Republican Debate Includes Discussion of Church-State Issues and Attitudes Toward Muslims

Last night's CNN debate among 7 Republican candidates for the Presidential nomination included an extensive exchange on separation of church and state, and attitudes toward American Muslims. Here is a lengthy excerpt from the full transcript:

[Question from audience:] I'm just wondering what your definition of the separation of church and state is and how it will affect your decision-making.

KING: Governor Pawlenty, I want you to take that one first.

PAWLENTY: Well, the protections between the separation of church and state were designed to protect people of faith from government, not government from people of faith. This is a country that in our founding documents says we're a nation that's founded under God, and the privileges and blessings at that we have are from our creator. They're not from our member of Congress. They're not from our county commissioner.

And 39 of the 50 states have in the very early phrases of their constitutions language like Minnesota has in its preamble. It says this, "We the people of Minnesota, grateful to God for our civil and religious liberties," and so the Founding Fathers understood that the blessings that we have as a nation come from our creator and we should stop and say thanks and express gratitude for that. I embrace that.

(CHEERS AND APPLAUSE)

KING: Let's spend a little time talking. Let's spend a little bit of time talking about it.
Senator, let's start with you. Just what role does faith play in your political life? Are there decisions, certain issues where some might you just, let's meet with my advisers, what does my gut say, and others where you might retreat and have a moment of private prayer?

SANTORUM: I'm some who believes that you approach issues using faith and reason. And if your faith is pure and your reason is right, they'll end up in the same place.

I think the key to the success of this country, how we all live together, because we are a very diverse country -- Madison called it the perfect remedy -- which was to allow everybody, people of faith and no faith, to come in and make their claims in the public square, to be heard, have those arguments, and not to say because you're not a person of faith, you need to stay out, because you have strong faith convictions, your opinion is invalid. Just the opposite -- we get along because we know that we -- all of our ideas are allowed in and tolerated. That's what makes America work.

KING: Congressman Paul, does faith have a role in these public issues, the public square, or is it a personal issue at your home and in your church?

PAUL: I think faith has something to do with the character of the people that represent us, and law should have a moral fiber to it and our leaders should. We shouldn't expect us to try to change morality. You can't teach people how to be moral.

But the Constitution addresses this by saying -- literally, it says no theocracy. But it doesn't talk about church and state. The most important thing is the First Amendment. Congress shall write no laws -- which means Congress should never prohibit the expression of your Christian faith in a public place.

KING: OK. Great. Let's go down to Josh McElveen, and let's continue the conversation.

(CHEERS AND APPLAUSE)

MCELVEEN: Thank you.

While we're on the topic of faith and religion, the next question goes to Mr. Cain. You recently said you would not appoint a Muslim to your cabinet and you kind of back off that a little bit and said you would first want to know if they're committed to the Constitution. You expressed concern that, quote, "a lot of Muslims are not totally dedicated to this country."

Are American-Muslims as a group less committed to the Constitution than, say, Christian or Jews?

CAIN: First, the statement was would I be comfortable with a Muslim in my administration, not that I wouldn't appoint one. That's the exact transcript.

And I would not be comfortable because you have peaceful Muslims and then you have militant Muslims, those that are trying to kill us.

And so, when I said I wouldn't be comfortable, I was thinking about the ones that are trying to kill us, number one.

Secondly, yes, I do not believe in Sharia law in American courts. I believe in American laws in American courts, period. There have been instances -

(CHEERS AND APPLAUSE)

CAIN: There have been instances in New Jersey -- there was an instance in Oklahoma where Muslims did try to influence court decisions with Sharia law. I was simply saying very emphatically, American laws in American courts.

KING: So, on that point, Governor Romney let me come to you on this.

What Mr. Cain is saying that he would have -- my term, not his -- a purity test or a loyalty test. He would want to ask a Muslim a few question or a few questions before he hired them, but he wouldn't ask those questions of a Christian or Jew.

CAIN: Sorry. No, you are restating something I did not say, OK? If I may, OK?

KING: Please let's make it clear.

CAIN: When you interview a person for a job, you look at their -- you look at their work record, you look at their resume, and then you have a one-on-one personal interview. During that personal interview, like in the business world and anywhere else, you are able to get a feeling for how committed that person is to the Constitution, how committed they are to the mission of the organization --

KING: When I asked -- I asked this question the other night, though, you said you want to ask a Muslim those questions but you didn't you have to ask them to a Christian or a Jew?

CAIN: I would ask certain questions, John. And it's not a litmus test. It is simply trying to make sure that we have people committed to the Constitution first in order for them to work effectively in the administration.

KING: Should one segment, Governor -- I mean, one segment of Americans, in this case, religion, but in any case, should one segment be singled out and treated differently?

ROMNEY: Well, first of all, of course, we're not going to have Sharia law applied in U.S. courts. That's never going to happen. We have a Constitution and we follow the law.

No, I think we recognize that the people of all faiths are welcome in this country. Our nation was founded on a principal of religious tolerance. That's in fact why some of the early patriots came to this country and we treat people with respect regardless of their religious persuasion.

Obviously, anybody who would come into my administration would be someone who I knew, who I was comfortable with, and who I believed would honor as their highest oath -- their oath to defend and protect the Constitution of the United States.

KING: Mr. Speaker, go ahead.

GINGRICH: I just want to comment for a second. The Pakistani who emigrated to the U.S. became a citizen, built a car bomb which luckily failed to go off in Times Square was asked by the federal judge, how could he have done that when he signed -- when he swore an oath to the United States. And he looked at the judge and said, "You're my enemy. I lied."

Now, I just want to go out on a limb here. I'm in favor of saying to people, if you're not prepared to be loyal to the United States, you will not serve in my administration, period.

(APPLAUSE)

GINGRICH: We did this -- we did this in dealing with the Nazis and we did this in dealing with the communists. And it was controversial both times, and both times we discovered after a while, you know, there are some genuinely bad people who would like to infiltrate our country. And we have got to have the guts to stand up and say no. 

