Recent Prisoner Free Exercise Cases

In Hayes v. State of Tennessee, (6th Cir., June 1, 2011), the 6th Circuit rejected an inmate's claim that his free exercise rights were infringed when Tennessee Department of Corrections policies were applied to deny him white supremacist religious literature mailed to him, even though another inmate had been given access to the same material. However the inmate was permitted to move ahead with his claim that the denial violated his rights under RLUIPA. ABA Journal reports on the decision.

In Garret v. Billings, 2011 U.S. Dist. LEXIS 56460 (ED CA, May 25, 2011), a California federal magistrate judge  dismissed, with leave to amend, a Muslim inmate's complaint that he was only allowed two ounces of prayer oil per quarter and that he and other Muslims were denied access to the prison's multipurpose chapel.

In Reiss v. Stansel, 2011 U.S. Dist. LEXIS 56655 (D AZ, May 24, 2011), an Arizona federal district court permitted an inmate who claimed to be Jewish to move ahead with claims that he was not provided a kosher diet, was denied access to the facility's chapel, and denied access to a Torah and Siddur (prayer book). However the court dismissed his complaint regarding the lack of Jewish congregate services, and dismissed the official capacity claims against defendants.

In Rider v. Yates, 2011 U.S. Dist. LEXIS 57710 (ED CA, May 31, 2011), a California federal magistrate judge rejected a claim by a state prisoner that his rights were violated when unidentified prison mail room staff confiscated tarot cards, incense, an incense burner, and a set of gem stones sent as a donation to the Lefthand Path, a religion in which Plaintiff was a high priest.

In Davis v. Abercrombie, 2011 U.S. Dist. LEXIS 58011 (D HI, May 27, 2011), an Hawaii federal magistrate judge denied a change of venue from Hawaii to Arizona in a case brought by several inmates who were convicted in Hawaii but were moved to privately operated correctional facilities in Arizona. Plaintiffs claimed that the Arizona facility does not let them practice their native Hawaiian religion.

Child's Exposure to Santeria Ritual Constitutes Neglect-- No Free Exercise Claim Raised At Trial

In New Jersey Division of Youth and Family Services v. Y.C., (NJ App., May 27, 2011), a New Jersey appellate court upheld a finding of child neglect against a mother who "arranged for her seven-year-old daughter to be subjected to a ceremony in which the child was handed over to strangers [located through the Internet], pricked with a needle on various parts of her body, and forced to watch animals being strangled and having their throats cut." While this was apparently a Santeria ritual, at trial the mother denied that the ceremony was based on her religious beliefs and said that instead it was a ceremony intended to keep her daughter safe while the mother enlisted in the armed forces. On appeal, for the first time the mother raised free exercise claims.  However the court rejected them because there was no evidence at trial of a religious basis for the ritual, and indeed the mother's counsel specifically argued at trial that religion was not an issue in the case. Absent that defense, the appeals court found that the record supported the trial judge's finding of abuse and neglect.

UPDATE: Ernesto Pichardo from Church of the Lukumi Babalu Aye tells me by e-mail that the ceremony described in the case is not Santeria, but instead is consistent with priesthood ordination in the African based religion originating in the Congo, known as Palo Mayombe in Cuba and Diaspora.

Anti-Semitism In the San Francisco Anti-Circumcision Proposal? [Revised and Corrected Posting]

The Jewish Journal reported Friday:

The backers of a ballot initiative in San Francisco aiming to ban circumcision in that city have consistently maintained that their efforts are not anti-Semitic.

But the “Foreskin Man” comic book, which was written and edited in 2010 by the founder of a San Diego group supporting efforts to ban circumcision in San Francisco and Santa Monica, gives further credence to the accusation that so-called intactivists are in fact motivated by anti-Semitism.....

Lloyd Schofield is the official backer of the San Francisco initiative, which uses text from the group MGMbill.org, a San Diego-based group established by Matthew Hess. Hess is credited alongside the comic book’s illustrator and colorist on the comic’s website.

In response to a question about his motivations, Hess said that he and his supporters are, first and foremost, human rights activists.

(An earlier version of this posting incorrectly identified the writer of the comic book.)

UPDATE: The Anti-Defamation League on Friday issued a statement condemning "the grotesque anti-Semitic images and themes" in the Foreskin Man comic books. Also, Sunday's New York Times carries an article reviewing the situation titled "Efforts to Ban Circumcision Gain Traction in California." [Thanks to Steven H. Sholk for the lead to the Times article.] 

Update2: Eugene Volokh has posted an interesting discussion of the appropriate approach to evaluating harsh criticisms of religious or cultural figures because of their attitudes or actions that have secular effects-- like the Foreskin Man comic book.

