Suit Challenges City's Transfer of Property To Catholic High School For Athletic Complex

Americans United announced yesterday that it, along with the ACLU of Indiana, has filed a lawsuit in federal district court challenging plans of the South Bend (IN) Common Council to use $1.2 million in economic development funds to purchase property that was the site of a retail store, tear down the building on it, and transfer it for $1 to the Catholic Diocese so St. Joseph's High School can use the property for part of its new $35 million football stadium and athletic complex. The complaint (full text) in Wirtz v. City of South Bend, Indiana, (ND IN, filed 8/16/2011), alleges that the property transfer violates the Establishment Clause, as well as Art. I., Secs. 4 and 6 of the Indiana constitution.  According to the complaint, while the Diocese intends to permit the football stadium to be used by the city or by public schools, this will be limited to times when it is not being used by St. Joseph's teams, and the Diocese may charge others for use of the stadium. (See prior related posting.)

Custody Order Violates Establishment Clause

In Rosenstein v. Rosenstein, (TX App., Aug. 11, 2011), a Texas appeals court held that in a divorce action, the trial court violated the mother's Establishment Clause rights when, in an amended decree, it awarded the father exclusive possession of the couple's children on four Jewish religious holidays, and on every Sunday morning.  The wife argued, in part, that this precluded her from having an opportunity to furnish her children religious education on Sunday, her primary day for attending church. The decree awarded the wife possession of the children on Thanksgiving, Christmas, New Year's day and Easter.  However, the father's religious holiday rights took precedence, so that conflicts between Passover and Easter, or Hanukkah and Christmas, would result in the father having the children on those days.  In reaching its conclusion, the court quoted an earlier state appeals court decision holding that "it is a fundamental principle that the State cannot prefer the religious views of one parent over the other in deciding the best interest of a child."

Bachman's Religious Views Traced In New Yorker Article

The New Yorker this week carries a long article on Michelle Bachman titled Leap of Faith-- The Making of a Republican Front-Runner.  The piece, by Ryan Lizza, gives special attention to the content and development of Bachman's religious beliefs.  Lizza writes:

Bachmann belongs to a generation of Christian conservatives whose views have been shaped by institutions, tracts, and leaders not commonly known to secular Americans, or even to most Christians. Her campaign is going to be a conversation about a set of beliefs more extreme than those of any American politician of her stature, including Sarah Palin, to whom she is inevitably compared. Bachmann said in 2004 that being gay is “personal enslavement,” and that, if same-sex marriage were legalized, “little children will be forced to learn that homosexuality is normal and natural and that perhaps they should try it.” Speaking about gay-rights activists, that same year, she said, “It is our children that is the prize for this community.” She believes that evolution is a theory that has “never been proven,” and that intelligent design should be taught in schools.

Town Racks Up High Legal Bills In Code Enforcement Against Non-Profit

The town of Springdale, Washington has so far spent over $34,000 (over 20% of the town's annual budget) in a 2-year battle to enforce its building code against Dawud Ahmad, who says he is a Muslim sheik, and claims he has the right to live in a shed that does not meet building code requirements.  The shed is owned by a non-profit organization, Muslim America.  Ahmed is the organization's registered agent.  He claims that Muslim America is exercising its religious right to offer shelter to a homeless member of its organization. According to yesterday's Spokane (WA) Spokesman Review, last October a trial court rejected Ahmed's attempt to require the town to grant a building code exemption for the property. The court also ordered Ahmed and Muslim America to pay the town's legal bills of nearly $24,000. Plaintiffs, however, have appealed the decision, causing the city to have to spend another $10,000 on legal fees. The court has allowed Ahmed to sue in forma pauperis, so he has not had to pay any filing fees.

Trial Court Refuses Temporary Injunction In Indiana School Voucher Challenge

An Indiana trial court judge has refused to issue a temporary injunction to block the state's new school voucher program.  In Meredith v. Daniels, (IN Super. Ct., Aug. 15, 2011), plaintiffs claimed that the new Choice Scholarship Program violated various provisions of the Indiana Constitution: Art. 8, Sec. 1 ("General and Uniform System of Common Schools" clause); Art. 1, Sec. 4  (no compulsion to support any place of worship); and Art. 1, Sec. 6 (no government funds may be spent for the benefit of any religious institution).  The court concluded that plaintiffs are unlikely to succeed on the merits of any of these claims. It held that Art. 1, Sec. 4 "does not preclude the use of general tax revenues to fund scholarships that may be used, at the discretion of scholarship recipients, to pay for education at religious schools."  It also held that Art. 1, Sec. 6 does not invalidate the CSP because the scholarship program "was enacted 'for the benefit' of students, not religious institutions or activities."  NWI Times reports on the decision.

Texas DA Looking Into Pastor's Role In Circulating Recall Petitions

In El Paso, Texas, Pastor Tom Brown and his Word of Life Church are under investigation by El Paso County district attorney Jaime Esparza for violation of state election laws. Brown is the leader of a recall drive aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. When the city initially offered health benefits to same-sex couples, an initiative repealed those benefits, but also-- apparently inadvertently-- ended health benefits for 100 others as well. (See prior posting.) So City Council, in a tie vote broken by the mayor, voted to restore everyone's benefits. According to the El Paso Times, on Friday the district attorney announced that he is looking into whether efforts by Brown to circulate recall petitions at churches violates the state election code that prohibits corporations, including non-profit corporations, from circulating and submitting petitions to call an election. Americans United has already complained to the IRS about possible tax code violations growing out of Tom Brown Ministries' activities promoting the recall. (See prior related posting.)  Wall of Separation blog has more regarding AU's views.

Amicus Briefs In Hosanna-Tabor Case Are Available Online

All of the amicus briefs have now been filed with the U.S. Supreme Court in Hosanna-Tabor Church v. EEOC, a case raising the question of the scope of the "ministerial exception" to federal non-discrimination laws. (See prior posting.) The briefs are all available online from the ABA's website (along with briefs from the parties). Of the 30 amicus briefs filed, 21 support petitioner and 9 support respondent.  Oral argument is scheduled for Oct. 5.  [Thanks to Marty Lederman via Religionlaw for the lead.]

Egyptian Official Releases Constitutional Principles Document

AlMasry AlYoum on Sunday published an abridged version of the document titled "Basic Constitutional Principles" which Egypt's deputy prime minister for political affairs has presented to several political parties for their comment. (See prior related posting.) In outlining the suggested role for religion and religious freedom, the document reads in part:

Islam is the state religion, the Arabic language is its official language, and Islamic Sharia is the primary source of legislation. Non-Muslims resort to their own laws in regards to their personal issues and religious affairs.....

Human dignity is every person’s genuine right, and all Egyptian citizens are free and equal before the law in rights and freedoms and general obligations. Discrimination among them due to sex, origin, language, religion, creeds, wealth, social status, political views, or disabilities or anything of that sort is forbidden.

...The state guarantees freedom of belief, worship, and religious slogans and protects the role of worship.

FLDS Faithful Are Erecting Statue of Warren Jeffs

The Daily Beast reported last week that followers of FLDS leader Warren Jeffs are planning to erect a 38-foot tall statue of Jeffs at the activity center of the Fundamentalist Church of Latter Day Saints' compound in Short Creek, on the Utah-Arizona border. The statue is being constructed in seven pieces in a hidden warehouse in San Angelo, Texas where Jeffs criminal trial on sexual assault charges has recently ended. (See prior posting.)  Plans are for the statue to go up next month as a way of showing that authorities cannot take Jeffs away from his followers, despite his recent conviction.

Recent Articles of Interest

From SSRN:

• Wibren Van der Burg, Inclusive Neutrality in the Classroom, (Yearbook of the European Association for Education Law and Policy, 2011).
• Jason J. Kilborn, Foundations of Forgiveness in Islamic Bankruptcy Law: Sources, Methodology, Diversity, (August 11, 2011).
• Jeremy Waldron, What are Moral Absolutes Like?, (August 8, 2011).
• Barbara J. Cox, Why Appellate Courts Have Rejected the Argument that the Defense of Marriage Act Trumps the Parental Kidnapping Prevention Act, (California Western International Law Journal, Vol. 41, No. 189, 2010).