Republican Presidential Debate Covers Gay Marriage, DADT, Abortion Rights

Last night's CNN debate between 7 Republican candidates for the Presidential nomination included a lengthy exchange on same-sex marriage, repeal of "don't ask, don't tell" and abortion rights.  Here is the excerpt from the full transcript:

[JOHN] DISTASO:... Congresswoman Bachmann, let's turn to a serious subject.
New Hampshire is one of five states where individuals who happen to be gay can marry legally. This is a question of conflicting interest. I know you're opposed to same-sex marriage.
As president, would you try to overturn -- what influence would you use from the White House to try to overturn these state laws despite your own personal belief that states should handle their own affairs whenever possible and in many circumstances?

BACHMANN: Well, I do believe in the 10th Amendment and I do believe in self-determination for the states.

I also believe that marriage is between a man and a woman. I carried that legislation when I was a senator in Minnesota, and I believe that for children, the best possible way to raise children is to have a mother and father in their life.

Now, I didn't come from a perfect background. My parents were divorced. And I was raised by a single mother. There's a lot of single families and families with troubled situations. That's why my husband and I have broken hearts for at-risk kids and it's why we took 23 foster children into our home.

DISTASO: What would a President Bachmann do to initiate or facilitate a repeal law on the state level? Anything at all from the White House? Would you come into the state of New Hampshire, for instance, and campaign on behalf of a repeal law?

BACHMANN: I'm running for the presidency of the United States. And I don't see that it's the role of a president to go into states and interfere with their state laws.

(CHEERS AND APPLAUSE)

KING: On that point -- on that point, to voters out there for whom this is an important issue, let's try to quickly go through it. Let me start at this end, we'll just go right through. I'll describe it this way. Are you a George W. Bush Republican, meaning a constitutional amendment to ban same-sex marriage, or a Dick Cheney who, like I believe, the congresswoman just said, this should be made -- this decision, same sex marriage, should be a state's decision?

CAIN: State's decision.

QUESTION: Yes.

PAWLENTY: I support a constitutional amendment to define marriage between a man and woman. I was the co-author of the state -- a law in Minnesota to define it and now we have courts jumping over this.

KING: OK. Let's just go through this.

PAUL: The federal government shouldn't be involved. I wouldn't support an amendment. But let me suggest -- one of the ways to solve this ongoing debate about marriage, look up in the dictionary. We know what marriage is all about.

But then, get the government out of it. Why doesn't it go to the church? And why doesn't it to go to the individuals? I don't think government should give us a license to get married. It should be in the church.

KING: Governor Romney, constitutional amendment or state decision? ROMNEY: Constitutional.

KING: Mr. Speaker?

GINGRICH: Well, I helped author the Defense of Marriage Act which the Obama administration should be frankly protecting in court. I think if that fails, at that point, you have no choice except to (ph) constitutional amendment.

KING: We heard the congresswoman's answer, Senator.

SANTORUM: Constitutional amendment. Look, the constitutional amendment includes the states. Three-quarters of the states have to -- have to ratify it. So the states will be involved in this process. We should have one law in the country with respect to marriage. There needs to be consistency on something as foundational as what marriage is.

KING: Very quickly?

BACHMANN: John, I do support a constitutional amendment on -- on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

KING: All right, let me ask you another question. The Obama administration is in the process -- and Leon Panetta, who's the new defense secretary, will implement -- essentially, the repeal of "don't ask/don't tell" so gays will be allowed to serve openly in the military. I want to ask each of you -- and, again, if we can be quickly, because then we want to get to the voters question -- if you were president -- if you become president of the United States, now gays are allowed to serve openly in the military, would you leave that policy in place or would you try to change it, go back to "don't ask/don't tell," or something else?

CAIN: If I had my druthers, I never would have overturned "don't ask/don't tell" in the first place. Now that they have changed it, I wouldn't create a distraction trying to turn it over as president. Our men and women have too many other things to be concerned about rather than have to deal with that as a distraction.

KING: Leave it in place if you inherit the new Obama administration policy or try to overturn it?

PAWLENTY: John, we're a nation in two wars. I think we need to pay deference to our military commanders, particularly our combatant commanders, and in this case, I would take my cues from them as to how this affects the military going forward. I know they expressed concerns -- many of the combatant commanders did -- when this was originally repealed by the Obama administration.

KING: Congressman?

PAUL: I would not work to overthrow it. We have to remember, rights don't come in groups. We shouldn't have gay rights. Rights come as individuals. If we would (ph) have this major debate going on, it would be behavior that would count, not the person who belongs to which group.

(APPLAUSE)

KING: Leave it in place, what you inherit from the Obama administration or overturn it?

ROMNEY: Well, one, we ought to be talking about the economy and jobs. But given the fact you're insistent, the -- the answer is, I believe that "don't ask/don't tell" should have been kept in place until conflict was over.

KING: Mr. Speaker?

GINGRICH: Well, I think it's very powerful that both the Army and the Marines overwhelmingly opposed changing it, that their recommendation was against changing it. And if as president -- I've met with them and they said, you know, it isn't working, it is dangerous, it's disrupting unit morale, and we should go back, I would listen to the commanders whose lives are at risk about the young men and women that they are, in fact, trying to protect.

KING: Congresswoman?

BACHMANN: I would -- I would keep the "don't ask/don't tell" policy.

KING: So you would -- whatever the Obama administration does now, you would go -- try to go back? You'd try to reverse what they're doing?

BACHMANN: I would, after, again, following much what the speaker just said, I would want to confer with our commanders-in-chief and with -- also with the Joint Chiefs of Staff, because I'd want to know how it was being implemented and if it has -- had had the detrimental effects that have been suggested that will come.

KING: All right. Last word on this issue, Senator?

SANTORUM: The job of the United States military is to protect and defend the people of this country. It is not for social experimentation. It should be repealed. And the commanders should have a system of discipline in place, as Ron Paul said, that punishes -- that punishes bad behavior.

KING: Let's go back down to the floor here. Jennifer Vaughn has a question.