Texas Legislature Passes Bill Allowing Condo Owners To Affix Mezuzahs To Door Frames

Last week the Texas Legislature passed and sent to the governor for his signature H.B. 1278 which bars condominium property owners' associations from adopting restrictive covenants that would prevent Jewish property owners or residents from placing a mezuzah on the door of their home. The law is limited to religious items whose display is motivated by the owner's or resident's sincere religious beliefs that are placed on the entry door or door frame and which are not over 25 square inches in size. The law allows condo associations to ban  and remove items that contain language or graphics that are patently offensive to a passer-by or which threaten public health or safety. A press release from Chabad on the bill's passage says that it is unclear whether or not Gov. Rick Perry will sign the bill into law.

Two More Illinois Catholic Adoption Agencies Opt Out Over Civil Unions

According to a report in today's Chicagoist, two additional Catholic dioceses have followed the lead of Rockford Catholic Charities. (See prior posting.) Separately, Catholic Charities of Peoria and Joliet have informed the Illinois Department of Children and Family Services that they will no longer approve couples for foster care and adoption because of Illinois' new civil union law. The Catholic social service organizations refuse to place children with unmarried cohabiting couples, and they are concerned that they may face liability for applying that policy to couples in same-sex or opposite-sex civil unions. The groups want legislation that will explicitly allow them to refer these couples to other adoption agencies.

U.S. House Holds Two Hearings On International Religious Freedom Issues

The U.S. House of Representatives Committee on Foreign Affairs has held two recent hearings on religious liberty issues. On June 2, the full committee held a hearing on Religious Freedom, Democracy, Human Rights in Asia: Status of Implementation of the Tibetan Policy Act, Block Burmese JADE Act, and North Korean Human Rights Act. Transcripts are available online of the prepared statements by Chairman Ileana Ros-Lehtinen, and witnesses Ambassador Robert King, Deputy Assistant Secretary Daniel B. Baer, Deputy Assistant Secretary Joseph Yun, Richard Gere of the International Campaign for Tibet, Chuck Downs of the Committee for Human Rights in North Korea, Aung Din of the U.S. Campaign for Burma, and Sophie Richardson of Human Rights Watch.

On June 3, the Subcommittee on Africa, Global Health and Human Rights held a hearing on Prioritizing International Religious Freedom in U.S. Foreign Policy. Transcripts are available online of testimony by USCIRF's Leo Leonard, Thomas Farr of the Religious Freedom Project, Joseph Grieboski of the Institute on Religion and Public Policy, and Brian Grim of the Pew Center's Forum on Religion and Public Life. [Thanks to Tom Farr for the lead.]

5th Circuit: Valedictorian's Prayer Is Back At Graduation Ceremony

The U.S. 5th Circuit Court of Appeals yesterday dissolved a Texas federal district court's temporary restraining order and preliminary injunction that had barred student speakers at Medina Valley High School in Texas from leading the audience in an invocation and benediction at today's graduation ceremonies. The valedictorian who planned to deliver one of the prayers had sought to intervene in the lawsuit. (See prior posting.) In a brief opinion in Schultz v. Medina Valley Independent School District,  (5th Cir., June 3, 2011), the court said:

On this incomplete record..., we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school sponsored.... [T]he school has apparently abandoned including the words "invocation" and "benediction" on the program.

According to the San Antonio Express News, the district court order had attracted attention from around the country. The district court had received some 500 calls protesting its decision and the AGAPE Movement  prepared to bus in demonstrators to support the students who wished to pray. The student who originally challenged the planned prayers says he and his family will not attend the graduation. [Thanks to Kelly Shackelford for the lead.]

Kentucky Appeals Court Upholds Convictions of Amish For Refusing To Display Vehicle Emblem

In Gingerich v. Commonwealth of Kentucky, (KY Ct. App., June 3, 2011), the Kentucky Court of Appeals upheld the convictions of nine members of the Old Order Swartzentruber Amish sect for violating KRS 189.820 that requires slow-moving vehicles (such as Amish horse-drawn buggies) to display a fluorescent yellow-orange triangle with a dark red reflective border.  Appellants argued that the statute infringed their free exercise of religion, free speech and that the statute was selectively enforced against them. The court rejected arguments by the Amish that the court should use a "strict scrutiny" test in determining whether the statute violated their religious freedom as protected by the Kentucky constitution. The court said that the statute:

does not infringe upon Appellants’ right to exercise their religion by restricting their religious worship rituals or enforcing compulsory conduct to which they are conscientiously opposed. Instead, the statute serves as a condition to utilizing a certain privilege: the use of state roads.

The court went on to observe:

Assuming arguendo that strict scrutiny is the appropriate analysis in this case, KRS 189.820 would still pass constitutional muster. Clearly, the compelling reason of the government is to promote highway safety for everyone who uses the roads. The argument that the Commonwealth failed to show such an interest is unreasonable.

Finally, the court rejected appellants' selective enforcement argument. The Louisville Courier Journal reports on the decision. (See prior related posting.)

