folden and charged her with felony criminal mischief. CNN reports today that Folden will plead not guilty, arguing that the print was not worth $1000, the threshold for bringing the charges as a felony. Folden's attorney said: "The real issue is the city of Loveland, which is not supposed to be endorsing or belittling religion. They specifically endorsed a piece that belittled Jesus Christ."

Church Official In Malta Says Lawyers and Judges Should Not Take Part In Divorce Cases If Law Is Changed

Malta is the only European Union country where divorce is banned. In July, a member of Parliament in Malta introduced a bill to permit divorce in the country. Malta's prime minister says the issue should be the subject of a referendum or at least of an election debate. (Times of Malta; PressEurop). Now, according to today's Times of Malta, a high-ranking Catholic Church official in the country says that if the law is passed, any judge who applies it would be committing a grave sin. Judicial Vicar Arthur Said Pullicino, head of the Church tribunals that examine religious petitions for annulments, said in a homily at the beginning of the judicial year, that members of the judiciary and lawyers should refuse to take part in divorce proceedings. He explained: "A lawyer who takes up the case of somebody who files for divorce, the guilty partner, cannot do it. He would be going against God’s law. On the other hand, the lawyer who takes up the case of the innocent party is doing nothing wrong."

Suit Challenges Kentucky's Rejection of In God We Trust License Plates

Fox News and Fox 41 this week reported on a lawsuit that has been filed in state court in Kentucky by an anti-pornography group known as ROCK ("Reclaim Our Culture Kentuckiana") challenging a 2008 denial by the state's Transportation Cabinet of ROCK's application for issuance of an "In God We Trust" specialty license plate. The state cited three reasons for refusing the request: the plate would not readily identify the motor vehicle operator as a member or supporter of ROCK; the legislature had previously considered, but not passed, legislation to authorize a similar plate; and the relevant Kentucky statute (KRS Sec. 186.164(9)) bars creating specialty plates for any group that has as its primary purpose the promotion of any specific faith, religion, or non-religion.  Last week, in its memorandum (full text) supporting its motion for summary judgment, ROCK argued that while it promotes Judeo-Christian principles, it does not promote any specific religion. It also argues that the statute's exclusion of religious groups violates the Equal Protection clause. (See prior related posting.)

FLDS Asks Federal Court To Enjoin State Court Trust Reformation

On Wednesday, the Fundamentalist Church of Jesus of Jesus Christ of Latter Day Saints renewed their federal court motion for a temporary restraining order or preliminary injunction to stay all proceeding in the Utah state court case that is implementing reform of the United Effort Plan Trust that holds FLDS property. The motion also seeks to enjoin the further transfer of any property from the trust, including the proposed sale of the Berry Knoll Farm that is a sacred temple site for FLDS members. (Full text of motion.) The federal court case was originally filed in 2008 to contest the state's actions in taking over administration of the property of the polygamous FLDS church in twin towns in Utah and Arizona. (See prior posting.)  This week's federal court motion comes after the Utah Supreme Court in August rejected a similar FLDS challenge on the ground of laches. (See prior posting.) In its 45-page memo (full text) accompanying this week's federal court motion, FLDS contends that the state court's reformation of the UEP trust violates the Establishment Clause, arguing:

No reading of the Religion Clauses justifies the State’s involvement in the FLDS Church and the UEP Trust. The State violates that clause when it takes over an institution of religion and then, by stripping the religion from the institution, claims to be able to minister to the needs of its members by applying rules of secular neutrality.

Yesterday's Salt Lake Tribune reports on the federal court proceedings. For those following the case, an extensive collection of primary source documents in the state court proceedings are available at a UEP website.