From SmartCILP:

• Capt. Evan R. Seamone, Divine Intervention: The Ethics of Religion, Spirituality, and Clergy Collaboration in Legal Counseling, 29 Quinnipiac Law Review 289-373 (2011).
• Symposium. Twenty Years After Employment Division v. Smith: Assessing the Twentieth Century's Landmark Case on the Free Exercise of Religion and How It Changed History. Articles by David B. Frohnmayer, Marci A. Hamilton, Alan Brownstein, Angela C. Carmella, Daniel O. Conkle, James G. Dwyer, Stephen M. Feldman, Richard W. Garnett, Leslie C. Griffin, B. Jessie Hill, Steven D. Jamar, Ira C. Lupu, Robert W. Tuttle, William P. Marshall, Linda C. McClain, Richard Schragger, Steven D. Smith, Nelson Tebbe and Laura S. Underkuffler. 32 Cardozo Law Review 1655-2091 (2011).

Straw Poll Winner Bachman Interviewed About Her Religious Views

On today's broadcast of Meet the Press (full transcript), host David Gregory interviewed Minnesota Rep. Michelle Bachman who won yesterday's Ames, Iowa Republican "straw poll" for the Republican presidential nomination.(Full results).  Gregory and Bachman engaged in an extensive discussion of Bachman's religious views. Here is a lengthy excerpt:

MR. GREGORY: ... I want to move on to another topic that's deeply meaningful and important to you, and that's your faith in God.... I want to ask you about, not only the role God plays in, in your life but to what extent he's a motivator for decisions that you make. One example that's gotten some attention is some remarks you made back in 2006....

(Audiotape, October 14, 2006) REP. BACHMANN: My husband said, "Now you need to go and get a post-doctorate degree in tax law." Tax law! I hate taxes. Why should I go and do something like that? But the Lord says, "Be submissive, wives, you are to be submissive to your husbands." (End audiotape)

MR. GREGORY: Is that your view for women in America? Is that your vision for them?

REP. BACHMANN: Well, I--during the debate I was asked a question about this, and my response was is that submission, that word, means respect. It means that I respect my husband and he respects me.... We have a mutual partnership in our marriage, and that's the only way that we could accomplish what we've done in life is to be a good team....

MR. GREGORY: To what extent does your relationship with God mean that you take cues from God for decisions that you make and that you would make as president....

REP. BACHMANN: Well, as president of the United States, I would pray. I would pray and ask the Lord for guidance. That's what presidents have done throughout history. George Washington did. Abraham Lincoln did.

MR. GREGORY: But you said that ... God called me to run for Congress.... There's a difference between God as a sense of comfort and safe harbor and inspiration, and God telling you to take a particular action.

REP. BACHMANN: All I can tell you is what my experience has been. I'm extremely grateful to, to have a faith in God. I, I see that God has so blessed this country.... And I think that it's important for us to seek his guidance and to pray and to listen to his voice.

MR. GREGORY: Would you appoint an openly atheist person to be a member of your administration, your Cabinet or even as a judge to a court?

REP. BACHMANN: Well, my criteria, would be first of all, "How do you view the Constitution?" If you uphold the Constitution, if you're competent, and if you're--if you, if you share my views, then you can get appointed. That's my litmus test....

MR. GREGORY: OK. I want to also ask you about your interpretation of the Bible and your feelings about gays and lesbians.... 

REP. BACHMANN: Well, I am running for the presidency of the United States. I'm not running to be anyone's judge.... I believe that marriage is between a man and a woman. And that's what I stand for. But I ascribe honor and dignity to every person no matter what their background. They have honor and they have dignity....

MR. GREGORY: Would you appoint a gay, an openly gay person, to your administration, to your Cabinet, or name them as a judge?
REP. BACHMANN: My criteria would be the same for that... where do you stand on the Constitution, are you competent, and do you share my views. That's my criteria....

MR. GREGORY: One last one on this. Can a gay couple ... who adopt children in your mind be considered a family?

REP. BACHMANN: When it comes to marriage and family, my opinion is that marriage is between a man and a woman. And I think that's, that's been my view, and I think that's important.... You know, all of these kind of questions really aren't about what people are concerned about right now.... 

Washington State Denies Permit For Baptism Ceremony At State Capitol Park

In Olympia, Washington, Heritage Park is a 24-acre state-owned park next to the state capitol campus.  The state will issue permits for events to be held at the park.  Today's Bellingham (WA) Herald reports that the state's Department of General Administration has given Reality Church of Olympia a permit for a barbecue and picnic to be held today, but has denied its request to conduct a baptism along with the event.  The Department, deciding an appeal of an initial denial, said that the state constitution bars the use of public property for religious worship. The church had argued that its free speech and free exercise rights were infringed by the denial.

Recent Prisoner Free Exercise Cases

In Creveling v. Johnson, 2011 U.S. Dist. LEXIS 86648 (D NJ, Aug. 4, 2011), a New Jersey federal district court held that plaintiff, who was involuntarily committed as a sexually violent predator, could move ahead with a free exercise claim. He claims he is entitled to weekly church services, bible study and confession, as well as rosaries every day, but has only been allowed to attend church once every two-three weeks.

In Rogers v. United States, 2011 U.S. Dist. LEXIS 83336 (WD PA, July 29, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 86921, June 17, 2011), and dismissed an inmate's complaint that he was denied Halal meat for the Eid-ul-Adha celebration in 2006. The court found defendants had qualified immunity and rejected plaintiff's retaliation claim. It also rejected a retaliation claim regarding prayer oil pricing.

In Ellis v. United States, 2011 U.S. Dist. LEXIS 83833 (WD PA, Aug. 1, 2011), a Pennsylvania federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 86927, June 17, 2011) and permitted a former Sunni Muslim inmate to move ahead with his retaliation claim against certain defendants in which he claimed that his name was wrongfully omitted from call out lists for the 2006 Eid celebration and the Jumu'ah prayer services during 3 months. Various other claims, including one relating to Halal meat for the Eid celebration, were dismissed.

In Sykes v. Williams, 2011 U.S. Dist. LEXIS 87835 (D SC, Aug. 8, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 87777, July 13, 2011) and dismissed a Muslim inmate's claims that his religious rights were infringed when he was served porkwhile in detention.

In Gailbreath v. Covert, 2011 U.S. Dist. LEXIS 88095 (WD PA, July 20, 2011), a Pennsylvania federal magistrate judge recommended dismissal of a Muslim inmate's claims that he was prevented from properly practicing his faith when he was denied a vegetarian diet.

In Mitchell v. Dauphin County Commissioners, 2011 U.S. Dist. LEXIS 87901 (MD PA, Aug. 9, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 87903, July 18, 2011) and dismissed an inmate's free exercise claims without prejudice because plaintiff had failed to exhaust his administrative remedies. In the suit, plaintiff challenged the prison's policy prohibiting inmates from officially changing religions after being confined more than ten days, the prison's inadequate supply of common Mormon scriptures, and the prison chaplain's distribution of reading materials that promoted Christianity and allegedly defamed other religions.

In Lewis v. Skolnik, 2011 U.S. Dist. LEXIS 88950 (D NV, Aug. 10, 2011), a Nevada federal district court  permitted an inmate who is an African-American Hebrew Israelite to move ahead with his challenge to a prison policy that limits kosher meals to inmates who can prove through a recognized, outside organization that they are Orthodox or Conservative Jews. He alleged that the policy violated his free exercise and RLUIPA rights and that its implementation was discriminatory against African Americans.

In Sumpter-Bey v. Weatherford, 2011 U.S. Dist. LEXIS 88647 (MD TN, Aug. 9, 2011), a Tennessee federal magistrate judge recommended dismissing a Muslim inmate's complaint that a Seventh Day Adventist representative was preaching in the day room in his pod. The magistrate also recommended dismissal of plaintiff's claim that officials threatened to retaliate by moving him to administrative segregation after he filed a second grievance about the preaching.

In Montague v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 88362 (MD TN, Aug. 8, 2011), a Tennessee federal magistrate judge recommended dismissing an inmate's complaint that prison officials will not allow Muslim prisoners to order outside food and to pool their money to celebrate Eid ul-Fitr and Eid Adha.

