USCIRF Issues 2011 Annual Report-- Adds Egypt As Country of Particular Concern

The U.S. Commission on International Religious Freedom yesterday released its 2011 Annual Report, identifying 14 nations as "Countries of Particular Concern" (CPCs)-- the worst violators of religious freedom.  Thirteen of the countries were the same as those named last year-- Burma, China, North Korea, Eritrea, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam. For the first time this year, USCIRF added Egypt to the list of CPCs. Last year Egypt was on the Commission's Watch List.  Explaining the new status for Egypt, USCIRF said:

Serious problems of discrimination, intolerance, and other human rights violations against members of religious minorities, as well as disfavored Muslims, remain widespread in Egypt. Violence targeting Coptic Orthodox Christians remained high during the reporting period. This high level of violence and the failure to convict those responsible – including two of the three alleged perpetrators in the 2010 Naga Hammadi attack – continued to foster a climate of impunity, making further violence more likely.

The USCIRF Report, required by the International Religious Freedom Act of 1998, also named 11 countries to a Watch List, concluding that they need close monitoring. Those countries-- all on last year's Watch List as well-- are: Afghanistan, Belarus, Cuba, India, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela. USCIRF's report is to be considered by the State Department in preparing its Annual Report to Congress on International Religious Freedom. Also each year, the President is to revise the list of CPCs.

Arkansas High Court Upholds Parental Rights Terminations In Tony Alamo Compound Families

Yesterday, the Arkansas Supreme Court handed down decisions in five appeals by parents of children who were removed in 2008 from the Tony Alamo Christian Ministries compound in Fouke, Arkansas. In each case, parental rights were terminated because the continued control of the compound by Tony Alamo made it an unsafe environment for children. A trial court held that parents could be reunited with their children only if they moved off church property and found jobs outside the Alamo Ministries so they are not financially dependent on it. (See prior posting.) In yesterday's decisions, the Supreme Court upheld the terminations over claims that the state's actions violated parents' right to the free exercise of religion as well as various other provisions. The cases are Myers v. Arkansas Department of Human Services, Krantz v. Arkansas Department of Human Services, Parrish v. Arkansas Department of Human Services, Reid v. Arkansas Department of Human Services, and Seago v. Arkansas Department of Human Services. AP reports on the decisions.

Muslims Groups Lose FOIA Request, But Court Complains FBI Lied To It

In 2006, the ACLU filed a Freedom of Information Act request on behalf of several Muslim-American groups and mosques in southern California in order to obtain information on reported government monitoring of religious institutions. (See prior posting.) The request made its way to court, and according to an opinion issued yesterday by a California federal judge, the government, for national security reasons, provided false and misleading information to the court regarding the documents that it had found in seeking to respond to the FOIA request.  In Islamic Shura Council of Southern California v. Federal Bureau of Investigation, (CD CA, April 27, 2011), the court chastised the government, saying:

The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Nevertheless, the court concluded that the government need not provide any additional records to plaintiffs because revealing even the number and nature of the relevant documents could reasonably be expected to compromise national security. AP and Main Justice both reported on the decision.

Property of Break-Away Presbyterian Congregation Belongs To PCUSA

Hope Presbyterian Church of Rogue River v. Presbyterian Church (USA), (OR App., April 27, 2011), involves a dispute over ownership of the property of a break-away congregation that left the Presbyterian Church USA in 2007 because of theological disagreements. The Oregon Court of Appeals, reversing the trial court, held that the property belongs to the national church body, concluding that: "under either the hierarchical-deference or the neutral-principles approach to the resolution of church property disputes, the record in this case is clear that Hope Presbyterian held its property in trust for the PCUSA." The Southern Oregon Mail Tribune reports on the decision.

Program Seen As Profiling Muslim Travelers Is Ended

The Department of Homeland Security filed a notice with the Federal Register yesterday (full text) effectively ending the National Security Entry-Exit Registration System (NSEERS). According to a press release from CAIR, NSEERS has been perceived as a program that profiles individuals on the basis of religion and ethnicity. Under the program, non-immigrant men and boys traveling to the United States from 24 predominately Muslim Middle Eastern and Asian countries (as well as North Korea) have been required to be photographed, fingerprinted and interviewed. They have also been required to leave the U.S. through designated ports. DHS says that it has implemented new automated systems over the past six years that capture information on non-immigrant travelers to the U.S. so that NSEERS is no longer provides any increase in security.

Proposal In Norway Would Bring Ritual Circumcision Under Government Health System

In Norway, the Labour Party is proposing a change in the health care law so that ritual circumcisions of boys-- practiced by Jews and Muslims-- will be covered without charge as part of the public health system. Views and News From Norway reported yesterday that under the proposal, parents will be permitted to either have only a doctor present, or have an individual connected with their religion and experienced in circumcision carry out the procedure under the observation of medical professionals. Since the government ended coverage 10 years ago, practitioners from other countries without recognized qualifications are often carrying out the procedure. Many Norwegian doctors are opposed to circumcision where there is no medical reason for it. The new law, however, has no specific provision for doctors to refuse to perform the procedure for ethical reasons. Also, for older children, the boy's consent as well as that of the parents would be required. The government ombudsman for children disagrees with the proposal, instead seeking to ban circumcision for boys under 16 or 18 years of age.

Virginia Board Narrows Anti-Discrimination Provisions In Adoption Agency Standards

AP reports that the Virginia State Board of Social Services voted on April 20 to eliminate various anti-discrimination protections in proposed standards for private foster care and adoption agencies. Many of the agencies involved are faith-based. (Final Regulation Agency Background Document). The original proposal (22VAC40-131-170(B)) would have prohibited denying a child placement, or denying an individual the opportunity to become a foster or adoptive parent, on the basis of race,color, gender, national origin, age religion, political beliefs, sexual orientation, disability or family status.  However, state Attorney General Ken Cuccinelli advised the Board last week that it lacked authority to go beyond the anti-discrimination provisions in federal standards for adoption plans. So the Board changed the regulations to track federal law, banning only discrimination based on race, color or national origin. (42 USC 671(a)(18)). During the public comment period, the Board received 1026 comments opposing the original language, and only 33 comments supporting it. A number of faith-based organizations opposed the original language because it would have required them to place children with same-sex couples or with individuals who are gay. It also appears that the original ban on religious discrimination might have interfered with efforts of faith-based agencies to match a child's religious beliefs. Unless the comment period is reopened, the regulations will now go to the governor, who is expected to sign them.

Muslim Group Sues New Jersey Township Over Zoning Law Excluding Mosque

The Wall Street Journal reports on the filing Tuesday in federal district court of a complaint by a Muslim group in Bridgewater Township, New Jersey alleging that the township amended its zoning ordinance in order to prevent the Al Falah Center from converting a former banquet hall into a mosque. The complaint (full text) in Al Falah Center v.  Township of Bridgewater, (D NJ, filed 4/26/2011), alleges that after local residents objected to the mosque, the township amended its zoning ordinance to bar houses of worship as conditional uses in residential areas, except for specified roads. The effect of the ordinance is to permit all existing houses of worship to remain, but to exclude the site selected for the new mosque. The suit claims that the township's action violates RLUIPA, various state and federal constitutional provisions and state statutory requirements.

ACLU Says Tennessee County Schools Promote Christianity

On behalf of three Sumner County, Tennessee families, the ACLU of Tennessee has has complained to the Sumner County school board that the school system has engaged in a pattern of unconstitutionally promoting Christianity. According to yesterday's Tennessean, a draft complaint sent to the school board cites distribution of Bibles, a cross that is displayed on one classroom wall, sectarian prayers over school loudspeakers and at school events, graduation ceremonies for three high schools being held at a local Baptist church, and a youth minister who is invited by a teacher to proselytize individual students during lunch once a week.

