Oregon Federal Judge Confirmed Over Objections To His Church-State Views

On Tuesday, the U.S. Senate, by a vote of 64-35, confirmed the nomination of Michael Simon as federal district judge for the district of Oregon. As reported by the Oregonian, Simon was originally nominated in 2010 and was approved by the Senate Judiciary Committee. However the full Senate never voted on the nomination. President Obama renominated Simon this year and he was again approved by the Judiciary Committee by a vote of 14-4. The opposing votes were all from Republicans.  Simon is a cum laude graduate of the Harvard Law School, worked for the Justice Department and then joined a Portland law firm. However Republican opposition to his nomination stemmed from Simon's long association with the ACLU.  Here, from the debate in the Congressional Record, are excerpts from Senator Charles Grassley's speech on the Senate floor that focused in large part on Simon's church-state views:

Throughout his career, Mr. Simon has advocated on behalf of the American Civil Liberties Union of Oregon as a pro bono attorney. But his involvement in the ACLU goes beyond mere representation of a client. Mr. Simon has been a member of the ACLU of Oregon since 1986. He is an active member of their Lawyers’ Committee and served as a board member from 1997 to the year 2004, the vice president for legislation 1997 to 1998, and vice president for litigation from 2000 to 2004....

The ACLU does hold very liberal views, and Mr. Simon has been the voice for those views. For example, Mr. Simon wrote a letter to the Tillamook County Courthouse in Oregon expressing the ACLU’s concern with religious Christmas signs and decorations. The letter encouraged the county to repeal its resolution that deemed the county a ‘‘Merry Christmas County.’’

On issue after issue, Mr. Simon refused to disassociate himself from legal and policy positions held by the ACLU,that are far outside the mainstream. This includes the legalization of drugs, the unconstitutionality of the death penalty, the unconstitutionality of the Pledge of Allegiance, the ACLU’s opposition to tax exemptions for churches and extreme views regarding separation of church and state.....

Mr. Simon appears to demand an absolute wall of separation between church and state, as opposed to the U.S. Government promoting a specific religion. He has argued against religious displays on public land, against religious visitors to schools, against a coach praying with his football players. I assume that means even if you’re praying that they don’t get injured. Mr. Simon has argued that it is unconstitutional under the establishment clause to teach intelligent design in public school science classes.

British Schools Stop Teaching Religious Education As They Emphasize Ebacc Subjects

The Guardian reports today that a poll by the National Association of Religious Education Teachers shows that 25% of state secondary schools and 31% of state elementary schools in Britain are no longer teaching religious education, even though the law requires them to do so.  Offerings religious education have dropped off since schools have begun to be graded on student achievement in five English Baccalaureate (Ebacc) subjects: English; math; science; history or geography; and foreign language. (See prior related posting.)

Geert Wilders Acquitted of Defaming and Inciting Hatred Against Muslims

Dutch right-wing politician Geert Wilders was acquitted by an Amsterdam court yesterday of charges of group defamation against Muslims, and incitement to hatred and discrimination against Muslims based on their religion and race. Radio Netherlands reports on the verdict. At issue were statements made by Wilders on websites, Internet forums, Dutch newspapers and his film Fitna. (See prior posting.) An English translation of the court's press release on the case presents more details on the verdict.  The court held that criticism of a religion is permissible.  It went on to conclude that certain statements that might be seen as incitement to discrimination nevertheless are allowed "because of the context of the public debate" in which Wilders spoke "as a politician."  At the time the statements were made, problems of a multicultural society and immigration were being discussed.  Wilders statements "raised public problems" and "do not cross criminal legal boundaries."  Prosecutors had previously attempted to dismiss the charges on free speech grounds, but an appeals court ordered the prosecution to move ahead. (See prior posting.)  Now lawyers for those who filed complaints against Wilders are considering taking the case to the United Nations Human Rights Council or to the European Court.

In an op-ed in today's Wall Street Journal, Wilders reacts to his acquittal, saying in part:

Yesterday was a beautiful day for freedom of speech in the Netherlands. An Amsterdam court acquitted me of all charges of hate speech after a legal ordeal that lasted almost two years. The Dutch people learned that political debate has not been stifled in their country. They learned they are still allowed to speak critically about Islam, and that resistance against Islamization is not a crime.

DC Circuit Upholds Ban On Anti-Abortion Chalking Protest In Front of White House

In Mahoney v. Doe, (DC Cir., June 21, 2011), a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of D.C.'s Defacement Statute that, among other things, prohibits writing or drawing on public property without the consent of the person in charge of the property.  Plaintiffs were denied permission to carry out an anti-abortion sidewalk chalk demonstration in front of the White House.  The court rejected both overbreadth and "as applied" free expression challenges.  Focusing on the "as applied" challenge, the court said :

[T]he Defacement Statute is content neutral, and substantially justified by the District’s esthetic interest in combating ...the defacement of public property. Because the District did not curtail Mahoney’s means of expression altogether, and allowed him to protest in front of the White House in other ways, the Defacement Statute is not unconstitutional as applied.

The court also rejected plaintiffs' claim that enforcing the statute against them violates the Religious Freedom Restoration Act because their protest was religiously motivated.  The court quoted prior precednt that held:

to make religious motivation the critical focus is . . . to read out of RFRA the condition that only substantial burdens on theexercise of religion trigger the compelling interest requirement.

Judge Kavanaugh also wrote a concurring opinion, declaring: "No one has a First Amendment right to
deface government property." (See prior related posting.)

French Fashion Designer On Trial For Anti-Semitic Tirade

AP reported yesterday that the trial of former Dior fashion designer John Galliano began yesterday. Galliano is charged with hurling anti-Semitic and racist remarks at strangers on two different occasions in a Paris cafe. French prosecutors are asking that Galliano be fined the equivalent of $14,400(US). Galliano says he remembers nothing of what he allegedly said. He was in the throes of serious alcohol and drug addiction at the time. (See prior related posting.)

