New Scholarly Papers Online

On SSRN:
Cornell University Professor Bernadette A. Meyler, The Equal Protection of Free Exercise: Two Approaches and their History .

On Bepress:
McGeorge School of Law Professor Gregory C. Pingree, Rhetorical Holy War: Polygamy, Homosexuality, and the Paradox of Community and Autonomy.

Southwest Missouri State University Professor Kevin Pybas, Two Concepts of Liberalism in Establishment Clause Jurisprudence.

Another 10 Commanments Monument OK'd

The Seattle Post-Intelligencer reports that yesterday a federal district court in Seattle, Washington applied the U.S. Supreme Court's recent rulings on Ten Commandments monuments and held that a monument on public property in Everett, Washington may remain. The monument, donated by the Fraternal Order of Eagles 45 years ago, was almost identical to the one in Texas that the U.S. Supreme Court approved in the Van Orden case in June 2005.

UPDATE: Here is the full opinion inthe case, Card v City of Everett.

TX Capital Punishment Laws Do Not Violate Establishment Clause

In Roach v. Dretke, 2005 U.S. Dist. LEXIS 19697 (USDC ND Texas, Sept. 9, 2005), a federal district judge rejected arguments that the Texas capital punishment laws violate the Establishment Clause. The court held, however, that there were a number of secular purposes for the law. It said that where proponents of the death penalty did cite the Bible, it was in response to quotes from the Bible by those opposed to capital punishment.

6th Circuit Upholds RLUIPA On Spending Clause Grounds

In May 2005, the U.S. Supreme Court upheld the Religious Land Use and Institutionalized Person Act against an Establishment Clause attack. On remand to the U.S. Sixth Circuit Court of Appeals, challengers claimed other constitutional defects in the statute. Yesterday, the Sixth Circuit in Cutter v. Wilkinson held that RLUIPA was a valid exercise of Congress' power under the spending clause. Because this was a sufficient basis for the statute, the court indicated that it need not decide whether Congress could also have relied on the commerce clause to enact the statute. [Thanks to Derek Gaubatz via Religionlaw listserv for the lead.]

Two Prisoner Cases From Wisconsin

In West v. Overbo, 2005 U.S. Dist. LEXIS 19550 (EDWis., Sept. 8, 2005), a Wisconsin federal district court reject a Muslim inmate's claims that prison authorities retaliated against him by serving nutritionally inadequate food, insulting Ramadan participants by issuing an extra dessert, and repudiating the feast of Eid-al-Fitr.

In Andreola v. Wisconsin, 2005 U.S. Dist. LEXIS 19535 (EDWis., Sept. 2, 2005), a county jail inmate had requested that he be served a kosher diet prepared in separate facilities which he could supervise. The court rejected his First Amendment claim based on a denial of his request, as well as his fraud claim. However, the court permitted more evidence to be introduced on the prisoner's claim under the Religious Land Use and Institutionalized Persons Act.

Raising Legal Fees On eBay By Selling the Decalogue

In July, a Georgia federal judge ordered Barrow County to remove a Ten Commandments plaque from its courthouse. (See prior posting.) A private group, Ten Commandments-Georgia, pledged to reimburse the county for its legal expenses. The Atlanta Journal Constitution reports today that in order for the group to raise the last $52,000 it needs to meet that pledge, it has put up for auction on e-Bay the authentic Ten Commandments plaque that was removed under the order of the court.

Temporary Injunction For Churches Against MN Concealed Carry

The Associated Press reported yesterday that Hennepin County, Minnesota District Judge LaJune Thomas Lange granted two Twin Cities churches a temporary injunction against enforcement of Minnesota's concealed carry law. The statute requires churches that wish to exclude firearms to post signs with specific wording. It also allowed concealed weapons in church parking lots and in church premises leased to other groups. (See prior posting.) One church ignored the required wording and put up signs that read "Blessed are the peacemakers. Firearms are prohibited in this place of sanctuary.'' The temporary injunction applies until a trial is held. The judge said that the statute "impermissibly intrudes into the free exercise of religion by arbitrary definitions, which dictate restrictions on the use of church property for worship, childcare, parking and rental space."