UPDATE: The ACLU has filed its complaint in court. Here is the full text of the complaint in ACLU of Tennessee v. Sumner County Board of Education, (MD TN, filed 5/2/2011)/

Change of Venue Granted In FLDS Land Parcel Dispute

According to the St. George (UT) Spectrum, a state court in St. George, Utah yesterday transfered a lawsuit involving land claimed by the FLDS Church to the Salt Lake County's 3rd  District court so that it can be decided together with other claims involving land owned by the United Effort Plan Trust. At issue are 20 acres that Richard Holm says he has purchased over a series of years as part of a larger 520 acre plot.  Holm purchased the land in 1990, and parcels were delivered to him over the next 10 years as he completed payment. However during the interim, the FLDS Church incorporated and Holm, a polygamist, was evicted from the 20 acres by then-FLDS president Warren Jeffs, who assigned Holm's two wives to marry Jeff's brother. Holm initially acquiesced, but later decided to fight back.  After Utah courts took control of the UEP Trust, Holm applied (in two stages) for a personal deed for the 20 acres. He says the deed has been approved by the courts. As previously reported, a federal district court recently held that Utah state courts acted unconstitutionally in asserting jurisdiction to reform the UEP Trust.

British Catholic Adoption Agency Loses Appeal Seeking To Exclude Same-Sex Couples

In Catholic Care (Diocese of Leeds), (Charity Commn., April 26, 2011), the First-Tier Tribunal of the Charity Commission of England and Wales rejected an appeal by a Catholic social service agency for permission to amend its governing documents so that it can refuse to offer adoption services to same-sex couples. The Tribunal affirmed the decision handed down last summer by the Charity Commission. It rejected the charity's argument that that the proposed amendment was justified by a provision in the Equality Act 2010 that allows a charitable organization to restrict benefits if it is "a proportionate means of achieving a legitimate aim."

Nonbelievers Seek Appointment of A Military Chaplain

The New York Times reports this morning on efforts by atheist and secular humanist groups to obtain appointment of an atheist or humanist military chaplain. This is part of a broader campaign for nonbelievers to obtain recognition in the military,  Appointment of a chaplain would help assure that all chaplains would advocate for nonbelievers with commanders, and that literature would be distributed and events advertised. A spokesman for the Military Association of Atheists and Freethinkers says a humanist chaplain would counsel troops and help them follow their faiths, just as other chaplains do. Meanwhile groups at some bases are at least moving to seek appointment of a lay atheist leader. 9,400 military members formally identify themselves as atheists or agnostics.

Bus Authority Settles Suit By Driver Fired For Refusing To Take Women To Planned Parenthood

The Austin Statesman reported yesterday that the Austin (TX) Capital Area Rural Transportation System has settled a lawsuit against it by a bus driver who was fired after he refused to transport two women to a Planned Parenthood clinic because he thought he might be taking them to have an abortion. The bus system provides rides on request to rural residents. The driver claims CARTS had an obligation to accommodate his religious beliefs opposing abortion. (See prior posting.) CARTS will pay $21,000 to settle the case. A robust debate on the settlement has been raging on Religionlaw listserv.

Backers of Prop 8 Seek To Have Ruling Invalidating It Vacated Because of Judge's Same-Sex Relationship

In Perry v. Brown, the California federal court challenge to the constitutionality of Proposition 8-- California's ban on same-sex marriage-- defendant-intervenors yesterday filed a motion (full text) to vacate the decision handed down by federal district judge Vaughn Walker last summer. Walker held that the state ban violates the U.S. Constitution. (See prior posting.)  The new motion argues:

The district judge who issued this judgment, retired Chief Judge Vaughn R. Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years....The published reports of former Chief Judge Walker’s statements to the press note that he had heretofore refused to comment on these issues when asked by the press.... The published reports do not address the question whether former Chief Judge Walker and his partner have, or have had, any interest in marriage should the injunction he issued be upheld on appeal.

Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset. 28 U.S.C. § 455(a). He therefore had, at a minimum, a waivable conflict and was obligated either to recuse himself or to provide “full disclosure on the record of the basis for disqualification,” id, § 445(e), so that the parties could consider and decide, before the case proceeded further, whether to request his recusal.

AP reports on these developments.

Church of England Objection Shelves Plans To Repeal Act of Settlement

As the Royal Wedding approaches in Britain, the London Telegraph reports that the Church of England has blocked government efforts to obtain repeal of the 1701 Act of Settlement which bars heirs to the throne from marrying Catholics. The British sovereign is also Supreme Governor of the Church of England. If a future heir marries a Catholic, canon law would require their children to be raised as Catholics. That in turn could result in a Catholic Supreme Governor of the Anglican Church. (See prior related posting.)

Petitions Filed To Get Circumcision Ban On San Francisco Ballot

Efforts of activists in San Francisco (CA) to ban circumcision on males under 18, even for religious reasons, are a step closer to getting the issue on the ballot. The San Francisco Chronicle reports that today proponents filed petitions with 12,265 signatures.  If at least 7,168 of them are valid, the measure will go before voters.

UPDATE: The full text of the proposal along with other information about it is available online at the San Francisco MGM Bill website.

Former SG Resigns King and Spalding To Continue To Defend DOMA For Congress

After the Obama administration announced that it would no longer defend in court the constitutionality of the federal Defense of Marriage Act (see prior posting), the U.S. House of Representatives hired former Solicitor General, Paul Clement, to defend the statute on behalf of Congress. (See prior posting.)  Clement was a partner in the Atlanta firm of King and Spalding. The National Law Journal yesterday reported that King and Spalding, under pressure from the Human Rights Campaign, has withdrawn from representing House Republicans.  Clement resigned in protest, saying in part: “I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” (Full text of resignation letter via Politco), Clement plans to continue to represent Congress, joining the Washington, D.C. Bancroft law firm in order to do so. Meanwhile, according to Main Justice, Attorney General Eric Holder defended Clement, saying: “In taking on representing Congress in Connection with DOMA, I think he was doing that which lawyers do when we are at our best.”

Recent Articles and Books of Interest

From SSRN:

• Nathan B. Oman, 'I Will Give Unto You My Law': Section 42 as a Legal Text and the Paradoxes of Divine Law, (Embracing the Law, Essays on Doctrine and Covenants Section, Jeremiah John, ed., p. 42, Salt Press, Forthcoming).
• Iain T. Benson, Unexamined Faiths and the Public Place of Religion: Emerging Insights from the Law,  (April 1, 2011).
• Tetty Havinga, Regulating Halal and Kosher Foods: Different Arrangements between State, Industry and Religious Actors, (Erasmus Law Review, Vol. 3, No. 4, p. 241, 2010).
• Dr. Muhammad Munir, Triple Talaq in Islamic Law and Personal Laws of Muslim States: Continuity versus Change, (April 15, 2011).
• Joel A. Nichols, Misunderstanding Marriage and Missing Religion, (Michigan State Law Review, Forthcoming).
• Jessica Knouse, Civil Marriage: Threat to Democracy, (Michigan Journal of Gender and Law, 2012).
• Kenneth L. Marcus, The New OCR Antisemitism Policy, (Journal for the Study of Antisemitism, Vol. 2, 2011).
• Michael Allsep, James E. Parco, and David A. Levy, E Pluribus Unum: Open Homosexuality and the Culture War within the US Armed Forces, (Air and Space Power Journal, Vol. 5, No. 1, pp. 68-76, 2011).
• Perry S. Bechky, Lemkin’s Situation: Toward a Rhetorical Understanding of ‘Genocide’, (Brooklyn Law Review, Forthcoming).
• Winnifred Fallers Sullivan, Joan’s Two Bodies: A Study in Political Anthropology, (Social Research, Forthcoming).
• Hannibal Travis, On the Existence of National Identity Before ‘Imagined Communities’: The Example of the Assyrians of Mesopotamia, Anatolia, and Persia, (April 13, 2011).

From SmartCILP:

• Ofrit Liviatan,  Faith in the Law--The Role of Legal Arrangements in Religion-Based Conflicts Involving Minorities, 34 Boston College International and Comparative Law Review 53-89 (2011).
• David Nimmer, Queen Anne in the Emperor's Shadow, 47 Houston Law Review 919-964 (2010).

New Books:

• Sanjiv Bhattacharya, Secrets and Wives: The Hidden World of Mormon Polygamy, (Soft Skull Press, 2011). Religion Dispatches has an interview with the author.
• Jonathan Dudley, Broken Words: The Abuse of Science and Faith in American Politics, (Random House, April 2011).
• Charles Kimball, When Religion Becomes Lethal : The Explosive Mix of Politics and Religion in Judaism, Christianity, and Islam, (Jossey-Bass, April 2011).
  

