Some Christian Colleges Are Concerned About New Federal Regulations Taking Effect In July

The World Journalism Institute Times Observer reported Friday that private Christian colleges are concerned about new federal regulations that take effect July 1, 2011 that define institutions that qualify to participate in various federal student financial aid programs. Some of the other provisions affecting eligible institutions take effect July 1, 2012. (Full text of DOE Oct. 2010 Release adopting new rules.) The new 34 CFR Sec. 600.9 that takes effect this July to define when an institution is legally authorized by a state, and thus meets one of the eligibility requirements, provides:

(a)(1) An institution ... is legally authorized by a State if the State has a process to review and appropriately act on complaints concerning the institution... and the institution meets the provisions of paragraphs (a)(1)(i), (a)(1)(ii), or (b) of this section.

(i)(A) The institution is established by name as an educational institution by a State ... and is authorized to operate educational programs beyond secondary education....
   (B) The institution complies with any applicable state approval or licensure requirements, except that the state may exempt the institution ... based on the institution’s accreditation ... or based upon the institution being in operation for at least 20 years.

(ii) If an institution is established by a State on the basis of an authorization to conduct business in the State or to operate as a nonprofit charitable organization, but not established by name as an educational institution ...under paragraph (a)(1)(i) of this section, the institution—
   (A) By name, must be approved or licensed by the State to offer programs beyond secondary education...; and
   (B) May not be exempt from the State’s approval or licensure requirements based on accreditation, years in operation, or other comparable exemption....

(b)(1) Notwithstanding paragraph (a)(1)(i) and (ii) of this section, an institution is considered to be legally authorized to operate educational programs beyond secondary education if it is exempt from State authorization as a religious institution under the State constitution or by State law.
   (2) For purposes of paragraph (b)(1) ..., a religious institution is an institution that—
        (i) Is owned, controlled, operated, and maintained by a religious organization lawfully operating as a nonprofit religious corporation; and
        (ii) Awards only religious degrees or certificates including, but not limited to, a certificate of Talmudic studies, an associate of Biblical studies, a bachelor of religious studies, a master of divinity, or a doctor of divinity.

(c) If an institution is offering postsecondary education through distance or correspondence education to students in a State in which it is not physically located or in which it is otherwise subject to State jurisdiction as determined by the State, the institution must meet any State requirements for it to be legally offering postsecondary distance or correspondence education in that State....  

Apparently the provisions requiring destination state approval in order to offer distance learning courses are a particular concern to some Christian colleges. Also of concern to some schools is the definition of "credit hour" in 34 CFR 600.2. It is defined as one hour of classroom instruction and two hours of out-of-class work by students for 15 weeks (with certain exceptions)

Recent Prisoner Free Exercise Cases

In Lawson v. Secretary, Florida Department of Corrections, (11th Cir., May 25, 2011), the 11th Circuit upheld a district court's dismissal of a claim by a prisoner that he was denied access to kosher meals and to Jewish religious services and observance of Jewish holidays. The district court concluded that plaintiff's beliefs were not sincere.

In McGeachy v. Aviles, 2011 U.S. Dist. LEXIS 53647 (D NJ, May 18, 2011), a New Jersey federal district court dismissed without prejudice complaints by 29 pre-trial detainees that the Hudson County Correctional Center that there are no Muslim worship services or classes, Protestant services are only conducted in Spanish, and there is no access to Jewish or Catholic services in one cell block. The dismissal was based on failure to pay the required filing fee.

In Polk v. Patterson, 2011 U.S. Dist. LEXIS 53868 (D UT, May 17, 2011), a Utah federal district court rejected constitutional challenges by an inmate who was an adherent of Odinism. He claimed that he was denied various items needed for the practice of his religion, including a copy of the Edda, a Thorshammer Medallion, wood runes, bowl, meditation drum and oath ring.

In Hunter v. Director of Corrections, 2011 U.S. Dist. LEXIS 53943 (ED CA, May 18, 2011), a California federal magistrate judge dismissed with leave to amend an inmate's claim that correctional officers denied him access to religious services in retaliation for his filing an unrelated administrative complaint. The handwritten complaint was largely illegible, and also reflects mainly opinion instead of factual allegations.

In Williams v. Montileon, 2011 U.S. Dist. LEXIS 54768 (D NJ, May 20, 2011), a New Jersey federal district court dismissed with leave to amend an inmate's claim that he was denied religious services and a religious diet.

In Patterson v. Bradford, 2011 U.S. Dist. LEXIS 54412 (D NJ, May 19, 2011), a New Jersey federal district court dismissed, without prejudice, an inmate's claims that his rights under the 1st, 14th and 8th amendments as well as RLUIPA were violated when the coordinator of the prison's NuWay Program made mocking remarks about Islam and mimicked an Arabic prayer. It also dismissed claims that supervisors failed to supervise the program coordinator.

In Emmingham v. Seltzer, 2011 U.S. Dist. LEXIS 54448 (D OR, May 19, 2011), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 54438, Jan. 18, 2011) and dismissed an inmate's claim that prison authorities and a former roommate to whom the inmate sent threatening mail violated plaintiff's rights when a prison official restricted his outgoing mail. He claimed in part that the restriction was imposed because he is a practitioner of Buddhism.

In Clark v. Small, 2011 U.S. Dist. LEXIS 54931 (SD CA, May 23, 2011), a California federal district court rejected a Muslim inmate's challenge to a lock down that occurred during two weeks of Ramadan in 2008 after a large scale disturbance and a riot among inmates. The lock down prevented plaintiff from assembling with others in the chapel to pray, study and break the fast as a group.

In McReaken v. Schriro, 2011 U.S. Dist. LEXIS 55560 (D AZ, May 23, 2011), an Arizona federal district court rejected a complaint by a Wiccan inmate that a prison order treats Native American Sweat Lodge ceremonies more favorably than outdoor ceremonies by other religious groups by barring interruption of Sweat Lodge ceremonies except for security concerns.

Cert. Denied In Corporation Sole's Challenge To FTC Regulation

Last week, the U.S. Supreme Court denied certiorari in Daniel Chapter One v. FTC, (Docket No. 10-1292, cert. denied 5/23/2011) (Order List.) In the case, the D.C. Circuit Court of Appeals held that an organization's formal legal status as a religious corporation sole does not prevent the Federal Trade Commission from regulating its advertisements for dietary supplements. The organization actually operated as a for-profit. The Circuit Court also rejected the argument that the FTC violated the Establishment Clause by using "scientism" as the basis for its requirements. (See prior posting.)

Algerian Christian Sentenced To 5 Years For Blasphemy

International Christian Concern reports that last Wednesday the Criminal Court in Algeria's Djamel District sentenced an Algerian Christian, Siagh Krimo, to five years in prison for violating Art. 144 bis 2 of Algeria's Penal Code. That section prohibits acts that "insult the prophet and any of the messengers of God, or denigrate the creed and precepts of Islam...." Krimo's neighbor, who did not appear as a witness, accused Krimo of Christian proselytizing and of making defamatory statements against the Prophet Muhammad. Krimo holds weekly prayer servies at his home which apparently are monitored closely by Algerian police.

North Dakota Will Vote On Religious Freedom Constitutional Amendment

In the state's June 2012 election, North Dakotans will vote on a religious freedom amendment to the state constitution.  According to the Devil's Lake Journal, the North Dakota Secretary of State ruled this week that sufficient signatures had been obtained to place the initiative on the ballot.  The proposed amendment provides:

Government may not burden a person's or religious organization's religious liberty. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

[Thanks to Don Byrd for the lead.]

Delaware Enacts Same-Sex Civil Union Legislation

On May 11, Delaware's Gov. Jack Markell signed SB No. 30 (full text), authorizing same-sex civil unions in the state. The Wilmington (DE) News-Journal reported on the signing ceremony. The bill, which gives parties to a civil union the same rights as married couples, provides that civil unions may be performed by clergy, judges or clerks of the peace.  It, however, protects the rights of clergy (but not of clerks of the peace) to refuse to do so, providing:

nothing in this section shall be construed to require any person authorized to perform solemnizations of marriages or civil unions to perform a solemnization of a civil union, and no such authorized person who fails or refuses for any reason to join persons in a civil union shall be subject to any fine or other penalty for such failure or refusal. Notwithstanding the preceding sentence, a Clerk of the Peace or deputy thereof who issues a civil union license shall be required to perform a solemnization of such civil union if requested by the applicants for such license....

The new law will become effective on Jan. 1.