VAUGHN: Thanks, John.

Senator Santorum, staying with you for a moment, if I may, you are staunchly pro-life. Governor Romney used to support abortion rights until he changed his position on this a few years ago. This has been thoroughly discussed. But do you believe he genuinely changed his mind, or was that a political calculation? Should this be an issue in this primary campaign?

SANTORUM: I think -- I think an issue should be -- in looking at any candidate is looking at the authenticity of that candidate and looking at their -- at their record over time and what they fought for. And I think that's -- that a factor that -- that should be determined.

You can look at my record. Not only have I been consistently pro-life, but I've taken the -- you know, I've not just taken the pledge, I've taken the bullets to go out there and fight for this and lead on those issues. And I think that's a factor that people should consider when you -- when you look, well, what is this president going to do when he comes to office?

A lot of folks run for president as pro-life and then that issue gets shoved to the back burner. I will tell you that the issue of pro-life, the sanctity and dignity of every human life, not just at birth, not just on the issue of abortion, but with respect to the entire life, which I mentioned welfare reform and -- and the dignity of people at the end of life, those issues will be top priority issues for me to make sure that all life is respected and held with dignity.

(APPLAUSE)

KING: Governor Romney, let me give you -- take -- take 20 or 30 seconds, if there's a Republican out there for whom this important, who questions your authenticity on the issue?

ROMNEY: People have had a chance to look at my record and look what I've said as -- as I've been through that last campaign. I believe people understand that I'm firmly pro-life. I will support justices who believe in following the Constitution and not legislating from the bench. And I believe in the sanctity of life from the very beginning until the very end.

KING: Is there anybody here who believes that that's an issue in the campaign, or is it case closed?

(UNKNOWN): Case closed.

KING: Case closed it is. All right. Let's move on to the questions.
Tom Foreman is standing by up in Rochester.

FOREMAN: Hi, John. Representative Bachmann, I have a question for you. Governor Pawlenty says he opposes abortion rights except in cases of rape, incest, or when the mother's life is at stake. Do you have any problem with that position? And if so, why?

BACHMANN: I am 100 percent pro-life. I've given birth to five babies, and I've taken 23 foster children into my home. I believe in the dignity of life from conception until natural death. I believe in the sanctity of human life.

And I think the most eloquent words ever written were those in our Declaration of Independence that said it's a creator who endowed us with inalienable rights given to us from God, not from government. And the beauty of that is that government cannot take those rights away. Only God can give, and only God can take.

And the first of those rights is life. And I stand for that right. I stand for the right to life. The very few cases that deal with those exceptions are the very tiniest of fraction of cases, and yet they get all the attention. Where all of the firepower is and where the real battle is, is on the general -- genuine issue of taking an innocent human life. I stand for life from conception until natural death.

(APPLAUSE)

KING: All right. Governor Pawlenty, it was your position that was brought into the question. We'll give you a few seconds.

PAWLENTY: Well, this is a great example where we can look at our records. The National Review Online, which is a conservative publication, said based on results -- not just based on words -- I was probably the most pro-life candidate in this race.

As governor of the state of Minnesota, I appointed to the Supreme Court a conservative court for the first time in the modern history of my state. We passed the most pro-life legislation anytime in the modern history of the state, which I proposed and signed, including women's right to know, including positive alternatives to abortion legislation, and many others.

I'm solidly pro-life. The main pro-life organization in Minnesota gives me very, very high marks. And I haven't just talked about these things; I've done it.

UK Court Faces Prisoner Free Exercise Claim

A prisoner free exercise decision handed down last month by Britain's Administrative Court is interesting as a comparison to the approach under the 1st Amendment and RLUIPA routinely taken to such cases in the U.S. In Bashir, R (on the application of) v The Independent Adjudicator , (EWHC Admin., May 3, 2011), a devout Muslim prisoner on the advice of an imam was engaged in a 3-day personal fast in religious preparation for his Court of Appeal appearance when he was asked for a urine sample for a random drug test.  He was convicted of violating prison regulations when he refused to drink enough water to allow him to give a sufficient urine sample for the test.  The court reversed the conviction imposed by the independent adjudicator, holding that under Art. 9 of the European Convention on Human Rights it needed to be determined whether the interference with religion was proportionate to the end pursued. The court concluded:

There was no evidence before the Adjudicator which enabled him to conclude (as apparently he did) that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required to do so for the purposes of providing a MDT sample regardless of the circumstances. In any event some care needs to be taken before a Court accepts at face value assertions of an un-particularised sort that making reasonable adjustments would be too administratively inconvenient or too expensive to be contemplated.

UK Human Rights Blog reported on the decision last week. [Thanks to Peter Griffith for the lead.]

Recent Articles Of Interest

From SSRN:

• Thomas Charles Berg, The Story of the School Prayer Decisions: Civil Religion under Assault, (First Amendment Stories, Richard Garnett, Andrew Koppelman, eds., Foundation Press, 2011).
• Zachary R. Calo, Review of Defending Constantine by Peter Leithart, (Modern Age, Forthcoming).
• Aviva Orenstein, Once We Were Slaves, Now We are Free: Legal, Administrative, and Psychosocial Issues Raised by Passover Celebrations in Prison, (Indiana Legal Studies Research Paper No. 195, June 6, 2011).
• Michaek G. Freedman, Prosecuting Terrorism: The Material Support Statute and Muslim Charities, (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, pp. 1113-1147, 2011).
• Marie A. Failinger, Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court, (Michigan Journal of Race and Law, Forthcoming).
• Marie A. Failinger, Islam in the Mind of American Courts: 1800-1960, (Boston College Third World Law Journal, Forthcoming).
• Ruth E. Gavison, Can Israel Be Both Jewish and Democratic?, (R. Gavison, Israel as a Jewish and Democratic State, p. 115, 2011).
• Kevin Lee Brady, Religious Sincerity and Imperfection: Can Lapsing Prisoners Recover Under RFRA and RLUIPA?, (University of Chicago Law Review, 2011).
• Ross J. Corbett, Locke's Biblical Critique, (March 3, 2011).
• Nimat H. Barazangi, Why Muslim Women are Re-Interpreting the Qur'an: A Transformative Scholarship Activism, (Sept 16, 2010).
• Nomi Maya Stolzenberg, Righting the Relationship between Race and Religion in Law, (Oxford Journal of Legal Studies, 2011).