In Burgie v. Golden, 2011 U.S. Dist. LEXIS 88895 (ED AR, Aug. 9, 2011), an Arkansas federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 88603, July 14, 2011), and dismissed  an inmate's complaint under RLUIPA that authorities confiscated his copy of "The Complete Book of Voodoo" and forwarded it to the prison's Publication Review Committee.

In Countryman v. Nevada, 2011 U.S. Dist. LEXIS 88583 (D NV, Aug. 8, 2011), a Nevada federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 88357, June 27, 2011) and dismissed without prejudice, for failure to exhaust administrative remedies, an inmate's complaint that his rights under the 1st Amendment and RLUIPA were infringed when he was precluded from attending church services while in protective segregation.

Arkansas Buses Must Carry Non-Believers' Ads; But $15,000 Bond Required

An Arkansas federal district judge on Thursday issued a preliminary injunction requiring the Central Arkansas Transit Authority to allow the United Coalition of Reason (UCR) to purchase ads on the outside of 18 public buses. However UCR will be required to post a $15,000 bond to cover damage that may result from vandalism to the buses. The ads read: "Are you good without God? Millions are." The advertising agency involved had demanded a higher bond, while UCR had offered to post a $10,000 bond. AP as well as the Daily Caller report on the decision. Meanwhile, according to the Christian Post, Christians in the community are creating their own series of ads to run on buses, and they say they will picket any bus carrying the non-believers' ads.  Bill Wheeler, a Christian leader in Little Rock, said: "We are planning to create a newsletter and start gathering our resources to fight ads that create chaos in our society. These ads have nothing to do with free speech. It has to do with corruption and pure evil." [Thanks to Scott Mange for the lead.]

Court Invalidates Colorado County School Voucher Plan On State Constitutional Grounds

According to AP, yesterday a Colorado state court granted a permanent injunction against implementation of a Douglas County (CO) Board of Education school voucher plan that would have given 500 students scholarships to apply to tuition at participating private school partners. Most of the partner schools were sectarian and most were located outside the school district. (See prior posting.) The voucher plan enrolls scholarship recipients in a new Choice Scholarship Charter School for pupil counting purposes in order to continue to receive state funds.  In Larue v. Colorado Board of Education, (CO Dist. Ct., Aug. 13, 2011), the trial court, after finding that plaintiffs had standing, held that the voucher program violates a number of state constitutional provisions and the Public School Finance Act, as well as finding that the state contracting statute does not give school boards the power to contract with private schools to provide all a student's educational services.

The court concluded that the voucher program violates a state constitutional prohibition on state funds for sectarian schools, the state's free exercise clause, the ban on religious admissions criteria,ban  on requirements to attend religious services and ban on teaching of sectarian doctrines in public schools. The voucher program also was found to violate state constitutional provisions on the integrity of the public school fund.

Group Posts Critical Review of Gov. Perry's Prayer Rally

Jews On First yesterday posted an extensive and critical report on the content of Texas Gov. Rick Perry's The Response: A Call To Prayer for a Nation in Crisis held last Saturday. (See prior posting.) Their report says in part:

Blatant and repeated calls for Jews to accept Jesus punctuated Texas Governor Rick Perry’s Response revival meeting this past weekend. Indeed, last Saturday’s replay of the historic Christian preoccupation with the redemption of the world through Jewish conversion was in many respects a microcosm of what the event was about -- the coming together of different traditions to submit to Jesus, in an attempt to redeem not only the United States, but the world, through Jesus.... 

The day was split between four main prayer segments: personal repentance; corporate repentance; the First Commandment; and prayer for revival in America.

Throughout each of these four segments, speakers spoke only briefly (seven minutes each) while worship music and repetitive prayer (this was called "rapid fire prayer" where a microphone was passed down a line of usually four or five people who gave an emotional plea to Jesus for about thirty seconds each) filled in the rest of the seven-hour rally. Dominant themes included: repentance for abortion and an avowal to end it in America; the need to get America's finances in order; the need for leaders to submit to the authority of Jesus if they are to steer the country back on its right path; and the need for a third Great Awakening that would storm all levels of the public sphere....

Perry not only acknowledged Jesus' control over everything but also aligned himself with a submission to His will for the country and the world. This is something that evangelical voters see as essential for an elected official, in order to make sure that the government makes decisions based on divinely inspired principles -- unlike liberals in general who are construed as being guided by "manmade" principles and what is considered the erroneous belief that human principles can solve the nation's problems.

Croatia Blocks Vatican Decision To Transfer Monastery To Italian Benedictines

CNA reported yesterday that Croatia's Ministry for Justice has blocked a decision by the Vatican to return the monastery of Dajla, in northwest Croatia, to the Italian Benedictines.  The monastery is located in an area seized from Italy by Yugoslavia following World War II.  The Vatican ruled earlier this month that the monastery should be transferred along with 6 million Euros in compensation. Croatia has blocked the transfer and annulled the entire agreement. The Vatican says it is astonished by the decision. The Italian Benedictines already received $1.2 million (US) in compensation in 1975 under the Treaty of Osimo that dealt with the Italian- Yugoslav border. [Thanks to Pew Sitter for the lead.]

Georgian Orthodox and Armenian Apostolic Churches Dispute Property Ownership Across Borders

Eurasia Review yesterday reports on the religious tensions between the countries of Armenia and Georgia over the ownership of various monasteries and churches.  The Georgian Orthodox Church claims ownership of five monasteries in Armenia that functioned as Georgian Orthodox monasteries in the 11th and 12th centuries.  However the Armenian Apostolic Church says that the monasteries were originally built as Armenian Orthodox churches, and that there are only 600 ethnic Georgians living in Armenia today.  Meanwhile, the Armenian Apostolic Church claims six churches in Georgia serving ethnic Armenians. (See prior related posting.)

Settlement Reached In Christian Legal Society's Suit Against Montana Law School

A settlement agreement (full text) was reached last week in Christian Legal Society v. Eck, a case challenging the University of Montana Law School's denial of recognition as a student group to Christian Legal Society because the group's membership policies violate the Student Bar Association's policy that recognized student groups must be open to all law students. CLS requires that students, in order to be voting members, sign a Statement of Faith. It also treats "unrepentant participation in or advocacy of a sexually immoral lifestyle" as inconsistent with the required Statement. In 2009, a federal district court upheld the law school's policy as viewpoint neutral. (See prior posting.) That decision was on appeal to the 9th Circuit. (See  prior posting).

Under the settlement agreement, CLS will continue to be able to use law school facilities, including use of the law school's website and bulletin boards to communicate with students.  The Student Bar Association agrees to apply specified viewpoint neutral criteria in preparing its budgets for funding of student organizations. Pursuant to the agreement, appellants on Wednesday moved to voluntarily dismiss their 9th Circuit appeal. Yesterday's Chronicle of Higher Education reports on the decision.

ROTC Values Training Includes Christian Examples

CNN reports that the Air Force's unit on core values taught to ROTC cadets includes Christian-themed examples.  The Ten Commandments, the Sermon on the Mount and the Golden Rule are used as examples of ethical values. This follows disclosures last month of the use of Christian "just war" theories in training of missile officers. (See prior posting.) According to CNN, a spokesman for the Air Force's Air Education and Training Command confirmed the content of the ROTC ethics training and said a comprehensive review was underway "of training materials that address morals, ethics, core values and related character development issues to ensure appropriate and balanced use of all religious and secular source material."

Obama Hosts White House Iftar Dinner

CNN reports that President Obama last night hosted an Iftar dinner at the White House, celebrating Ramadan. Among the invited guests were Muslim families who had relatives working in the Twin Towers on 9-11.  Obama spoke of Muslims who were innocent passengers killed on the planes that slammed into the World Trade Center and the Pentagon, and of those who were 9-11 first responders. Earlier yesterday the White House released a list of some of the members of Congress and the diplomatic corps, as well as community members who were expected to attend the dinner.

Will Jeffs Control FLDS Church From Prison?