Graduation Prayers From High School To Kindergarten Generate Complaints

Americans United announced Friday that it had filed a lawsuit challenging a Texas school district's plan to officially include prayers in its graduation ceremony, scheduled for June 4.  The complaint in Schultz v. Medina Valley Independent School District, (WD TX, filed 5/26/2011) requests emergency relief, alleging that the planned student-led  invocation and benediction violate U.S. Supreme Court precedent under the Establishment Clause. UPDATE: Reuters reported that on May 31, the court ruled that the graduation ceremony may not include an opening or closing prayer and the ceremony may not include presentations called an "invocation" or "benediction". The school does not plan to appeal the ruling. UPDATE2: Subsequently the San Antonio Express News reported that Medina Valley High School officials are appealing the court's ruling.

Meanwhile, the Freedom from Religion Foundation said in a press release yesterday that it has sent a letter (full text) to the Giles County, Tennessee, Director of Schools complaining about a two-minute sectarian prayer by a local clergyman at the kindergarten graduation at Pulaski Elementary School.  Apparently prayer is traditional at the school's kindergarten graduations. The school principal introduced the clergyman who then offered the prayer which ended with the words "in the name of Jesus Christ." [Thanks to Alliance Alert for the lead.]

Suits Against Atlanta Pastor and His Mega-Church Are Settled

The Atlanta Journal Constitution reports today that there has been a settlement in four civil lawsuits against Bishop Eddie Long, his LongFellows Youth Academy and his New Birth Missionary Baptist Church. In the suits, four men alleged that the prominent Atlanta pastor used his spiritual authority to coerce young male members and employees of his mega-church into sexual relationships. (See prior posting.) Apparently the settlement is the result of contentious mediation that has been underway in the lawsuits since February. Neither side would comment on the terms of the settlements, except to say that they will result in the lawsuits being dismissed with prejudice.

VA May Not Require Memorial Day Invocation At National Cemetery To Be Non-Denominational

In Rainey v. U.S. Department of Veterans Affairs, (SD TX, May 26, 2011), a Texas federal district court issued a temporary restraining order preventing the Department of Veterans Affairs from regulating the content of the invocation and benediction that are to be delivered at a Memorial Day ceremony in Houston's National Cemetery.  The annual ceremony is put on by a charitable organization.  The director of the National Cemetery required ministers to deliver the text of their prayers in advance to assure that the prayers are non-denominational and inclusive of all beliefs. Invoking that policy, the Veterans Affairs Department told Rev. Scott Rainey that he could not deliver his invocation if he did not remove references to Jesus and to his religious beliefs. Rainey sued.  In a rather colorful opinion, the court wrote that the government cannot gag a citizen in the name of "some bureaucrat's notion of cultural homogeneity." The court went on:

The government's compulsion of a program's inclusion or exclusion of a particular religion offends the Constitution. The Constitution does not confide to the government the authority to compel emptiness in a prayer, where a prayer belongs. The gray mandarins of the national government are decreeing how citizens honor their veterans....

These people say that remarks need to be content-neutral messages. The men buried in the cemetery fought for their fellow Americans-- for us. In those fights, they were served by chaplains, chaplains of two faiths and many denominations.... No deputy general counsel of the Department of Veterans Affairs was in the Ia Drang Valley....

The government cannot realistically speak for the religious sensibilities of the numerous and varied people of America, even if it were constitutional for it to try. It is for them to speak for themselves as when the President asked Rick Warren to speak for him in Jesus' name at his inauguration. Americans are free-- free to read, write, talk, and pray without permission from George III or other governmental power.

The Houston Chronicle reported on the decision yesterday. [Thanks to Kate Shellnutt for the lead.]

UPDATE: The Houston Chronicle reported Friday that the Department of Veterans' Affairs has informed the court that it will no longer raise an objection to Rev. Rainey's planned invocation. [Thanks to Don Byrd for the update lead.]

6th Circuit Invalidates Ban On Leafleting Outside Dearborn's Arab International Festival

In Saieg v. City of Dearborn, (6th Cir., May 26, 2011), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, held unconstitutional on free speech grounds the city of Dearborn's leafleting restrictions that barred a Christian group from proselytizing on public sidewalks surrounding the city's annual Arab International Festival. The decision comes in time for the 2011 Festival which will be held June 17-19. The court held that while the leafleting restriction is content neutral, it does not further a substantial governmental interest. The adjacent inner perimeter sidewalks are kept open for public traffic and sidewalk vendors are permitted to operate there. Leafleting is no more disruptive than the sidewalk tables in the same area. Leafleting restrictions on outer perimeter sidewalks do not implicate a substantial interest in crowd control merely because the proselytizers might attract a few listeners. The city's interest there is in vehicular traffic control and parking. Assuming this to be a substantial interest, the restriction on pedestrian leafleting is substantially broader than necessary to further this interest.

Judge Daugherty filed a one paragraph dissent, relying on the district court's reasoning (see prior posting) that found the leafleting restrictions to be a reasonable time, place and manner restriction. The Dearborn Press and Guide reports on the decision. The 6th Circuit had previously issued a preliminary injunction to cover last year's Festival.

Herman Cain Backs Off Of Prior Anti-Muslim Statement

The Iowa Independent reports that Herman Cain, former CEO of Godfather Pizza and a candidate for the Republican Presidential nomination, is backing away from a statement he previously made that he would be uncomfortable appointing a Muslim to his cabinet or as a federal judge because Sharia law does not belong in our government. Appearing on Fox News Glenn Beck's radio program, Cain said that his remarks had been misconstrued.  He told Beck:

I immediately said, without thinking, ‘No, I would not be comfortable.’ I did not say that I would not have [Muslims] in my cabinet. If you look at my career, I have hired good people regardless of race, religion, sex gender, orientation and this kind of thing.

Rockford, Illinois Catholic Diocese Will End Adoption and Foster Care Services Over Civil Union Law

The Catholic Diocese of Rockford, Illinois announced yesterday that its Catholic Charities office will stop offering state-funded foster care and state-funded adoption services. At a press conference (full text), diocese officials said that the move comes in reaction to the failure of the state legislature to enact an explicit exemption from the state's new civil unions law for religious entities. They explained:

On June 1, 2011 the Illinois Religious Freedom Protection and Civil Unions Act will take effect. This new law may allow unmarried cohabitating couples, whether same‐sex or opposite sex, to apply for adoptions and licenses to become foster parents.... [T]he Catholic Church does not condone same‐sex unions or unmarried cohabitation between individuals of the opposite sex.

(See prior related posting.)

Australian State Defeats Bill To Exempt Religious Groups From Some Equal Opportunity Requirements

Parliament in the Australian state of Victoria on Thursday defeated by a 44-43 vote a proposal to create an exemption for religious organizations from the state's Equal Opportunity Act 2010. The Act takes effect August 2011. (Background.) The amendment would have permitted faith-based groups to refuse to hire workers on the basis of religion, sexuality, marital status or gender. According to The Age, the defeat of the amendment proposed by the governing Liberal Party came because Women's Affairs Minister Mary Woolridge missed the vote and Liberal speaker Ken Smith voted against the bill. Woolridge said she was embarrassed at not making it to Parliament in time for the vote and would later explain what had happened. The government will try to have a new vote on the proposed amendments next week.

CBO Analyzes Options For Changing Tax Treatment of Charitable Contributions

Yesterday the Congressional Budget Office announced the release of a new report, Options for Changing the Tax Treatment of Charitable Giving. The report analyzes the likely impact on charitable giving of 4 options:

 Retaining the current deduction for itemizers but adding a floor.
 Allowing all taxpayers to claim the deduction, with or without a floor.
 Replacing the deduction with a nonrefundable credit for all taxpayers, equal to 25 percent of a taxpayer’s charitable donations, with or without a floor.
 Replacing the deduction with a nonrefundable credit for all taxpayers, equal to 15 percent of a taxpayer’s charitable donations, with or without a floor.

The report further refines its analysis by discussing the differential impact of these changes on individuals at different income levels.

Included in the report (at pg. 6) is a breakdown of charitable contributions currently by type of recipient and income group (based on 2005 data). This reveals that donors with annual income under $100,000 give 67% of their donations to religious organizations. Those in the $100,000 to $200,000 income bracket give 57% to religious causes.  Those earning $200,000 to $1 million give 23% to religious organizations. Those earning over $1 million give 17% to religious organizations. [Thanks to Steven H. Sholk for the lead.]