Canadian Soccer Organization Says 15-Year Old Referee Cannot Wear Hijab

In Canada, Quebec's Soccer Federation has told a 15-year old Muslim girl that she cannot continue her summer job as a soccer game referee wearing her hijab (head scarf). Canadian Press reported yesterday that teenager Sarah Benkirane hopes to convince the Canadian Soccer Federation to put pressure on its  Quebec affiliate. The Quebec Federation says it is merely applying FIFA rules that bar officials from displaying personal, religious or commercial messages.

Lawsuit Challenges San Francisco Circumcision Ballot Measure

A lawsuit was filed in state court in California yesterday challenging the San Francisco ballot measure that seeks to ban circumcision.  The Los Angeles Jewish Journal reports that, while much attention has been directed to religious freedom concerns, this suit is based on a California Business and Professions Code, Sec. 460 which provides:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

Plaintiffs in the lawsuit include two Jewish community organizations, three Jewish families, one Muslim family and two doctors.  They allege that it would be misleading to include the proposal on the ballot if the city lacks the power to enact it.

UPDATE: Here is the full text of the complaint in Jewish Community Relations Council of San Francisco v. Arntz, (CA Super. Ct., filed 6/22/2011).

Atheists Complain Over Renaming of Brooklyn Street As "Seven In Heaven"

Monday's Brooklyn Paper reports that American Atheists has complained over the renaming of a portion of a Brooklyn, New York street to honor seven firefighters who were among those killed at the Twin Towers on 9-11.  The new street sign in honor of the men reads "Seven In Heaven Way." American Atheist spokesman David Silverman said: "It’s improper for the city to endorse the view that heaven exists. It links Christianity and heroism." Community Board 6 member Tom Miskel responded: "Almost every religion has some form of heaven. It’s not just specific to Christianity."

Australian Judge Acquits Woman Who Could Not Be Identified Because She Wore Burqa

A new debate over women wearing the burqa has broken out in Australia after a district court judge on Monday reversed a magistrate's conviction of a woman for filing a false police report.  Carnita Matthew was charged after a police video proved false a claim that police tried to tear her burqa off her face when she was stopped for  a random traffic breath test and then cited for improper display of her license plates. The judge reversed the conviction because the woman who filed the police report was wearing a burqa at the time and the court concluded that it could not be proved beyond a reasonable doubt that the woman was Ms. Matthew. He was also unconvinced that the woman filing the report knew it was false.  Australia's Telegraph, reporting on the case, says that Matthew has a long history of traffic tickets and non-payment of traffic fines. The government is considering a new requirement that anyone giving a report to police furnish a fingerprint along with their signature.  The government is waiting for the judge's full written opinion before deciding whether to appeal.

Groups Urge Obama To End Religious Hiring By Faith-Based Government Contractors

A group of 52 national organizations yesterday sent a letter (full text) to President Obama urging him to rescind an executive order issued in 2002 by President George W. Bush that allows religious organizations which contract with the government to nevertheless use religious criteria in their hiring. According to a press release from Americans United, yesterday was chosen as the day to send the letter because it was the 70th anniversary of the country's first executive order barring discrimination by federal government contractors.  That order, issued by Franklin Roosevelt, prohibited employment discrimination by defense contractors on the basis of race, creed, color, or national origin. (See prior related posting.)  [Thanks to Michael Lieberman for the lead.]

Argentina Court Says Title "Rabbi" Cannot Appear Next To Candidate's Name On Ballot

In Buenos Aires, Argentina, a court has ruled that a rabbi who is heading the PRO party's list of candidates for city legislature may not use the title "Rabbi" next to his name on the ballot. Bergman was picked by Mayor Mauricio Macri to head the party list.  Haaraetz reported Monday that even though Rabbi Sergio Bergman, a prominent leader of Argentina's Jewish community, is best known to the public as Rabbi Bergman, the court held that the title "rabbi" has a positive connotation and thus cannot appear next to Bergman's name as it is presented to voters.

Lawsuits Challenge County School Voucher Program

Two lawsuits were filed yesterday challenging on state constitutional and statutory grounds a pilot school voucher program enacted by the Douglas County, Colorado, Board of Education.  At issue is a program that will provide up to 500 students now enrolled in the county's public schools scholarships to attend approved Private School Partners. Of the schools approved for the program so far, 14 of 19 are sectarian religious schools. The first of the two lawsuits (press release) was filed by the ACLU and Americans United. The complaint (full text) in LaRue v. Colorado Board of Education, (CO Dist. Ct., filed 6/21/11), alleges that the Choice Scholarship Plan violates numerous provisions of the Colorado constitution dealing with education and religious neutrality, as well as the state's Public School Finance Act. A second similar lawsuit was filed by Taxpayers for Public Education, an organization of Colorado parents and taxpayers. (Press release). Education News Colorado reports on the lawsuits.

Court Upholds Constitutionality of RLUIPA Land Use Provisions

In Chabad Lubavitch of Lichtfield County, Inc. v. Borough of Lichtfield, Connecticut, (D CT, June 20, 2011), a Connecticut federal district court upheld the constitutionality of several of the land use provisions of RLUIPA.  This holding allowed Chabad to move ahead with its RLUIPA challenge to Lichtfield's denial of its application to restore and add onto a Victorian building located in an historic district. (See prior posting.) However the court held that Chabad's rabbi (as opposed to the organization) lacked standing to pursue a RLUIPA claim because he had no property interest in the building separate from Chabad's.

In discussing the constitutionality of RLUIPA, the court held that any substantial burden on Chabad's free exercise here would necessarily burden interstate commerce because of the building construction involved.  It also concluded that RLUIPA does not violate the Establishment Clause merely because it singles out religion for protection against unequal treatment. [Thanks to Eric Treene for the lead.]