An AP article suggests that FLDS leader Warren Jeffs may be able to continue to lead his church from behind bars now that he has been sentenced to life in prison on sexual assault charges. Jeffs legal status as head of the church was reaffirmed last week by the Utah Department of Commerce. The Washington Post (Aug. 3) reported that in May the Department, by a split ruling, rejected filings by Jeffs' challenger, William E. Jessop, who claimed he was head of the Corporation of the Presiding Bishop, the entity which holds the assets of the church (see prior posting). The Department gave Jessop until last week to provide a resolution or court order settling the dispute.  Nothing was filed and the Department of Commerce said it will recognize Jeffs as president of the Corporation.

Egyptian Government Proposes Anti-Discrimination Law

Voice of America reported yesterday that Egypt's government has proposed an amendment to its criminal code that would outlaw discrimination against people or a sect "due to gender, origin, language, religion or belief."  Violation would be punishable by a jail sentence of at least 3 months. The new law is aimed at  preventing attacks on the country's minority Coptic Christians. The military must approve the law before it goes into effect.

Suit Challenges Florida's New System For Review of Textbooks

The Florida Independent reports that a group known as Citizens for National Security announced that they were filing suit yesterday in Florida state court to enjoin the effectiveness of Florida S.B. 2120 which, among other things (Sec. 21), calls for two state or national experts to review instructional materials that are up for adoption each year. A third expert is to resolve disagreements between the two.  The complaint (full text) alleges that this provision conflicts with the mandate in the state constitution to provide for a high quality system of schools:

15. It is not possible for two people to review all the textbooks in Florida within a 4 month period of time and thus Senate Bill 2120 renders it impossible for the Defendants to provide high quality education to all children in Florida as required by law....

17. The present danger of fundamentalist religion is often obscured, the negative influence of fundamentalism is downplayed and the teaching of one of the greatest scientific breakthroughs of all times, i.e. "evolution" is often ignored, questioned or denied due to the failure of this State to properly monitor its textbooks.

18. Rather than fix the problem, Senate Bill 2120 exacerbates the problem and renders it impossible for any meaningful review of textbooks to take place, and all but assures that the education of the students of Florida will be inaccurate, biased and substandard.

19. Prior to the enactment of SB 2120, Plaintiff CFNS had nominated close to 30 highly qualified lay citizens consisting of teachers, former teachers, education professionals and well educated citizens to serve on the State Instructional Materials Committee to review the textbooks to be used by the students of Florida. With the enactment of SB 2120, none of these nominees will have an opportunity to serve in this capacity and instead only 2 or 3 so-called experts who are hand-picked by Defendant FDOE will review all textbooks used in Florida.

Ministerial Exception Defense Rejected In Racial Discrimination Suit By Administrative Assistant

A North Carolina federal district court has rejected a religious organization's "ministerial exception" defense in a Title VII racial discrimination case brought by a former administrative assistant in the group's Global Ministries office.  In McCallum v. Billy Graham Evangelistic Association, 2011 U.S. Dist. LEXIS 86997 (WD NC, Aug. 5, 2011),  the court held that the former employee who was the only African American in the organization's executive offices could move ahead with a discrimination claim based on a downsizing that eliminated only her job and which came after she complained that African American congregations were not being invited to participate in a summer camp youth program.

At this stage of the proceedings, BGEA has not demonstrated that the Church Autonomy Doctrine bars Plaintiff's lawsuit or that McCallum's former job as an Administrative Assistant in Global Ministries falls within the ministerial exception. Here, McCallum's position did not entail traditional ministerial functions such as teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship. Nothing in the record suggests that McCallum had decisionmaking authority or substantive input regarding the content of BGEA's religious message, the delivery or expression of the message, or its intended audience.... McCallum's primary function was to provide administrative or clerical support....

 Although the Court holds that Plaintiff was not in a ministerial role... McCallum's claim, is likely to pose the very type of entanglement issue that the Church Autonomy Doctrine and ministerial exception seek to avoid.... [It will] necessarily call into question BGEA's outreach decisions.... As a practical matter, the Court contemplates that as the case proceeds there will be certain doctrinal topics that will, in fact, remain "off-limits."

The court, however, dismissed plaintiff's second claim in the lawsuit-- Title VII retaliation.  The court held that the alleged retaliation was in response to plaintiff's questioning the organization's summer camp invitee list, not in response to her opposing an employment practice, as required by Title VII.

Enforcement of Zoning Code Does Not Amount To Conspiracy To Infringe Free Exercise Rights

In Salman v. City of Phoenix, 2011 U.S. Dist. LEXIS 86984 (D AZ, Aug. 5, 2011), an Arizona federal district court dismissed a suit that had been brought by a couple who were born-again Christians who alleged that the city of Phoenix and certain city officials and employees had conspired to deprive them of their rights to the free exercise  of religion.  The claims grew out of the city's execution of a search warrant, other enforcement activities and prosecution of plaintiffs for various building and zoning code violations.  Plaintiffs were using their home and an adjacent building for religious services which 40 to 50 people attended, and displayed in their yard of a reader board containing Biblical verses. The court concluded that:

Plaintiffs' allegations describe only defendants' repeated efforts to enforce the law, in accordance with the responsibilities of their employment. Such actions alone cannot constitute an agreement to deprive plaintiffs of their legal rights. In the absence of any allegations of an actual agreement, plaintiffs' claim for civil conspiracy fails as a matter of law.

Fired Employee, Believer In Theosophy, Sues Over Retaliation, Complaints About Yarmulke

Yesterday's New York Post reports on a religious discrimination lawsuit filed in New York federal district court against the consulting firm McKinsey & Co. by a former employee who says he was fired after going to the police to complain about threats he received for going to the company's Human Resources department. In the lawsuit, Ciro Rosselli alleges that problems began when he wore a yarmulke to work as an expression of his practice of "theosophy", a movement that finds truth in all religions.  He was subjected to a stream of taunts by fellow-employees and his supervisors. For example, his boss sent him an e-mail comparing him to Kabbala admirer Madonna.

Philippine Cultural Center Closes Exhibit Offensive To Christians

In the Philippine capital of Manila, the board of the government-run Cultural Centre of the Philippines has closed down an exhibit that included works by local artist Mideo Cruz which Christians found highly offensive.  AFP reports that the exhibit, which opened June 7, included a Cruz poster of Jesus with a wooden penis glued to his face, a cross made of discarded wood with a penis attached, and Jesus with a red clown nose and Mickey Mouse ears.  The closure comes after a group of Christian lawyers said it was filing charges with the government ombudsman accusing the Centre's management with violating the law against "immoral doctrines that violate religion." It also wants those responsible for the exhibit suspended or fired. Philippine president Benigno Aquino says he called the Centre and told the staff he was opposed to the exhibit.  The Centre board said it had received an increasing number of threats to person and property over the exhibit.

New Study Shows Increasing World Restrictions On Religion

The Pew Forum on Religion and Public Life yesterday released a new report on the rising restrictions on religion around the world. The report (full text) uses both a government restrictions index and a social hostilities index in examining restrictions on religious beliefs and practices. The report concludes:

Restrictions on religious beliefs and practices rose between mid-2006 and mid-2009 in 23 of the world’s 198 countries (12%), decreased in 12 countries (6%) and remained essentially unchanged in 163 countries (82%)....

Because several countries with increasing restrictions on religion are very populous, however, the increases affected a much larger share of people than of states. More than 2.2 billion people – nearly a third (32%) of the world’s total population of 6.9 billion – live in countries where either government restrictions on religion or social hostilities involving religion rose substantially over the three-year period studied. Only about 1% of the world’s population lives in countries where government restrictions or social hostilities declined.

Christian Century summarizes the report.

Jeffs Receives Life In Prison

[Updated] CBS and CNN report that FLDS leader Warren Jeffs was sentenced to life imprisonment today in his sexual assault trial. The jury imposed the life sentence on one count of aggravated sexual assault and an additional 20 years in prison and a $10,000 fine on a charge of sexual assault. These were the maximum sentences available on each count. The victims were underage girls that Jeffs took as his "spiritual wives."  The Texas jury deliberated for less than half an hour in the penalty phase of the trial. (See prior related posting.)