Resident's Rejection of Hasidic Synagogue Leads To Arson Attack

The Lower Hudson Valley Journal News yesterday reported that in New Square, New York (a town populated primarily by members of the Jewish Skverer Hasidic movement) 18-year old Shaul Spitzer has been charged with attempted murder, attempted arson and assault on 43-year old Aron Rottenberg in an incident allegedly growing out of a religious dispute.  Grand Rabbi David Twersky has apparently decreed that all of his followers must worship at his synagogue. However, Rottenberg along with two dozen other New Square residents, has been boycotting Twersky's synagogue and instead worshiping a mile away at the Friedwald Center. This led to months of protests outside Rottenberg's house last fall.  An attorney hired by Rottenberg's family charges that the attack by Spitzer-- who works in Twersky's house and is the cousin of the town's mayor--"culminated months of increasingly violent and coordinated religiously biased attacks on Mr. Rottenberg triggered by the victim's choice of synagogue and religious leader." The arson attack, which consisted of throwing gasoline-soaked rags onto the rear deck of Rottenberg's house at 4 a.m. last Sunday, inflicted third degree burns over 50% of Rottenberg's body.

Evangelical Journalist Says Vote For Romney Would Advance "False Teachings" of Mormon Church

Patheos website on Tuesday published a controversial article by evangelical journalist Warren Cole Smith titled "A Vote for Romney Is a Vote for the LDS Church." The article argues in part:

As Theodore Roosevelt said, the presidency is a "bully pulpit." Indeed, it has become the bulliest pulpit in the world. The entire planet hangs on what the occupant of that pulpit says and does.

Placing a Mormon in that pulpit would be a source of pride and a shot of adrenaline for the LDS church. It would serve to normalize the false teachings of Mormonism the world over. It would also provide an opening to Mormon missionaries around the world, who could start every conversation: "Let me tell you about the American president." To elect a Mormon President is to advance the cause of the Mormon Church.

The article is part of a broader symposium on Faith and the Future of Social Conservatism. Another article in the symposium by J.E. Dyer is titled "Yes, Christians Can Vote for Mormons" and one by Jeremy Lott is titled "In Defense of Mormons."

Belgium To Become Second European Country To Ban Burqa In Public Places

M&C reported yesterday that Belgium is about to become the second European country to ban the wearing of the burqa or other full face veils in public. The Chamber of Deputies approved the ban on April 28, and the Senate had 15 days to intervene, which it failed to do. (Background on legislative process.)  The law will go into effect ten days after its publication in Belgium's official journal. Anyone who appears in public with their face fully or partly covered, impairing identification, can under the law be fined 15 to 20 Euros and imprisoned up to 7 days. A burqa ban-- with significantly greater penalties-- went into effect in France in April. (See prior posting.)

Algeria Orders 7 Protestant Churches Closed For Lack of Permits

AFP reported yesterday that all seven Protestant churches in Algeria's Bejaia region have been ordered closed, apparently because they have not obtained permits as required by a law enacted in 2006.   However Mustapha Krim, president of the Protestant Church in Algeria, says the churches will continue to operate because they were functioning before the 2006 law was enacted.

Santa Monica May Be Next City To Place Circumcision Ban On Ballot

The Los Angeles Jewish Journal reported last week that on May 19, a proponent filed a Notice of Intent To Circulate Petition (full text) with the Santa Monica (CA) City Clerk's Office indicating that she plans to seek signatures for a ballot measure banning circumcision of males under 18.  The proposed measure is identical to the one that will appear on San Francisco's ballot in November. (See prior posting.) The measure specifically excludes any exception based on belief that circumcision "is required as a matter of custom or ritual." The language of this exclusion is apparently based on similar language in the Federal Prohibition of Female Genital Mutilation Act of 1995 (18 USC 116(c)). [corrected]

Subpoena For Missionary Records Does Not Violate Free Exercise or Establishment Clause

In Cason v. Federated Life Insurance Co., 2011 U.S. Dist. LEXIS 54778 (ND CA, May 20, 2011), plaintiff sued Federated Life Insurance for disability insurance bad faith.  As part of discovery in the case, Federated issued a subpoena to Optimum Health Institute (OHI)-- which claims to be a church.  Plaintiff, in a deposition, indicated either that she worked at OHI or received some kind of treatment or therapy there. At issue in this case was OHI's claim of privilege for plaintiff's attendance records, her missionary application, and her missionary check-in, time sheet and requests for extension. The court rejected OHI's claim that requiring it to produce these would violate the state and federal establishment and free exercise clauses, privacy protections and the clergy-penitent privilege.

Tennessee Governor Signs Bill Voiding Nashville's Anti-Discrimination Ordinance; Lawsuit Planned

On Monday, Tennessee Governor Bill Haslam signed HB 600 that prohibits local governments from imposing anti-discrimination provisions that vary from those in state law. The new law invalidates a Nashville ordinance that prohibits contractors from doing business with the city if they discriminate on the basis of sexual orientation or gender identity.  News Channel 5 reports that opponents of the state law are planning to file a lawsuit challenging it as discriminating against gays and lesbians. They say the bill has also done away with local protections against discrimination on the basis of disability or veteran status. State lawmakers who supported the bill say that Nashville's ordinance would have created confusion for businesses.

Suit Challenges Denial of Zoning Permit For Special Needs School In Church Building

A church in Fredericksburg, Virginia on Monday filed a lawsuit against the city challenging City Council's denial of a special use permit that would allow the church to operate a private school for special needs children in the church's facility. The complaint (full text) in Calvary Christian Center v. City of Fredericksburg, Virginia, (ED VA, filed 5/23/2011), alleges that the only reasons given by the city for denying the permit were discriminatory and stereotypical safety concerns for day care students in the same building as mentally and emotionally challenged children. The suit alleges violations of RLUIPA, the free exercise and free speech clauses of the 1st Amendment, the ADA and the Rehabilitation Act. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Hawaii Supreme Court Hears Arguments On Native Hawaiian Rights

Art. XII, Sec 7 of Hawaii's Constitution provides:

The State reaffirms and shall protect all rights, customarily and traditionally exercised for  subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.

Last week, the Hawaii Supreme Court heard oral arguments (audio recording of arguments) in State of Hawaii v. Pratt, (No. SCWC-27897, 5/19/2011), in which a kahu (native Hawaiian religious practitioner) argued that he had the right to take up residence in a state wilderness park to act as a hoa'aina or caretaker of the land and restorer of ancient Hawaiian sites. The Court of Appeals split 2-1 in upholding Pratt's conviction for camping without a permit in Na Pali State Park on the island of Kauaʻi. (Majority opinion, concurrence, dissent). The major issue on appeal is whether, in considering a defense of Native Hawaiian practices, the court should balance against this the state's interest in regulating. The Honolulu Star Advertiser reports on the oral arguments.

Constitutionality of San Francisco's Proposed Circumcision Ban Debated

A number of posts around the blogosphere in recent days debate the constitutionality of San Francisco's upcoming ballot issue (see prior posting) that would ban male circumcision on individuals under 18 years of age except in cases of clear medical necessity, with no exception for religiously mandated circumcision. The posts look at three related issues: free exercise issues (under state and federal law), parental rights issues, and the so-called "hybrid rights" doctrine (free exercise claims reinforced by a parental rights claim). Here are links to some of the more thoughtful analyses:

• Eugene Volokh, Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom In This Post) [discussing parental rights issues].
• Eugene Volokh, Proposed San Francisco Circumcision Ban, and Religious Freedom
• Slate's Jeremy Singer-Vine, Snip: A San Francisco ballot measure would ban circumcision. Is that legal? [discussing free exercise issues]
• Michael Helfand, Why San Francisco Ballot Measure Proposing Circumcision Ban Is Unconstitutional [discussing hybrid rights theory]
• Mirror of Justice, Circumcision and Hybrid Rights

[Thanks to Steven H. Sholk for the lead on some of this.]

21 Endorsing Agencies For Military Chaplains Ask For New Conscience Protections

Yesterday, 21 Christian organizations that act as endorsing agents of U.S. military chaplains sent a joint letter (full text) to the Chief Chaplains of the three services urging adoption of "broad, clear, and strong protections for conscience" as the repeal of "Don't Ask, Don't Tell" is implemented.  The letter was apparently triggered by concerns after the Navy's Chief of Chaplains issued, and then suspended, a memo making base chapels available for same-sex marriages and blessing of civil unions in states where these are legal. (See prior posting.) Yesterday's joint letter reads in part:

Chaplains have a tremendous moral responsibility to insure that when they preach, teach or counsel, they do so in accordance with their conscience and in harmony with the faith group by which they are endorsed. When guidance, however, is forthcoming from senior leadership that implies protected status for those who engage in homosexual behavior and normalizes same-sex unions in base chapels, any outside observer would conclude that both homosexuality and homosexual unions officiated as marriages in base chapels are normative. This creates an environment that is increasingly hostile to the many chaplains—and the service members they serve—whose faith groups and personal consciences recognize homosexual behavior as immoral and unsafe and do not permit same-sex unions.