9th Circuit: Immunity Protects Several Defendants In Lease and Sale of Homeless Shelter To Religious Group

In Community House, Inc. v. City of Boise, (9th Cir., Oct. 6, 2010), the 9th Circuit Court of Appeals held that the mayor and individual members of city council of Boise, Idaho enjoyed absolute legislative immunity in a suit charging that their approval of a lease and eventual sale of of a homeless shelter to the Boise Rescue Mission violated the Establishment Clause and the federal Fair Housing Act.  They may not be sued individually for either damages on injunctive relief. The court went on to hold that two city development officials enjoyed qualified immunity from a claim for damages in their individual capacities because at the time of the lease and sale a reasonable official would not have known that the actions violated the Establishment Clause or the FHA. The majority wrote:

Faced with a dearth of binding case law on the subject of non-profit leases to religious organizations — and a Fourth Circuit case holding that “rent discrimination” based on religion was unconstitutional — a reasonable official would not have known that the BRM lease violated the Establishment Clause.... Given that no other non-profit organizations were willing or able to keep the doors of the shelter open, the decision to lease the building to the BRM was reasonable....

With respect to the option to purchase, case law before 2005 suggested that, generally, a sale of public property to a religious organization for less than market value would likely violate the Establishment Clause.... But no case in the Ninth Circuit or elsewhere had held that a below-market sale would be unconstitutional where the organization also executed an important city policy and saved the city money...

Thus plaintiffs are limited to suing the city and city council and the development officials in their official capacity. Chief Judge Kozinski filed a concurring opinion.

French Constitutional Council Upholds Ban on Burqa

CNN reported yesterday that in France, the Constitutional Council has upheld the Parliament's recently enacted ban on wearing the burqa or niqab-- garments including a full face veil-- anywhere in public. (See prior posting.) This was the last step necessary for approval of the new law that will take effect in the spring. The Constitutional Council held that the new law does not impose disproportionate punishments and does not prevent the free exercise of religion in a place of worship and thus "conforms to the Constitution."  Under the new law, a woman wearing a niqab or burqa will be fined 150 Euros ($190 US) and required to take a citizenship course.  The law classifies forcing a woman to wear a niqab or burqa as a much more serious offense, punishable by a sentence of one year in prison or a fine of 15,000 Euros ($19,000 US). The government called this type of coercion a new form of enslavement that cannot be accepted on French soil.

Suit Filed Over School's Refusal To Allow Nose Stud Worn for Religious Reasons

ACLU of North Carolina announced Wednesday that it had filed a lawsuit in a North Carolina federal district court on behalf of 14-year old high school freshman Ariana Iacono and her mother challenging Clayton (NC) High School's refusal to grant Ariana an exemption from its dress code so she can wear a small nose stud for religious reasons.  The complaint (full text) in Iacono v. Croom, (ED NC, filed 10/6/2010), asserts that the Iacono's are members of the Church of Body Modification. Ariana joined in August, while her mother had been a member for a year prior to that.  The complaint alleges free exercise, equal protection and other violations stemming from the school's suspending of Ariana and sending her to an alternative school for violating the school dress code. (See prior related posting.)

UPDATE:  Two days after the lawsuit was filed, a federal district judge issued a temporary restraining order permitting Ariana Iacono to return to classes at Clayton High School. (Apex (NC) Herald). A hearing on a preliminary injunction to permit Ariana to continue in classes is pending is scheduled for Nov. 2. (WRAL News). Here is the full text of the judge's order granting the TRO. The court concluded that plaintiff had shown a likelihood of success on the merits of her free exercise claim.

Anti-SLAPP Law Applied To Dismiss Claims In Suit Growing Out of Condo Mezuzah Dispute

In Shoreline Towers Condominium Association v. Gassman, (IL App., Sept. 30, 2010), an Illinois appellate court agreed with the trial court that portions of a lawsuit by a condominium association against a former resident should be dismissed under Illinois' anti-SLAPP law. What began as a dispute between former resident Debra Gassman over condo rules that prevented her from placing a mezuzah on her door escalated into several confrontations between Glassman on the one hand and the Association and its president on the other.  This suit by the Association and its president seeking an injunction and alleging defamation and malicious prosecution, among other charges, followed. In upholding dismissal of claims brought by the Association (while allowing claims by its president to proceed), the court said that the anti-SLAPP law: "does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action." The court also upheld retroactive application of the anti-SLAPP law and the award of attorneys' fees.