Wives' Damage Suits In Israeli Civil Courts Growing As Means To Obtain "Get"

Haaretz today reports on the increasing use of damage actions in civil courts in Israel by Orthodox Jewish women seeking to force recalcitrant husbands to grant them a religious divorce document ("get"). After a 2004 case in Jerusalem Family Court setting the precedent for such actions, the Center for Women's Justice filed claims on behalf of more than 40 women. In half the cases, the divorce was granted within 14 months. Lawsuits threatening large damage awards are seen by women as more effective than sanctions imposed by rabbinical courts to pressure husbands.  Under Jewish religious law, a woman cannot remarry if her husband has not given her a divorce document.

Obama Attends Easter Services At Church Founded By Freed Slaves

AP reports that President Barack Obama and his family attended Easter services this morning at the historic Shiloh Baptist Church in Washington D.C. The church was founded in 1863 by 21 freed slaves who were able to come to D.C. from Fredericksburg, Virginia.

Pope's Easter Message Addresses Libya, Migrants To Europe

Pope Benedict XVI's Easter message today focused on a number of areas of political conflict around the world. AP reports that he called for diplomacy to prevail in Libya and urged European countries to accept migrants from Libya and elsewhere in North Africa. Meanwhile a basilica in Rome is serving as a haven for 150 Gypsies whose trailer settlements are being dismantled by the city.

Early Voting In D.C. This Afternoon As Alternative To Passover Voting On Tuesday

The District of Columbia has a special election scheduled for Tuesday for an at-large city council member and two school board members.  Tuesday is also the eighth day of Passover on which observant Jews would not be able to vote. On April 13, D.C. Rabbi Shmuel Herzfeld sued the city seeking to have the election rescheduled or polls remain open until 10:00 p.m. on Tuesday so observant Jews could vote after sundown. (Washington Post). As described separately in the Washington Post by Rabbi Herzfeld, federal district judge Emmet Sullivan denied plaintiffs' request for a preliminary injunction, but admonished the election board for not on its own seeking an order to extend polling hours. Judge Sullivan suggested an alternative that has been adopted by the election board. (Press release). Early voting at one D.C. site will be available today from 12:30 p.m. to 5:30 p.m. Rabbi Herzfeld says he did not originally ask for that alternative because he did not want to burden others' observance of Easter. Absentee ballots ere available before April 19.

China Prevents House Church From Holding Outdoor Easter Service

In China today, police blocked worshipers from attending a planned outdoor Easter service at one of Beijing's largest "house" churches. House churches are Christian churches that are not registered with the government. CNN reports that police prevented 500 people from leaving their homes, and arrested 36 who attempted to attend the service that was scheduled by the Shouwang Church. The Church has been forced to hold its services outside since November when China blocked the rental of its previous office space. Shouwang Church leaders remain under house arrest as China has increased pressure on dissidents over the last three months. Hundreds of uniformed and plain clothes police surrounded the Church site today and prevented CNN journalists from entering.

Recent Prisoner Free Exercise Cases

In Allison v. Martin, 2011 U.S. Dist. LEXIS 41648 (ED MI, April 18, 2011), a Michigan federal district court refused to permit an inmate to file an amended complaint to add a new defendant and new allegations in his challenge to the denial of his request to be placed in the Kosher meal program and the refusal to give him religious materials.

In Groves v. Gusman, 2011 U.S. Dist. LEXIS 41542 (ED LA, April 15, 20110), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 41493, March 3, 2011) and permitted an inmate to proceed with claims that he is not allowed to practice his Santeria religion, to the extent that the claims are within the statute of limitations.

In Mubashshir v. Moore, 2011 U.S. Dist. LEXIS 42130 (N OH, April 19, 2011), an Ohio federal district court dismissed Muslim inmates' complaint regarding the lack of Halal food and denial of use of the chapel for services on two occasions.

In Eichler v. Tilton, 2011 U.S. Dist. LEXIS 41789 (ED CA, April 14, 2011), a California federal magistrate judge recommended dismissing an inmate's complaint alleging that he has been denied the ability to practice his anthroposophist religious beliefs.

In Rogers v. Giurbino, 2011 U.S. Dist. LEXIS 42679 (SD CA, April 20, 2011), a California federal district court dismissed an inmate's claim that he was not allowed to attend religious services.

In Vigil v. Jones, 2011 U.S. Dist. LEXIS 42589 (D CO, March 15, 2010), a Colorado federal magistrate judge recommended allowing an inmate to proceed with his claim that the practice of his "Judeo-Christianity" was burdened by prison authorities' refusal to permit him to participate in Christian and Jewish observances-- Communion, Ta'anit Esther, and the Passover Seder.

In Gause v. Vicklund, 2011 U.S. Dist. LEXIS 42967 (D AZ, April 14, 2011), an Arizona federal district court permitted an inmate to proceed with his lawsuit seeking a kosher diet.

In Cristee v. Norris, 2011 U.S. Dist. LEXIS 42971 (ED AR, March 22, 2011), an Arkansas federal magistrate judge recommended dismissing plaintiff's claim that participation in the Therapeutic Community program as a condition to his parole violates the Establishment and Free Exercise clauses.

In United States v. White, 2011 U.S. Dist. LEXIS 43438 (D KS, April 21, 2011), a Kansas federal district court rejected a motion by a criminal defendant who asked the court to amend the order committing him to prison to reflect his Muslim name that he adopted legally on the same day the court sentenced him. At sentencing, defendant did not the court of his pending name change.

Mentioning God While Questioning High School Student Is Not Establishment Clause Violation

In Sabol v. Walter Payton College Preparatory High School, 2011 U.S. Dist. LEXIS 40765 (ND IL, April 12, 2011), an Illinois federal district court, while largely focusing on other issues, held that the Establishment Clause was not violated when a chaperone on a school-sponsored trip to China mentioned God while questioning a student about her unauthorized use of alcohol. Nor did the questioning violate the due proxess clause or the 5th Amendment.

Texas Governor Declares This Weekend As "Days of Prayer for Rain"

On Thursday, Texas Governor Rick Perry issued a Proclamation (full text) declaring April 22 to 24 as "Days of Prayer for Rain in the State of Texas." His proclamation recites that Texas is in the midst of an exceptional drought and explains:

Whereas, throughout our history, both as a state and as individuals, Texans have been strengthened, assured and lifted up through prayer; it seems right and fitting that the people of Texas should join together in prayer to humbly seek an end to this devastating drought and these dangerous wildfires.

Update On Pastor Terry Jones' Legal Proceedings In Dearborn, Michigan

As previously reported, Florida Christian pastor Terry Jones, and his associate, Pastor Wayne Sapp-- known for advocating and eventually carrying out a burning of the Qur'an-- yesterday faced a Dearborn, Michigan jury after prosecutors filed a complaint under MCL Sec. 772.1 et. seq. seeking to force them to post a peace bond before they demonstrated in front of Dearborn's largest mosque. The Detroit Free Press  and WXYZ report that after a day-long trial Friday in which the jury found that their protest would create a breach of the peace, the judge ordered each defendant to post a $1 peace bond instead of the $45,000 that prosecutors had sought. The court also ordered them to stay off the property of the Mosque of America for the next three years. Initially both defendants refused to pay the $1 bond and they were led off to jail. However, as the Detroit Free Press reports in a later article, they subsequently changed their minds, paid the nominal bond, and returned to Florida. However, according to WJBK, they say they will return to Dearborn next Friday to protest at the City Hall to call attention to the deprivation of their 1st Amendment rights. Jones is also planning to file a lawsuit against the Wayne County prosecutor's office challenging his arrest. The Dearborn Press and Guide says that the Ann Arbor-based Thomas More Law Center is likely to represent Jones.