Alliance Defense Fund issued a press release announcing the joint letter.

5th Circuit Hears Oral Arguments On Qualified Immunity In "Candy-Cane" Case

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Morgan v. Plano Independent School District. (Audio recording of oral arguments.) In the case, a 3-judge panel refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items-- including candy cane pens with religious messages-- during school parties and at other non-curricular times. However, the panel (in an amended opinion) added that the trial court might find immunity if the facts show that the students' activities were disruptive. (See prior posting.) OneNewsNow yesterday reported on the case.

Suit Planned In Nigeria To Challenge Shariah Banking Rules

On Dec. 31, 2010, the Central  Bank of Nigeria issued Guidelines on Shariah Governance for Non-Interest Financial Institutions.The Guidelines require all non-interest banks and financial institutions to comply with Shariah and to appoint a Shariah Advisory Committee. Nigerian Compass reported yesterday that a lawsuit is planned to challenge the new Guidelines as unconstitutionally excluding non-Muslims from the non-interest banking business. Opponents of the Guidelines also say that introducing religion is inconsistent with the Banking and Other Financial Institutions Act of 1991 that bars banks from using various religious terms in their names.

Huntsman Defines His Religious Affiliation

Former Utah governor  and more recently ambassador to China, John Huntsman, Jr., is considering running for the Republican nomination for the Presidency (Salt Lake Tribune).  Religion Dispatches suggests that Huntsman will not allow his Mormonism to define him.  Huntsman's comments about his religious beliefs in an interview last week on ABC's Good Morning America (full text) have been garnering attention. Here is what he said when asked whether he is a practicing Mormon:

I believe in God. I'm a good Christian. I'm very proud of my Mormon heritage. I am Mormon. Today, there are 13 million Mormons. It's a very diverse and heterogeneous cross-section of people. And you're going to find a lot of different attitudes and a lot of different opinions in that 13 million.... And I probably add to that diversity somewhat.

Huntsman also said that he did not think that his religious affiliation would be an issue in the campaign.

Student Delivers Graduation Prayer, Ignoring Scheduled Moment of Silence

CBN and Wall of Separation both report (with somewhat different flavors) on graduation ceremonies last week at Louisiana's Bastrop High School. The school's graduation traditionally included a prayer, but this year for the first time one of the graduating seniors complained about the tradition. Upon advice of its attorney, the school board reprinted the graduation programs to substitute Moment of Silence for the prayer. However when graduating senior Laci Rae Mattice stood at the podium to lead the moment of silence, she instead recited the Lord's Prayer, asking those who shared her beliefs to bow their heads. Not surprisingly, the episode has generated rather different responses around the country. Matthew Staver, chairman of Liberty Counsel, said that students have the right to express religious as well as secular views at graduation.  Meanwhile, the Freedom from Religion Foundation has offered Damon Fowler, the student who originally complained about the prayer, its $1000 student activist award.

Efforts Underway To Create Jewish Section In Texas State Cemetery

In Texas, former state officials and others selected because of their contributions to Texas history or culture are awarded the opportunity of being buried in the Texas State Cemetery in East Austin. (Background.)  The Austin Statesman carried a commentary Saturday on efforts by one Texas woman to create a Jewish section in the cemetery so observant Jews who, under Jewish law, can be buried only in portions of a cemetery set aside for Jewish burials, can accept the honor of being buried there. Camille Kress, a convert to Judaism, is pressing the effort. She and her husband (who has been active in education policy) have plots reserved at the cemetery, but have not decided whether they will use them if no separate Jewish section is created. A 2008 opinion from the state attorney general's office concluded that creating the area and installing a water feature that would allow mourners to engage in traditional washing of their hands, would be constitutional and consistent with the purpose of the statute creating the cemetery. It would remove a religious person's inability to accept the honor of burial there.

Firing of British Prison Officer For Wearing Sikh Kirpan Is Upheld

In Britain, an Employment Tribunal has upheld the firing of a Sikh prison officer who insisted on wearing his kirpan (small ceremonial dagger) in Dovegate Prison near Uttoxeter. This Is Derbyshire reported Saturday that the Tribunal's judge ruled prison officer Jagdip Singh Dhinsa had not been discriminated against. The Tribunal also upheld a National Offender Management Service ban on staff wearing the Kirpan in prisons, except for Sikh prison chaplains. The The Ministry of Justice warned of the risks involved: "a member of staff may be targeted or even taken hostage by prisoners if it is known that he is wearing the Kirpan [or] ... the Kirpan may be inadvertently dropped and lost within the prison."

Malta To Vote On Ending Divorce Ban; Church Is Strongly Opposed

Next Saturday, Malta -- which is 95% Catholic-- is holding a referendum on whether divorce should be legalized in the country. The London Telegraph reports that Malta is the only member of the European Union that does not permit divorce and only one of two nations in the world. The other is the Philippines. The ballot measure will read:

Do you agree with having the option of divorce for married couples who have been separated for four years when there is no reasonable hope for reconciliation, and when adequate maintenance is guaranteed and the children are cared for?

The electorate is very closely split on the issue, with proponents slightly in the lead.  The Catholic Church uses the pulpit on Sunday mornings to urge a "no" vote. The "yes" movement hold rallies in public squares around the country on Sundays immediately after church services. Malta's constitution declares Catholicism the official religion of the country. Meanwhile, according to CNA, some are arguing that ending Malta's ban on divorce would encourage radical Islam. Some 3000 Muslim North African refugees have recently come to Malta, fleeing unrest in their home countries. They join 6,000 Muslims already there. U.S. author Stephen Schwartz argues: "a radical would see as much confusion as possible among the non-Muslims as good for the Muslims." He fears radical Muslim clerics would see those who have divorced-- and thus left the Church-- as fair game for Muslim proselytizing.

Recent Articles of Interest

From SSRN:

• Hdeel Abdelhady, The Front Office Generates Revenue, the Back Office Creates Value: Operational Excellence is the Key to Unlocking Value in Islamic Finance, (December 8, 2010).
• Hdeel Abdelhady, Islamic Law in Secular Courts (Again): Teachable Moments from the Journey, (May 8, 2011).
• Meir Katz, The Economics of Section 170: A Case for the Charitable Deduction of Parochial School Tuition, (Rutgers Journal of Law and Religion, Vol. 12, No. 2, p. 224, Spring 2011).
• Perry Dane, Review of ‘Islam and the Secular State: Negotiating the Future of Shari‛a’ by Abduallahi Ahmed An-Na‛im, (Ancient Traditions, New Conversations, 2011).

From SmartCILP and elsewhere:

• Ian Bartrum, Salazar v. Buono: Sacred Symbolism and the Secular State, 104 Northwestern University Law Review 1653-1664 (2010).
• Chad M. Cullen, Can TRIPS Live in Harmony with Islamic Law? An Investigation of the Relationship Between Intellectual Property and Islamic Law, 14 SMU Science and Technology Law Review 45-68 (2010).
• Constance Frisby Fain, Minimizing Liability for Church-Related Counseling Services: Clergy Malpractice and First Amendment Religion Clauses, 44 Akron Law Review 221-260 (2011).
• Brian H. Bix, Mahr Agreements: Contracting in the Shadow of Family Law (and Religious Law)—A Comment on Oman’s Article, 1 Wake Forest L. Rev. Online 61 (2011).

Disclosure To Jewish Religious Court Waives Privilege As To Information From Social Worker

A Toms River, New Jersey state Superior Court judge last week ruled that former yeshiva teacher Yosef Kolko, who has been criminally charged with sexual assault on an 11-year old boy, has waived the confidentiality of statements he made to a social worker. The Asbury Park Press reports the details.  Originally the victim's father reported the assault to a Bet Din (Jewish religious court) which employed a Brooklyn social worker to interview Kolko to determine whether the charges were credible.  Kolko signed a waiver allowing information from the interview to be reported to the Bet Din.  Now state court judge Francis R. Hodgson has ruled that this amounted to a waiver of the privilege that would otherwise attach to the information. The judge said in part: "I think that it is not a small factor to be considered that [the Bet Din] is a parallel justice system ... within a closed community."