Appeal To 6th Circuit Filed In Recess Bible Reading Case

On Tuesday, a Notice of Appeal (full text) to the 6th Circuit was filed in L.W. v. Knox County Board of Education.  In the case, a federal district court jury in Knoxville, Tennessee found in favor of the Knox County Schools in a lawsuit over the right of elementary school students to read the Bible during recess. (See prior posting.) The jury accepted the school's contention that the school's refusal was merely the result of a misunderstanding about what the children were requesting. In a decision last month (full text), the district court rejected plaintiff's motion for judgment as a matter of law despite the jury verdict, and also rejected plaintiff's motion for a new trial. Alliance Defense Fund issued a press release announcing the filing of the appeal.

Christian Groups File Consultation Paper With United Nations On Interpretation of ICCPR

Last week, a group of Christian organizations submitted a 35-page consultation paper (full text) to the United Nations Office of the High Commissioner for Human Rights. The paper responds to a call by the High Commissioner for papers addressing the interplay of two section of the International Covenant on Civil and Political Rights. At issue is the relationship of Article 19 which guarantees freedom of expression with Article 20 that prohibits advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility of violence. The paper calls on the High Commissioner to also consider the impact of Article 18 that guarantees freedom of thought, conscience and religion.  The paper takes strong issue with language in the High Commissioner's concept paper that rephrases Article 20.  The consultation paper argues that the change in wording may favor hate speech codes or bans on defamation of religion "that will result in restrictions upon legitimate freedom of expression and upon the ability of minority groups to challenge reigning religious and political orthodoxies."  A press release issued on Tuesday by Alliance Defense Fund announcing the filing of the consultation paper says: "What’s at stake here is the ability of Christians to be able to share freely their belief that Jesus Christ is the only way to salvation without fear of reprisal by any government that has signed on to this covenant."

City Council Opts To End Exploration of Opening Sessions With Prayer

The Canandaigua, New York City Council's Planning Committee yesterday rejected a proposal by one Council member to explore opening of Council meetings with a prayer.  According to the Canandaigua Messenger Post, Councilwoman Trudy White-Hamilton proposed the idea last month, saying that "prayer would benefit our community."  However Mayor Ellen Polimeni said that instituting a prayer policy would invite a lawsuit, and Councilman Matt Smythe complained that using city staff to investigate the issues involved would divert them from addressing other matters. A motion to continue research on the issue of legislative prayer was defeated by the Committee by a vote of 2-1.

Suit Challenges Jail's Policy Allowing Inmates To Receive Bibles But No Other Publications

The ACLU announced yesterday that it has filed a federal lawsuit in South Carolina challenging the policy at the Berkeley County (SC) Detention Center which bars sending of any books, magazines or newspapers to inmates, except for copies of the Bible.  The complaint (full text) in Prison Legal News v. Berkeley County Sheriff H. Wayne Dewitt, (D SC, filed 10/6/2010), alleges that the censorship policy, which includes barring letters sent by magazine publishers, infringes the right of the publisher of a  monthly journal on prison law to communicate with detainees. The suit also claims that the policy violates the Establishment Clause because allowing Bibles, but no other books, to be sent discriminates on the basis of religion. AP reports on the lawsuit.