ACLU Survives Summary Judgment In Establishment Clause Suit Against Minnesota Charter School

In ACLU of Minnesota v. Tarek ibn Ziyad Academy, (D MN, April 20, 2011), a Minnesota federal district court rejected defendants' motion for summary judgment in the ACLU's Establishment Clause challenge to a state funded charter school. The court held:

Viewing the record in the light most favorable to Plaintiff, the Court determines that a reasonable juror could conclude that TiZA’s practices establish a pervasively sectarian atmosphere for the purpose of promoting Islam. In particular, a reasonable juror could conclude that TiZA was founded specifically to create a religious school and that elements of its operation have the primary principal effect of advancing the religion of Islam. Accordingly, the Court denies TiZA Defendants’ motion for summary judgment on Plaintiff’s Establishment Clause claims.

In the course of its opinion, the court also held that the Minnesota ACLU could bring the lawsuit despite its failure to make make required corporate filings in a timely manner; and that private parties have a right to assert challenges under the Establishment Clause of the Minnesota constitution. The court rejected various other challenges by defendants to the relief sought, holding in part that plaintiff can seek a refund to the state of a portion of state aid given to the school. Finally the court dismissed certain individual capacity claims and granted cross claims for indemnification by the Minnesota Commissioner of Education and the school; sponsoring organization. The St. Paul Pioneer Press reports on the decision. (See prior related posting.)

Florida Pastor To Stand Trial On Posting Bond Before Anti-Muslim Demonstration

At a hearing yesterday in Dearborn, Michigan, a state trial court ordered Florida pastor Terry Jones to either post a bond to cover costs that his Good Friday demonstration in front of a large Dearborn mosque will create, or else stand trial on Friday at which time a jury will determine whether Jones should be required to post bond. The Detroit Free Press reported yesterday that Jones-- who has gained notoriety from his church's burning of a Qur'an-- chose to stand trial. Jones says he is concerned that the Friday trial might interfere with the planned 5:00 pm demonstration.  The Michigan ACLU says that the state is depriving Jones of his free speech rights by demanding a bond. (See prior related posting.)

Cert. Petition Filed In Utah Highway Patrol Memorials Case

A petition for certiorari (full text) in Davenport v. American Atheists, Inc. has been filed with the U.S. Supreme Court, according to a press release by Utah's attorney general. In the case, the 10th Circuit held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up on public land some 13 crosses, each 12 feet high, as memorials to Patrol members who were killed in the line of duty. (See prior posting.) The 10th Circuit refused en banc review with 4 judges filing 2 dissenting opinions. (See prior posting.) The cert. petition asserts: "a three-way circuit split has developed over the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause." ABC4 News reports that former Texas Solicitor General Ted Cruz will represent Utah in the case pro bono.

Nepalese Christians Seek Burial Grounds

According to Compass Direct News earlier this week, in Nepal a Christian group has filed a petition with the country's Supreme Court in an attempt to obtain burial grounds in Nepal for Christians.  Up to now, Christians were allowed to use forested land belonging to a Hindu Temple for burials. However, earlier this month the Pashupati Area Development Trust (PADT) said it would no longer allow forest lands to be used.  So a Christian pastor filed a petition asking the Supreme Court to intervene, and one judge ordered the government and the PADT to stop interfering with Christian use of forest land until the courts resolve the issues. But then a Hindu activist filed a counter-suit attempting to keep Christians from using Hindu Temple property for Christian burials. Meanwhile the recently formed Christian Burial Ground Prayer and National Struggle Committee began a relay hunger strike in Kathmandu asking for Christian cemeteries in all 75 districts of Nepal. The government has appointed a committee to look into the demand and to report back in two weeks.

County's Denial of Permit For Nativity Scene On Road Median Upheld

In Satawa v. Board of County Road Commissioners of Macomb County, 2011 U.S. Dist. LEXIS 42196 (ED MI, April 19, 2011), a Michigan federal district court upheld Macomb County, Michigan's refusal to permit plaintiff to set up a nativity display on the median of a heavily traveled road.  Plaintiff's family had erected the display at this site almost every year since 1945, but in 2008 the county for the first time received a complaint about it. The court concluded that the road median is not a traditional public forum, and that even if it is, the county had a compelling safety interest in banning the display.  A church, a few hundred yards away, was available as an alternative site. The court also rejected plaintiff's Establishment Clause and equal protection arguments. (See prior related posting.)

Anti-Catholic Conversations Created Hostile Work Environment

In Haley v. Kopf, (AK St. Commn. Hum Rts., April 8, 2011), the Alaska State Commission for Human Rights awarded a former employee of a general store damages of $76,853 after finding that the store's owner violated AS 18.80.220(a)(1) by creating a hostile work environment based on religion. After Paul Kopf purchased Goldstream General Store, he began talking about religion extensively and made anti-Catholic statements to Lynn Dowler, a 27-year employee who was currently the store manger. She and three other employees resigned after receiving a new set of work rules from Kopf, one of which stated: "The OWNER of this BUSINESS is a very active CHRISTIAN who by nature of personality strives with lifetime goals to the benefit of humanity. The OWNER is by nature prone to religious and philosophic conversations. Anyone who thinks they can WEAR their religion/ philosophy/ ideology/ expression of who they are and does not want to hear someone else's said state of being will be considered hypocritical and incompatible with the group...." AP reports on the decision.

Free Exercise Challenge To Kansas Medicaid Rules Argued

The Kansas City Star reports on an interesting free exercise challenge to Kansas' Medicaid rules argued in the Kansas Court of Appeals on Tuesday. Mary Stinemetz, a Jehovah's Witness, needs a liver transplant. Kansas will pay for the surgery if performed at the University of Kansas Hospital. However, Stinemetz, for religious reasons, insists on transplant surgery without any blood transfusion-- a procedure which is available in an Omaha, Nebraska hospital, but not in Kansas. State Medicaid rules pay for out-of-state treatment only when it is "medically necessary." Kansas officials say that the patient's religious objections to blood transfusions do not amount to medical necessity.

New Arizona Law Exempts Churches From Political Committee Registration

On Monday, Arizona Governor Jan Brewer signed S.B. 1282 that provides no religious assembly or institution will be required to register as a political committee, so long as it does not spend a substantial amount of time or assets influencing legislation, or any referendum, initiative or constitutional amendment. The American Independent reported Monday that the new law is aimed at assuring-- as required by 9th Circuit precedent-- that campaign finance laws do not apply to speech by churches on issues of public importance that appear on the election ballot. A 2009 case decided by the 9th Circuit invalidated application of Montana's campaign finance laws to a Church that engaged in limited activities in support of a constitutional initiative banning same-sex marriage. (See prior posting.)

Appeals Court Defers To Church Synod In Dispute Over Church Closing

In Southeastern Pennsylvania Synod of the Evangelical Lutheran Church in America v. Meena, (PA Commonwealth Ct., April 18, 2011), a Pennsylvania appellate court, in a 6-2 decision written by Judge Pellegrini, held that it must defer to the decision of the governing Synod to impose synodical administration on a local church and close it because of its diminished attendance and income.  Judge Leavitt, joined by Judge McCullough dissented arguing that the case should be remanded for the trial court to determine, under neutral principles of Pennsylvania corporate law, whether the bylaw of the Synod that authorized it to take control of the local church is inconsistent with the Synod's Charter.

Controversial Pastor Wants To Demonstrate Against Islam In Dearborn On Good Friday

Florida pastor Terry Jones, who has gained notoriety for placing the Qur'an on trial and burning a copy in his small Florida church (see prior posting), is planning to hold a Good Friday demonstration in front of Dearborn, Michigan's Islamic Center of America. Police fear that the demonstration will cause a riot, and say that Jones and an associate will both be carrying guns. Police fear Jones will burn another Qur'an at his demonstration, though Jones denies this and says he will merely be demonstrating against Sharia and extremist Islam. According to the Detroit News, Michigan prosecutors want Jones to post a bond before the demonstration, and to pay the projected $100,000 in extra police overtime costs that will be incurred because of the demonstration.  A state court judge has set a hearing for 3:00 p.m. on Thursday. Meanwhile, Dearborn Mayor Jack O'Reilly has written a powerful open letter to Jones (full text) asking him to hold his demonstration at the city's "Permit Free Zone" in front of City Hall.  The mayor says that if Jones instead demonstrates in front of the Islamic Center, he will also be blocking access to Good Friday services at four nearby Christian churches.