Recent Prisoner Free Exercise Cases

In Williams v. Bradford, 2011 U.S. Dist. LEXIS 51879 (D NJ, May 13, 2011), a New Jersey federal district court dismissed, without prejudice, an inmate's claims that his rights under the 1st, 14th and 8th amendments as well as RLUIPA were violated when  the coordinator of the prison's NuWay Program made mocking remarks about Islam and mimicked an Arabic prayer. It also dismissed claims that supervisors failed to enforce rules of the NuWay program.

In Baker v. Pratt, 2011 Ariz. App. Unpub. LEXIS 573 (AZ Ct. App., Jan. 20, 2011), an Arizona appellate curt dismissed an inmate's complaint that his rights were violated when his meal schedule for kosher meals required him to eat breakfast and lunch at the same time on weekends.

In Freeman v. Julious, 2011 U.S. Dist. LEXIS 52604 (ED CA, May 6, 2011), a California federal magistrate judge dismissed claims by an inmate, a practitioner of Satanism, that he was denied access to religious items, such as a satanic bible, and other materials and artifacts, and was denied access to a satanic clergyman.

In Ali v. Dewberry, 2011 U.S. Dist. LEXIS 52765 (ED TX, May 17, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 52766, April 21, 2011) and dismissed a complaint by a Muslim inmate that his religious concerns about not helping others to eat pork were violated when he was assigned to work as a fork lift operator at a packing plant that slaughtered and processed pork. He was required to wrap boxes and move them with a fork lift.

UPI reported last week that after court rulings in a Muslim inmate's favor, Virginia's attorney general has settled a suit brought by Rashid Qawi al-Amin. The Corrections Department will place $2,5000 worth of Islamic materials in the Greensville Correctional Center's library and will hire a Muslim inmate to work in the library.

Falun Gong Class Action Claims Cisco Helped China Track Practitioners

In an interesting new lawsuit, a number of U.S. and Chinese citizens who are practitioners of Falun Gong have filed a class action in federal court in California against Cisco Systems, Inc. and its executives for their alleged role in providing technology to the Chinese government that permitted it to track and persecute Falun Gong members. The action was filed on behalf of:

All person who were identified as Falun Gong practitioners through the use of the Golden Shield by Chinese authorities and were thereafter subjected to detention and/or physical abuse and/or torture for their Falun Gong related activity, and suffered injury as a result.

The 52-page complaint (full text) in Doe v. Cisco Systems, Inc., (ND CA, filed 5/19/2011), asserts 15 causes of action including violations of the Alien Tort Statute and the Torture Victims' Protection Act.  It alleges that:

Cisco Systems, Inc.... knowingly, purposefully and intentionally designed, supplied, and helped to maintain a censorship and surveillance network known as the Golden Shield in collaboration with the Chinese Communist Party and Chinese Public Security officers, knowing and intending that it would be utilized by members of the Communist Party of China ("CCP") and Chinese Public Security officers to eavesdrop, tap and intercept communications, identify, and track Plaintiffs as Falun Gong members for the specific purpose of subjecting them to gross human rights abuses, including arbitrary arrest and detention, torture, extrajudicial killing, and crimes against humanity, all in violation of international, U.S., and California law.

Reuters, reporting on the lawsuit, says that Cisco denies the allegations and contends that the company does not customize its products in any way that would facilitate censorship or repression.

Anti-Gay Pastor Questions Obama's Religion In Prayer Opening Minnesota House Session

Salon reports on the controversy generated by the prayer offered on the floor of the Minnesota House of Representatives yesterday by Bradlee Dean, founder of the You Can Run But You Cannot Hide ministry. The prayer questions President Obama's religious beliefs. Dean ended his invocation as follows:

I know this is a non-denominational prayer in this Chamber and it's not about the Baptists and it's not about the Catholics alone or the Lutherans or the Wesleyans. Or the Presbyterians the evangelicals or any other denomination but rather the head of the denomination and his name is Jesus. As every President up until 2008 has acknowledged. And we pray it. In Jesus' name.

Republican House Speaker Kurt Zellers denounced Dean's remarks and said: "That type of person will never ever be allowed on this House floor again as long as I have the honor of serving as speaker." As reported by the Minnesota Independent, Dean has previously generated controversy by statements calling for imprisonment of gays and lesbians, accusing gay men of child molestation and saying that Muslim countries that execute gays are more moral than American Christians.

New Oil Drilling Order Pays More Attention To Plains Indian Religious Site

The Mitchell (SD) Daily Republic reports that last Wednesday the South Dakota Board of Minerals and Environment revoked an order issued last year that would have permitted up to 24 oil wells to be drilled within 1.5 miles of Bear Butte, a site of great spiritual importance to the Northern Plains Indian Tribes such as the Cheyenne. Instead, after two days of hearings, the Board issued a new order allowing only five wells to be drilled, and requiring them to be outside the boundaries of Bear Butte national historic site. The new order also requires monitoring of drilling sites by archaeologists and tribal representatives. The new hearings were called after it was discovered that the Board failed to submit the original drilling application to the state historical preservation office for review, as required for projects that will encroach on national historic landmark sites. At the time of the earlier application hearing, no one realized that part of the proposed oil field would be within a national historic site boundary. (See prior related posting.)

Religious Instruction In Australian Schools Is Being Questioned

In Australia, the federal government allocates $222 million for school chaplaincy programs. However, according to a report this week in The Australian, the program has become controversial because 98.5% of the chaplains funded by the program are Christian, while only 64% of Australians identify as Christians. Also, the chaplains who teach in the program are volunteers and do not have to be trained as teachers. Anna Halafoff from Monash University says: "The problem with special religious instruction - the current program - is that it's not education about religions but education into a particular religion." The religious education program in the state of Victoria is under particular scrutiny after the head of Access Ministries, the group that provides school chaplains in Victoria, was quoted as saying: "We need to go and make disciples."

With The Earth Surviving, Some Suggest Suing Preacher Who Predicted The Rapture For Today

As reported by the London Telegraph, the widely publicized prediction by 89-year old California preacher Harold Camping that the Rapture would begin at 6:00 p.m. today in every time zone has not come true. The Rapture was to have seen all who were saved ascend to heaven and others destroyed by massive earthquakes. Now, according to God Discussion, some on the Internet are suggesting that donors who contributed funds to Camping’s ministry should sue to recover their contributions. Camping’s Family Radio is said to have assets of over $120 million.

Kentucky Finalizes Tax Breaks For Noah's Ark Theme Park

Finalizing action that Kentucky Governor Steve Beshear announced last year (see prior posting), the Kentucky Tourism and Development Finance Authority voted unanimously yesterday to grant $40 million in tax rebates to a Noah's Ark theme part to be built by Answers in Genesis ministry. The same group previously built the popular Creation Museum in Kentucky.  The Washington Post reports that the goal of the park is to dispel doubts that Noah could have fit two of every kind of animal in an ark.  The park will also include a replica of the Tower of Babel, theaters, lecture halls, a restaurant and a petting zoo. The park-- a $172 million project-- is expected to draw nearly 1.4 million visitors a year and create 600 to 700 full time jobs. Advocates of church-state separation have criticized the tax benefits.  Barry W. Lynn, executive director of Americans United said that the state should not be in the business of promoting fundamentalist Christianity or any other religion.

Salafis In Egypt Seeking To Form Moderate Political Party

AlMasry AlYoum reported yesterday that in Egypt a group of Salafi Muslims are collecting signatures to form a new political party to be called Fadila (Virtue) Party. Founders say the party, which is open to members of all sects, is aimed at spreading justice and equality and restoring Egypt to its former glory in accordance with Islamic principles. Salafi leader Hesham Kamal says the party is to be based on moderation and led by legal and scientific figures who took part in the January 25 revolution.  Kamal adds:

The party calls for a civil state with a religious reference and calls for a new constitution in accordance with the wishes of the people. The party is not concerned with the enforcement of hudood punishments [Islamic punishments for moral crimes] as there is more to religion than hudood punishments.