Supreme Court Hears Oral Arguments In Funeral Picketing Case

The U.S. Supreme Court this morning heard oral arguments in Snyder v. Phelps. In the case, the U.S. 4th Circuit Court of Appeals agreed with the Westboro Baptist Church and its leaders that a $5 million judgment against them growing out of their picketing of the funeral of Iraq veteran Matthew Snyder and a related Internet posting violated their free speech rights. (See prior posting.)  The full transcript of today's oral arguments is available from the Supreme Court's website. Scotus blog has extensive links to briefs in the case and material relating to the oral arguments. The New York Times describes today's arguments as "featur[ing] disputes about the facts and a parade of hypothetical alternative scenarios."  Interestingly, oral arguments for Westboro Baptist Church were made by Margie J. Phelps, a daughter of Westboro's pastor, Fred W. Phelps, Jr. Before the arguments, another of Phelps daughters picketed outside the Supreme Court carrying a sign reading "America Is Doomed."

UPDATE: An audio recording of the full oral arguments is now also available from the Supreme Court's website.

Court Says Confidentiality Agreements Will Not Prevent Discovery In Establishment Clause Suit

Last year a Minnesota federal district court held that the ACLU has taxpayer standing to bring an Establishment Clause challenge to state funding of a charter school-- the Tarek ibn Ziyad Academy. The suit claims that the school advances the Muslim religion and fosters entanglement between government and religion. (See prior posting.) Now in ACLU of Minnesota v. Tarek ibn Ziyad Academy, 2010 U.S. Dist. LEXIS 104961 (D MN, Oct. 1, 2010), the district court has upheld a federal magistrate's grant of a protective order to prevent enforcement by TiZA of non-disclosure/ confidentiality provisions in its employee handbook against current and former employees in connection with disclosures the employees may make to the ACLU. The ACLU is attempting to interview employees as part of its informal discovery process, and at least one has expressed concern that talking will subject him to a civil suit by TiZA. The court concluded that these confidentiality agreements may well be contrary to public policy when invoked by a public employer such as a charter school.

More Recent Prisoner Free Exercise Cases

In Green v. Werholtz, 2010 U.S. Dist. LEXIS 102867 (D KA, Sept. 28, 2010), a Kansas federal district court  rejected plaintiffs' complaints about the manner in which prison kosher meals were prepared, finding that their preparation was approved by a rabbi.


In Delgado v. Ballard, 2010 U.S. Dist. LEXIS 102552 (SD WV, Sept. 24, 2010), a West Virginia federal district court adopted most of a magistrate's recommendations (2010 U.S. Dist. LEXIS 102532, Aug. 19, 2010) and allowed an inmate who is a Taino Indian from Puerto Rico to move ahead with his claims for declaratory and injunctive relief. Plaintiff claimed that his religious rights were infringed by denial of his needs to smoke tobacco daily, grow some of his hair long, listen to certain music full time and correspond with Latino or Taino religious groups.


In Zuege v. Geffers, 2010 U.S. Dist. LEXIS 102406 (ED WI, Sept. 28, 2010), an inmate complained that in the earned release program he was singled out because of his non-religious beliefs and was told to write a report on a book titled Ethics of Religion. He alleged this violates the Establishment Clause. The ERP group leader denied the allegations. The court held that because of factual disputes, neither side was entitled to summary judgment.


In Miller v. Wilkinson, 2010 U.S. Dist. LEXIS 103364 (SD OH, Sept. 30, 2010), an Ohio federal district court rejected free exercise and RLUIPA challenges by Asatru prisoners seeking exemptions from the prison's grooming code and seeking recognition of their Asatru religious names.

In Sosa v. Lantz, 2010 U.S. Dist. LEXIS 103535 (D CT, Sept. 30, 2010), a Connecticut federal district court rejected an inmate's complaint that he was being forced to participate in a religion when he was housed with a Muslim cell mate who used the cell for prayer and religious practices.  The court held that double-celling plaintiff with a Muslim cell mate did not amount to state action in violation of 1st Amendment rights.