White House Hosts Passover and Easter Events

This week the White House has hosted both Passover and Easter events. On Monday evening, the President and First Lady hosted a small Passover Seder in the Old Family Dining Room of the White House. A White House release points out that during the 2008 Presidential campaign, Obama began his tradition of hosting a Seder. This year the White House included on its website interesting recipes from 8 Jewish chefs around the country.

On Tuesday morning, the President hosted the White House's 2nd annual Easter Prayer Breakfast in the East Room. Christian clergy and leaders from around the country were in attendance. In his remarks (full text included in White House Release), Obama said in part:

I wanted to host this breakfast for a simple reason -– because as busy as we are, as many tasks as pile up, during this season, we are reminded that there’s something about the resurrection -- something about the resurrection of our savior, Jesus Christ, that puts everything else in perspective.

Supreme Court Holds Inmates May Not Recover Damages Against States In RLUIPA Suits

In an important interpretation of the Religious Land Use and Institutionalized Persons Act, the U.S. Supreme Court on Tuesday in Sossamon v. Texas (US Sup. Ct., April 20, 2011) held, in a 6-2 decision, that states which accept federal funding for their prisons retain sovereign immunity to monetary damage claims under RLUIPA. Section 4 of RLUIPA provides that inmates may “obtain appropriate relief against a government” that has substantially burdened their religious exercise without having a compelling interest for doing so, and which does not use the least restrictive means in achieving that interest. The majority opinion, written by Justice Thomas, concluded that waiver of sovereign immunity requires an express and unequivocal statement to that effect in the statute, and that this standard has not been met here as to the imposition of monetary damages. A dissent, written by Justice Sotomayor and joined by Justice Breyer disagreed. They argued that it should have been clear to state officials that “appropriate relief” includes monetary damages and not just equitable relief.  They worried that without the possibility of monetary damages, often effective relief will be unavailable. Justice Kagan took no part in the decision.  UPI reports on the decision.  (See prior related posting.)

Cert. Denied In Kentucky Baptist Homes Cases

The U.S. Supreme Court today denied certiorari in two companion cases, Kentucky Baptist Homes v. Pedreira (Docket No. 09-1121, cert, den. 4/18/2011) and Pedreira v. Kentucky Baptist Homes (Docket No. 09-1295, cert. den. 4/18/2011). (Order List.) In the case the 6th Circuit first rejected an employment discrimination claim brought brought by a Family Specialist who had been fired because she was a lesbian. Second, the 6th Circuit held that federal taxpayers lack standing to challenge the channeling of federal child care funds to KBHC by the state of Kentucky, but that state taxpayers have standing to challenge state funds paid to KBHC for the care of children. (See prior posting.) Courthouse News Service reports on the Supreme Court's denial of review. [Thanks to Don Byrd for the lead.]

Companion Arizona Tuition Organization Tax Credit Case Summarily Decided By Supreme Court

Today, the U.S. Supreme Court disposed summarily of Arizona School Choice Trust v. Winn, (Docket No. 09-988) granting certiorari and remanding the case to the 9th Circuit for further proceedings. (Order List)  The case was a companion case to Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn that the Court decided together earlier this month, holding that taxpayers lack standing to challenge Arizona's school tuition organization tax credit program. The cases decided together had the same counsel, while different counsel represented petitioners in the case disposed of today.

Senate Confirms International Religious Freedom Ambassador

CBN News reports that on April 14 the U.S. Senate finally confirmed Dr. Suzane D. Johnson Cook as Ambassador at Large for International Religious Freedom.  President Obama nominated Cook initially in 2010, but when the 111th Congress failed to vote on her confirmation, the President resubmitted it this year. (See prior posting.) [Thanks to Religion News Service for the lead.]

Malta Ambassador Douglas Kmiec Resigns After Criticism of His Religious Writing

AP and National Catholic Reporter both report on the resignation of U.S. Ambassador to Malta, Douglas Kmiec. Last week he announced he will resign as of August 15 after a State Department Inspector General's report criticized him for spending too much time writing and speaking about his Catholic religious beliefs. (See prior posting.) In his April 13 resignation letter to President Obama (full text) asking the President to "accept my resignation effective on the Feast of Assumption 2011," Kmiec said that he doubted very much whether one could ever spend too much time trying to find common ground between faiths. In a letter sent to Secretary of State Hillary Clinton (full text), Kmiec complained that the Inspector General's office "failed to read any of my writing or see its highly positive effect on our bilateral relations."

Obama Extends Passover Wishes To Those Celebrating the Festival

The Jewish holiday of Passover begins tonight.  On Friday, President Obama issued a statement (full text) extending warmest wishes from him and his family to all those celebrating the holiday. The statement said in part:

The Seder, with its rich traditions and rituals, instructs each generation to remember its past, while appreciating the beauty of freedom and the responsibility it entails.

This year, that ancient instruction is reflected in the daily headlines as we see  modern stories of social transformation and liberation unfolding in the Middle East and North Africa.

Recent Articles of Interest

From SSRN:

• John Witte and Joel A. Nichols, Faith-Based Family Laws in Western Democracies?, (Fides et Libertas: The Journal of the International Religious Liberty Association, pp. 119-132, 2010).
• Raj Bhala, Doha Round Betrayals, (Emory International Law Review, Vol. 24, pp.147-183, 2010).
• Barak D. Richman, Saving the First Amendment from Itself: Relief from the Sherman Act Against the Rabbinic Cartels, (April 12, 2011).
• William P. Umphres, ‘Justice is a Bad Idea for Christians’: Religious Identity in Political Deliberation, (April 1, 2011).
• Nicholas Aroney and Rex Ahdar, The Topography of Shari’a in the Western Political Landscape, (Shari'a In the West, Rex Ahdar and Nicholas Aroney (eds), Oxford: Oxford University Press, 2010).
• Hannibal Travis, Youtube from Afghanistan to Zimbabwe: Tyrannize Locally, Censor Globally, (Florida International University Legal Studies Research Paper No. 11-10, April 1, 2011).
• Hannibal Travis, Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan, (Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan, Carolina Academic Press, 2010).
• I. Glenn Cohen and Sadath Sayeed, Fetal Pain, Abortion, Viability and the Constitution, (The Journal of Law, Medicine and  Ethics, Vol. 39, 2011).
• Deana Pollard-Sacks, Snyder v. Phelps: A Slice of the Facts and Half an Opinion, (Cardozo Law Review De Novo, p. 64, 2011).

Court Says Factual Issues Remain As To Reasonable Accommodation of Sabbath Observance

In Maroko v. Werner Enterprises, Inc., (D MN, April 14, 2011), a Minnesota federal district court refused to grant summary judgment to a Seventh Day Adventist employee who was terminated from his position as a delivery truck driver because he refused to work on his Sabbath-- sundown Friday to sundown Saturday. In plaintiff's Title VII action, the court concluded that disputed factual issues exist as to whether the employer had offered plaintiff a reasonable accommodation. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Why Has The Niqab Become So Controversial In France?

Today's New York Times carries and interesting and provocative analysis of why wearing of the niqab (full face veil) by Muslim women has become such a controversial issue in France. (A French ban on wearing the full face veil in public took effect last week.)  Here are some excerpts:

In French culture, the eyes are supposed to meet in public, to invite a conversation or just to exchange a visual greeting with a stranger. Among Muslims, the eyes of men and women are not supposed to meet, even by chance, and especially not in public or between strangers....

French tradition has also long encouraged mixing of the sexes in social situations. “The veil ... interrupts the circulation of coquetry and of paying homage, in declaring that there is another possible way for the sexes to coexist: strict separation.”

A more familiar explanation for French antagonism to the facial veil is historical and political: the deep-rooted French fear, resentment and rejection of the “other” — the immigrant, the invader, the potential terrorist or abuser of human rights who eats, drinks, prays and dresses differently, and refuses to assimilate in the French way.....

Meanwhile, France will remain France — the land where the uncovered body is celebrated. Billboards and posters on Paris streets regularly feature naked breasts and buttocks.