Religious Freedom Ambassador Sworn In

Suzan Johnson Cook was formally sworn in yesterday as the U.S. Ambassador-at-Large for International Religious Freedom.  Secretary of State Clinton, speaking at Cook's swearing-in ceremony (full text of remarks) said in part:

she and I will work in very close partnership in defending the values that those of us in this room hold so dear. Now, there is no doubt we will be busy, because around the world authoritarian regimes abuse their own citizens, violent extremists attempt to exploit sectarian tensions, and religious freedom is under threat from both quiet intolerance and violent attacks. The Obama Administration is dedicated to the rights of all people everywhere. Everyone, no matter his or her religion, should be allowed to practice their beliefs freely and safely.

U.S. Will Not Attend Commemoration of Durban Conference Because of Anti-Semitism In Original Proceedings

AP reported yesterday that in a letter from Acting U.S. Assistant Secretary of State for Legislative Affairs Joseph Macmanus to New York Senator Kirsten Gillibrand, the administration disclosed that the U.S. will not participate in the United Nations' 10-year commemoration of the 2001 World Conference Against Racism. Macmanus said that the Durban process being commemorated "included ugly displays of intolerance and anti-Semitism." In December, Gillibrand had coordinated a letter signed by 18 Senators expressing concern about the Conference which will be held in New York City beginning Sept. 21. (Text of Gillibrand letter and her response to U.S. announcement.) At a State Department press briefing yesterday (full text), Department Spokesman Mark Toner confirmed the U.S. position. Numerous Jewish groups have applauded the Administration's decision.

9th Circuit Rejects Bid For Paid Position By Wiccan Prison Chaplain

In McCollum v. California Department of Corrections and Rehabilitation, (9th Cir., June 1, 2011), the U.S. 9th Circuit Court of Appeals rejected claims by a volunteer Wiccan chaplain in the California prison system that he should have been considered for one of the paid chaplaincy positions that now are given to Protestant, Catholic, Jewish, Muslim and Native American clergy.  The court concluded that many of the chaplain's claims were derivative of inmate's claims, and the inmate plaintiffs were dismissed because their claims were untimely or they had failed to exhaust administrative remedies. It rejected the chaplain's claims that he had eitehr third-party or taxpayer standing to assert the religious rights of Wiccan inmates.  Finally the court concluded that the trial court had properly dismissed the chaplain's own claims that he was denied equal protection of the laws, his claims that Title VII and the California Fair Housing Act had been violated, his retaliation claim, and his claim under RLUIPA. SF Weekly reports on the decision. (See prior related posting.)

2nd Circuit Upholds NYC Rule Barring After Hours School Use For Worship Services

In Bronx Household of Faith v. Board of Education of the City of New York, (2d Cir., June 2, 2011), the 2nd Circuit, in a 2-1 decision, upheld the New York Board of Education's policy that bars use of school facilities by outside groups after school hours for "religious worship services," even though facilities were available for many other kinds of activities. The majority, in an opinion by Judge Leval, concluded:

the challenged rule does not constitute viewpoint discrimination because it does not seek to exclude expressions of religious points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons only a type of activity – the conduct of worship services. We also conclude that because Defendants reasonably seek by the rule to avoid violating the Establishment Clause, the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the Free Speech Clause.

Judge Calabresi wrote a concurring opinion.  Judge Walker dissented, arguing that the regulation imposes "impermissible viewpoint discrimination against protected speech and is unsupported by a compelling state interest."

This is the fourth time the Court of Appeals was presented with the dispute involving attempts by Bronx Household of Faith to use school space for its Sunday worship services. (See prior posting.)  Reuters and the New York Law Journal report on the 2nd Circuit's decision.

Valedictorian Moves To Intervene In School's Appeal of Graduation Ban On Prayer

As previously reported, earlier this week a Texas federal district court judge in Schultz v. Medina Valley Independent School District, (WD TX, June 1, 2011), issued a preliminary injunction barring the official listing of an invocation or benediction in the graduation program for Medina Valley (TX) High School, and ordering school officials to instruct students previously chosen to deliver the invocation and benediction to change their presentation to be a statement of their own belief as opposed to leading the audience in prayer. The students are not to end their presentations with "amen" or a statement that they are praying in Jesus' name. School officials appealed the judge's order to the U.S. 5th Circuit Court of Appeals.  Yesterday, Liberty Institute [corrected] issued a press release disclosing that it has filed an emergency motion with the 5th Circuit on behalf of the school's valedictorian, claiming that the district court's order amounts to an unconstitutional prior restraint on her speech. The motion (full text) alleges:

[Valedictorian Angela] Hildenbrand intends that her graduation address include words on permissible subjects from a religious viewpoint. During her address, based upon her sincerely held religious beliefs, she desires to pray and speak the words ―Lord, ―in the name of Jesus, and ―Amen. She also intends to make clear that her words are in her personal capacity as a citizen and of her own choosing; her school has neither sanctioned nor condoned them.