Iranian Court Acquits 11 Christians Finding Their Church Attendance Constitutionally Protected

Christian Today reports that in Iran, eleven members of the Church of Iran have been acquitted of charges that they engaged in "action against the order of the country" and that they were drinking alcohol.  According to the report published today, the charges were filed after the eleven attended a house church meeting and took communion wine.  In a written decision, the Iranian court concluded that the eleven were taking part in a Christian ceremony and that their conduct was protected under Article 13 of the Iranian Constitution that provides that: "Zoroastrian, Jewish, and Christian Iranians ... are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education." In separate cases, six other Christians are awaiting a hearing in Shiraz on blasphemy charges and a pastor of the Church of Iran is awaiting the outcome of an appeal of his death sentence for apostasy

Defamation Claim Against Pastor Dismissed Under Ecclesiastical Abstention Doctrine

In Kaplan v. Khan, (NY Sup. Ct. Kings Co., May 17, 2011), a New York trial judge dismissed a defamation claim brought by a woman against her former pastor.  At issue was pastor Nizam Khan's "rebuke" during a prayer service of Gloria Kaplan who was renting an apartment in her home to the pastor's daughter and a married man with whom the daughter was living. Khan allegedly told Kaplan: "you are running a house of prostitution and you are a whore, and you have made it just like the house of prostitution that was in the Bible when Hoffney and Phineas took in prostitutes into the temple." The court applied the ecclesiastical abstention doctrine to dismiss the case, concluding:

To the extent that the alleged statements yet convey any defamatory meaning, it is a pronouncement of the moral judgment of a pastor upon the conduct of a church member. Plaintiff acknowledges the religious practice of "rebuke," and, perhaps more importantly, acknowledges the underlying conduct declared by Defendant to be morally wanting.... To allow Plaintiff's claim to proceed under these circumstances "would necessarily involve an impermissible inquiry into religious doctrine and a determination as to whether the plaintiff violated religious law"

[corrected] 

Circumcision Ban Makes It To San Francisco Ballot

The Jewish Journal reports that on Wednesday, San Francisco (CA) Department of Elections approved a petition seeking to place a ban on circumcising boys under the age of 18 on the ballot in November. City officials approved as valid over 7,700 of the 12,000 signatures submitted. If approved, circumcision, except for medical reasons, and without any exemption for religion, would become a misdemeanor punishable by up to one year in jail and a $1000 fine. (See prior related posting.) Slate has background on the constitutional issues raised by the proposed ordinance.

Phrasing of Death Penalty Intent Notice Does Not Violate Establishment Clause

The Dexter (MO) Daily Statesman reported yesterday that a Bloomfield, Missouri state judge has denied a motion by attorneys for accused killer Allen "Smurf" McCoy challenging on Establishment Clause grounds the state's death penalty intent notice. In it the state alleged that by murdering an individual known to be handicapped and in ill-health, McCoy showed "depravity of mind and a callous disregard for the sanctity of all human life." McCoy's attorney argued that using the term "sanctity of life" favors religion, and that if the phrase were used in jury instructions, it would make a juror who lacked religious belief unable to render a verdict because the juror would not recognized the "sanctity" of all life. The court ruled that this was merely a reference to the "specialness" of life. Defendants are expected to appeal.

Most Claims Challenging Murfreesboro Mosque Are Dismissed

A Tennessee state Chancery Court judge has dismissed most of plaintiffs' claims in a widely publicized lawsuit seeking to prevent construction of a mosque in Murfreesboro, Tennessee. The Murfreesboro Daily News Journal as well as AP report that Chancellor Robert Corlew dismissed all the challenges to the Rutherford County Regional Planning Commission's approval of building plans, but is allowing plaintiffs to move ahead with their claim that the county violated the Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. Plaintiffs claim this is not a "newspaper of general circulation."  The case attracted particular attention when plaintiffs' attorney suggested that Islam is not a "religion" but instead is a political movement so that the proposed mosque should not get the special zoning treatment given to houses of worship. (See prior posting.) Chancellor Corlew wrote in his opinion:

We must note that, under the law, the Plaintiffs have not demonstrated a loss different from that which is common to all citizens of Rutherford County.... That Islam is a religion has been proven in this case. That the county ordinance allows construction of a church or place of meeting within a residential planning zone as a matter of right in this case is further undisputed.

Obama Includes Religious Liberty Concerns As Part of His Speech On Middle East Policy

Today President Obama delivered a major speech (full text) on U.S. policy in the Middle East in light of recent developments there. C-Span reports on the address delivered at the State Department.  Obama dealt with religious freedom in part of his lengthy remarks. Here is what he said:

The United States supports a set of universal rights. And these rights include free speech, the freedom of peaceful assembly, the freedom of religion, equality for men and women under the rule of law, and the right to choose your own leaders -– whether you live in Baghdad or Damascus, Sanaa or Tehran....

We look forward to working with all who embrace genuine and inclusive democracy. What we will oppose is an attempt by any group to restrict the rights of others, and to hold power through coercion and not consent. Because democracy depends not only on elections, but also strong and accountable institutions, and the respect for the rights of minorities.

Such tolerance is particularly important when it comes to religion. In Tahrir Square, we heard Egyptians from all walks of life chant, "Muslims, Christians, we are one." America will work to see that this spirit prevails -– that all faiths are respected, and that bridges are built among them. In a region that was the birthplace of three world religions, intolerance can lead only to suffering and stagnation. And for this season of change to succeed, Coptic Christians must have the right to worship freely in Cairo, just as Shia must never have their mosques destroyed in Bahrain.

Discrimination Suit Against FLDS Dominated Town Can Continue

Cooke v. Town of Colorado City, Arizona, 2011 U.S. Dist. LEXIS 52356 (D AZ, May 16, 2011), is one of the first cases reflecting the implications of a Utah federal district court's holding in February-- now stayed pending appeal-- invalidating the Utah state court's appointment of a special fiduciary to reform the polygamous FLDS Church's United Effort Plan Trust. The UEP trust holds property in Utah and Arizona on which church members reside. (See prior posting.)  The special fiduciary, as part of his efforts to assign property of the trust to beneficiaries in a religiously neutral manner, granted a lease to a parcel of land to Ronald Cooke, a former FLDS member, and his wife. Cooke left the church at age 18 or 19 and moved to Phoenix where subsequently he was severely injured in an accident.  After receiving the lease for land in Colorado City, Cooke and his wife moved back in a trailer home, but the city refused to provide water, electricity and sewer service.  Cooke in this case sued for damages under the federal and state fair housing acts and under 42 USC 1983, alleging that Colorado City engaged in religious and disability discrimination. Meanwhile, after the Utah federal court invalidated the state court's appointment of the special fiduciary, Robert Black, the prior occupant of the Colorado City land leased to the Cooke's, filed an action in Arizona federal district court seeking a declaration that he is the rightful occupant. The court in this decision refused to stay proceedings in Cooke's lawsuit. The city had sought a stay pending the outcome of Black's declaratory action.

President Speaks At Jewish American Heritage Month Reception

On Tuesday, President Barack Obama spoke (full text of remarks) at a reception in honor of Jewish American Heritage Month held in the East Room of the White House.  He said in part:

This month is a chance for Americans of every faith to appreciate the contributions of the Jewish people throughout our history –- often in the face of unspeakable discrimination and adversity. For hundreds of years, Jewish Americans have fought heroically in battle and inspired us to pursue peace. They’ve built our cities, cured our sick. They’ve paved the way in the sciences and the law, in our politics and in the arts. They remain our leaders, our teachers, our neighbors and our friends.

Not bad for a band of believers who have been tested from the moment that they came together and professed their faith.

(See prior related posting.)

15% of Kentuckians Opt For "In God We Trust" Plates

After a long battle, in January the state of Kentucky began offering "In God We Trust" license plates as a standard-issue alternative to the "Unbridled Spirit" plate. (See prior related posting.) Christian Post reported yesterday that so far 50,261 Kentuckians have opted for this new plate with the national motto, while 275,459 have taken the "Unbridled Spirit" plate.

Groups Push For Arlington Cemetery Monument To Jewish Chaplains

Chaplains Hill in Arlington National Cemetery contains the graves of a number of military chaplains and three monuments to chaplains-- one to chaplains who died in World War I; one to Protestant Chaplains who died in World Wars I and II; and a third to Catholic chaplains who died in World War II, Korea and Vietnam. However there is no monument to the 13 Jewish chaplains who have died on active duty since World War I. CNN reported earlier this month on the efforts of Jewish groups to obtain Congressional authorization for a monument to them. Private funds have already been raised and a design for the monument has been created. The Jewish Council for Public Affairs yesterday reported on progress so far:

In the House, through the urging of Representative Anthony Weiner (D-NY), Chairman Jeff Miller (R-FL) included the text of the Jewish chaplains resolution as part of H. R. 1627, a larger bill issuing guidelines for memorials at Arlington. The bill is expected to be voted on in the House on May 23rd.