From SmartCILP and elsewhere:

• Jose Ambrozic, Beyond Public Reason on Energy Justice: Solidarity and Catholic Social Teaching, [Abstract], 21 Colorado Journal of International Environmental Law and Policy 381-398 (2010).
• Jorge O. Elorza, Secularism and the Constitution: Can Government Be Too Secular?, 72 University of Pittsburgh Law Review 53-117 (2010).
• Symposium: The Future of Rights of Conscience in Health Care: Legal and Ethical Perspectives. Preface by James W. Devine; articles by Lynn D. Wardle, Kent Greenawalt, Robert K. Vischer, Armand H. Matheny Antommaria, Robin Fretwell Wilson, Richard S. Myers, Jill Morrison, Micole Allekotte and T.A. Cavanaugh. 9 Ave Maria Law Review 1-206 (2010).
• Reviewing Douglas Laycock's Religious Liberty, Volume One: Overviews and History. Book reviews by Thomas C. Berg, Steven D. Smith and Jay Wexler; response by Douglas Laycock. 89 Texas Law Review 901-966 (2011).
• Signs of the Times: The First Amendment and Religious Symbolism. Essays by Peter Irons and Thomas C. Berg; panel discussion with Joseph Thai, moderator; Carl H. Esbeck, Eduardo Penalver, Kevin Theriot, Micheal Salem and Rick Tepker. 63 Oklahoma Law Review 1-100 (2010).
• Symposium. Civil Religion in the United States and Europe. Introduction by Silvio Ferrari; articles by Blandine Chelini-Pont, Pasquale Annicchino, Emmanuel Tawil, Alessandro Ferrari, Andrew Koppelman, Winnifred Fallers Sullivan, Frederick Gedicks, David Fontana, Pierre-Henri Prelot, Michael Perry, Marco Ventura, and Talip Kucukcan; afterword by Brett Scharffs. 41 George Washington International Law Review 749-1000 (2010).
• Meir Katz, The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application, Engage Volume 12, Issue 1, June 2011.
• Luke Goodrich, The Health Care and Conscience Debate, Engage Volume 12, Issue 1, June 2011.

Canadian School Board Proposes Elaborate Religious Guidelines

In Canada, Ontario's Hamilton-Wentworth school district has posted for comment an elaborate and interesting 11-page set of guidelines for religious accommodation in the schools. (Full text). Life Site News last week reported, however, that conservative Christian groups are criticizing the guidelines because of the guidelines' definition of what constitutes a protected religious creed:

Creed does not include secular, moral, or ethical beliefs or political convictions. This policy does not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that purport to have a religious basis, but which contravene international human rights standards or criminal law.

The head of the local Family Action Council contends that this language: "unjustly discriminates against Christians by re-defining religion to exclude moral beliefs."

Sri Lanka's Promotion of Buddha Statues Interferes With Secular Image of Nation

Sri Lankan diplomats are concerned about the Sri Lankan government's decision to send 26 Buddha statues to Sri Lankan missions overseas.  Today's Sri Lanka Sunday Leader reports that the move, organized by the Sri Lanka Bureau of Foreign Employment and the Presidential Secretariat last week, interferes with attempts to portray the country internationally as a secular state. The statues were sent to mark the 2,600th Sambuddhathva Jayanthi. Religious ceremonies surrounded the transport of the statues to Colmbo en route to their overseas destinations.

Recent Prisoner Free Exercise Cases

In Williams v. Book, 2011 U.S. Dist. LEXIS 59338 (ED CA, June 1, 2011), a California federal magistrate judge dismissed on qualified immunity and mootness grounds a claim by a Muslim inmate that he was entitled to a halal or kosher meat diet, not merely a religious vegetarian diet.

In Brown v. Department of Correctional Services, 2011 U.S. Dist. LEXIS 59633 (WD NY, June 2, 2011), a New York federal magistrate judge refused to permit an inmate to amend his complaint to allege discrimination based on the fact that he is an African-American Jew with a disability.

In Garner v. Livingston, 2011 U.S. Dist. LEXIS 59546 (SD TX, May 19, 2011), a Texas federal district court issued a declaratory judgment finding the Texas prison grooming policy a violation of RLUIPA insofar as it prevents a Muslim inmate from wearing a quarter-inch beard. However the court upheld the prison's policy requiring plaintiff to remove his Kufi and make it available for inspection when going to and from religious services.

In Durbin v. Cain, 2011 U.S. Dist. LEXIS 59853 (MD LA, June 3, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 59895, May 9, 2011), and permitted an inmate to move ahead with claims that he has been denied the right to congregate with members of his Jewish faith and to attend Jewish services at the main prison complex, and that prison officials refuse to recognize Jewish holy days.

In O'Neal v. Bailey, 2011 U.S. Dist. LEXIS 60331 (CD CA, June 2, 2011), a California federal magistrate judge dismissed with leave to amend a Christian inmate's complaint regarding three occasions on which deputies refused to notify the prison kitchen regarding problems with the vegan meals he was supposed to receive.

In Thomas v. Croft, 2011 U.S. Dist. LEXIS 60628 (SD OH, June 7, 2011), an Ohio federal magistrate judge rejected claims by a Seventh Day Adventist inmate regarding the refusal by prison authorities to relieve the inmate of a work assignment on one Friday evening.

In Williams v. Wong, 2011 U.S. Dist. LEXIS 60786 (ED CA, June 6, 2011), a California federal magistrate judge denied a habeas corpus petition, rejecting an inmate's claim that the parole board required him to participate in a faith-based 12-step program.