Court Says First Amendment Precludes Jurisdiction Over Suit For Injuries During Healing Service

In Kubala v. Hartford Roman Catholic Diocesan, 2011 Conn. Super. LEXIS 1260 (CT Super. Ct., May 20, 2011), a Connecticut state trial court dismissed a lawsuit brought against a Catholic priest, his church and the Hartford Diocese seeking damages for injuries plaintiff received when, during a Catholic Charismatic Renewal healing service, she was physically injured.  When plaintiff was "prayed over" during the service, she fell backward, hitting her head and sustaining painful injuries. She claimed the injuries were the result of defendants failing to exercise the degree of care usual for such services. The court concluded that the  federal and state constitutions' free exercise and establishment clauses preclude it from deciding the case.  The claim is essentially one of clergy malpractice. "[S]ince the plaintiff's claims are inextricably intertwined with the religious context in which the incident occurred, the court cannot apply neutral principles of secular law to this case."

Free Exercise Challenge To Health Care Reform Law Dismissed In April Decision

Calvey v. Obama, (WD OK, April 26, 2011), while decided two months ago, has just now appeared on LEXIS and has received little general attention.  It is a decision on standing and ripeness of challenges by numerous plaintiffs in an Oklahoma federal district court to the constitutionality of last year's federal health care reform act. In dismissing some, but not all, of the claims, the court rejected a free exercise claim by plaintiffs who argued that the Affordable Care Act forces them to contribute to the funding of abortion in violation of their rights of conscience and free exercise of religion. The court wrote:

Plaintiffs have failed to identify a provision of the ACA that requires them to contribute to the funding of abortion, much less identified a provision of the ACA that requires them to purchase health insurance from an insurer that provides insurance coverage for abortions and/or that any part of the premiums the Plaintiffs will pay for health care insurance will necessarily be used, at least in part, to pay for abortions. Absent such allegations, Plaintiffs have failed to allege a future or threatened injury that is concrete and not conjectural or hypothetical or one which is fairly traceable to the ACA or the actions of the Defendants.

Egypt's Al-Azhar Calls For Modern Democratic Nation

In Egypt, Al-Azhar, the country's pre-eminent center of Sunni learning, issued a document calling for the country to be a modern democratic state.  According to reports from AlMasryAlYoum and Daily News Egypt, the document that was drafted by Al-Azhar and a number of Egyptian intellectuals defines the relationship between Islam and the state, and is considered to be a draft constitution. It provides that sharia law should remain "the essential source of legislation," but calls for Christians and Jews to have their own judicial tribunals. It calls for "the protection of places of worship for the followers of the three monotheistic religions" and considers "incitement of confessional discord and racist speech as crimes against the nation." It provides for care for all Egyptians without discrimination on the basis of gender or religion, and lists health, education and scientific research as priorities. In a news conference announcing the document, Al-Azhar's Grand Imam Sheikh Al-Tayeb also called for the independence of Al-Azhar, with its imam being elected by Muslim Senior Scholars Authority instead of being appointed by the government.

Break-Away Presbyterian Church In Missouri Can Keep Its Property

According to The Layman Online, a Missouri state trial court has ruled in favor of the break-away Colonial Presbyterian Church, one of Kansas City's largest Presbyterian congregations, in its land ownership dispute with the Presbyterian Church USA. The congregation is one of many Presbyterian congregations that have moved their affiliation to the more conservative New Wineskins Association of Churches.  In Colonial Presbyterian Church v. Heartland Presbytery, (MO Cir. Ct., June 9, 2011), the court, applying the "neutral principles of law" approach, held that the provision in the PCUSA Book of Order that all property of a particular church is held "is held in trust ... for the use and benefit of the Presbyterian Church (USA)" is insufficient under Missouri law to create a trust over the church's property. [Thanks to Anglican Curmudgeon for the lead.]

Plaintiffs Voluntarily Dismiss Challenge To Parsonage Allowance.

A press release yesterday from the Pacific Justice Institute reports that the Freedom from Religion Foundation and 21 of its members, represented by Michael Newdow, have filed a voluntary dismissal of their federal court lawsuit challenging the constitutionality of the parsonage allowance given to clergy in the federal and California tax codes.  Apparently the dismissal was impelled by the fact that plaintiffs had not asked federal and state tax officials for relief before filing suit.

Britain's Equality Commission Releases Study on Religious Discrimination

Britain's Equality and Human Rights Commission yesterday released a report titled Religious Discrimination in Britain: A Review of Research Evidence, 2000-10.  The report says that its aims were:

to identify and review:
• quantitative and qualitative evidence of religious discrimination;
• any evidence about whether religious discrimination is increasing or decreasing;
• any differences in evidence between England, Wales and Scotland;
• ‘Islamophobia’ as a frame of reference for discrimination against Muslims; and
• gaps in the existing research and statistical evidence.

The Commission has also made available a related statistical briefing paper on Religion of Belief.

In a somewhat provocative interview with the Sunday Telegraph ahead of the release of the report, Commission Chairman Trevor Phillips said:

I understand why a lot of people in faith groups feel a bit under siege. They're in a world where there are a lot of very clever people who have a lot of access to the airwaves and write endlessly in the newspapers knocking religion and mocking God. The people who want to drive religion underground are much more active, much more vocal....

Our business is defending the believer. The law we're here to implement recognises that religious identity is an essential part of this society. It's an essential element of being a fulfilled human being.....

I think the most likely victim of actual religious discrimination in British society is a Muslim but the person who is most likely to feel slighted because of their religion is an evangelical Christian.

There are a lot of Christian activist voices who appear bent on stressing the kind of persecution that I don't think really exists in this country. There are some Christian organisations who basically want to have a fight and therefore they're constantly defining the ground in such a way that anyone who doesn't agree wholly agree with them about everything is essentially a messenger from Satan.

I think for a lot of Christian activists, they want to have a fight and they choose sexual orientation as the ground to fight it on. I think that whole argument isn't about the rights of Christians. It's about politics. It's about a group of people who really want to have weight and influence and they've chosen that particular ground.

Texas Governor Signs Mezuzah Bill

Last week Texas Gov. Rick Perry signed HB 1278 (full text).  The new law 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. When the bill was passed earlier this month, it was unclear whether or not the governor would sign it. (See prior posting.) Kate Shellnutt's blog at the Houston Chronicle reports on the bill's signing.