The Senate Veterans Affairs Committee is similarly working on a larger bill regarding memorials at Arlington, and this committee also intends to include the Jewish chaplains resolution as part of this bill. The Senate is still collecting co-sponsors for S.Con.Res. 4, the Jewish chaplains resolution.

Waiter Charges Waldorf Astoria With Hostile Work Environment

The New York Observer reported yesterday on a hostile work environment lawsuit filed recently in state court by Mohamed Kotbi, a banquet waiter at New York City's Waldorf Astoria Hotel. Kotbi, who was born to an elite family in Morocco, has worked at the Waldorf for over 25 years. He says his problems began shortly after 9-11. When the hotel hosted a large memorial service for employees and family members of Bear Stearns, Kotbi's supervisor removed his "Mohamed" name tag and replaced it with one reading "John," telling Kotbi that they did not want to scare guests. Shortly after this incident, other waiters began to harass Kotbi, calling him names such as "al Queda boy." Kotbi twice has filed complaints with the EEOC. Sometimes Kotbi has been able to use his real name, but recently he again was told to wear a tag with a different name during a fund-raiser at the hotel for Friends of the Israeli Defense Forces. According to MyFoxNY, the Waldorf has issued a statement denying the charges and saying that Kotbi has a long history of unfounded workplace complaints.

Pro-Lifer Counterclaims Against DOJ, Claiming Interference With Speech and Free Exercise Rights

Last month, the U.S. Department of Justice filed a civil complaint under the Freedom of Access to Clinic Entrances Act against Angel Dillard, a Kansas woman who sent an intimidating letter to Wichita physician, Dr. Mila Means, who was training to offer abortion services. The letter read in part: "You will be checking under your car everyday- because maybe today is the day someone places an explosive under it." The lawsuit seeks an order barring Dillard from contacting the doctor or coming with 250 feet of her, her home, car or place of business. (Justice Dept. press release, 4/7/11). The Wichita Eagle and KNSS Radio News reported today that after a ruling last month by the court that while Dillard's letter was meant to intimidate, it was not a true threat, Dillard has filed a counter-claim seeking damages against the government. Her counter-claim alleges that the government's actions "have had, and continue to have an unlawful chilling effect on Defendant's and others' right to free speech and free exercise of religion." It also contends that the government has interfered with Dillard's right to worship where she chooses because her church is located less than 250 feet from Dr. Means' office.

New Study Focuses On Causes of Sexual Abuse By Priests

The New York Times and Religion News Service both have advance reports on a study that is to be released today by the U.S. Conference of Catholic Bishops titled The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950-2010. The study was carried out by researchers at the John Jay College of Criminal Justice and was funded largely by the bishops and Catholic organizations.  Here are some excerpts for the RNS summary of the 150-page [corrected] study:

The first myth challenged by the study is that priests tend to be pedophiles. Of nearly 6,000 priests accused of abuse over the past half century (about 5 percent of the total number of priests serving during that period), less than 4 percent could be considered pedophiles, the report notes—that is, men who prey on children....

Second, the researchers found no statistical evidence that gay priests were more likely than straight priests to abuse minors.... The disproportionate number of adolescent male victims was about opportunity, not preference or pathology, the report states.

What’s more, researchers note that the rise in the number of gay priests from the late 1970s onward actually corresponded with “a decreased incidence of abuse—not an increased incidence of abuse.”

Similarly, celibacy remained a constant throughout peaks and valleys of abuse rates, and priests may be less likely to abuse children today than men in analogous professions.... Better preparation for a life of celibacy is key, however, and improved seminary training and education in the 1980s corresponds to a “sharp and sustained decline” in abuse since then—a dramatic improvement that has often been overlooked.

The huge spike in abuse cases in the 1960s and 1970s, the authors found, was essentially due to emotionally ill-equipped priests who were trained in earlier years and lost their way in the social cataclysm of the sexual revolution.

UPDATE: Here is the full text of the report, along with a press release from the Conference of Bishops and other related material.

100,000 Want Religious Education As Part of British Core School Subjects

Last year, Britain's Department of Education introduced the English Baccalaureate which ranks schools according to students' performance in five key subjects-- English, mathematics, history or geography, the sciences and a language. BBC reports today that a petition containing more than 100,000 signatures was handed to the government this week demanding that Religious Education be added to the core subjects. Religious leaders have argued that without this, a generation of children will have no knowledge of the role of faith in society. Proponents say the petition should lead to a Parliamentary debate in line with promises by the Prime Minister during the election that any petition receiving over 100,000 signatures would be eligible for Parliamentary debate.

Catholic Hospital Is Exempt From Washington State Anti-Discrimination Law

In Harris v. Providence Everett Medical Center, (WA App., May 16, 2011), a Washington state appellate court held that a hospital whose parent company is sponsored by a Catholic religious order, the Sisters of Providence, comes within the statutory exemption (RCW 49.60.040(11)) in the state's anti-discrimination law for non-profit "religious or sectarian" organizations. Plaintiff in the case, who claimed pregnancy discrimination, had argued that the hospital was estopped from asserting the religious exemption because of non-discrimination promises made in its employee handbook, but the court found she did not show that she was ever given a copy of the handbook or that the policy in it, as opposed to that in the union's collective bargaining agreement, applied to her.

Group Promotes Options For Prayer At Graduation Ceremonies

Liberty Counsel yesterday announced its Ninth Annual "Friend or Foe" Graduation Prayer Campaign designed to "educate and, if necessary, litigate to ensure that prayer and religious viewpoints are not suppressed during graduation ceremonies." A legal memo that the group has produced says:

Prayer can still be conducted at public school graduations if school officials use secular criteria to invite the speaker, and once there, the speaker voluntarily prays. A valedictorian, salutatorian, or class officer can also voluntarily pray as part of the ceremony. The student body can elect a class chaplain or elect a class representative for the specific purpose of prayer. Part of the school program can be given over to the students and therefore be student-led and student-initiated. A parent and/or student committee can create and conduct part of the ceremony and, therefore, avoid state involvement. The ceremony can be conducted off the school premises by private individuals, and therefore no state involvement would occur. The school may also adopt a free speech policy which allows the senior class an opportunity to devote a few minutes of the ceremony to uncensored student speech that can be secular or sacred. Finally, private individuals can sponsor public school graduations on or off the public campus.

Moldova Registers Muslim Group

Radio Free Europe yesterday reported on reaction to the decision by Moldova's Justice Ministry last month to officially register the Islamic League as an NGO representing Moldova's Muslims.The head of the Orthodox Church, Metropolitan Vladimir, called the recognition "a humiliation" for the country's Christians.  Opposition to the recognition has become an issue used by the county's conservative Communist Party to consolidate its base in advance of June's local elections.

4th Circuit Oral Arguments In County Commissioners' Prayer Case Now Available

The U.S. Fourth Circuit Court of Appeals now has posted online a recording of the oral arguments in Joyner v. Forsyth County, North Carolina. In the case, a federal district court ruled that the Forsyth County Board of Commissioners' invocation policy, as implemented, violates the Establishment Clause because they advance one particular faith and have the effect of affiliating the Board with that faith. (See prior posting.) Last week's Christian Post reports on the oral arguments. Don Byrd also has transcribed excerpts from the arguments.

Fired Church Bookkeeper's Suit Dismissed; Involves Church Discipline of Priests

The Louisville (KY) Courier-Journal reports that a Jefferson County (KY) state court judge has dismissed a lawsuit brought by a former bookkeeper at Louisville's St. Therese Catholic Church who claims she was fired for objecting to the fact that a priest who was on probation for sexually abusing a teenager was residing on parish property in violation of Archdiocese policy. (See prior posting.)  The court said in part:

The plaintiff's claims … all stem from their disagreement with how the Archdiocese of Louisville has dealt with priests who have either been convicted of, or accused of sexual misconduct.… State civil courts do not have authority to decide these disputes.

Pakistan Court Orders Shrine To Open At Night For Observance

In Pakistan, authorities have been closing Lahore's Shrine of Hazrat Bibi Pak Daman for security reasons after 8:00 p.m. each night.  Yesterday's Daily Times of Pakistan reports that a lawsuit has been filed challenging the closure as a violation of religious freedom because Muslims have the obligation to recite the Qur'an and offer prayers during the night. Yesterday the Lahore High Court issued an interim order granting partial relief. It ordered authorities to keep the shrine open all night on the annual urs-- the death anniversary of the saint honored by the shrine.