Meanwhile yesterday, Texas Attorney General Greg Abbott announced that he had filed an amicus brief supporting valedictorian Angela Hildenbrand's position.

Victoria Parliament Votes To Expand Religious Exemptions To Equal Opportunity Act

After a narrow defeat last week resulting from one member of the Legislative Assembly missing the vote (see prior posting), yesterday in Australia, Victoria's Legislative Assembly passed the Equal Opportunity Amendment bill (full text). The bill creates additional exceptions to the state of Victoria's anti-discrimination law that takes effect next month.  One of the changes the bill makes is to eliminate the requriement that in order for religious bodies and religious schools to hire based on religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, they must show that conforming with the doctrines of the religion is an inherent requirement of the job. According to Parliament's Explanatory Memorandum:  "By removing the inherent requirements test, employment will become one of the types of action covered by the general religious exception to apply to a religious body in section 82 of the Principal Act."

The Melbourne Herald Sun reports that the debate in the Legislative Assembly was bitter.  Questions were raised as to whether it is legal to have a re-vote during the same session on a bill that was once voted down.  The government took the position that when the initial result was impacted because an MP accidentally missed the vote, a new vote is allowed by analogy to rules of Australia's federal Parliament. Opposition leaders claimed that Community Services Minister Mary Wooldridge actually deliberately missed the vote last week.  Also in the debate, opponents of the bill charged that Attorney General Robert Clark, who supported the bill, was homophobic.

Following passage by the Legislative Assembly, the Legislative Council passed the bill on its first reading.

Baptists Can Proselytize At Catholic Festival-- But No Bull Horns

A group of Baptist proselytizers have won the right to distribute pamphlets and speak with attendees on public streets around a Catholic Church where the Church annually holds a festival. However they are precluded from using bull horns to convey their views.  Since 2008, plaintiffs have proselytized with their anti-Catholic message at St. Symphorosa Church's annual Family Fest.  The festival is held on church grounds and the sidewalks surrounding the Church under a permit issued by the city. In Teesdale v. City of Chicago, 2011 U.S. Dist. LEXIS 57925 (ND IL, May 26, 2011), an Illinois federal district court held that police had probable cause in 208 to arrest one of the proselytizers, Frank Teesdale, for disorderly conduct for using a bullhorn to proselytize on the Festival sidewalks. However the court issued a declaratory judgment affirming the right of  nine or fewer members of the Garfield Ridge Church to distribute leaflets, speak to those in attendance (but not use a bullhorn), and to carry one 4-foot banner as well as non-pole signs on the public streets where the festival is being held. This decision disposes of issues not resolved in March 2010 decision by the court. (See prior posting.)

Proposed Bill On Holocaust Era Insurance Claims Splits Survivor Groups From Their Traditional Supporters

In 1998, a Memorandum of Understanding between European insurance companies, U.S. insurance regulators, as well as Jewish and Holocaust survivor groups, created the International Commission on Holocaust Era Insurance Claims (ICHEIC). The Commission completed its work in 2007, having offered or awarded $306.2 million to 48,000 claimants. (Background.)  As part of this process, in 2000 the United States negotiated an agreement with Germany in which the German government agreed to create a foundation whose funds would be used to compensate Holocaust victims who suffered losses from German insurance companies.  In return, the U.S. agreed that whenever a German insurance company was sued in a U.S. court on a Holocaust era claim, the State Department would submit a statement that it would be in the best interests of the U.S. for all claims to be settled through the ICHEIC.  Two judicial decisions have upheld this arrangement-- American Insurance Assoc. v. Garamendi, (US Sup. Ct., 2003) (state law pre-empted), and Weiss v. Assicurazioni Generali, S.P.A., (2d Cir., 2010) (private suits that fall within the ICHEIC process are pre-empted by U.S. foreign policy interests).

Today's New York Times reports on efforts in Congress on behalf of Holocaust survivors whose claims were not paid through the ICHEIC process. HR 890 (Holocaust Insurance Accountability Act of 2011) would validate state laws requiring disclosure of Holocaust era policies, and would authorize suits in federal court to enforce rights under Holocaust era policies.  This effort has created an unusual split between the interest of survivor groups on the one hand and those of the U.S. State Department and Jewish groups involved in setting up the ICHEIC on the other which oppose the proposed legislation.