Priest Challenges Constitutionality of Law Barring Sex With Woman Seeking Spiritual Comfort

The St. Paul Tribune reports that in state court arguments today a Minnesota priest is challenging the constitutionality of a state statute, MN Stat 609.344,  that prohibits clergy from having sex with a person "during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private." The challenge comes as a defense in the prosecution of Catholic priest Christopher Wenthe for third-degree criminal sexual conduct for a year-long sexual relationship with a woman in her early 20's.  The woman had met Wenthe while attending a Catholic initiation class and later sought him out as a confessor. Wenthe's attorney says the statute is an overly broad attempt to regulate sexual behavior. He says the case raises the question of whether the woman could have a friendship with the priest that was not counseling under the statute. The Minnesota Supreme Court in the 2007 case of State v. Bussman rejected a vagueness challenge to the law, but divided equally on whether it violated the Establishment Clause. Ultimately it reversed defendant's conviction because the trial court had allowed church doctrine to become entangled with the meaning of the statute.

Pakistan TV Hosts First Religious Quiz Show

A leading Pakistani television channel, GEO TV, is broadcasting what it says is the first-ever large-scale religious quiz show.  According to Pakistan's The News, the game show Alif, Laam, Meem, which begins tonight, will be an entertaining attempt "to impart knowledge of religion in it’s entirety, be it Quran, Sunnah, religious history, literature, architecture or jurisprudence."

Charter School That Is Target of Establishment Clause Challenge Files Its Own Suit To Stay Alive

As previously reported, the ACLU of Minnesota is moving ahead with its Establishment Clause challenge claiming that a Minneapolis area charter school, the Tarek ibn Ziyad Academy, is promoting Islam. As reported earlier this month by the St. Paul Pioneer Press, new state legislation that takes effect June 30 bans out-of-state authorizers for charter schools, and in a settlement of the ACLU's litigation with it, Islamic Relief USA, the school's current authorizer, has agreed not to reincorporate in Minnesota. (See prior posting.) A trial on the merits of the ACLU's claim is set for November.  Facing imminent closure, TiZA's attempt to line up a new in-state authorizer that is acceptable to the state has been unsuccessful. An authorizing organization, Novation, has resubmitted an application after its first proposal was rejected by the state.

In an attempt to remain open, TiZA has gone to court. Last month a state court dismissed the school's lawsuit against Islamic Relief USA. The suit charged that IRUSA was obstructing TiZA's efforts to get a new sponsor.  Now, according to Minn Post last week, TiZA has filed suit in federal district court against IRUSA and the state Commissioner of Education. The complaint (full text) in Tarek Ibn Ziyad Academy v. Islamic Relief USA, (D MN, filed 6/15/2011) seeks a declaratory judgment that the Minnesota law limiting charter school sponsors to in-state organizations is unconstitutional as a violation of the due process and equal protection clauses, an impairment of the obligation of contracts and as a violation of the commerce clause. The suit also claims that IRUSA is improperly impeding TiZA's attempts to find a new sponsor.

Recent Articles of Interest

From SSRN:

• Pamela Edwards, Non-Mainstream Religions and the Law, (June 13, 2011).
• John Witte, Jr., Calvin the Lawyer, (Tributes to John Calvin on His 500th Birthday, David Hall and Martin Padgett, eds., pp. 1-23, 2010).
• Radwa S. Elsaman, Factors to Consider Before Arbitrating in the Arab Middle East: Religious and Legislative Constraints, (Journal of International Commercial Law, Vol. 3, p. 1, 2011).
• Patrick Nelson Leduc, Christianity and the Framers: The True Intent of the Establishment Clause, (Liberty University Law Review, Vol. 5, p. 201, 2011).
• Jane S. Schacter, Ely at the Altar: Political Process Theory Through the Lens of the Marriage Debate, (Michigan Law Review, Vol. 109, No. 8, 2011).

From SmartCILP:

• Sylvie Langlaude, The Rights of Religious Associations to External Relations: A Comparative Study of the OSCE and the Council of Europe, [Abstract], 32 Human Rights Quarterly 502-529 (2010).
• Guobin Zhu, Prosecuting "Evil Cults:" A Critical Examination of Law Regarding Freedom of Religious Belief in Mainland China, 32 Human Rights Quarterly 471-501 (2010).

Recent Prisoner Free Exercise Cases

In Ford v. Federal Bureau of Prisons, 2011 U.S. Dist. LEXIS 61978 (D CO, June 10, 2011), a Colorado federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 62014, May 24, 2011), and dismissed a complaint by a Nation of Islam inmate that he was not receiving a nutritionally adequate diet consistent with his religious beliefs. The court concluded that plaintiff had failed to show that his beliefs were sincerely held since he purchased food from the commissary that was inconsistent with his claimed dietary requirements.

In Marzuq v. Loury, 2011 U.S. Dist. LEXIS 62495 (D NJ, June 6, 2011), a Muslim inmate brought a free exercise claim contending that participation in the prison's Therapeutic Community was inconsistent with his religious beliefs. The court held that since the remedy plaintiff sought was restoration of good time credits that he lost when he was expelled from the TC program, he should have brought the suit as a habeas corpus action after exhausting state remedies.

In two opinions in Mahone v. Pierce County, 2011 U.S. Dist LEXIS 62619  and 2011 U.S. Dist. LEXIS 62588 (WD WA, June 10, 2011), a Washington federal district court adopted magistrate's recommendations  (2011 U.S. Dist. LEXIS 62617, May 23, 2011 and 2011 U.S. Dist. LEXIS 62589, May 24, 2011) and dismissed various claims from an inmate who claimed to be an African American Hebrew adherent of Judaism that he was being denied a kosher diet. Prison officials concluded that plaintiff's claims were not based on sincerely held religious beliefs.

In Gordon v. Lee, 2011 U.S. Dist. LEXIS 63433 (WD LA, June 16, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 63618, May 17, 2011) and dismissed a complaint by an inmate that he was not able to practice his Rastafarian religion. He was the only Rastafarian at the two facilities in which he had been incarcerated. Plaintiff sought a transfer to a different prison facility where he could practice his religion.