Azerbaijan Parliament Passes Amendments To Law on Religion

News.az reports that on Friday, Azerbaijan's Parliament passed controversial amendments to the country's Law on Religion.  Islamic religious organizations must now report to the Caucasus Muslims Department, while other religious groups must report to the State Committee for Working with Religious Structures or to the Ministry of Justice. Houses of worship can only operate at the legal address registered with the government, and can operate only after appointment of a clergyman by a religious center or the Caucasus Muslims Department.  According to an earlier report by Forum 18, the new law also raises from 10 to 50 the number of founders required to register a religious organization.

Indonesian Court Sentences 17 In Attack on Christian Churches

In Semarang, Indonesia, four panels of district court judges last week convicted 17 Muslims of destroying public property and assault in connection with sectarian violence that took place last February in the central Java town of Temanggung. (See prior posting.)  AFP reported that 16 of the defendants were sentenced to 5 months in jail and one was sentenced to 4 months after convictions relating to the burning of two Christian churches and the ransacking of a third as a mob of 1500, unhappy with the 5-yearsentence imposed by a court, demanded that a Christian man be sentenced to death for insulting Islam. One of the defendants was found to have sent text messages the day before the Christian man's trial on the order of a local Muslim cleric who apparently planned the attack.. Nine others, including the cleric, will receive verdicts this week.

California Prisons Will Permit Beards For Religious Reasons

The ACLU of Southern California announced earlier this week that the California Department of Corrections and Rehabilitation has agreed to amend its grooming policies so that inmates will be allowed to wear beards in accordance with their religious faiths.  The policy change comes in a settlement of a lawsuit filed earlier this year. In Basra v. Cate, (CD CA, filed 2/25/2011) (full text of complaint), the ACLU sued under RLUIPA on behalf of a Sikh prisoner who faced sanctions and exclusion from prison programs because he refused to shave his beard or cut his hair for religious reasons. The U.S. Department of Justice had also filed a parallel lawsuit. (See prior posting.)

Statue of Hindu God In Art Display Provokes Controversy

This week, the city of Coeur d'Alene, Idaho announced its newest art-on-loan program. Fifteen sculptures from around the country are on display in the downtown corridor and City Park for one year, or until they are sold if that is sooner. (Photos of sculptures.) While several of the sculptures have religious themes, the sculpture of the Hindu god Ganesha has created controversy according to reports in the Coeru d'Alene Spokesman-Review and KXLY News.  The head of the Kootenai County Constitution Party encouraged a protest yesterday, saying in a website posting titled "Idols come to Cour d'Alene" that the Ganesha sculpture is an "abomination" which was approved by the "godless group of individuals that manage the art of the city."  Meanwhile, a Hindu spokesman applauded the inclusivity that is represented by the Ganesha statue. (Daily India, 6/10).

Article Analyzes Salafi Anti-Christian Actions In Egypt

Today's Wall Street Journal carries a lengthy article titled As Islamists Flex Muscle, Egypt's Christians Despair.  It focuses on recent actions by Salafi militants, including physical attacks on Coptic Christians. It also focuses more broadly on Salafi goals:

Before President Hosni Mubarak was toppled on Feb. 11, the Salafis mostly confined themselves to preaching. Since then, they've entered the political arena, drawing crowds and swaying government decisions. Salafi militants also have blocked roads, burned churches and killed Copts.....

Until recently, fears of an Islamist takeover in Egypt centered on the Muslim Brotherhood, a much better known organization that's trying to project a new image of moderation. While many liberal Egyptians remain deeply suspicious of the Brothers' true intentions, the Brotherhood now says it accepts Copts—the Middle East's largest religious minority—in all government positions, with the possible exception of president.

By contrast, many Salafis believe it is forbidden by Islam for Christians to exercise political power over Muslims in any capacity, such as governors, mayors or ministers.

More Religious Challenges To Official Sports Uniforms Are Raised

In the wake of the disqualification of Iraq’s women’s soccer team by international sports officials because of the team’s insistence on a uniform that meets religious requirements (see prior posting), two more challenges to international sports uniform rules have been mounted. The Atlanta Journal Constitution and CNN reported yesterday that the U.S. Olympic Committee has asked the International Weightlifting Federation to review its rules after a 35-year old Muslim woman, an Atlanta resident, was disqualified from competing in a national competition in Ohio last December. IWF rules require that athletes wear costumes that are collarless and do not cover the elbows or knees.  Weight-lifter Kulsoom Abdullah usually wears loose long pants that extend below her ankles, a long-sleeve fitted shirt with a loose T-shirt over it, and a hijab covering her hair. Modifications create several problems. Judges need to see that the weight lifter's elbows and knees are locked during the lift. They also need to make certain that the individual is not wearing anything on her elbows that would give her a competitive advantage. The IWF technical committee will review the relevant rules on June 26 at a scheduled meeting in Malaysia. It will present a recommendation to the IWF executive board the next day.

Meanwhile, in Israel, an Orthodox Jewish player on the country’s women's national basketball team has been disqualified. FIBA Europe, the governing body for European basketball, says that its rules require that all members of a team be dressed alike. Naama Shafir wears a T-shirt under her jersey in order to comply with Jewish religious rules relating to modesty. AP  and JTA this week report that FIBA has refused to make an exception for Shafir so she can play in a tournament that opens June 18 in Poland. According to Haaretz, an Israeli appeal of the ruling was rejected on technical grounds. Shafir just completed her college studies in the United States, where she led the University of Toledo (Ohio) team to a  Women's NIT championship. (Background.) Officials had no problem with permitting Shafir to wear the modified uniform when playing in the U.S. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

1st Amendment Scholar Prof. Steven Gey Dies

Florida State University College of Law reports that First Amendment scholar, Prof. Steven Gey, died yesterday after a valiant struggle with ALS. (See prior posting.) Gey authored a casebook on Religion and State as well as numerous articles on First Amendment speech and religion issues. (Vita; bibliography; SSRN articles.) A 2007 article in Florida State's alumni magazine describes Gey's love of teaching and of "the discourse of ideas." [Thanks to Brian Sites for the information.]