FLDS Leader Seeks Preliminary Protections As To Evidence In Canadian Tax Trial

Another chapter in the many legal battles against the polygamous FLDS Church and its leaders is taking place in a federal tax court in Canada.  Winston Blackmore, one of the FLDS Church leaders who lives in Bountiful, British Columbia, has been assessed back taxes and $150,000 in penalties for allegedly under reporting $1.85 million in income.  Canadian Press reported yesterday that tax officials charge J.R. Blackmore and Sons, Ltd., a company majority-owned by Blackmore, evaded corporate taxes by reporting as business expenses large amounts that were in fact used to support Blakmore, his wives and his many children. The government contends that Blackmore's reported earnings were insufficient to support himself and his family.  Blackmore is challenging the back taxes and penalties in court in Vancouver.  Before the trial begins, he has filed a motion to ban publication of any information about polygamy that comes out in the proceedings, and for an order preventing evidence in this trial from being used against him in any future criminal proceedings charging polygamy if B.C.'s polygamy law is ultimately upheld as constitutional in other pending court proceedings. (See prior posting.)  The judge says he will rule on the publication ban on Friday, but will need longer to consider the motion regarding use of tax court evidence in later criminal proceedings.

Dalai Lama Gives Up Secular Powers, Thwarting Alleged Chinese Plans

AP reports that last Sunday in India, the parliament of the Tibetan government in exile passed, and the Dalai Lama signed, amendments to the Constitution of the Tibetan exile government. Renaming the government the Tibetan Administration, under the amendments the Dalai Lama gave up his formal position as political leader of the country and will, from now on, only make suggestions to the civil government. CNN reports that the new civil leader of the Tibetan government is Lobsang Sangay.  Yesterday's Morung Express explained in greater detail how these and other planned moves undercut extensive plans that China allegedly has to control Tibet in the future.

[The Dalai Lama's] next task will be replacing the current reincarnation-based selection process for his successor as Dalai Lama to one by nomination. As per his plans, his successor will be nominated during his own lifetime and will be an acknowledged scholar and an enlightened monk. This means that unlike the previous 14 Dalai Lamas, the 15th Dalai Lama will not be a child discovered through a traditional religious process and certified by a team of designated senior lamas as the reincarnation of the 14th Dalai Lama.

In the amended Constitution the provision of the traditional all-mighty ‘Council of Regents’ — a group of senior monks, Ministers and bureaucrats that takes over all powers of the Dalai Lama in the event of his death — also stands abolished. This change will automatically protect the ‘Government-in-Exile’ from any possible machinations by the Chinese during the 20-year-long ‘bardo’ — the period between the death and rebirth of a person. There are instances when China interfered in Tibet’s affairs using its influence on individual members of the ‘Council of Regents’. ....

Beijing today enjoys the privilege of having two Panchen Lamas under its physical control. It is in a position to parade dozens of ‘living Buddhas’ in front of Chinese and international TV from Tibet. It can also secure the services of senior Buddhist scholars and leaders from client countries who would happily endorse any Chinese sponsored ‘reincarnation’ of the Dalai Lama whenever the necessity arises.

But by giving up his temporal powers and proposing to change the succession system, the Dalai Lama has demolished the hopes of Beijing.

Group Asks California AG To Sue Preacher Who Falsely Predicted The Rapture

Yesterday, the Freedom from Religion Foundation announced that it has written the California Attorney General asking that the state investigate filing a civil fraud action against Rev. Harold Camping and his radio stations over their predictions of the Rapture. (Full text of letter.) The letter, citing provisions of the California Civil Code creating a cause of action for fraud, explained:

There are media reports of dozens of Camping's followers who liquidated their own assets to contribute tens and sometimes hundreds of thousands of dollars to Camping's organization, convinced (by Camping) that they would have no need for the money or material goods after May 21 and that they were needed by Family Stations Inc., in order to advertise for the proclaimed Rapture. Others incurred thousands of dollars in debt through extravagant purchases and family vacations, allegedly convinced (by Camping) that they should enjoy the world before its impending destruction. Some quit their jobs, sold or abandoned their homes, packed their families and moved in preparation for the 'end of the world.'...

The California Attorney General's Office has a duty to protect the public from predatory charities, and we hereby request that the Charitable Trusts Section investigate and, if appropriate, take legal action against Family Stations Inc. for its potential fraudulent misuse of charitable assets....

Thailand Attempting To Ban Religious Tattoo Tourism

Fox News reported yesterday that in Thailand, the Culture Ministry's Subcommittee on Safe and Creative Media has ordered provincial governors to end the "alarming trend" of foreign tourists obtaining tattoos of religious images on their bodies while in Thailand.  Apparently it has become popular in tourist destinations in Thailand for visitors to obtain tattoos of Buddha, Ganesh and Jesus. Culture Minister Niphit Intharasombat called these tattoos "culturally inappropriate."  He is seeking new legislation to outlaw the use of religious symbols for commercial purposes. In the meantime, governors are to seek voluntary cooperation in ending the tattoos. The Phuket Gazette carries photos of two examples or the tattoos, and says that the Ministry will face opposition trying to outlaw the tattoos. They are popular and profitable for tattooists. However Ladda Tangsupachai, director of the ministry's Cultural Surveillance Center, is concerned that tattoos on individuals such as prostitutes or go-go dancers would erode respect for religion, as would tattoos on inappropriate parts of the body.