Free Exercise Claim In Tax Exemption Dispute Moves Forward

Michael v. Letchinger, 2011 U.S. Dist. LEXIS 86685 (ND IL, Aug. 5, 2011), involves zoning and tax disputes between George and Susan Michael and the village of Lake Bluff, Illinois.  The Michael's converted a portion of their expensive lake front home into what they claimed was an Armenian Orthodox Church, because Susan's health made it difficult for her to travel to an existing church in Chicago. They transferred ownership to a new religious corporation they created.  They then initially convinced the state of Illinois to grant a religious property tax exemption for their home. (See prior posting.)  The complaint alleges that village officials then began a campaign to drive the Church out of existence and reverse the tax exemption. The exemption was reversed, and the exemption denial was upheld by the Illinois courts.  This federal court lawsuit seeks $10.5 million damages for the actions of village and state officials. The court dismissed most of plaintiffs' claims, but permitted them to proceed on their claim that their free exercise rights were violated by the discriminatory enforcement of zoning and building codes against them. They claim that the enforcement was motivated by animus against the Armenian Orthodox Church.

Summum Discussing Offering Released Time Program In Utah

In Utah, according to yesterday's Salt Lake Tribune, it is common for high school students to take advantage of the state's released time program to enroll in LDS seminary classes that are offered in LDS Church-owned buildings near public high schools. Last year over half of Utah's high school students were enrolled in LDS seminary classes. The Canyons (UT) school district is building a new $55 million high school, and an adjacent parcel of land has long been designated as "seminary" on architectural plans with school board officials assuming it would be used by a religious organization of a released-time program. The LDS Church has expressed some interest in buying the land. Now, however, the Summum movement has inquired about purchasing the land to build its first seminary.  It wants to use the seminary for a released time program that teaches "the principles of the universe."

UPDATE: The Salt Lake Tribune (Aug. 17) reports that the Canyons school board has decided not to sell the land to anyone for a seminary.

In Nigeria, Christians Planning Non-Interest Banking To Parallel Islamic Finance

Last year, the Central Bank of Nigeria created controversy when it issued guidelines for Shariah-compliant financial institutions. (See prior posting.) Now, according to The Moment yesterday, Christian groups in Nigeria that have unsuccessfully attempted to get the Central Bank to withdraw its guidelines are taking a new approach. They are planning to apply for a license to operate a non-interest bearing bank that would operate according to Christian principles. This is seen as a test of the Central Bank's pledge that other groups seeking to create non-interest institutions would be given the same attention as Islamic banks, and that the Central Bank would issue guidelines for those institutions as well.

Canadian Judge Rejects Biblical Verses As Defense To Assault Charges

In the Canadian city of Halifax, Nova Scotia, a provincial judge has convicted Cornelius Jones on a number of counts of assault, as well as of uttering threats, resisting arrest and failing to appear in court.  Yesterday's Halifax Chronicle Herald , as well as CBC News, report that Jones, representing himself, defended against the charges of assaulting his wife and his 3-year old daughter by quoting Biblical verses that he says call for wives to submit to their husbands, and for disciplining children with the rod.  The judge urged Jones to retain counsel to represent him at the sentencing stage, telling Jones: "If Jesus Christ was here I would be recommending that he have a lawyer." Jones' brother told the court that he believes Jones needs psychiatric held, but says Jones has refused help from his family.

Jehovah's Witness Loses Malpractice Suit Complaining About Life-Saving Blood Transfusion

In DiGeronimo v. Fuchs, (NY S.Ct. Richmond Cty., Aug. 4, 2011), a New York trial court dismissed a medical malpractice claim brought against a doctor who saved a woman's life by giving her a blood transfusion. Plaintiff, a Jehovah's Witness, objected on religious grounds to the transfusion which became necessary due to complications after she delivered a child.  Her husband signed a consent for the transfusion when he was advised that without it his wife would die.  The court held:

there is no precedent for finding medical malpractice when a blood transfusion was the proximate cause of saving a life. Here, the plaintiff may be offended or even emotionally distressed that another person's blood was transfused into her body, which is apparently not in keeping with her beliefs as a Jehovah's Witness. Notwithstanding the fact that the plaintiff's husband, another Jehovah's Witness who was her health care proxy, signed a consent for the transfusion, the plaintiff's emotional distress concerning the blood transfusion does not rise to the level of an injury, as that term is used as an element of a medical malpractice action.

.... Since the plaintiff's transfusion saved her life, this action is analogous to one for "wrongful life" against the doctor. However, there is no cause of action for "wrongful life" in the State of New York.

 SI Live reports on the decision.

Indian Court Tells Counsel To Read Gita Before Arguing Case

In the Indian state of Madhya Pradesh, the government has ordered schools to incorporate "Gita Sar"-- the essence of Gita-- into the curriculum. According to yesterday's  Indian Express, the Catholic Bishops Council last month filed suit asking the Madhya Pradesh high court to order the government to instead include a summary of all religions in the curriculum, and not to favor a particular faith.  Plaintiffs argued that giving other religions equal prominence with Hinduism conforms to the Constitutional idea of a secular India.  Last week, the court issued an order instructing plaintiff's counsel to take two months to read the entire Gita before arguing the case so that counsel can "clearly understand whether the Gita is a philosophy of life or is associated with any religion."

Catholic Hospitals Say Exemption For Mandated Contraceptive Coverage Is Too Narrow

As previously reported, last month the Departments of Treasury, Labor and HHS issued for comment interim final rules on preventive health care services for women. They include an exemption for "religious employers" from the requirement that insurance plans fully cover contraceptive services. However, according to Fox News yesterday, Catholic hospitals, among others, object that the exemption is too narrow.  Under the interim rules, a religious employer is defined as

an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in ... the Internal Revenue Code....

Sister Carol Keehan, president of the Catholic Health Association, calls this "the parish housekeeper exemption", because she says that is about all it covers.  The exemption is not broad enough to cover Catholic hospitals, most of which currently do not cover contraceptive services in the insurance plans they provide their employees. The Catholic Health Association supported President Obama's health care reform when it was working its way through Congress. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Scott Thomas Fitzgibbon, Parent, Child, Husband, Wife: When Recognition Fails, Tragedy Ensues, (Brigham Young University Journal of Public Law, Vol. 25, No. 2, 2011).
• Michale J. Klarman, David A. Skeel, and Carol S. Steiker, Introduction: Appreciating Bill Stuntz, (The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, Cambridge University Press, 2012).
• David A. Skeel and Tremper Longman, The Mosaic Law in Christian Perspective, (U of Penn Law School, Public Law Research Paper No. 11-25, June 30, 2011).
• Patrick Parkinson, Accommodating Religious Beliefs in a Secular Age: The Issue of Conscientious Objection in the Workplace, (University of New South Wales Law Journal, Vol. 34, No. 1, pp. 281-299, 2011).
• Asma Uddin, The UN Defamation of Religions Resolution and Domestic Blasphemy Laws: Creating a Culture of Impunity, (July 14, 2011).

American Political Science Association 2011 Annual Meeting Papers on SSRN:

• Bo Rothstein and Rasmus Broms, Why No Democracy in the Arab Muslim-World? The Importance of Temple Financing.
• Juliana Horowitz and Neha Sahgal, Modernizers vs. Fundamentalists: How Religion, Politics and Economics Shape Attitudes in the Muslim World.
• Virgil Stanford and Elizabeth Brewer, Dominion or Stewardship: Understanding the Role of Religiosity in Forming Attitudes about the Environment through Pathway Analysis.
• Christian Bjørnskov and Niclas Berggren, Does Religiosity Promote or Discourage Property Rights and the Rule of Law?.
• Geoffrey A. Evans and Ksenia Mankowska, Belonging But Not Believing (Strongly): Examining the Political Implications of the Resurgence of Orthodoxy in Post-Soviet Russia.

From SmartCILP:

• Mala Htun and S. Laurel Weldon, State Power, Religion, and Women's Rights: A Comparative Analysis of Family Law, [Abstract], 18 Indiana Journal of Global Legal Studies 145-165 (2011).