In Johnson v. Jabe, 2010 U.S. Dist. LEXIS 103483 (WD VA, Sept. 30, 2010), a Virginia federal district judge remanded an inmate's free exercise, RLUIPA and equal protection claims to the magistrate for further fact finding on whether The Nations of Gods and Earth (sometimes called the Five Percenters) is properly classified as a Security Threat Group. Prison officials classify NGE as a gang and refuse to recognize it as a religion. The magistrate's original recommendations are at 2010 U.S. Dist. LEXIS 103486, Aug. 23, 2010.


In Abdul-Matiyn v. Allen, 2010 U.S. Dist. LEXIS 102825 (ND NY, Sept. 28, 2010), a New York federal district court adopted most of the recommendations of a magistrate (2010 U.S. Dist. LEXIS 102972, March 4, 2010) and permitted plaintiff (who was civilly committed after the expiration of his prison term based on psychological issues and sexual misconduct convictions) to move ahead with his claim that his free exercise rights were infringed when authorities prohibited him from engaging in Jum'ah prayers. However the court rejected his complaint that he was not provided with halal meals.

Irish Court Refuses To Assert Universal Jurisdiction Over Alleged Chinese Persecutor of Falun Gong

Ireland's Central Criminal Court last week held that it lacked jurisdiction to issue an arrest warrant for Li Changchun, a high ranking Chinese Communist Party official who was visiting Ireland for two days on his way to Iran. Yesterday's Epoch Times reported that a criminal complaint was filed in Ireland against Li by several Falun Gong practitioners who charged that Li, as Secretary General of the Party of Guangdong Province and the Politburo Standing Committee Propaganda and Media Officer, played a key role in the persecution of Falun Gong in China. Petitioners attempted to assert universal jurisdiction, charging that Li was linked to crimes of torture, extra-judicial killing, cruel, inhuman and degrading treatment and genocide.

PBS To Air Series On "God In America"

On Oct. 11-12-13, PBS will air a 6-hour series titled "God In America." Jointly presented by American Experience and Frontline, the series will explore the historical role of religion in American public life. Here is PBS' description of the series:

God in America examines the potent and complex interaction between religion and democracy, the origins of the American concept of religious liberty, and the controversial evolution of that ideal in the nation's courts and political arena. The series considers the role religious ideas and institutions have played in social reform movements from abolition to civil rights, examining the impact of religious faith on conflicts from the American Revolution to the Cold War, and how guarantees of religious freedom created a competitive American religious marketplace. It also explores the intersection of political struggle and spiritual experience in the lives of key American historical figures....

Boston Phoenix yesterday had an advance review of the series.

DC Circuit: Federal Employee Need Not Relitigate Religious Discrimination Victory To Appeal Retaliation Holding

In Payne v. Salazar, (DC Cir., Sept. 7, 2010), the D.C. Circuit gave a substantial victory to federal employees asserting Title VII employment discrimination claims.  In the case, Department of Interior employee Cassandra Payne won her religious discrimination clam at the administrative level.  An EEOC administrative judge found that the Interior Department had violated Title VII by refusing Payne's requests for weekends off so she could attend church and Bible study.  However the administrative judge rejected her claim that her supervisor had retaliated against her for filing the EEO claim.  Payne appealed the retaliation ruling by filing suit in federal district court. However the district court accepted the government's contention that in order to sue on the retaliation claim, Payne must also relitigate the religious discrimination claim on which she had been successful at the administrative level. The Court of Appeals reversed, rejecting the government's interpretation of the statutory language. It held that a federal employee does not have to re-prove in court a claim on which she has already been successful in order to sue on other Title VII claims which were rejected at the agency level. [Thanks to FedSmith for the lead.]

Algerian Court Dismisses Prosecution of Two Christians For Eating During Ramadan

In Algeria yesterday, a court in the town of Ain El-Hammam dismissed a prosecution that had been brought against two Christian construction workers charged with eating during daylight hours during Ramadan. Prosecutors demanded that the two be punished for insulting Islam.  The defendants argued that they were not eating in a "public place", and that their prosecution violated constitutional protections and provisions of international conventions protecting freedom of religion.  According to Times Live and the Christian Post, the court ruled that no law provided for bringing charges against the two non-Muslims.