Quebeckers Challenge Day Care Rules Eliminating Religion From Curriculum

In Canada yesterday, a coalition of Catholic and Jewish day care providers and parents filed a lawsuit seeking to enjoin new regulations in the province of Quebec that came into force on June 1. The new rules bar some 1,400 government-subsidized day cares from offering children activities that teach "a belief, a dogma or the practice of a specific religion." The rules particularly impact about 100 subsidized day cares that have a religious focus.  The Montreal Gazette and the Toronto Globe and Mail both report on the lawsuit. Plaintiffs, known as Quebeckers for Equal Rights to Subsidized Day Care, argue that the new rules are vague, discriminate against parents who believe that daycares should be an extension of the home and infringe freedom of religion protected by the Canadian Charter of Rights and Freedoms.

Store Owner Fails To Show City Plan To Resell His Property To Nearby Church

In Wardany v. City of San Jacinto, 2011 U.S. Dist. LEXIS 57148 (CD CA, May 27, 2011), a California federal district court rejected claims by a convenience store owner that the city's construction of a median on the road in front of his store that left him "land locked" was motivated by a desire to purchase his property and resell it to a nearby church. Among the claims dismissed by the court was an Establishment Clause challenge. The court concluded that plaintiff had not alleged any facts from which the court could infer that the city had plans to purchase and resell the property.

Roy Moore Could Announce His Presidential Candidacy Soon

According to Religion Dispatches yesterday, former Alabama Supreme Court Chief Justice Roy Moore has formed a Presidential exploratory committee and could announce his candidacy for the Republican nomination this Friday when he speaks at the Christian Reconstructionists Institute on the Constitution.  Moore is best known for his fight to deep a large Ten Commandments replica in the rotunda of the Alabama Supreme Court's building.

Bangladesh's Prime Minister Wants Islam As Official Religion, But Freedom For Other Religions As Well

Last year, Bangladesh's Supreme Court restored certain provisions in the country's 1972 Constitution, thereby reverting to provisions that affirm secularism in the country.  At the same time, Parliament crated a committee to propose amendments to the Constitution to comply with the Court's order. (See prior posting.) Now, according to On Islam yesterday, Bangladesh Prime Minister Sheikh Hasina has told the Parliamentary committee that she favors retaining Islam as the state religion in the constitution. Hasina wants the Arabic phrase "Bismillahir Rahmanir Rahim" (In the name of Allah, the Most Merciful, the Most Compassionate) to remain above the Constitution's Preamble.  She also wants to add a provision guaranteeing that all other religions may be practiced in peace in the country.

Israeli Ministry Recommends Steps To Deal With Cults

The Jerusalem Post reported last week on a report issued by a special task force of Israel's Ministry of Welfare and Social Affairs that focuses on activities of religious cults in Israel.  The study was undertaken after authorities last year arrested 60-year old polygamist Goel Ratzon. A raid on his compound led to charges against him of rape and incest, and provision of rehabilitative treatment for Ratzon's 17 wives and 39 children. The Ministry's new 48-page report recommends defining a cult as a group that converges around one person or idea and adopts thought and behavior-controlling methods. It also recommends creation of a new national agency that will immediately intervene in cult activities, and the creation of a hot line for reporting of cults.  The report contains recommendations on preventing individuals from joining cults, early intervention and rehabilitative therapy. The report says that 80 to 100 other cult groups are operating in Israel.

Joseph Grieboski, founder of the Institute on Religion and Public Policy, published an opinion piece yesterday at Huffington Post strongly criticizing the task force report, charging: "The Report derogatorily grouped together as so-called "cults" or "sects" approximately 80 belief systems and contains a blueprint for systematic, government-fueled intolerance directed at minority religious communities throughout Israel."

European Political and Religious Leaders Encourage Religious Freedom In Middle East

On Monday, Christian, Jewish, Muslim and Buddhist leaders (list of attendees) met in Brussels with leaders of the European Union. An EU press release says that:

This was the seventh in a series of annual meetings launched by [EU] President [Jose Manuel] Barroso in 2005. This is the second time that the meeting takes place in the context of the Lisbon Treaty which foresees in its Art 17 that the Union maintains an "open, transparent and regular dialogue" with religion, churches and communities of conviction. Today's meeting testifies once again of the importance that European institutions give to this dialogue.

Reuters reports on a news conference by European Parliament President Jerzy Buzek, European Commission President Jose Manuel Barroso, and European Council President Herman Van Rompuy held after the meeting. The leaders said they would defend religious freedom in the Middle East as part of their support for the spread of democracy in the Arab Spring.  European Council President Van Rompuy said: "there is no contradiction between Islam and democracy. This period of openness must be maintained after the revolutions and religious and other minorities must be respected." Meanwhile yesterday's New York Times published a front page article on ongoing tensions in Egypt between Coptic Christians and Muslims.