Kansas High Court Rules On Relevance of Parent's Religion In Custody Determination

In Harrison v. Tauheed, (KA Sup. Ct., Aug. 5, 2011), the Kansas Supreme Court affirmed a trial judge's decision to award custody of a 5-year old boy to the child's mother, a Jehovah's Witness, over the objections of the child's father who also sought custody. The father argued on appeal that the trial court erred in refusing to consider the negative impact on the boy of his mother's religious beliefs and practices. The Supreme Court held:

Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination—judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child's welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law....

Just as mere religious beliefs cannot be solely determinative of custody, a court may not speculate about behavior that religious beliefs may motivate in the future.... A court also may not weigh the merit of one parent's religious belief or lack of belief against the other's. Nothing in law school or practice in any setting qualifies a judge for this task, and any judicial effort to tackle it is far too likely to lead to the substantial impairment of the free exercise of religion... Courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional. The consideration of religiously motivated actions as a part of holistic evaluation of the best interests of the child, while excluding consideration of religious beliefs, strikes an appropriate balance among the free exercise rights of each parent; the right of each parent to the care, custody, and control of his or her child; and the welfare of the child....

The court concluded that the trial judge's decision met this standard.

Closed Questioning In Voir Dire of Potential Juror Who Objected To Oath Leads To Reversal of Conviction

In State of Washington v. Abbey, (WA App., Aug. 5, 2011), a Washington state appeals court reversed and remanded for a new trial the voyeurism conviction, and unusual 60-month sentence (because of past convictions for attempted voyeurism), of a defendant who was charged with looking into a bathroom window as a woman was getting out of the shower.  The reversal was based on the manner in which the court questioned a juror who, because of religious objections, failed to take the juror's oath during voir dire.  The judge questioned the juror (with both counsel present) in the hallway outside of the court room instead of in open court. The juror told the judge that it is against his religious beliefs to judge a fellow human being. The court held that defendant's right to a public trial was violated when the judge excluded the public from this questioning of the juror without first conducting a hearing to determine whether the courtroom should be closed to the public. The court said:

Here, what began as a ministerial matter, i.e., finding out why the juror refused to stand and take the oath, soon evolved into a discussion highly relevant to whether the State or defendant felt that the juror should serve, such that the State even suggested removing the juror for cause. What transpired was an investigation into the juror’s ability to serve, a matter neither ministerial nor trivial, and how his religious beliefs interfered with his ability to pass judgment or render a verdict.

Judge Quinn-Brintnall concurred on the ground that the defendant was excluded from the hallway questioning. Only his counsel was present.

San Francisco Moves To Require More Disclosure By Crisis Pregnancy Centers

In a press release last week, San Francisco City Attorney Dennis Herrara and Board of Supervisors member Malia Cohen announced joint legal and legislative steps against misleading advertising by crisis pregnancy centers.  On Aug. 2, Cohen introduced the “Pregnancy Information Disclosure and Protection Ordinance", the full text of which is included in the press release.  The proposed law bars dissemination of untrue or misleading statements concerning services offered at such centers.  At the same time, Herrara sent a letter to First Resort, Inc. demanding that it change its website to eliminate language that falsely suggests that it offers, or make referrals for, abortion services. The organization has purchased a paid Google search link, that causes its website to appear near the top of the search results for "abortion in San Francisco." The full text of the demand letter is also included with the press release. Catholic News Service reports on these developments. [Thanks to Isaiah Sage for the lead.]

Recent Prisoner Free Exercise Cases

In Riley v. Beard, 2011 U.S. Dist. LEXIS 83445 (MD PA, July 29, 2011), a Pennsylvania federal district court rejected prison officials' motion for reconsideration and permitted a Muslim inmate to proceed with his claims that his rights were violated when dates he used to break the Ramadan fast were confiscated from his cell.

In Lacey v. Braxton, 2011 U.S. Dist. LEXIS 84313 (WD VA, Aug. 1, 2011), a Virginia federal district court dismissed claims by an inmate who was a member of the House of Yahweh that his religious books and his tallit were wrongfully confiscated.

In Shepherd v. Fisher, 2011 U.S. Dist. LEXIS 84110 (SD NY, July 27, 2011), a New York federal district court refused to permit a Rastafarian prisoner to amend his complaint to charge the deputy superintendent with denying him specially requested religious meals on holy days.

In Henry v. Schriro, 2011 U.S. Dist. LEXIS 84883 (SD NY, Aug. 2, 2011), a New York federal district court dismissed a Jewish inmate's claim for $9.999 billion in damages for denial of his request for matzoh and grape juice.

In Cardew v. Bellnier, 2011 U.S. Dist. LEXIS 84949 (ND NY, Aug. 2, 2011), a New York federal district court adopted a federal magistrate's recommendations (2010 U.S. Dist. LEXIS 143515, Dec. 9, 2010) and dismissed inmates' challenge to prison rules that called for consideration of ethnic and religious backgrounds in determining double celling assignments. The court also dismissed plaintiffs' claims that authorities violated their 1st Amendment rights and rights under RLUIPA by serving all inmates meals without red meat on Ash Wednesday and Fridays during Lent.

In Florez v. McCormac, 2011 U.S. Dist. LEXIS 85214 (D CO, Aug. 3, 2011), a Colorado federal district court dismissed on statute of limitations grounds an inmate's complaint that his Bible was confiscated and destroyed and he was unable to obtain a replacement Bible for 138 days.  The court rejected the argument that the the limitations period had not run because this was a "continuing violation" of plaintiff's rights.

In Fricks v. Upton, 2011 U.S. Dist. LEXIS 81373 (MD GA, July 26, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85071, April 14, 2011) and permitted an inmate to move ahead with his claim that his free exercise rights were infringed, though the magistrate judge expressed doubt that plaintiff's Church of Creativity qualifies as a religion.

In Grumbley v. Michigan, 2011 U.S. Dist. LEXIS 85940 (WD MI, Aug. 4, 2011), a Michigan federal district court dismissed a Jewish inmate's complaint that his rights were violated when prison authorities would allow him to use a prayer shawl purchased with prison funds only if it was marked as prison property.

In Jernigan v. Atkins, 2011 U.S. Dist. LEXIS 85773 (ND FL, Aug. 4, 2011), a Florida federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85879, June 30, 2011) and permitted a Muslim inmate to proceed against certain defendants with his claim that he was denied adequate food at times that would permit him to observe the Ramadan fast.

In Briley v. Cole, 2011 U.S. Dist. LEXIS 86345 (ED AR, Aug. 4, 2011), an Arkansas federal district court adopted a portion of a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 86383, July 8, 2011), and dismissed an inmate's free exercise complaint, holding that occasional failure to provide plaintiff with a completely meatless meal did not substantially burden the practice of his religious beliefs.

In Romero v. Lappin, 2011 U.S. Dist. LEXIS 86435 (ED KY, Aug. 4, 2011), a Kentucky federal district court held that guards at a federal prison were protected by qualified immunity in both constitutional and RFRA damage claims alleging that they violated the religious rights of a Native American prisoner by removing a length of green string from his prayer feather.

Cuba's Raul Castro Says Government Should Welcome Religious Believers

Cuba's president, Raul Castro, gave a speech (full text) to Cuba's Parliament (Legislature of the National Assembly of People's Power) on Monday, reviewing economic and other developments in recent months.  A lengthy section of his speech was captioned: "A Painful Indictment Caused by Errors in the Implementation of the Cadre Policy and Attitudes Toward Religion." Castro described at length the demotion of a government employee who "became the victim of the dominant mentality at distinct levels of the Party and state, because of professing religious beliefs and on occasions, attending services at the church in her locality."  Saying he wished to "repair this injustice," he spoke at length about the need to respect those who hold religious beliefs:

Many years ago our Revolution overcame the scenes of confrontation with some of the religious institutions, a stage during which both parties committed excesses of greater or lesser magnitude. We are also aware of the enemy’s aspirations to foment confrontation and distrust between believers and the revolutionary process, calculations which have proved themselves erroneous because, from the outset, the vast majority of Cubans from modest backgrounds with religious beliefs supported the Revolution.