Christian Wrestling Coach Settles Religious Discrimination Claim Against Dearborn, MI School

Dearborn, Michigan's Fordson High School has settled a religious discrimination lawsuit filed against it by its former wrestling coach who claimed he was fired because the school's principal, a Muslim, is weeding out Christian teachers, coaches and staff. (See prior posting.) AP reported yesterday that Dearborn Public Schools paid 65-year old wrestling coach Gerald Marszalek $24,500 to settle the religious discrimination claims. Earlier this year it paid him $500 to drop his age discrimination claims.

Court Refuses To Dismiss Justice Department's Title VII Case Against NYC Transit Authority

In United States v. New York City Transit Authority, 2010 U.S. Dist. LEXIS 102704 (ED NY, Sept. 24, 2010), the Department of Justice sued the New York City Transit Authority claiming that it violated Title VII of the 1964 Civil Rights Act through polices and practices that discriminate against employees whose religious beliefs require them to wear certain head coverings, such as turbans or khimars, without logos on them. The complaint alleged selective enforcement of the Transit Authority's uniform policies and failure to reasonably accommodate Sikh and Muslim employees. The court rejected three arguments for dismissal put forward by the Transit Authority. The court held that the suit can be maintained as a "pattern or practice" claim, that in such a claim the government does not have to show that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy, and that such claims are not subject to the same rules regarding shifts of burden of proof as in individual Title VII actions. The court also held that whether the Transit Authority offered reasonable accommodation of employees' beliefs could not be determined as a matter of law at the summary judgment stage.

Prosecutor's Biblical References Not A Basis For Overturning Death Sentences

Jackson v. Epps, 2010 U.S. Dist. LEXIS 102562 (ND MI, Sept. 28, 2010) is a habeas corpus action by a prisoner challenging his capital murder convictions and the resulting four death sentences imposed on him.  Among other claims, petitioner asserted that the prosecutor's Biblical references during closing arguments at the sentencing phase of his trial violated the Establishment Clause and urged jurors to rely on impermissible factors in reaching their decision. The court disagreed, pointing out that the prosecutor:

asked the jury to apply the secular law given to them, and she used a familiar reference to argue that point. The reign of King Herod and his death from a painful disease, are historical fact, and her comments concerning the slaughter of children referenced a story in a book. That the comments have a religious connotation does not render the argument inherently religious....

Moreover, [the prosecutor's] reference to "God's law" was responsive to Petitioner's own arguments..... [Her] statements were not an endorsement of extrajudicial authority for imposing a sentence of death. Her statements were more akin to familiar Proverbs and parables that are used to support arguments outside of a religious context.... [T]here was no prosecutorial suggestion that personal responsibility for the sentence did not ultimately rest with the jury, and the comments did not suggest that religious principles, rather than the law, applied.

Trial of Geert Wilders For Anti-Muslim Incitement Opens In Netherlands

In Amsterdam, Netherlands yesterday, the trial of Geert Wilders, an anti-Muslim right wing member of parliament, opened. Hurriyet Daily News reports that Wilders is charged with giving religious offense to Muslims and inciting hatred and discrimination against Muslims.  In his opening statement, Wilders defended freedom of speech, and then refused to answer any questions from judges. This led presiding judge Jan Moors to observe that Wilders appeared to be avoiding discussion. Wilders attorney said that this statement shows that Judge Moors is biased, and moved to have him disqualified. (See prior related posting.) Support by Wilders' Freedom Party is critical to the coalition government that will shortly take office in the Netherlands. (See prior related posting.)