Idaho City Settles RLUIPA Suit By Church

AP reported Wednesday on the settlement of a RLUIPA lawsuit that was filed last month in federal district court in Idaho. No Limits Christian Ministries had sued the city of Mountain Hope (ID) challenging the city's denial to the church of a conditional use permit that would allow it to worship in a vacant building it owned.  The suit claimed that religious groups were specifically excluded under the zoning law while other organizations were not.  The settlement provides that the church's use of its building will be treated as a permitted use under the zoning ordinance. The city's mayor said that he and city council were unaware of RLUIPA.

In Pakistani Province, Christian Finance Minister May Be Barred From Giving Budget Speech

In the Pakistani province of Punjab, the province's chief minister Shahbaz Sharif has created controversy by apparently going along with pressure from a number of members of his Pakistan Muslim League (Nawaz) Party (PML-N) to prevent the Party's current finance minister, a Christian, from delivering the annual budget presentation in the Punjab Assembly. According to yesterday's Sri Lanka Guardian, the controversy involves Kamran Michea, Punjab's minister for the Human Rights who more recently was also appointed finance minister after the PML-N's coalition with the Pakistan Peoples Party broke down.  Michea was elected to the Punjab Assembly in 2002 to fill one of the seats reserved for non-Muslim minorities. However several members of the PML-N say that only a Muslim should deliver the budget speech and are urging the Chief Minister to deliver it this year.  A senior PPP member of the Assembly says his members will walk out if the Chief Minister delivers the speech.

Mississippi High Court: Judge Misused Contempt Powers Against Lawyer Who Refused To Say Pledge

In Mississippi Commission on Judicial Performance v. Littlejohn, (MS Sup. Ct., June 9, 2011), the Mississippi Supreme Court upheld the public reprimand and assessment of $100 costs on a chancery court judge for misusing his powers of contempt.  Judge Talmadge Littlejohn ordered attorney Danny Lampley arrested for contempt when Lampley stood quietly and did not join in the recitation of the Pledge of Allegiance led by the judge.  According to the Clarion (MS) Ledger's report on yesterday's decision,  Lampley was held in jail for almost 5 hours. Judge Littlejohn admitted to the Judicial Performance Commission that his action violated Lampley's 1st Amendment rights and Littlejohn has agreed to change the way in which he leads the Pledge of Allegiance in the future. He will respect the rights of anyone who chooses not to join in the recitation.

Virginia County Reauthorizes 10 Commandments In Schools

The Giles County, Virginia school board has been struggling for months over whether and how copies of the Ten Commandments should be displayed in its schools. As previously reported, for ten years copies of the Ten Commandments had been displayed next to a copy of the Constitution. Last December they were removed after a complaint from the Freedom from Religion Foundation (FFRF). By January they were back up after community members complained about their removal.  But in February they were again removed. And again this was met with student and community protests. Now the Roanoke Times reports that last Tuesday, by a split vote, the school board again voted to restore the Ten Commandments to the schools, but this time with an elaborate resolution (full text) drafted with the advice of the Christian advocacy group, Liberty Counsel. The Ten Commandments are now to be included as part of a display of nine specified historical documents.  The posting of this display in any school can be financed by private parties, and a procedure is set out for others who want to finance the posting of additional historical documents. The FFRF and ACLU say they will file suit.

New USCIRF Commissioner Appointed

The U.S. Commission on International Religious Freedom announced that on June 7, President Obama appointed Azizah Y. al-Hibri to be a member of the Commission.  The new appointee is Professor of Law at the University of Richmond and founder of KARAMAH: Muslim Women Lawyers for Human Rights. Dr. al-Hibri will replace outgoing commissioner Imam Talal Eid.

IRS Announces Loss Of Non-Profit Status By Groups That Failed To File For 3 Years

The Internal Revenue Service announced yesterday that some 275,000 non-profit organizations have automatically lost their tax-exempt status because they failed to file their annual return (Form 990 or 990-N) for three consecutive years. Most of the organizations affected likely no longer exist. Churches, various church organizations, church-affiliated elementary and high schools and religious activities of religious orders are not affected since they are exempt from annual IRS filings. (IRS background). However other types of religious organizations are among those that have been affected. The IRS has posted a list of all the organizations which have lost their exemptions and has posted an FAQ document explaining how to restore tax exempt status.

9th Circuit Hears Oral Arguments In Ban On School Use of Primary Source Religious Books

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Nampa Classical Academy v. Goesling. (Audio recording of full arguments.) In the case, the trial court rejected a challenge by a state-funded charter school to a state policy that barred its use of the Bible, the Koran and other sectarian books as primary source teaching material. The district court held that the charter school is itself a political subdivision and has no rights to assert against the state that is controlling the content of governmental speech. (See prior posting.) Blog from the Capital reports on the oral arguments.

Circumcision Ban Ballot Efforts Dropped in Santa Monica

As previously reported, last month a proponent began efforts in Santa Monica, California to get on the ballot there a proposal to ban circumcision, identical to the one being voted on this fall in San Francisco. Now, according to the New York Times earlier this week, the proponent in Santa Monica is dropping her efforts to get the issue placed before voters. Jenna Troutman, creator of the website wholebabyrevolution.com , explained her change of heart:  "The religious opposition really rose up, and I never intended it to be about that at all. Ninety-five percent of babies who are circumcised have nothing to do with religion — that’s what I was focused on. Once I discovered this bill was not going to open up the conversation but was closing it down, I wanted no part of it."

Illinois Catholic Charities Sue To Maintain Adoption and Foster Care Policies That Exclude Same-Sex Couples

Three Illinois Catholic dioceses-- those of Springfield, Peoria and Joliet-- today filed a lawsuit in state court in Illinois seeking a declaratory judgement that they are acting within the law in offering adoption and foster care services only to married couples and to non-cohabiting single individuals and in refusing to place children with couples in same-sex civil unions. The lawsuit also seeks injunctive relief.  According to a press release from the Thomas More Society, the lawsuit was filed after the state Attorney General's office had issued a letter seeking information to determine whether Catholic Charities was in violation of the state's Human Rights Law by discriminating on the basis of religion, marital status or sexual orientation in screening potential foster or adoptive parents.