Can Faith-Based Groups Receiving Government Funds Have Discriminatory Voting Policies?

A New York Times report on Friday raises the question of what sort of anti-discrimination rules apply to faith-based social service agencies that receive federal government funding. In Brooklyn, New York's Crown Heights-- an area populated mostly by Hasidic Jews-- the Crown Heights Jewish Community Council has received millions of dollars in government grants over the years to offer a variety of social services.  However, the Council's rules impose strict limits on who can vote for leaders of the Council.  To vote, one must be Jewish and a religiously observant residents of Crown Heights; must be married, previously married or at least 30 years old; and must be male.  Now one Crown Heights resident, Eliyahu Federman, is challenging the Council's disenfranchisement of women. The Council's executive director says that the entire Council structure, including voting policy, is under review. The next elections are in 2013.

Reform Demands In Egypt Hit Al-Azhar University

MEMRI on Friday published an extensive analysis of how the protests for reform and change in Egypt are impacting Al-Azhar University, the most important center of Sunni Muslim study. Critics are claiming that Al-Azhar is too too identified with the Mubarak regime and that it is allowing political Islam to take over the revolution in Egypt instead of providing leadership for change.

Statements Made In Church Annulment Proceedings Are Absolutely Privileged

Purdum v. Purdum, 2011 WL 1430279 (Dist. Ct. Kan., April 11, 2011) (available on Westlaw), involved a defamation claim by plaintiff against his former wife alleging that in the course of ecclesiastical annulment proceedings she submitted a written statement to the Catholic Archdiocese alleging, among other things, that plaintiff "was diagnosed bipolar." The court denied a request by the Archdiocese to intervene as a party to argue that the court lacks jurisdiction over plaintiff's claim, but the court permitted the Archdiocese to submit issues as an amicus curiae. The court rejected the Archdiocese's claim that it should dismiss the case under the "church autonomy doctrine", because that applies only when there is a challenge to action by a church that would involve courts in deciding matters of faith, doctrine or internal governance. However, the court concluded that:

Nonetheless, the Free Exercise Clause of the First Amendment does apply in this case to protect the defendant's confidential communications with her church or its representatives.... [I]n this case, the statement is absolutely privileged as made pursuant to the defendant's First Amendment right to Free Exercise of her religion..... To hold otherwise, would require individuals to defend themselves in civil court for statements made during required religious proceedings, even if the statements are later determined to be true.

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

Today Religion Clause Blog Is 6 Years Old !

Religion Clause is 6 years old today. Thank you to all my readers who have been on board for many years and to the many newer visitors as well. If you continue to find Religion Clause useful, please recommend it to others who are also interested in church-states and religious liberty issues.

Sometime next month, Religion Clause will record its 1 millionth visitor. All of you have contributed to the success of the blog. Many who are professionally involved in church-state and religious liberty issues read the blog; and so do others who are online because of personal interest in the subject areas covered. The blog continues to be committed to religiously and ideologically neutral reporting of legal and public policy developments. I believe this is a unique niche in the blogosphere.

My goal is to keep the posts reasonably short, but provide extensive links, particularly to primary source material. I welcome your e-mails on leads for blog posts. I also urge you to e-mail me with any corrections that are called for in postings-- accuracy is an important goal on Religion Clause. You can reach me at religionclause@gmail.com. I plan to maintain the same format for the blog in the upcoming year.  However I welcome e-mails from all of you suggesting changes or different directions you would find useful or interesting.

Recent Prisoner Free Exercise Cases

In Pelzer v. McCall, 2011 U.S. Dist. LEXIS 38349 (D SC, April 6, 2011), a South Carolina federal district court rejected a Muslim inmate's request for a preliminary injunction. The inmate claimed that the Establishment Clause was violated by the prison Chaplain's Office distributing to him a newsletter containing references to Christianity.

In Anderson v. Arizona Department of Corrections, 2011 U.S. Dist. LEXIS 39352 (D AZ, April 1, 2011), an Arizona federal district court dismissed an inmate's claim that his free exercise rights were violated because he was not allowed to possess hardcover books and he cannot find his religious books in soft cover editions.

In DeVon v. Diaz, 2011 U.S. Dist. LEXIS 39393 (ED CA, April 1, 2011), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that his rights under the 1st Amendment and RLUIPA were infringed when he was denied the right to eat kosher food and was denied fellowship.

In Annabel v. Caruso, 2011 U.S. Dist. LEXIS 39790 (WD MI, April 12, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 39788, Jan. 18, 2011) and dismissed an inmate's claims that his rights under the 1st Amendment and RLUIPA were violated when prison authorities refused to provide him with a Hebrew calendar or relay to him the dates of the 2008 Fall Holy Days. However plaintiff was permitted to proceed on his claim for grape juice and unleavened bread during Passover.

In Hare v. Hayden, 2011 U.S. Dist. LEXIS 40683 (SD NY, April 14, 2011), a New York federal district court rejected an inmate's claim that her removal from the position of clerk to the prison's Catholic chaplain was retaliation for her complaints about another chaplain's removing Catholic religious items.  The court also rejected various claims regarding the suspension of certain Catholic religious programs and occassional interference with plaintiff's staying in the chapel for Mass.

In Myers v. Raemisch, 2011 U.S. Dist. LEXIS 40373 (ED WI, April 5, 2011), a Wisconsin federal district court permitted an inmate who is an initiate into the Hermetic Order of the Golden Dawn was allowed to move ahead with his suit seeking permission to obtain a particular tarot card deck that was designed exclusively for use by believers of the Golden Dawn, as well the tarot's companion book. Department of Corrections  rules permitted only a different tarot.

9th Circuit: Contract Prison Chaplains Are Not "State Actors"

In Florer v. Congregation Pidyon Shevuyim, (9^th Cir., April 15, 2011), the U.S. 9^th Circuit Court of Appeals held that a Jewish organization that contracted with the Washington State Department of Corrections to furnish Jewish chaplains for prisoners was not a “state actor” for purposes of 42 USC 1983 or RLUIPA when it denied an inmate a Torah, a Jewish calendar and a visit by a rabbi on the ground that the inmate was not Jewish. The court concluded that the organization’s policy to furnish services only to inmates that are Jewish according to its criteria is its own policy, not that of the state. Nor was the organization or its chaplain carrying out a “public function” when they denied religious materials and services to plaintiff.  The court also rejected plaintiff’s “joint action” argument. Thus the court dismissed plaintiff's lawsuit since private parties not acting on behalf of or jointly with the state are not liable under Sec. 1983 or RLUIPA.

10th Circuit Stays District Court Orders In FLDS Trust Case

Friday there was yet another development in Fundamentalist Church of Jesus Christ of Latter Day Saints v. Lindberg, this time in response to an emergency motion filed by state judge Denise Lindberg.  Attempting to defuse the battle between state and federal courts over what to do with the FLDS United Effort Plan Trust (see prior posting), the 10th Circuit Court of Appeals issued a stay of both the preliminary injunction issued by the federal district court that handed the trust back to the FLDS Church and the district court order issued to state judge Denise Lindberg to show cause why she should not be held in contempt for defying the federal court order. The 10th Circuit ordered that no action should be taken to implement or enforce either of these. (Full text of stay order). All the parties were invited to brief the issues by April 22, and the FLDS Church was instructed to cover at least the issues of laches, res judicata, judicial immunity, and the propriety of injunctive and/or declaratory relief against Judge Lindberg. The Deseret News reports on the 10th Circuit's action.

UPDATE: AP reports that on April 27, the 10th Circuit extended the stay while the appeal is pending.

Israeli Rabbi Seeks Imam's Help In Preventing Sale Of Leavened Products During Passover

With the Jewish holiday of Passover approaching-- it begins Monday night-- Israeli authorities are again faced with issues of enforcing the country's law against businesses publicly displaying leavened products (hametz) for sale or consumption. (See prior related posting.) Apparently in recent years, the northern Israeli city of Akko has become a center for non-religious Jews seeking to buy hametz.  The ban on selling hametz does not apply to Akko's mostly-Arab Old City.  YNet News today reports that Akko's chief rabbi, Yosef Yashar, has approached the influential imam of the city's al-Jazar Mosque, Sheikh Samir Asi, and asked him to attempt to to get Arab business owners to voluntarily refuse to sell hametz to Jews during Passover. The sheikh says he will ask business owners to honor the rabbi's request, but he is not certain how many will comply.