Purported Synagogue Sues Over Zoning Exemption For Hostels

The Forward this week reported on attempts by New York City's Department of Buildings to close down a network of hostels that offer low-priced rooms along with a "tolerance program" for guests. The hostels claim to be operated by the MacDougal Street Synagogue, and therefore to be exempt from various zoning laws under a provision in the New York City administrative code permitting charitable and religious institutions to convert homes into rooming houses "for working girls or women, or for working boys or men, or… for students attending a school or college." The city says that claim is a sham. It argues that the MacDougal Street Synagogue does not appear to exist at any location, and that the hostel rooms are being rented to tourists through the Internet.  The synagogue has filed a lawsuit challenging citations by city inspectors who closed down the hostels that they say are illegal transient hotels.  Inspectors found overcrowding and fire safety violations.

Louisiana Baptist Church Factions Battle In Court

Alexandria, Louisiana's Mount Zion Missionary Baptist Church is at the center of four lawsuits, with another set to be filed.  Alexandria Town Talk reports today on the battle between two factions in the church-- primarily older long-time members versus newcomers. The church, which was founded in 1902, serves primarily black congregants.  The church's pastor, Ameal Jones, who was hired in 2007 after the death of longtime pastor Donny  Granville is the focus of the congregational split. Opponents say Jones has built a power base of new members to the detriment of families that have been at the church for generations and who rely on church-financed services such as handicap-accessible vans and meals. The church's Board of Trustees fired Jones last year, but he refused to leave. They sued and the court ruled in the board's favor and nullified the election of a new Board that had taken place. But then Jones' supporters sued complaining that the church had not held an annual meeting or an election for 5 years. In a court supervised election, a new board of Jones supporters was elected. The new board tried to expel some of their opponents who they say engaged in disruptive conduct during church services, such as grabbing a microphone and yelling at Rev. Jones. The board has obtained a temporary restraining order barring 6 individuals from entering church grounds.

Paper Profiles Christian Religious Liberty Lawyer

The Tennessean today profiles Brentwood (TN) lawyer Larry Crain, who often represents clients for the conservative Christian advocacy group American Center for Law and Justice. The article describes Crain as "one of the leading religious liberty lawyers in the United States." Crain's law firm operates as an independent contractor for ACLJ, receiving over $387,000 in fees from it during the past three years.ACLJ has an annual budget of nearly $60 million. According to the article:

Crain’s legal resume reads like a history of the culture wars. Over the past 30 years, he’s represented abortion protesters from Operation Rescue, home-schooling parents, churches in zoning disputes and students who want to pray at graduation.

Israeli Rabbinic Court Sees Stray Dog As Spirit of Cursed Lawyer

Israel's YNet News last Thursday carried the rather strange story of a rabbinical court in Jerusalem, near the ultra-Orthodox Mea Shearim neighborhood, whose judges enlisted neighborhood children to throw stones at a dog. The incident took place several weeks ago in the rabbinic Monetary Affairs Court when a large dog wandered into the courtroom and refused to leave.  One of the judges then recalled that 20 years ago a panel of judges of the court cursed a famous secular lawyer who had insulted the court-- condemning his spirit to move into the body of a dog.  The judge was convinced that this was the dog  carrying that lawyer's spirit, and the court saw stoning as a way of retaliating. The dog managed to escape.  A member of Jerusalem's city council has complained to the Attorney General about the incident and an animal welfare organization has filed a complaint with the police.

UPDATE: According to a June 20 BBC report: "The head of the court, Yehoshua Levin, was quoted by Maariv as saying: 'There is no basis for abuse of animals from the side of Jewish Halacha [law].' In a statement, the court denied that a dog had been condemned. A dog had entered the court and been removed, it said."

UPDATE2: The London Telegraph yesterday reported the full statement by a Jerusalem rabbinical court denying original accounts of the incident:

There is no basis for stoning dogs or any other animal in the Jewish religion, not since the days of the Temple or Abraham.

The female dog found a seat in the corner of the court. And the children were delighted by it; there were hundreds outside the court. They are used to seeing stray cats but most have never seen a dog before. The only action we took was to dial the number of the Jerusalem Municipality to get the people in charge to take it away.

There was no talk of reincarnation, a lawyer has never been mentioned, either now or 20 years ago, and there was no stoning. Such inventions are a kind of blood libel, and we wonder why the inventor of the story did not continue to describe how we collected the blood of the dog to make our matzah.

US Catholic Bishops Revise Child Protection Policies To Comply With Latest Vatican Standards

The U.S. Conference of Catholic Bishops announced yesterday that at its Spring General Assembly, by a vote of 187-5, with 4 abstentions, the bishops approved revisions to its Charter for the Protection of Children and Young People.  According to the press release:

The revisions bring the Charter into line with the most recent Vatican instructions in this area, including specifically mentioning child pornography as a crime against church law and holding that abuse of someone who habitually lacks reason, for example, someone with mental retardation, is equivalent to child abuse.

According to CNN, critics say the changes do not go far enough.

Al-Qaida Announces New Leader In Statement Filled With Religious Affirmations

Al-Quaida announced yesterday on an Islamic website that Ayman al-Zawahri has assumed leadership of the organization now that Osama bin-Laden has been killed. The San Francisco Chronicle reports that al-Zawahari, an Egyptian doctor, is believed to be hiding in Pakistan. McClatchy Newspapers has published a full translation of the group's statement, which is filled with Islamic religious references. The statement reads in part:

Jihad will continue until Judgment Day, and ... has become an obligation in this era against the invading infidels, the occupiers of Muslim homes, and against the backsliding leaders who've changed Islamic law agreed upon by Muslim scholars....

... Al-Qaeda Jihad Organization seeks the implementation of Allah’s book and the Sunna and calls for all Muslims to follow the ways of the Prophet Mohammad and those of his noble companions and his successors, may Allah accept them all. We call for the pursuit of the ways agreed to by the followers of the prophet and their followers ... such as the four Imams and the Imams of Jurisprudence and Hadith.... We abide by what they set out and we do not disobey their commandments. We seek, with Allah's help, to be followers, not fabricators, learners and never creators.