The complaint (full text) in Catholic Charities of the Diocese of Springfield-in-Illinois v. State of Illinois, (Cir. Ct. Sangamon Co., filed 6/7/2011), claims that the adoption agencies are not subject to the public accommodation provisions of the Illinois Human Rights Act or, if they are, that it would violate the Illinois Religious Freedom Restoration Act to apply the provisions to them. It also contends that Illinois new Religious Freedom Protection and Civil Union Act does not require them to change their practices because the Act protects "the religious practices of any religious body." Previously, three Illinois dioceses, including two of the plaintiffs in this litigation, had announced they were ending their adoption and foster care placements because of the potential effects of the new Civil Unions law. (See prior posting.)

Egypt Recognizes Muslim Brotherhood's New Political Party

Egypt's Committee of Party Affairs on Monday gave official recognition to the Freedom and Justice Party, according to a report today from the Egyptian Gazette. The Party was created by the Muslim Brotherhood, and has now met all the requirements of the New Parties Law. Meanwhile, AP reports that a Gallup poll released Sunday shows that only 15% of Egyptians support the Muslim Brotherhood, while 60% indicated no political preference. The poll also showed that 69% of Egyptians thought religious leaders should have an advisory role in writing national legislation. (See prior related posting.)

St. Xavier University Not Entitled To Exemption From NLRA

An NLRB Regional Director's decision last month ruled that adjunct faculty at Chicago's St. Xavier University are entitled to hold a collective bargaining election.  The decision in St. Xavier University, (NLRB Reg. 13, May 26, 2011) rejected the argument that the school is exempt from NLRB jurisdiction under 1st Amendment doctrines because of its religious character . The NLRB Director concluded that the university operates as a secular institution, not as one that has a "substantial religious character."  In supporting this conclusion, the Director wrote in part:

The Employer follows Ex Corde, which is the Catholic Church’s guiding document for universities to promote academic freedom. Under this document, faculty are left unfettered with regard to imbuing or inculcating students and curriculum with Church doctrine or religion.... Similarly, there is no evidence that the University would discipline or fire faculty if they did not hold to Catholic values.

In January, an NLRB regional director reached a similar result in the case of Manhattan College. (See prior posting.) Last month, the Cardinal Newman Society published a paper titled The NLRB's Assault on Religious Liberty, arguing: "The NLRB has claimed jurisdiction over Catholic colleges and universities for decades, forcing institutions to recognize faculty unions despite the potential interference with their ability to enforce their religious missions." [Thanks to Alliance Alert for the lead.]

Student Will Be Allowed To Wear Nose Stud In Settlement of Lawsuit

ACLU of North Carolina yesterday announced a settlement in a suit brought by a high school student who was suspended for wearing a small nose stud as an expression of her religious faith.  (See prior posting.) The Consent Order (full text) in Iacono v. Croom, (ED NC, June 6, 2011) provides that the student will be permitted to wear her nose stud as an expression of her religious faith. Also the school's policy on accommodation of religious beliefs will be modified so that in determining exemptions from provisions of the Dress Code the school will only look at whether a religious belief is sincerely held, and not also at whether the belief is central to a faith's religious doctrine

Army Appoints Military's First Hindu Chaplain

Huffington Post yesterday reported that the U.S. military has appointed its first Hindu chaplain and has developed a new badge for Hindu chaplains. It features the symbol "Om." On May 16, Army Captain Pratima Dharm moved from her position as a Chaplain Clinician at Walter Reed Medical Center Hospital to become the first Hindu member of the Army's chaplaincy corps.  Dharm earned her military commission in 2006 and previously served in Iraq where she was selected for the Army's Clinical Pastoral Education Program. Chinmaya Mission West and three lay leaders of Hindu services at the Pentagon served as endorsing agents for Dharm to become an Army chaplain.  Stars and Stripes last week carried an article on the multi-faith background that Dharm brings to her new position.

Soccer Official Bans Islamic Head Covering For Iran's Olympic Women's Team

Yesterday, Iran's women's soccer team was disqualified from competing in an Olympics qualifying match because of the head coverings which the women were wearing.  The Washington Post and AFP report on developments. In Iran, women athletes are required, in order to comply with Shiite Islamic requirements, to cover their head and body. In April 2010,the International Federation of Association Football (FIFA) announced that it would ban headscarves during the 2012 London Olympics.  Iran's Football Federation designed special headscarves that wrapped tightly around the head and neck, and claims that it obtained FIFA approval for them. However, yesterday a referee disqualified the team just before they were to take the field against Jordan in a qualifying round in Amman. FIFA says Iran was informed that covering the neck was banned for safety reasons. Marzieh Akbarabadi, the official in charge of women's sports in Iran, charges that the disqualification, imposed by the FIFA referee who was a Bahraini national, was politically motivated.  Iran has been a critic of the crackdown by Bahrain's Sunni rulers on Shiite protesters in Bahrain. Iran plans to file a formal complaint over the disqualification with FIFA.  If FIFA insists on its position, apparently Iran will refuse to participate in international competitions.

Newsweek Features "The Mormon Moment" In Public Life

Newsweek's Cover Story this week is on "The Mormon Moment."  An article titled Mormons Rock! argues in part:

No question the Church of Jesus Christ of Latter-day Saints is “having a moment.” Not only is Romney running again—this time, he’s likely to be competing against his distant Mormon cousin Jon Huntsman Jr. The Senate, meanwhile, is led by Mormon Harry Reid. Beyond the Beltway, the Twilight vampire novels of Mormon Stephenie Meyer sell tens of millions of copies, Mormon convert Glenn Beck inspires daily devotion and outrage with his radio show, and HBO generated lots of attention with the Big Love finale. Even Broadway has gotten in on the act, giving us The Book of Mormon, a big-budget musical about Mormon missionaries by South Park creators Trey Parker and Matt Stone and Avenue Q writer Robert Lopez that, with 14 nominations, is expected to clean up at the Tony Awards on June 12.