Hungary's Controversial New Constitution To Be Voted On Monday

In Hungary, civil society groups have called protests for today to express their opposition to the draft new Constitution (summary of changes) for the country. According to Reuters, the new Constitution has been a long-held goal of the Fidesz Party that last year won a majority of the seats in Hungary's National Assembly. The Party says that the new Constitution, replacing Hungary's Communist-era document, will complete the democratization process that began in 1989.  Critics of the new document, whose text was released only last month, say it reflects Christian and nationalist thinking. A European Parliament group says that while the new document prohibits discrimination on the basis of race, sex, disability, language, religion, political views, national or social origins, ownership of assets, or birth, it does not ban discrimination on the basis of sexual orientation or gender identity. Among the other controversial provisions are ones that protect the life of the fetus beginning at conception and a provision that defines marriage as the union of a man and a woman. It is expected that the National Assembly will approve the new constitution on Monday and that it will come into force on January 1, 2010. Here is the full text of the proposed Constitution in Hungarian.

School Board Reluctantly Bans Administrators From Sending Religious Messages To Employees

In Florence, South Carolina yesterday, the Florence School District 1 board unanimously but reluctantly banned administrators from sending religious messages to school employees.  According to SCNow, the interim superintendent and a school principal had been sending e-mail and memos containing religious messages, and sometimes overt proselytization, to school district employees. The e-mails included daily scriptures, bits of Christian theology and suggested hymns for times of stress. Americans United for Separation of Church and State had complained to the school board earlier this month about the situation.

Federal-State Court Judges In Utah Continue To Spar Over FLDS Trust

Tensions are growing between Utah state and federal courts over state attempts to reform the FLDS United Effort Plan Trust. As previously reported, the Utah Federal District Court held that the state had acted unconstitutionally in its five-years of proceedings and last week issued an preliminary injunction handing control of the Trust back to the FLDS Church. In response, state court Judge Denise Lindberg ordered special fiduciary Bruce Wisan to ignore the federal court order until the issues are sorted out on appeal. (See prior posting.) Now, in the latest development, the federal court yesterday issued an order (full text) requiring Judge Lindberg to appear on Monday to show cause why she should not be held in contempt for ignoring and countermanding the federal court's preliminary injunction. According to KCSG-TV News, originally the show cause hearing was scheduled for today (Friday), and when Judge Lindberg's attorney told federal judge Dee Benson that Lindberg would be in Arizona at her uncle's funeral, Benson suggested he might dispatch federal marshals to force Lindberg to appear before she left Utah.

Justice Department Joins Challenge To Jail's Policy On Religious Literature

The Justice Department announced Wednesday that it has filed a lawsuit against the Berkeley County, South Carolina sheriff's office, seeking to join a suit already filed by the ACLU challenging the mail policy at the Berkeley County Detention Center. The jail prohibits sending of any books, magazines or newspapers to inmates, except for copies of the Bible. (See prior posting.) The Justice Department alleges that the detention facility, in violation of RLUIPA, burdens inmates' practice of religion by denying them religious texts other than the Bible and violates the Establishment Clause by favoring the Bible over texts used in other religious traditions. The suit also claims more broadly that the ban on non-religious literature violates the 1st Amendment's free speech provisions.

7th Circuit: No Standing To Challenge National Day of Prayer

In Freedom From Religion Foundation, Inc. v. Obama, (7th Cir., April 14, 2011), the U.S. 7th Circuit Court of Appeals held that Freedom from Religion Foundation and its members lack standing to challenge either the constitutionality of the federal statute that creates a National Day of Prayer or the Presidential proclamations issued under that statute. While all three judges concluded that plaintiffs lack standing, the opinion by Judge Easterbrook (joined by Judge Manion) swept more broadly in doing so that did the concurring opinion by Judge Williams.

As to the statute-- 36 USC Sec. 119-- which directs the President to issue a Proclamation each year declaring the first Thursday in May as a national day of prayer, Judge Easterbrook concluded that since it merely imposes a duty on the President, only the President is injured enough by the statute to have standing. Others cannot "object to a statute that imposes duties on strangers."  The President's proclamation, on the other hand, are addressed to plaintiffs, like all other citizens. However since the Proclamations merely make a request that citizens are free to deny, no one is injured by them. Judge Easterbrook continued:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles.... [However] offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury. The “psychological consequence presumably produced by observation of conduct with which one disagrees” is not an “injury” for the purpose of standing.

Judge Williams, concurring, found this case to be closer, and the Supreme Court precedent to be less clear, that Judge Easterbrook asserted.  Williams wrote:

The [Supreme] Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases.... [The Supreme] Court has decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government.... In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs..... 

In the case, the district court had found that plaintiffs had standing, and later concluded that the federal statute violates the Establishment Clause. (See prior posting.) AP reports on the decision. FFRF immediately issued a press release announcing that it will seek en banc review.

11th Circuit En Banc Upholds City's Limits On Feeding Homeless In City Parks

In First Vagabonds Church of God v. City of Orlando, Florida, (11th Cir., April  12, 2011), the 11th Circuit Court of Appeals en banc upheld a municipal ordinance that limits the number of feedings of large groups that any person or political organization can sponsor in centrally located city parks in Orlando (FL). The court held that even if feeding the homeless is expressive conduct, the ordinance as applied to the organization Orlando Food Not Bombs is a reasonable time, place or manner regulation. A majority of the 3-judge panel in the case had held that feeding of the homeless here was not expressive conduct. (See prior posting.) The en banc court did not review other aspects of the 3-judge panel's decision, so the panel's rulings rejecting attacks on the ordinance under the free exercise, due process and equal protection clauses, and under the Florida Religious Freedom Restoration Act, were reinstated.

Second Lawsuit Against Georgia County Filed Over Zoning Denial For Churches

For the second time this year (see prior posting), a federal lawsuit has been filed against Coweta County, Georgia challenging its denial of a conditional use permit to a predominately African-American church. At issue in the latest suit is the county's refusal to allow Holy Is The Way Ministries to build a church on a rural tract of land it has contracted to purchase. The county Board of Commissioners denied the church's application, rejecting a recommendation of the Board of Zoning Appeals.  The complaint (full text) in Holiness Is The Way Ministries, Inc. v. Coweta County, Georgia, (ND GA, filed 4/13/2011), alleges violations of RLUIPA as well as numerous constitutional violations. Among other claims, plaintiffs charge that the provision in the county's zoning ordinance that calls for churches and other places of worship to obtain a conditional use permit to locate in areas zoned Rural Conservation is unconstitutional.  The complaint alleges that since this requires the county to analyze the content of speech and other expressive activity in order to determine whether a gathering is "a Church or other place of worship," this violates the 1st Amendment's protection of freedom of expression as well as the Establishment Clause. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Community College Board Settles Suit Challenging Prayers At School Ceremonies

A settlement has been reached between the South Orange County (CA) Community College District and plaintiffs challenging the practice of opening various official college events with prayer.  The agreement in Westphal v. Wagner, (CD CA, March 31, 2011), calls for an end to prayers at scholarship ceremonies and Chancellor's Opening Session at the community colleges involved. However commencement ceremonies will continue to feature either a non-sectarian prayer or moment of silence. Mission Viejo Patch reports on the agreement reached by the Community College District with Americans United for Separation of Church and State. Last May, the court had denied a preliminary injunction against invocations at graduation, and that ruling was being appealed to the 9th Circuit. (See prior posting.) A trial on the request for a permanent injunction was scheduled to start today, but the settlement led to its cancellation. [corrected]

Chicago Will No Longer Enforce Law Barring Church Picketing During Services

Tuesday's Chicago Sun-Times reports that the city of Chicago has stopped enforcing an ordinance (Chicago Municipal Code Sec. 8-4-010(j))  that bans demonstrations or picketing within 150 feet of a place of worship while services are being conducted and for one-half hour before and after services.  The city's law department has concluded that the ordinance is unconstitutional because it discriminates on the basis of subject matter by providing an exception for pickets involved in a labor dispute. The issue arose when, last year, the Church of Scientology, in order to prevent picketing, posted a sign at its headquarters stating that religious services are being held every day from 9:30 am to 10:00 pm. When anti-Scientology protesters were asked by police to leave, lawyer Alex Hageli refused in order to be cited and raise a challenge.  The alternative grounds relied upon by the law department avoids deciding the validity of Scientology's attempt to circumvent the law. Hageli was back last Saturday picketing the Scientology headquarters.