Hungary's Cabinet To Consider New Law On Churches

Politics.hu reports today that Hungary's cabinet will be presented within a few weeks with a proposed new law on churches.  It will prohibit the government from controlling or supervising churches. The bill will define churches as communities primarily engaged in religious activities, and will exclude from the definition activities such as data management, lobbying, psychical or parapsychology services, and medical and business ventures. The bill will define 9 groups as "historic churches" in Hungary: Catholic, Reformed and Lutheran, Jewish, various denominations of the Orthodox church, Unitarians, Baptists, Methodists and Pentecostals. It will then have other categories: "new Protestant churches" (such as the Faith Church), "religious communities recognised by Parliament", and "churches with considerable public activities that can conclude an agreement with the government." The law will define criteria for recognition as a church: a focus on religion, a creed, a 20-year history in Hungary, at least 1000 members and formal organizational documents and elections.

Collateral Attack On Santa Rosa School Consent Decree Is Limited By Court

Allen v. School Bord for Santa Rosa County, Florida, 2011 U.S. Dist. LEXIS 56853 (ND FL, May 20, 2011), is another installment in the long-running litigation over religious practices in the Santa Rosa county schools.  In 2010, a large group of parents, teachers, and students sought to enjoin the Santa Rosa school board and superintendent from enforcing a consent decree they entered in 2009 barring various religious practices in the schools. Plaintiffs claim that the consent decree violates their First Amendment rights and that it is now unenforceable because the original plaintiffs have graduated high school. (See prior posting.) In the current decision, the court concluded that under doctrines of res judicata teachers and official parent volunteers and chaperones, while acting in their official capacities, are precluded from bringing a facial attack seeking to invalidate the entire consent decree or enjoin enforcement of it in its entirety.  The court went on however to allow a more limited attack on the interpretation and application of the decree to private conduct of parents and teachers:

The plaintiffs have raised plausible claims that their individual rights based on private nonofficial conduct are being violated due to the manner in which the consent decree is being implemented or due to portions of the consent decree that they allege to be overly broad... These challenges are not barred by res judicata.... Any remedy that would require the court to impose a narrowing construction on a particular definition within the consent decree to ensure it is constitutionally applied, or that would require enjoining particular enforcement conduct by the School Board, will not invalidate the consent decree in its entirety.

[T]he remaining plaintiffs [other than teachers and parent chaperones] lack standing to seek to undo the consent decree in its entirety because they have no interest in the school's regulation of its employees' official-capacity conduct, except to the extent that the regulation of official conduct adversely impacts their own constitutional rights as private citizens in some specific manner.

States Are Enacting Numerous Anti-Abortion Statutes Since Republican Legislative Victories

Sunday's New York Times Magazine carries an article titled The Re-Incarnation of Pro-Life. It points out that since Republicans took control of over half the state legislatures this year, 64 new state anti-abortion laws have been enacted. Abortion rights proponents are being selective and strategic in determining which of these laws to challenge in court. They are filing suits on those that create the most serious problems and which are most likely to sway public opinion.

Some Recent and Forthcoming Books of Interest

Here are some recent and forthcoming books of interest:

• Thomas David DuBois, Religion and the Making of Modern East Asia, (Cambridge Univ. Press, April 2011).
• Robert Kimball Shinkoskey, Do My Prophets No Harm-- Revelation and Religious Liberty in the Bible, (Wipf and Stock, March 2011)
• John D. Wilsey, One Nation Under God, (Pickwick Publications, June 2011).
• Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience, (Harvard University Press, Sept. 2011).
• Thomas Albert Howard, God and the Atlantic: America, Europe, and the Religious Divide, (Oxford Univ. Press, March 2011).
• David Sorkin, The Religious Enlightenment: Protestants, Jews, and Catholics from London to Vienna, (Princeton Univ. Press, May 2011).
• Paul Rasor and Richard E. Bond (eds.), From Jamestown to Jefferson: The Evolution of Religious Freedom in Virginia, (Univ. of Virginia Press, April 2011).
• Elaine R. Thomas, Immigration, Islam, and the Politics of Belonging in France: A Comparative Framework, (Penn Press, Oct. 2011).

Many Churches Miss IRS Filing Deadline For Health Care Tax Credit

According to BNA's (May 20) Daily Report for Executives, thousands of churches with fewer than 25 full-time-equivalent employees missed the May 15 filing deadline to claim a 25% tax credit for health insurance premiums paid to their clergy and staff in 2010. Also to qualify, the average 2010 wages paid per full-time equivalent employee must have been less than $50,000.  Reporting on findings by the Evangelical Council for Financial Responsibility, the report says that the credit-- for both small businesses and small non-profits-- was part of last year's health care reform bill, the Patient Protection and Affordable Care Act. (Information from IRS). Churches operating on a later-than-year-end fiscal year for tax purposes still have time to claim the credit for 2010, and all small churches can claim the credit for 2011 by filing IRS Form 8941 and Form 990-T on a timely basis.