But despite the sudden proliferation of Mormons in the mainstream, Mormonism itself isn’t any closer to gaining mainstream acceptance. And nowhere is the gap between increased exposure and actual progress more pronounced than in politics. In recent weeks NEWSWEEK called every one of the 15 Mormons currently serving in the U.S. Congress to ask if they would be willing to discuss their faith; the only politicians who agreed to speak on the record were the four who represent districts with substantial Mormon populations. The rest were “private about their faith,” or “politicians first and Mormons second,” according to their spokespeople.

Czech Government Proposes Settlement For Nationalized Church Property

In the Czech Republic, another attempt is being made to settle claims of churches for property that was nationalized after the Communist takeover of Czechoslovakia in 1948.  An agreement between a government committee and religious orders reached in 2007 (see prior posting) did not obtain sufficient votes in Parliament for its approval. According to the Prague Daily Monitor last week, now a government commission has proposed that 56% of the churches' former property (mainly fields, forests and ponds) be returned to them, and that they be compensated the equivalent of $3.55 billion (US) over periods of up to 30 years for the remaining land. These figures may be adjusted as it is determined what to do with property now in military areas.

In an article last Friday, the Prague Daily Monitor reported additionally that the Defense Ministry, as part of a plan to reduce the number of military training areas, is willing to return additional forest land plus 5 church buildings on property now held by the military. This would reduce the compensation for remaining lands to $3.43 billion. These proposals will become the basis of negotiations with the Czech Ecumenical Council of Churches. The goal of the settlement is to make churches financially independent. Currently they receive the equivalent of  $9 million (US) from the government each year. The opposition Social Democratic Party has criticized the proposed settlement. It wants the settlement funds to go to a special foundation created by the government and managed by the churches.

Texas Governor Spearheads Christian Prayer Meeting For U.S. To Be Held In August

Reuters yesterday reported on an event initiated by Texas Governor Rick Perry-- "The Response: A Call To Prayer for a Nation In Crisis." Scheduled for Reliant Stadium in Houston, Saturday August 6, the event is billed as "a non-denominal, apolitical Christian prayer meeting [that] has adopted the American Family Association statement of faith." The AFA is financing the event. The event's website features an invitation to "Fellow Americans" from Gov. Perry which reads:

Right now, America is in crisis: we have been besieged by financial debt, terrorism, and a multitude of natural disasters. As a nation, we must come together and call upon Jesus to guide us through unprecedented struggles, and thank Him for the blessings of freedom we so richly enjoy.

Some problems are beyond our power to solve, and according to the Book of Joel, Chapter 2, this historic hour demands a historic response. Therefore, on August 6, thousands will gather to pray for a historic breakthrough for our country and a renewed sense of moral purpose.

I sincerely hope you’ll join me in Houston on August 6th and take your place in Reliant Stadium with praying people asking God’s forgiveness, wisdom and provision for our state and nation. There is hope for America. It lies in heaven, and we will find it on our knees.

[Thanks to Scott Mange for the lead.] 

U.S. Bishops Will Vote On Statement Opposing Physician-Assisted Suicide

According to a press release last week, the U.S. Conference of Catholic Bishops this month will debate and vote on a policy statement on physician assisted suicide. At the Bishops' Spring General Assembly, June 15-19, participants will vote on a document titled "To Live Each Day With Dignity." Concerned with a growing movement to legalize physician-assisted suicide, the draft document says that the practice does not promote compassion because its focus is on eliminating the patient, not on eliminating suffering.

Recent Articles of Interest

From SSRN:

• Alexander Volokh, Prison Vouchers, (University of Pennsylvania Law Review, Forthcoming).
• Nicholas Walter, The Status of Religious Arbitration in the United States and Canada, (Santa Clara Law Review, Forthcoming).
• Sadaf Mehmood, Islam and Modern Ideologies, (2011).
• Julio C. Colon, Choice of Law and Islamic Finance, (Texas International Law Journal, Vol. 46, No. 2, 2011).
• Edward A. Zelinsky, Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis, (Yale Law Journal Online, Vol. 121, p. 25, 2011).
• Mary Jean Dolan, The Cross National Memorial: At the Intersection of Speech and Religion, (Case Western Reserve Law Review, Vol. 61, No. 4, 2011).
• Michael Sant'Ambrogio and Sylvia A. Law, Baehr v. Lewin and the Long Road to Marriage Equality, (University of Hawaii Law Review, Vol. 33, 2011).
• Jackie Gardina, The Defense of Marriage Act, Same-Sex Relationships and the Bankruptcy Code, (May 23, 2011).
• Carolyn M. Evans and Beth Gaze, Discrimination by Religious Schools: Views from the Coal Face, (Melbourne Univeristy Law Review, Vol. 34, No. 2, 2010).

From SmartCILP:

• Conference: Laicite in Comparative Perspective. Foreword by Mark L. Movsesian; panel participation by Michael Simon, Mark L. Movsesian, and Marc O. DeGirolami, moderators; Douglas Laycock, Mark L. Movsesian, Nathalie Caron, Blandine Chelini-Pont, Rosemary C. Salomone, Emmanuel Tawil, Nina J. Crimm, Javier Martinez-Torr¢n and Elizabeth Zoller, panelists. 49 Journal of Catholic Legal Studies 1-142 (2010).

Church's RLUIPA Challenge To Zoning Denial Is Rejected

In Wesleyan Methodist Church of Canisteo v. Village of Canisteo, 2011 U.S. Dist. LEXIS 58586 (WD NY, June 1, 2011), a New York federal district court held that a church had failed to plausibly plead that denial of its zoning request by the Village of Canisteo, NY imposed a substantial burden on the church's free exercise rights under RLUIPA.  The city refused to permit building of a church in a light industrial zone. However, several other alternatives were available to the church, including building new structures on its existing property.

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.