Kentucky Court Upholds Rejection of "In God We Trust" Specialty Plates

A Kentucky state trial court has upheld a decision by the Kentucky Transportation Cabinet  refusing to approve an "In God We Trust" specialty license plate that an anti-pornography group wanted issued to help it raise funds. XBIZ reported yesterday that the court denied the application by the group Reclaim Our Culture Kentuckiana (ROCK) for the specialty plate because the phrase 'In God We Trust' does not indicate to persons viewing the plate anything about the purpose of the plate's sponsor.  Meanwhile, the state has begun to make "In God We Trust" plates available as standard issue plates, rather than specialty plates. (See prior related posting.)

Lawsuit Alleges Retaliation For Complaint About Handling Of Accused Priest

Yesterday's Louisville Courier Journal reports on an interesting Kentucky state court lawsuit in which a former bookkeeper  for the Catholic Archdiocese of Louisville claims she was wrongfully fired from her position in retaliation for her complaining that Rev. James Schook, a priest accused of past sexual abuse ,was permitted to reside for several months without supervision at a local church where children were present.  Former bookkeeper Margie Weiter says that this violates Archdiocese policy.  The Archdiocese says it fired Weiter for budgetary reasons, and that it has the right to use discretion in preventing employees from making potentially defamatory statements about priests whose cases are still under investigation. It also seeks dismissal of the case, arguing that how it handled Schook is a matter of internal church discipline of clergy over which civil courts, under the First Amendment, have no jurisdiction.

State Department Serves Vatican With Court Papers On Behalf of Clergy Abuse Plaintiff

In a press release yesterday, plaintiffs' attorney in John Doe 16 v. Holy See, announced that the State Department had served process by diplomatic means on the Vatican in a lawsuit pending in a Wisconsin federal court charging the Pope and two high-ranking cardinals with covering up sexual abuse by a priest in the 1960's at a Catholic school for the deaf in Milwaukee, Wisconsin. (See prior posting.)  The summons and complaint was accompanied by a diplomatic note (full text) from the State Department to the Vatican. AP reports on developments. [Thanks to Religion News Service for the lead.]

Priest Convicted In 2006 of Old Murder of Nun Gets New Hearing On Some Evidence

A Toledo, Ohio Catholic priest who was convicted in 2006 of murdering a nun 26 years earlier has been granted a hearing later this month on two challenges to his conviction.  In State of Ohio v. Robinson, (Com. Pl., April 11, 2011), a state trial court judge ruled that defendant Gerald Robinson is entitled to a hearing to adduce evidence from some 136 documents relating to the case that had been misfiled and never furnished to him before trial  Judge Gene Zmuda also allowed Robinson to challenge affidavits from his trial counsel that the state used as evidence in opposing Robinson's petition for post-conviction relief. Yesterday's Toledo Blade reports on the case. Testimony in Robinson's trial in 2006 suggested ritualistic murder was involved. (See prior posting.)

Swiss Court Acquits Protesters Who Planned To Burn Bible, Qur'an

World Radio Switzerland  and Swissinfo.ch reported yesterday that a judge has acquitted three Hindu men who were arrested when they announced last year that they planned to burn the Bible and the Qur'an outside the federal parliament building in Bern's Parliament Square. The three, who want the Bible and Qur'an banned for children, claim that the religious books encourage violence and contain pornographic material. The court ruled that the defendants did not break Swiss law on freedom of faith and religious practice in announcing their intent to burn the books. They were assessed half the court costs, however, on the ground that they had injured the religious feelings of others. But that amount was largely offset by an award to them for the two days they spent in custody.

Utah Supreme Court Hears Re-argument In FLDS United Effort Plan Trust Cases

The Utah Supreme Court yesterday reheard oral argument in two cases involving the FLDS United Effort Plan Trust.  An audio recording of the full arguments is available online. The first case, FLDS v. Lindberg, involves the question of whether FLDS church members can collaterally attack reform of the trust over three years after the trial court entered its order. The second case, Snow, Christensen and Martineau, involves the trial's court's disqualification of a law firm from representing FLDS members in an action against the trust because the firm previously had a legal relationship with the trust. (See prior posting.) The state Supreme Court ordered re-argument after a federal judge held that Utah state courts acted unconstitutionally in ordering reform of the FLDS United Effort Plan Trust. (See prior posting.)  AP reports on the argument.

Arizona Governor Vetoes Free Exercise Legislation Out of Concern It Could Protect FLDS Members

Arizona Governor Jan Brewer on Monday vetoed SB 1288, a bill that would have prohibited denial or revocation of occupational licenses based on a person's exercise of religion. (See prior posting.) The Verde (AZ) Independent reports that Brewer's veto message stated broadly that: "This bill could protect conduct that harms the public but cannot be readily addressed if the person claims that the conduct is based on religious beliefs."  Apparently her veto was based primarily on her concern that the bill would have  prevented the suspension of certification of police officers who practiced polygamy in the FLDS-controlled town of Colorado City, Arizona. It might well have also protected officers who refused to give information regarding   fugitive FLDS leader Warren Jeffs, claiming that protecting him was a religious practice. Brewer says she will cooperate with the legislature next session to draft a more acceptable version of the law.

UPDATE: Here is the full text of the Governor's veto letter. [Thanks to Volokh Conspiracy.]

Litigious Preacher Sues School District Over Students' Rights To Wear T-Shirts

The Dayton (OH) Daily News reports that on Friday, fire-and-brimstone preacher Orlando Bethel and his wife Glynis filed a federal lawsuit against the Middletown, Ohio school district after school officials objected to the T-shirts worn by their daughter Zoe.  The complaint (full text) in Bethel v. Middletown City School District, (SD OH, filed 4/8/2011), challenges the constitutionality of Ohio's compulsory school attendance law and a school practice of having children stand to recite the Pledge of Allegiance. In addition the suit alleges that school officials have interfered with the free exercise rights of plaintiffs' children to wear T-shirts with religious messages on them. Plaintiffs' daughter on one day wore a T-shirt that proclaimed "God Hates Whores." On another day she wore a shirt with the slogan: "God Hates Muslims Gays." The complaint alleges in part that: "Glynis Bethel, in order to talk about JESUS CHRIST on the campus used her minor children to strategically plant them in the schools to preach the gospel of JESUS CHRIST as an expression of their Religious beliefs..."

Last Friday police arrested Orlando Bethel on charges of obstructing official business as he interfered with officers' questioning of two of his children about whether the parents were forcing Zoe Bethel to wear the T-shirts. On Monday Orlando Bethel was fined $150 and given a 30-day suspended sentence.  The Bethel's have filed some 50 similar lawsuits, mostly in southern states. The pleadings in a number of these lawsuits are posted on the Repent or Burn in Hell message board.

UPDATE: On April 21, an Ohio federal magistrate judge recommended dismissal of the Bethel's lawsuit. (Dayton Daily News.)

Guns In Church For Self-Defense OK'd By Virginia Attorney General

Virginia's Attorney General last week issued an opinion (full text) concluding that under state law is is permissible for a citizen to carry firearms into a place of worship for personal safety purposes. Section 18.2-283 of the Virginia Code outlaws carrying firearms to a place of worship while a meeting for religious purposes is being held  only if done so "without good and sufficient reason." Self-defense and personal safety constitute "good and sufficient reason" under the statute according to the AG's Opinion. However, the Opinion also makes it clear that: "Churches, synagogues, mosques and other religious entities can, like any other owner of property, restrict or ban the carrying of weapons onto their private property." [Thanks to First Amendment Law Prof Blog via Volokh Conspiracy for the lead.]