Civil Rights Commission Holds Hearing on Bullying as Colorado Governor Signs New Law

Last Friday, the U.S. Commission on Civil Rights held a briefing on the federal response to Peer-to-Peer Violence and Bullying. According to the release announcing the briefing, it was to concentrate on bullying where students are targeted due to their race, national origin, religion, disability, gender, or LGBT-status. A two-hour long video of testimony by numerous witnesses at the briefing has been posted online by the Commission. Meanwhile, on Friday Colorado became the 12th state to enact anti-bullying legislation as Gov. John Hickenlooper signed HB 1254 that focuses on bullying, including cyber-bullying, of students. The new law defines bullying broadly, but provides that it is not intended to prevent the expression of religious, political or philosophical views. Fox31 News and Passport Magazine both report on the new law. [Thanks to Michael Lieberman for the lead.]

Vatican Gives Bishops One Year To Develop Guidelines To Deal With Sex Abuse

Zenit reported yesterday that the Vatican's Congregation for the Doctrine of the Faith has instructed each country's Conference of Bishops to develop guidelines for dealing with sexual abuse of minors by clergy or members of religious orders.  In order to assist, the Vatican has released a Circular Letter that sets out suggested principles that should be reflected in these guidelines. An Introduction to the Abuse Guidelines by Cardinal Levada gives Bishops a May 2012 deadline for the submitting their guidelines to the Vatican. A summary of the Vatican's actions was also released by the Vatican Press Office. The Circular Letter suggests in part, the following principles:

The Church, in the person of the Bishop or his delegate, should be prepared to listen to the victims and their families, and to be committed to their spiritual and psychological assistance....

The accused cleric is presumed innocent until the contrary is proven.

Nonetheless the bishop is always able to limit the exercise of the cleric’s ministry until the accusations are clarified. If the case so warrants, whatever measures can be taken to rehabilitate the good name of a cleric wrongly accused should be done

.... Sexual abuse of minors is not just a canonical delict but also a crime prosecuted by civil law. Although relations with civil authority will differ in various countries, nevertheless it is important to cooperate with such authority within their responsibilities. Specifically, without prejudice to the sacramental internal forum, the prescriptions of civil law regarding the reporting of such crimes to the designated authority should always be followed. This collaboration, moreover, not only concerns cases of abuse committed by clerics, but also those cases which involve religious or lay persons who function in ecclesiastical structures.

Church's Challenge To Exclusion From Jail's Treatment Programs Is Dismissed

The Santa Rosa (FL) Press Gazette reports that last week a Florida federal district court dismissed a civil rights lawsuit that had been brought against the Santa Rosa County (FL) Sheriff's Office by a church and its pastor. The First Apostolic Church of Milton and its pastor Larry Webb claimed that the county jail's Interfaith Ministries Board and Sheriff Wendell Hall had excluded the church's substance abuse treatment program from the jail because of doctrinal differences over proper baptism rites. (See prior posting.) The jail's chaplain, however, says that the Church refused to permit anyone from the Interfaith Ministries Board to work with the program. Only members of the First Apostolic Church could run the classes. The jail changed treatment programs when the church stopped furnishing class rosters to the jail.

Cert. Denied In Challenge To Oath At Presidential Inauguration

Yesterday the U.S. Supreme Court denied certiorari in Newdow v. Roberts, (Docket No. 10-757, 5/16/2011). (Order List.) In the case, the D.C. Circuit Court of Appeals dismissed an Establishment Clause challenge to prayer and the use of "so help me God" by the Chief Justice in administering the oath at Presidential inauguration ceremonies. Two Circuit court judges voted to dismiss on mootness and standing grounds, while the third voted to dismiss on the merits. (See prior posting.) Chief Justice Roberts, who was one of the defendants in the case, did not take part in the Supreme Court's decision to deny review. The Christian Science Monitor reports on the decision. [Thanks to Bob Ritter for the lead.]

Cert. Granted In Case That May Impact Prisoner Free Exercise Claims

Today the U.S. Supreme Court granted certiorari in Minneci v. Pollard, (Docket No. 10-1104) (Order List) to determine the extent to which prisoners may bring Bivens actions for violation of their constitutional rights against employees of private companies that contract with the federal government to operate federal prisons where the company employees have no direct employment relationship with the government. (Petition for certiorari.)  The 9th Circuit held that an action could be brought by an inmate against guards employed by the private contractor who failed to take account of plaintiff's injured arm in their treatment of him. (Background from SCOTUS Blog.) While the case does not directly raise prisoner free exercise issues, many prisoner free exercise claims involve religious diets in prisons where the food service is handled by outside contractors. The availability of a free exercise claim against these employees may well be impacted by the court's ultimate decision in Minneci. However, separately, damage claims in these free exercise cases are significantly limited by the provision in 42 U.S.C. § 1997e(e) that precludes a prisoner from bringing an action for mental or emotional injury without a showing of physical injury as well.

Students Offered Prayer Before Public School Tests At Church

Atlanta's WSBTV last week reported on concerns of some parents about activities of members of Lilburn, Georgia's Mountain Park First Baptist Church.  Gwinnett County's Parkview High School was using the church building on Wednesday and Thursday for Advanced Placement testing because of space and crowding concerns at the school. As students entered the church building, church volunteers approached them offering to pray with them.  School officials asked the church to stop the practice, but apparently it continued on Thursday. The church's pastor said: "We never thought that would be an issue. We thought being able to help anybody particularly on a testing would be helpful to them."

Recent Articles and Books of Interest

From SSRN:

• Robin Bradley Kar, The Two Faces of Morality: How Evolutionary Theory Can Both Vindicate and Debunk Morality (with a Special Nod to the Growing Importance of Law), (Nomos: Evolution and Morality, New York University Press, 2012).
• William P. Marshall, Smith, Christian Legal Society, and Speech-Based Claims for Religious Exemptions from Neutral Laws of General Applicability, (Cardozo Law Review, Vol. 32, No. 5, 2011).
• Laura Underkuffler, Odious Discrimination and the Religious Exemption Question, (Cardozo Law Review, Vol. 32, No. 5, 2011).
• Andrew M. M. Koppelman, How Shall I Praise Thee? Brian Leiter on Respect for Religion, (San Diego Law Review, Vol. 47, No. 4, 2010).
• Matthew L. M. Fletcher and Peter S. Vicaire, Indian Wars: Old and New, (MSU Legal Studies Research Paper No. 09-11, May 4, 2011).
• Christopher C. Lund, Exploring Free Exercise Doctrine: Equal Liberty and Religious Exemptions, (Tennessee Law Review, Vol. 77, p. 351, 2010).
• Jessie Hill, Whose Body? Whose Soul? Medical Decision-Making on Behalf of Children and the Free Exercise Clause Before and After Employment Division v. Smith, (Cardozo Law Review, Vol. 32, p. 1857, 2011).
• Marci A. Hamilton, Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse, (Cardozo Law Review, Vol. 32, No. 5, 2011).
• Austin Caster, 'Charitable' Discrimination: Why Taxpayers Should Not Have to Fund 501(c)(3) Organizations that Discriminate Against LGBT Employees, (May 7, 2011).

From SmartCILP:

• Nicole McLaughlin, Spectrum of Defamation of Religion Laws and the Possibility of a Universal International Standard, 32 Loyola Los Angeles International and Comparative Law Review 395-426 (2010).

Recent Books:

• Syed Iqbal Zaheer (ed.), An Educational Encyclopedia of Islam, (East West Educational Tools, 2010), reviewed in OnIslam.
• Leila Ahmed, A Quiet Revolution--The Veil’s Resurgence, from the Middle East to America, (Yale Univ. Press, April 2011).

Court Rejects Challenge To Religious Workers Visa Rules

In Ruiz-Diaz v. United States, 2011 U.S. Dist. LEXIS 50433 (WD WA, May 10, 2011), a Washington federal district court rejected a challenge to immigration rules that treat religious workers applying to adjust their immigration status to become permanent residents differently from those in various other employment-based preference categories. Special immigrant visa holders, including religious workers, are precluded from filing their own form I-485 application until U.S. Citizenship and Immigration Service has approved their employer's Form I-360 petition on their behalf.  This creates a risk of the alien being treated as unlawfully present in the country-- a designation that is triggered if the I-485 is not on file before the alien's original 5-year visa period expires. Other aliens may file a Form I-485 concurrently with an employer's Form I-360. The court rejected plaintiffs' class action RFRA and Free Exercise claims, finding that plaintiffs had not shown a substantial burden on their free exercise of religion. It rejected plaintiffs' equal protection claim, finding that the rule was rationally related to deterring fraud. The court also rejected plaintiffs' due process challenge.