To anyone who is in any doubt about that, I would recommend that they read the Bush (Junior) Plan for transition in Cuba, which we know has not been abolished, and the role to be allocated to all the religious organizations in its subversive strategy against our country and which, despite the failure reaped, we know that these intentions have not been renounced....

...[A]ttitudes like those criticized here endanger our principal weapon for consolidating independence and national sovereignty; in other words, the unity of the nation.

Peoples World yesterday reported on Castro's speech.

Ft. Bragg Will Now Host "Rock Beyond Belief"

After being cancelled earlier this year (see prior posting), it now appears that "Rock Beyond Belief"-- a program sponsored by a group of atheists and secular humanists-- will be held next March at the U.S. Army base in Ft. Bragg, North Carolina.  According to RNS yesterday, the decision comes after complaints over funding given by the Army for the "Rock the Fort" concert held at the base last year under the auspices of the Billy Graham Evangelistic Association. The Rock Beyond Belief program-- that will now receive similar support-- will feature music and speakers, including well-known atheist author Richard Dawkins.  Ed Brayton, who blogs at Dispatches from the Culture Wars, says that he will emcee the event. [Thanks to Scott Mange for the lead.]

Gov. Perry's Prayer Rally Held In Houston Today

In Houston today, the controversial Christian prayer rally initiated by Texas Gov. Rick Perry (see prior posting) was held in Reliant Stadium. The Los Angeles Times reports that while Perry invited governors of every other state to attend the rally (billed as "The Response: A Call To Prayer for a Nation in Crisis"), only Kansas Gov. Sam Brownback accepted the invitation.  The event was financed by the American Family Association.  Gov. Perry read several Bible verses, and told the audience of over 30,000: "Like all of you, I love this country deeply. Indeed, the only thing you love more is the living Christ." According to the rally's official website, Perry also delivered a prayer, which reads in part:

Father, our heart breaks for America. We see discord at home. We see fear in the marketplace. We see anger in the halls of government. And as a nation we have forgotten Who made us, Who protects us, Who blesses us, and for that we cry out for Your forgiveness.

We pray for our nation’s leaders, Lord -- for parents, for pastors, for the generals, for governors -- that You would inspire them in these difficult times. Father, we pray for our president, that You would impart Your wisdom upon him, that You would guard his family. We pray for our military and the families who love them. Father, especially for those special operators who lost their life yesterday in defending our freedoms.

3rd Circuit: School Board Prayer Governed By School Prayer Tests, Not By Test For Legislative Invocations

In Doe v. Indian River School District, (3d Cir., Aug. 5, 2011), the U.S. 3rd Circuit Court of Appeals held that the test for whether prayers opening school board meetings violate the Establishment Clause is the test used for prayer at school events (Lee v. Weisman) , not the test for when invocations are permitted in legislative bodies  (Marsh v. Chambers). The Indian River, Delaware, school board routinely opened its meetings with a prayer offered by one of the board members, on a rotating basis. The prayers that were delivered were almost always Christian in their orientation. The court held that since students almost always attend Board meetings, either to receive awards or as part of their extracurricular activities or to comment on school policies, these meetings are analogous to graduation ceremonies which, while not technically mandatory, nevertheless result in students feeling coerced into participating in religious exercises. The court then found that the Board's prayer policy has the primary effect of advancing religion and involves excessive entanglement of government with religion. Board members are government actors composing and delivering prayers.  The Wilmington News Journal reports on the decision. (See prior related posting.)

President Takes Steps To Counter Future Mass Atrocities and Genocides

The White House yesterday announced two major steps taken by President Obama designed to help prevent mass atrocities and prevent the United States from becoming a haven for serious human rights violators.  Obama issued a Presidential Study Directive on Mass Atrocities (full text) creating an Interagency Atrocities Prevention Board and ordering an interagency study on implementing the new Board's role.  The memorandum explains the goal of the new arrangements:

Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed. By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing. The actions that can be taken are many they range from economic to diplomatic interventions, and from non combat military actions to outright intervention. But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.

Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide. This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.

Obama also issued a Presidential Proclamation (full text) barring (with exceptions for foreign policy reasons) entry into the United States of:

(a) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race; color; descent; sex; disability; membership in an indigenous group; language; religion; political opinion; national origin; ethnicity; membership in a particular social group; birth; or sexual orientation or gender identity, or who attempted or conspired to do so.

(b) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so.

Priest Abuse Plaintiffs In Delaware Settle With Religious Order

In Delaware yesterday, plaintiffs in numerous priest sexual abuse lawsuits agreed to a settlement with the Oblates of St. Francis Desales.  According to WDEL News, the Catholic religious order will pay $24.8 million to 39 plaintiffs. This comes a week after a federal bankruptcy court confirmed a bankruptcy plan of reorganization of the Diocese of Wilmington. (See prior posting.) Earlier this year, the Delaware Supreme Court rejected a challenge by the Oblates of St. Francis Desales to the state law that created a 2-year window for filing of sex abuse claims that were previously barred by the statute of limitations. (See prior posting.)

Jeffs Convicted On 2 Counts of Sexual Assault of Child

According to CNN, a jury in San Angelo, Texas yesterday found FLDS leader Warren Jeffs guilty on two counts of sexual assault of a child.  The victims were 12 and 14 year old girls who were Jeffs' "spiritual wives".  The jury deliberated for less than 4 hours in reaching its verdict, after a trial in which Jeffs represented himself and invoked religious freedom as a defense. A second phase of the trial which began yesterday evening will determine Jeffs' sentence, which could be as much as life in prison. The Salt Lake Tribune reports that yesterday also the Principle Rights Coalition-- representing 5 polygamous churches-- denounced Jeffs' child abuse (full text of statement), saying in part:

As new evidence has surfaced in Texas detailing reprehensible acts of sexual abuse against children as young as twelve years old, we are alarmed that such depravity could have been perpetrated by anyone... We repudiate and denounce Warren Jeffs’ inappropriate actions in linking his despicable and unconscionable acts to the Gospel of Jesus Christ and to Joseph Smith Jr. and Mormonism.

6th Circuit Refuses Modification of 16 Year Old Church Zoning Consent Decree

In Northridge Church v. Charter Township of Plymouth, (6th Cir., July 28, 2011), the U.S. 6th Circuit Court of Appeals refused to set aside or modify a consent judgment that had been entered 16 years earlier in a case involving an attempt by a large congregation to obtain zoning approval for construction of a church building and related recreational facilities. Among the restrictions set out in the consent decree were limitation of the church's total auditorium seating to no more than 3,500 and no more than 1,167 parking spaces. At the time of the consent decree, average Sunday church attendance was 1,100. It has now grown to 14,000-- requiring multiple weekly services and costly shuttle buses. The court rejected the church's argument that the enactment of RLUIPA 5 years after the entry of the consent decree voided the judgment. The court also concluded that RLUIPA did not create sufficient changed legal circumstances to justify a modification of the decree since at the time of the decree RFRA was in effect and had not yet been invalidated in its application to states. Finally the court concluded that there had not been a sufficient change in factual circumstances to find that the district court had abused its discretion in refusing to modify the consent judgment. [Thanks to Brian D. Wassom for the lead.]

White House Releases New Plan For Supporting Local Efforts Against Violent Extremism

The White House yesterday released the President's plan for Empowering Local Partners to Prevent Violent Extremism in the United States (full text). The report sets out a community-based approach that includes greater support and information sharing with local officials.  In his introduction to the report, President Obama says:

As we approach the 10th anniversary of the September 11 attacks, we remember that al-Qa'ida tried to spark a conflict between faiths and divide us as Americans. But they failed.

Addressing the threat of extremist propaganda, the report says:

we must counter al-Qa’ida’s propaganda that the United States is somehow at war with Islam.... Al-Qa’ida and its supporters spread messages of hate, twist facts, and distort religious principles to weave together a false narrative that Muslims must attack Americans everywhere because the United States is waging a global war against Islam. While al-Qa’ida claims to be the vanguard of Islam, the overwhelming majority of its victims are Muslim.

We will challenge this propaganda through our words and deeds, defined by the very ideals of who we are as Americans. As the President has stated repeatedly, the United States is not, and never will be, at war with Islam. Islam is part of America, a country that cherishes the active participation of all its citizens, regardless of background and belief. We live what al-Qa’ida violently rejects—religious freedom and pluralism.... 