NY Assembly Passes Marriage Equality Bill Including Religious Protections

The New York state Assembly yesterday passed and sent to the state Senate a marriage equality bill, A8354.  The Advocate reports that the bipartisan 80-63 vote in favor of legalizing same-sex marriage followed an impassioned but civil debate that included remarks by various members on whether their religious faith should be an issue in their vote:

I wish it wasn't in the book," said Dov Hikind, who waved a copy of the Torah on the assembly floor. "The Torah's so clear on this subject," he said. "There is no choice for me. And I am open-minded."...

Deborah Glick, the first openly gay member of the state legislature, later addressed the separation of church and state head on, saying, "You do not put your hand on the Constitution and swear to uphold the Bible."

The bill provides that no religious organization will be required to  provide accommodations or facilities for same-sex marriages, and no clergy shall be required to perform same-sex marriages.

According to the New York Times yesterday, the state Senate is still apparently one vote short of the 32 needed for passage.   Final passage may depend on the decision on how to vote by Republican Sen. Stephen Saland from Poughkeepsie who, along with a small group of other Republicans, may vote for the bill if the protections for religious organizations that object to gay marriage are strong enough. (See prior related posting.)

Israel Interior Ministry Changes Procedures On Recognition of Conversions From Abroad

In the convoluted politics of religious identity in Israel, the Israeli Interior Ministry has declared that the Jewish Agency will decide on whether particular Orthodox Jewish conversions abroad will be recognized for purposes of permitting an individual to immigrate under the Law of Return.  The Jerusalem Post reported this week that under the new arrangement the country's Chief Rabbinate will be consulted only in "isolated cases" where questions arise.  The problem arises from a decision by the Chief Rabbinate several years ago to limit which Orthodox Jewish conversions from the United States it would recognize.  Under a High Court decision, anyone converted by a recognized Jewish community abroad qualifies for entry under the Law of Return. However the Interior Ministry never formulated a policy on how to define a recognized community, and instead deferred to the Chief Rabbinate. This has led to a growing number of applications by U.S. and Canadian converts for immigration under the Law of Return being rejected. The change in policy, which will lead to recognition of a broader group of conversions, presumably moots a lawsuit filed in May on behalf of a Canadian who was refused citizenship under the Law of Return. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Judge Sanctioned In Part For Ordering Defendant To Attend Church As Condition of Bail

In Mississippi Commission on Judicial Performance v. Dearman, (MS Sup. Ct., June 16, 2011), the Mississippi Supreme Court ordered a public reprimand and a 30-day suspension without pay of a trial court judge who was charged with various instances of improper judicial conduct. One of the charges was that as a condition of bail for a defendant charged with possession of cocaine the judge required that the defendant attend church at least once a week. Justice Kitchens dissenting argued that the imposition of this condition may have been only an incorrect legal interpretation by the judge. If it was, that is not a basis for sanctions. [Thanks to Volokh Conspiracy for the lead.]

Borough Settles Lawsuit Challenging Its Use of Sectarian Invocations

Subject to a final Borough Council vote next week that is expected to pass, Point Beach, New Jersey has agreed to settle a lawsuit filed against it by the ACLU challenging its practice of opening meetings with a prayer that was generally Christian in nature. (See prior posting.) At one time, the borough opened meetings with the Lord's Prayer. After an initial lawsuit was filed, it moved to prayers by individual council members reflecting their own beliefs.  But that still resulted in Christian prayer and a new suit was brought. The settlement of that suit follows a decision by Council now to open its meetings only with prayers that do not use language specific to any religion. Point Pleasant Patch reports on these developments.

Suit Claims In-House Lawyer Fired Because He was Not An Orthodox Jew

An unusual religious discrimination lawsuit will come to trial June 27 in federal district court in the Southern District of New York. According to The Real Deal, Les Kramsky who was employed as in-house general counsel, is suing his former employer, the prominent real estate developer Joseph Chetrit.  Kramsky claims that Chetrit, an Orthodox Jew, hired Kramsky only because he believed that Kramsky was also an Orthodox Jew. The suit alleges that Chetrit began to treat Kramsky differently, and ultimately fired him, when he discovered Kramsky, though Jewish, was not Orthodox. The suit also claims that an Orthodox rabbi who regularly came to the office pressured Kramsky to pray and put on tefillin. Plaintiff asks for $500,000 in lost wages and benefits, as well as punitive damages. In court documents, Chetrit denies that Kramsky's religion played any role in his hiring, probation or firing, contending that he was terminated because it did not make economic sense to have a full-time in-house lawyer. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]


UPDATE:  Real Deal reports on June 24 that the lawsuit was settled out of court just a few days before it was set to go to trial.

5th Circuit Interprets "Equal Terms" Clause of RLUIPA

In The Elijah Group, Inc. v. City of Leon Valley, Texas, (5th Cir., June 10, 2011), the U.S. 5th Circuit Court of Appeals weighed in on an issue that has split various circuits-- what test to use to determine whether a zoning decision violates RLUIPA's "equal terms" clause. At issue was the city's zoning law that prohibits churches from operating in areas zoned B-2 (business).  Plaintiff argued that it was being treated on less than equal terms because it could not apply for a special use permit to operate in B-2 areas. The court held that the equal terms clause:

does require the Church to show more than simply that its religious use is forbidden and some other nonreligious use is permitted. The “less than equal terms” must be measured by the ordinance itself and the criteria by which it treats institutions differently. When we analyze the City’s ordinance within this framework, we are convinced that it is invalid because it prohibits the Church from even applying for a SUP when, e.g., a nonreligious private club may apply for a SUP.... 

The court added in a footnote: "This analysis should not be interpreted as necessarily adopting any of the tests heretofore adopted by the other circuits." Becket Fund issued a press release on the decision. The release contains links to the briefs that were filed in the case.