Obama Issues 2011 Memorial Day Proclamation Calling for Prayer for Peace

Last week, President Obama issued this year's Memorial Day Proclamation (full text) titled "Prayer for Peace, Memorial Day, 2011."  Pointing out that: "On this Memorial Day, we honor the generations of Americans who have fought and died to defend our freedom," the Proclamation designates today "as a day of prayer for permanent peace." It specifies 11:00 a.m. local time as "a period ... when the people of the United States might unite in prayer." The Proclamation also asks Americans to observe the National Moment of Remembrance at 3:00 p.m. local time today. The annual Proclamation is called for by federal law, 36 USC 116.

Malta Voters Approve Legalizing Divorce

The official results of yesterday's referendum in Malta on legalizing divorce show that the proposal was approved by a 52.67% majority. The Catholic Church in the 95% Catholic country had been urging a "no" vote. (See prior posting.) DI-VE reports that in a conciliatory statement Sunday, Maltese bishops said:

To those who had an active role on both sides, we would like to show you our sorrow if anyone felt hurt by any word or action from members of the Church, as much as we ascertain our unconditional forgiveness for all those we feel have hurt us. ...

We vow to engage in deep reflection to see how we can improve our work, so that the Christian family can truly be a strong force of love and stability in the centre of the Church’s life in our society.

According to the London Guardian, the vote was advisory, and it is now up to Malta's Parliament to enact a divorce law.  If it does, the Philippines will be left as the only country in the world where divorce is not permitted.  [Thanks to Pew Sitter for the lead.]

Orthodox Rabbis Suggest Rabbinical Consultation Before Sexual Abuse Is Reported To Police

The Forward last week reported on the May 15  "Halacha Conference for Professionals" sponsored by Agudath Israel of America held in Brooklyn (NY).  Agudath reflects the views of strictly Orthodox Jews.  Part of the conference focused on a recent ruling by a leading rabbinic authority, Rabbi Shalom Elyashiv, that Jews who have reasonable suspicion that a case of sexual abuse has taken place may go directly to secular law enforcement authorities, notwithstanding the usual requirement of Jewish law that disputes be taken to rabbinic courts. Appearing on a panel at the Brooklyn conference, Rabbi Shlomo Gottesman said that Elyashiv's ruling requires "reasonable suspicion", and that a rabbi with experience in these issues should be consulted as to whether this standard has been met before civil authorities are notified. Another panel member said that even teachers, social workers and other professionals who are mandated by state law to promptly report suspected cases of sexual abuse should first consult a rabbi. However, an Ocean County, New Jersey prosecutor whose jurisdiction includes a large Orthodox Jewish community said that this advice may violate New Jersey law.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Smith in Theory and Practice, (Cardozo Law Review, Vol. 32, No. 2055, 2011).
• Steven Aiello, Findings on Religious Freedom in Egypt, (December 21, 2010).
• Bernard M. Levinson and Joshua A. Berman, The King James Bible at 400: Scripture, Statecraft, and the American Founding, (The History Channel Magazine, pp. 1-11, November 2010).
• John M. Finnis, Religion and Public Reasons: Introduction, (John M. Finnis, Religion and Pulbic Reasons: Collected Essays, Vol. V, Oxford University Press, 2011).
• Yossi Nehushtan, The Links between Religion and Intolerance, (Philosophy and Theology, Vol. 23, No. 1, pp. 91-132, 2011).
• Christopher J. Eberle, Religion, Respect, and War: A Critical Examination of the Standard View on Religion and Coercion, (November 4, 2010).
• Yishai Blank, The Reenchantment of Law, (Cornell Law Review, Vol. 96, p. 633, 2011).
• Richard L. Cupp, Seeking Redemption for Torts Law – A Review of ‘Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse’ by Timothy D. Lytton (Harvard University Press 2008), (Journal of Law and Religion, Vol. 27, 2011).

From SmartCILP and elsewhere:

• Jana R. McCreary, Tell Me No Secrets: Sharing, Discipline, and the Clash of Ecclesiastical Abstention and Psychotherapeutic Confidentiality, 29 Quinnipiac Law Review 77-122 (2011).
• Mark Strasser, Public Policy, Same-Sex Marriage, and Exemptions for Matters of Conscience, [Abstract], 12 Florida Coastal Law Journal 135-161 (2010).
• Leonard A. Leo, Felice D. Gaer and Elizabeth K. Cassidy, Protecting Religions from “Defamation”: A Threat to Universal Human Rights Standards, 34 Harvard Journal of Law and Public Policy 769 (2011).

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.