Husband In Contempt For Teaching Child Christian Faith In Violation of Divorce Settlement

In Greene v. Greene, (GA Ct. App., Oct. 1, 2010), a Georgia appellate court upheld a trial court's finding that a divorced husband was in contempt for violating a Settlement Agreement that gave his former wife final decision-making authority over matters related to their daughter's religious upbringing.  The wife was Jewish and the husband was Christian. The husband had agreed that the child would be raised in the Jewish faith.  However, according to the court:

Husband admitted that he had taken the child to numerous Christian churches ...[;] that he told the child that she was Jewish on the outside and Christian on the inside; that he shared Christian prayers with the child; that he and his mother read the Bible to the child; that his mother taught the child the Christian faith from the Bible...; and that the child told him that she was conflicted about the two different faiths. Husband also admitted that he gave the child a children's Bible, as well as DVDs of Christian stories and movies; that he taught her Christian songs and played them while riding in the car with the child; and that he had referred to Wife's parents by numbers but denied that he was referencing the Holocaust.

The appeals court also concluded that the trial court's instructions to the Husband on how to purge himself of contempt were sufficiently clear.

Muslims Get Mixed Messages On Their Integration In Germany

Deutsche Welle reported yesterday that Muslims in Germany are getting mixed messages from top government leaders.  On Sunday, Germany's President Christian Wulff, in a speech marking the 20th anniversary of German reunification, called for the integration of Muslims in Germany. In his speech, Wulff said: "Christianity doubtless belongs in Germany. Judaism belongs doubtless in Germany. That is our Judeo-Christian history. But now, Islam also belongs in Germany." A day later, German Chancellor Angela Merkel, endorsed Wulff's views but added that Muslims living in Germany must conform to "fundamental German values." She said there was no leeway on this demand. Meanwhile Norbert Geis, a member of parliament from a Bavarian party allied with Merkel's Christian Democrats said that Wulff's statement should not be interpreted to mean that Islam and Christianity have an equal footing in Germany.

Cert. Denied In Challenge To School Ban On Religious Music In Holiday Concerts

Yesterday the U.S. Supreme Court denied certiorari in Stratechuk v. Board of Education, (Docket No. 09-1184) (Order List.) In the case, the 3rd Circuit upheld a New Jersey school district's policy banning celebratory religious holiday music at school-sponsored holiday concerts. (See prior posting.) The policy was challenged on Establishment Clause grounds and on the ground that the school was unconstitutionally restricting students' access to ideas. Yesterday's Newark (NJ) Star Ledger reports on the Supreme Court's refusal to grant review.

England's Charity Commission Says Druids Are A Religion

The Charity Commission for England and Wales last Saturday, for the first time, recognized Druidry as a religion. The action gives the Druid Network charitable status for tax purposes in Britain.  CNN reports the Commission found that in Druidry: "There is a sufficient belief in a supreme being or entity to constitute a religion for the purposes of charity law." The Druids are generally seen as a neo-Pagan religion.

Recent Articles and Books of Interest

From SSRN:

• Susanna Mancini & Michel Rosenfeld, Unveiling the Limits of Tolerance: Comparing the Treatment of Majority and Minority Religious Symbols in the Public Sphere, (Cardozo Legal Studies Research Paper No. 309, Sept. 28, 2010).
• Paul Schiff Berman, Towards a Jurisprudence of Hybridity, (Utah Law Review, No. 1, 2010).

From SmartCILP:

• Scott W. Gaylord, Licensing Facially Religious Government Speech: Summum's Impact on the Free Speech and Establishment Clauses, 8 First Amendment Law Review 315-413 (2010).
• David L. Gregory & Stephen Martir, The Catholicity of the Middle Class: Reflections on Caritas in Veritate, 24 Notre Dame Journal of Law, Ethics & Public Policy 379-398 (2010).
• Guy Haarscher, Secularism, the Veil and "Reasonable Interlocutors": Why France Is Not All That Wrong, 28 Penn State International Law Review 367-382 (2010).
• Susan Pace Hamill, A Moral Perspective on the Role of Education in Sustaining the Middle Class, 24 Notre Dame Journal of Law, Ethics & Public Policy 309-325 (2010).
• R. Ashby Pate, Blood Libel: Radical Islam's Conscription of the Law of Defamation into a Legal Jihad Against the West--and How to Stop It, 8 First Amendment Law Review 414-451 (2010).
• Robert E. Rains, Marriage in the Time of Internet Ministers: I Now Pronounce You Married, but Who Am I To Do So?, 64 University of Miami Law Review 809-877 (2010).
• Mehmet Cengiz Uzun, The Protection of Laicism in Turkey and the Turkish Constitutional Court: the Example of Prohibition on the Use of the Islamic Veil in Higher Education, 28 Penn State International Law Review 383-426 (2010).

New Books:

• John Witte, Jr. & Joel Nichols, Religion and the American Constitutional Experiment, Third Edition, (Westview Press, July 2010).
• Jeff Sharlet, C Street: The Fundamentalist Threat to American Democracy, (Little Brown, Sept. 27, 2010), excerpted in The Takeaway.

Red Mass Marks Beginning of Supreme Court's October Term

The U.S. Supreme Court opens its new term today.  Yesterday, according to CNN, the traditional Red Mass was held at the Cathedral of St. Matthew the Apostle in Washington to mark the new term.  Among those in attendance was Vice President Joe Biden, Chief Justice John Roberts, and Associate Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Stephen Breyer.  Breyer was the only Justice attending who is not Catholic. He is Jewish.  The Court now is made up of six Catholics and three Jews. The homily at the Mass was given by Archbishop J. Augustine Di Noia.  During the current term, the Court will decide at least two cases involving the intersection of law and religion.  Arizona School Tuition Organization v. Winn involves a church-state challenge to Arizona's tuition tax credits (background), while Snyder v. Phelps involves a challenge by members of the anti-gay Westboro Baptist Church to a damage award against them for emotional distress caused by their picketing of a veteran's funeral (background).

Lawyer in Mosque Zoning Case Argues Islam Is A Political Movement, Not A Religion

Last week, court hearings began in the Rutherford County (TN) Chancery Court in a lawsuit seeking a temporary restraining order to halt construction of a controversial Islamic center being built in Murfreesboro, Tennessee. (See prior related posting.) Normally RLUIPA gives religious institutions special protections in zoning matters. The Tennessean reported yesterday, however, that challengers argued in court that Islam should be classified as a political movement, not a religion, and that the proposed mosque is not a house of worship.  In his opening statement, Smyrna (TN) attorney Joe Brandon, Jr. argued: "Shariah law is pure sedition." Local officials disagree and say the mosque should be treated like any other house of worship.

En Banc Rehearing Sought In Christian Student's Challenge To College's Policy

A petition for an en banc rehearing by the 9th Circuit in Lopez v. Candaele was filed last week. (Full text of petition.)  In the case, a panel of the 9th Circuit held that a Christian student at Los Angeles City College lacks standing to challenge the school's sexual harassment policy because there was never any credible threat that the policy would be used to discipline the student despite a speech professor's objections to the student's religious opposition to same-sex marriage. (See prior posting.) The rehearing request argues that the panel holding is at odds with decisions in the 3rd and 6th Circuits which permit a challenge to overbroad statutes that chill speech without a threat of enforcement. Alliance Defense Fund issued a press release announcing the filing of the rehearing request.

Appeals Court Upholds Release of Psychiatric Files of Clergy In Sex Abuse Settlement

In Doe 1 v. Franciscan Friars of California, Inc., (CA App., Sept. 30, 2010), a California appellate court held that pursuant to a settlement in a clergy sex abuse case, various confidential files of six alleged perpetrators could be released to the public. The court found that "compelling social interests in protecting children from molestation outweigh the Individual Friars' privacy rights, and the trial court correctly ordered the public release of psychiatric and other confidential records in the possession of the Franciscans." (See prior related posting.)