Two Cases Decide On Tax Exempt Status of Property Owned By Religious Groups

Two recent unrelated cases involve disputes over whether certain property is used for religious purposes so that it is exempt from property taxes.  In First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, (PA Commonwealth Ct., June 14, 2011), a Pennsylvania appellate court upheld the denial of tax exempt status for property of a former seminary that was acquired at a sheriff's sale by a church, but which appeared to be largely unused and in disrepair.

In Congregation Rabbinical College of Tartikov, Inc. v. Town of Ramapo, (NY Ct. App., June 14, 2011), New York's highest court held that Ramapo tax authorities improperly revoked the tax exemption for property that was being used for a religious summer camp. While a contractor was operating the camp on behalf of the rabbinical college that owned the land, the rabbinical college "retained general supervision and control over the camp's operation, including the right to approve the hiring of camp personnel, the purveyors of kosher food for camp lunches, and the religious curriculum." (See prior related posting.)

House Committee Opens Hearings On Radicalization of Muslims In U.S. Prisons

Yesterday, the U.S. House Committee on Homeland Security began two days of hearings on "The Threat of Muslim-American Radicalization in U.S. Prisons." The full text of the opening statement by Committee Chairman Peter King, as well as of statements by yesterday's four witnesses is available from the Committee's website. Rep. King also announced three witnesses who will appear at the continuation of the hearings today. The Los Angeles Times yesterday reported that the hearing "erupted in bipartisan anger Wednesday, with Democrats charging Muslims were being unfairly targeted and the Republican committee chairman vowing to continue investigating what he views as threats to national security."

Bankruptcy Court Says DOMA Is Unconstitutional; Same-Sex Couple Can File Joint Petition

A California federal bankruptcy court has declared the federal Defense of Marriage Act unconstitutional insofar as it would preclude a same-sex married couple from filing a joint bankruptcy petition under Chapter 13 of the Bankruptcy Code. 11 USC 302 permits joint petitions by a debtor and the debtor's spouse. The couple involved in the case was one of 18,000 same-sex couples legally married in California before the passage of Proposition 8. In In re Balas and Morales, (CD CA, June 13, 2011), the court held that DOMA violates  the couple's equal protection rights afforded by the 5th Amendment, whether the court applies heightened scrutiny or rational basis review.  The court explained:

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors’ right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. 

This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors. Debtors have urged that recent governmental defenses of the statute assert that DOMA also serves such interests as “preserving the status quo,” “eliminating inconsistencies and easing administrative burdens” of the government. None of these post hoc defenses of DOMA withstands heightened scrutiny..... In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law.... 

In an unusual move, all 20 judges of the bankruptcy court signed the opinion in the case. Wall Street Journal reports on the decision.

U.S. Congressman Will Introduce Bill To Bar San Francisco's Attempt To Outlaw Circumcision

Rep. Brad Sherman (D-CA) announced yesterday that he plans to introduce a bill into Congress that would prevent San Francisco and other cities from banning male circumcision of minors.  Currently, San Francico voters are scheduled to vote on a ban in November. (See prior posting.) Sherman said: "The Religious and Parental Rights Defense Act of 2011ensures that Jewish and Muslim families will continue to be able to enjoy the free exercise of their religious beliefs." According to the Los Angeles Jewish Journal, Sherman's bill takes an approach similar to that taken by RLUIPA in protecting religious freedom in prisoner and zoning cases. [Thanks to Jonah Lowenfeld for the lead.]

Federal Court Says Judge Did Not Need To Recuse Himself In Proposition 8 Case

Yesterday, California federal district judge James Ware held, in Perry v. Schwarzenegger, (ND CA, June 14, 2011), that now-retired federal judge Vaughn Walker did not act improperly in failing to recuse or disqualify himself from deciding a challenge to California's Proposition 8. That state constitutional amendment barred same-sex marriage in the state, and Judge Walker's decision found Proposition 8 to be inconsistent with the federal constitution. (See prior posting.) Judge Walker was involved in a same-sex relationship at the time he heard and decided the case. However in yesterday's decision, Judge Ware held:

The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification.

The New York Times reports on yesterday's decision.

Also yesterday in a separate opinion in the case (full text), Judge Ware found no reason to require the parties in the case to return to the court video copies of the trial proceedings that had been given to them. He also set an August 29 hearing date on a motion to lift the protective order that bars public disclosure of the trial videos.

UPDATE: AP reports that backers of Proposition 8 will appeal Judge Ware's decision that refused to disqualify Judge Walker.

UEP Trust Fiduciary Wants Utah To Pay Administrative Costs That Are Owed

In the latest twist in the convoluted litigation attempting to reform the polygamous FLDS Church's United Effort Plan Trust, Bruce Wisan, the special fiduciary for the trust appointed by a Utah judge, is now asking that the court order the state to pay the $4.6 million in administration costs that have accumulated for the trust.  The Deseret News reported Monday that fees owed to lawyers and to Wisan's own accounting firm remain unpaid, as do amounts owed to an engineering firm, a surveying firm and a public relations firm.  Also some $2 million in property taxes is owed.  These costs were supposed to have been paid from proceeds of the sale of property and from court-imposed monthly occupancy fees that were assessed on those living on trust property.  However most FLDS members have refused to pay the occupancy fees, and litigation challenging the trust reformation has prevented property sales from being completed. The Utah Attorney General's office, however, argues that Wisan's request violates court orders freezing everything but the most necessary administrative work pending the outcome of challenges to jurisdiction of the Utah state courts over the trust. (See prior posting.)

Push In New York For Same-Sex Marriage, Opposed By Catholic Church

In the closing days of the legislative session in New York state, efforts are again under way by Gov. Andrew Cuomo to obtain passage of a bill to legalize same-sex marriage.  The state Senate defeated a same-sex marriage bill in 2009, but now, according to the Wall Street Journal yesterday, several senators have shifted their positions and the measure-- which has apparently not yet been formally introduced-- is only two votes shy of passage. So far only one Republican Senator has publicly pledged to vote in favor of the bill, but (according to AP) others Republican votes would follow if  the legislation contained exemptions so that churches, religious organizations and individuals opposed to gay marriage could not be required to perform or host them. New York's Catholic Archbishop Timothy Dolan has strongly opposed the measure.  In a posting yesterday on the Archdiocese's website, he said:

Last time I consulted an atlas, it is clear we are living in New York, in the United States of America – not in China or North Korea. In those countries, government presumes daily to “redefine” rights, relationships, values, and natural law. There, communiqués from the government can dictate the size of families, who lives and who dies, and what the very definition of “family” and “marriage” means.