The report also emphasizes that : "Strong religious beliefs should never be confused with violent extremism."

U.S. House Files Memo In Court Supporting DOMA

As previously reported, after the Obama administration announced that it would no longer defend the constitutionality of the federal Defense of Marriage Act, the U.S. House of Representatives decided to defend the constitutionality of the statute.  New York Law Journal reports that on Monday, lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives filed a memorandum of law (full text) in one of the cases in which the House is defending DOMA.  The case is Windsor v. United States, (SD NY), in which the surviving spouse of a same-sex marriage performed in Canada is seeking to have her marriage recognized for federal estate tax purposes. The memo argues that the court should apply merely rational basis review in assessing the challenge to DOMA, and that the courts should leave any redefinition of marriage to the democratic process. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Tennessee City's Resolution Supporting Israel Criticized For Religious References

The Mt. Juliet, Tennessee City Commission at its July 25 meeting passed, by a 4-1 vote, a resolution (full text Word.doc) supporting the nation of Israel.  The Tennessean, however, reports that one person at the meeting objected on First Amendment grounds to one of the eight "Whereas" clauses with which the resolution begins.  That clause reads: "WHEREAS, the Lord of Abraham, Isaac, and Jacob promises in Genesis 12:3 to bless those that bless Israel: 'I will bless them that bless thee, and curse him that curseth thee: and in thee shall all families of the earth be blessed.'" The vice-mayor said he saw nothing in the resolution that established a state-run church.

Court Upholds Constitutionality of New York's Kosher Law Protection Act

In Commack Self-Service Kosher Meats, Inc. v. Hooker, (ED NY, Aug. 3, 2011), a New York federal district court upheld the constitutionality of New York's 2004 Kosher Law Protection Act (Agr. and Mkts. L. Sec. 201-A to 201-D).  The law was passed after an earlier version was declared unconstitutional.  Under the 2004 law, producers, sellers and certifiers of kosher food are required to file various disclosures with the state identifying the qualifications of certifiers of food being sold as kosher. This information is made available in an online registry for consumers. The court rejected an Establishment Clause challenge, finding that the state had a secular purpose in enacting the law and that the law does not favor one religious group over another. The court said:

The State cannot define what is and is not kosher because that is a matter of religious law. But the state is entitled to protect all purchasers of food represented to be kosher, whatever their religion, from fraud....

In contrast to the previously challenged statutes, which constituted the advancement of Orthodox Judaism because they defined "kosher" as meeting "orthodox Hebrew religious requirements," the current version of the Act is purely a labeling and disclosure law.

The court also rejected claims of excessive entanglement of religion and state.  Plaintiff argued that "there is entanglement between the Orthodox religious community and the State's political elite."  But the court said that  prohibited entanglement is only present when the government is being charged with enforcing a set of religious laws. Additionally, court also rejected plaintiffs' free exercise claims, finding that the law does not restrict any religious practice, nor does it require the use of any particular symbol to identify food as kosher. Reuters reports on the decision.

Justice Department Settles With California City In RLUIPA Zoning Case

The Department of Justice announced yesterday that it has entered a settlement agreement with the city of Walnut, California in a lawsuit claiming the city violated the Religious Land Use and Institutionalized Persons Act when, in 2008, it denied a conditional use permit to the Chung Tai Zen Center that wanted to build a temple on land it owned.  The denial led the Zen Center to move to another facility in Pamona.  Under the agreement, which must still received court approval, the city, in the future, will not impose differential zoning or building requirements on houses of worship. It will clarify the zoning appeals process for houses of worship. Also various city officials and employees will receive RLUIPA training. (See prior related posting.)

Utah Court Orders State AG To Advance Fees To Fiduciary In United Effort Plan Trust Case

The complex Utah state court litigation to reform the FLDS United Effort Plan Trust has gotten even more complex.  According to the Salt Lake Tribune, State 3rd District Court Judge Denise Lindberg on Monday ordered the Utah Attorney General's Office to advance $4.7 million to court-appointed special fiduciary Bruce Wisan for unpaid fees owed to lawyers and Wisan's accounting firm for work relating to the Trust. (See prior related posting.) The order contemplates that the Trust will eventually reimburse the state for the fees. The costs at issue 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. Utah Attorney General is considering an appeal of the decision that he calls "strange and surprising" and which he says contains personal and biased misstatements.

Israel To Use More Secular Version of Memorial Prayer At Military Ceremonies

Haaretz today reports on the latest volley in the battle between religious and secular Jews in Israel over the text used at the official military ceremonies remembering fallen soldiers, including the state ceremony each year at the end of Memorial Day and the beginning of Israel Independence Day. In 1920, a prayer written by Berl Katznelson after the battle of Tel Hai, became the memorial prayer used. It began "May the people of Israel remember" (Yizkor Am Yisrael).  In 1963, the Israel Defense Forces officially changed the prayer to begin "May God Remember" (Yizkor Elohim), which is the text of the traditional memorial prayer in Jewish religious ceremonies. However, that change was not enforced until two year ago when military rabbis pushed for the modified version. Two months ago, the IDF told a journalist that Yizkor Elohim is the official version. That in turn generated protests from many secular parents of deceased soldiers, and the IDF appointed a special committee to study the matter.  Now the Ministerial Committee on Ceremonies and Symbols says the prayer will return to its original version (Yizkor Am Yisrael) at ceremonies.

9th Circuit: University Rule On Student Groups Upheld On Its Face, But Remanded On Discriminatory Application Claim

In Alpha Delta Chi-Delta Chapter v. Reed, (9th Cir., Aug. 2, 2011), the U.S. 9th Circuit Court of Appeals upheld the facial constitutionality of a San Diego State University policy that denies recognition to any student group that "restricts membership or eligibility to hold appointed or elected student officer positions ...  on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition." However, the court concluded that plaintiffs had raised a triable issue of fact as to whether the University applied the policy in a discriminatory manner in denying recognition to a Christian fraternity and sorority, while granting recognition to certain other groups that limited their membership. Judge Ripple concurred on the ground that the University's policy marginalizes religiously based groups because their members' shared beliefs coincide with their shared status as members of a religion. Courthouse News Service reports on the decision.

House Homeland Security Committee Holds Hearing On Al Shabaab's Activities In US

Largely lost in last week's focus on Congress' debt ceiling debate was the hearing held on last Wednesday by Peter King's House Homeland Security Committee on Al Shabaab: Recruitment and Radicalization within the Muslim American Community and the Threat to the Homeland. (Links to full texts of hearing testimony.)  In opening the hearing, Rep. King said:

At this hearing, the third in a series, we will examine Somalia-based terrorist organization al Shabaab’s ongoing recruitment, radicalization, and training of young Muslim-Americans and al Shabaab’s linking up with al-Qaeda in the Arabian Peninsula (AQAP).

In connection with the hearing, King released and investigative report (full text) on al Shabaab.

Faith-Based Director Follows Up Obama's Statements On Hiring By Grantees

Last month, President Obama at a University of Maryland town hall meeting endorsed the status quo as to faith-based hiring by religious organizations receiving federal grant monies. (See prior posting.) Groups such as the Interfaith Alliance and the Secular Coalition for America criticized Obama's statement, urging a policy of non-discrimination in hiring by all faith-based grantees. (Huffington Post.) On Monday, Joshua DuBois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships, posted a statement on the White House website that was apparently intended to be a response to these criticisms. The statement reads in part:

There has been some talk lately about the Administration’s commitment to the separation of church and state. President Obama strongly believes that while faith-based organizations play an integral role in providing social services, their interactions with government must be grounded in sound law and policy, and must respect the Constitution....

We established an Advisory Council on Faith-based and Neighborhood Partnerships and charged a taskforce of church/state experts with addressing key issues related to faith-based partnerships with government....

The bottom line is this: while critical issues remain, President Obama and we in the Office of Faith-based and Neighborhood Partnerships are committed to ensuring that we lead with our values: of constitutional separation of church and state, respect for faith-based and secular service providers alike, and commitment to doing the most good for individuals and families in need.