But, please, not here! Our country’s founding principles speak of rights given by God, not invented by government, and certain noble values – life, home, family, marriage, children, faith – that are protected, not re-defined, by a state presuming omnipotence.

Please, not here! We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a “right.” And, what about other rights, like that of a child to be raised in a family with a mom and a dad?
Our beliefs should not be viewed as discrimination against homosexual people. The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like. This is not about denying rights. It is about upholding a truth about the human condition.

U.S. Religious Freedom Ambassador Calls On Political Leaders To Condemn Religious Intolerance

The United States' new Ambassador-at-Large for International Religious Freedom, Suzan Johnson Cook, spoke yesterday in Geneva, Switzerland at a panel on "Combating Intolerance and Discrimination Based on Religion or Belief" arranged by the Office of the U.N. High Commissioner for Human Rights. (Full text of remarks.) She said in part:

States have tools at their disposal to combat religious intolerance; in many cases what is needed is the political will to use them. Governments need to develop robust legal protections to address acts of discrimination against individuals and bias-inspired violent crimes. Each country should determine if it has laws on the books that allow it to prosecute individuals who discriminate on the basis of religion in hiring, access to public accommodation and other aspects of public life, or who commit violence on that basis. Each country should determine if it has a capable and dedicated band of investigators and prosecutors to enforce such laws. Even more importantly, leaders in government, politics, religion, business and the rest of society must stand ready to condemn hateful ideology; and to vigorously defend the rights of individuals to practice their religion freely and exercise their freedom of expression. Leaders who remain silent are contributing to the problem and should be held politically accountable.....

Rather than seek prohibitions on offensive expression, the United States advocates for other measures such as urging political, religious, and societal leaders to speak out and condemn offensive expression; creating a mechanism to identify areas of tension between communities; training government officials on outreach strategies; and encouraging leaders to discuss causes of discrimination and potential solutions with their communities. Indeed, we believe that laws seeking to limit freedom of expression in the name of protecting against offensive speech are actually counterproductive. The suppression of speech often actually raises the profile of that speech, sometimes giving even greater voice to speech that others might find offensive. In some countries, politicians will not condemn offensive speech, but instead will defer to the courts to judge if it is legally prohibited. In our view it is far more effective if political leaders know that they cannot point to the law as an excuse for doing little to nothing. They have a moral and political obligation to use their own freedom of expression to lead a strong counter effort, and should be held to account politically.

Cert. Petition Filed In Courtroom 10 Commandments Poster Case

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in DeWeese v. ACLU of Ohio Foundation, Inc.  In the case, the U.S. 6th Circuit Court of Appeals held that a display posted in a courtroom by a state common pleas court judge violates the Establishment Clause. Next to a poster of the Bill of Rights, the judge hung another poster that compared the "Moral Absolutes" of the Ten Commandments with ten parallel principles of "Moral Relatives: Humanist Principles." (See prior posting.) ACLJ issued a press release announcing the filing of the cert. petition.

Spanish Parliamentarian Is Sworn In Using Crucifix

In Spain, a Catholic member of Parliament, Juan Cotino, provoked some criticism when he insisted on taking his oath of office using a crucifix.  CNA yesterday reported that Cotino placed a crucifix next to a copy of the Constitution and the Bible as he was sworn in on June 9. Father Jose Maria Gil Tamayo, a member of the Pontifical Council for Social Communications, however, praised Cotino, saying that his act was "an eloquent and courageous public gesture."

Supreme Court Denies Review In Pledge of Allegiance Case

The U.S. Supreme Court yesterday denied certiorari in Freedom From Religion Foundation v. United States, (Docket No. 10-1214, cert. denied 6/13/2011) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals rejected an Establishment Clause challenge to New Hampshire's School Patriot Act that requires a time during the school day for voluntary recitation of the pledge of allegiance. (See prior posting). School Law yesterday reported on the denial of cert.

Lawsuit Challenges Tennessee Limits On Local Bias Laws

WSMV-TV reported  on a state court lawsuit filed yesterday challenging a new Tennessee law barring local governments from enacting different anti-discrimination protections than are provided by state law. (See prior posting.) The new law invalidates a Nashville ordinance that goes beyond state law by prohibiting companies doing business with the city from discriminating on the basis of sexual orientation.  The state law apparently also invalidates a Nashville school board policy that protected gay and lesbian students against bullying.  Plaintiffs in the lawsuit include three Nashville city council members and a former Belmont University soccer coach who was forced to resign when she disclosed that her same-sex partner was pregnant. The lawsuit claims that the state law violates the constitution's equal protection clause.

Suits Challenge Religious Leaders In Two New York Hasidic Enclaves

AP reported yesterday on lawsuits were filed  by religious dissidents in two New York towns that are essentially Orthodox Jewish Hasidic enclaves.  In a federal court lawsuit, followers of Brooklyn Satmar Rabbi Zalman Teiltelbaum who make up some 40% of the population of Kiryas Joel sued seeking dissolution of the city or alternatively a ban on religious leaders holding city office for 25 years.  Plaintiffs claim that the majority in Kikryas Joel, followers of grand rebbe Aron Teiltelbaum (brother of Zalman), have taken over the village and selectively enforce the village's property tax and zoning laws in a manner to discriminate against plaintiffs. It also alleges voting fraud and intimidation of voters.

In an unrelated state lawsuit, the family of a victim of an arson attack (see prior posting) is seeking $36 million in damages from New Square, New York's grand rebbe David Twersky-- the leader of the town's Skverer Hasidic sect. The suit claims that Twersky directed the arson attack that injured New Square dissident Aron Rottenberg who began attending a different synagogue outside New Square.

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.