3 Briefs In O Centro Available

The full briefs submitted by both parties, as well as one of the amicus briefs, in Gonzales v. O Centro Espirito which will be argued before the US Supreme Court on November 1 have been posted by Mark Kleiman on his blog. The case involves a challenge under the Religious Freedom Restoration Act to a prohibition under the drug laws on the use of ayahuasca for religious purposes. (See related posting.)

Dutch Court Bars Funding of Christian Party That Discriminates Against Women

From the Netherlands, Expatica reports today that a court in The Hague last week prohibited the Dutch government from continuing to give an annual grant to a small Christian political party, the Staatkundig Gereformeerde Partij (SGP). The court accepted the argument advanced by a coalition of women's groups that the State should not fund a party that does not allow women to be full members. The Court said that the funding violates the United Nations Convention on Discrimination against Women which Netherlands has ratified. The Dutch government says it will appeal the ruling.

Columnist Questions Faith-Based New Orleans Aid

James Carroll's column in today's Boston Globe asks whether "the abysmal performance of government agencies in responding to this crisis [in New Orleans] isn't related to the unprecedented emphasis the government itself has been putting on ''faith-based" groups as key providers of social services." He continues:

Even when faith-based groups claim to offer social services with no strings attached, one must ask if such detachment is possible.... The problem is redoubled when religiously sponsored good works supply essential needs in place of government responses. Something essential to democracy is at stake here. The rights of citizens to basic relief, especially in times of crisis, are rooted not in charity, but in justice. Charity can be an affront to the dignity of citizenship. Citizens in a democracy, after all, are the owners of government; therefore government help is a form of self-help.

Anti-Sharia Protests In Canada Also Threaten Jewish and Catholic Tribunals

Ynet News reports today on an unanticipated consequence of the furor over the possible introduction of Islamic tribunals in Canada. (See prior posting.) The protests threaten the use in Ontario since 1991 of Jewish and Catholic tribunals to settle family law matters on a voluntary basis. Ontario Premier Dalton McGuinty said that he is against letting Islamic law be used to settle family disputes, and will move against existing religious courts, as well.

Idaho Governor's Plans For Dalai Lama Visit Protested

The Dalai Lama is visiting Sun Valley, Idaho this weekend. The Associated Press reported on Saturday that Idaho's Governor Dirk Kempthorne had school children write essays related to the Tibetan Buddhist leader's visit and plans to send busloads of school children to see him in Sun Valley on Monday. The Governor's web site features extensive information about the visit of the Buddhist leader Some parents have complained that the governor's plans violate the constitutionally required separation of church and state.

Pastor Claims 9-11 Memorial Design Is Islamic Crescent

World Net Daily reported yesterday that Rev. Ron McRae, head of the Bible Anabaptist Church near Jerome, Pa., is considering going to court to challenge the design that has been approved for the memorial to honor the victims of Flight 93 that crashed in Pennsylvania on 9-11. The memorial will be a mile-long semicircle of red maples surrounding the place near Shanksville, Pa, where the flight's 40 passengers and crew were killed. The pastor argues that the design, called "Crescent of Embrace", is in fact the symbol of Islam. McRae said: "They wouldn't dare put up the Ten Commandments or the cross of Christ, but they're going to put up a red crescent. We're not going to stand idly by and allow this to happen."

Israel's Cabinet Votes To Leave Gaza Synagogue Buildings Standing

The Jerusalem Post today reports that Israel's Cabinet, by a vote of 14-2, has decided not to destroy the buildings in the Gaza Strip that had been used as synagogues. Even though Israel's High Court of Justice ruled that Israel could destroy the buildings as part of its disengagement from Gaza, significant opposition to the plan arose from rabbis within Israel as well as from Jewish communities outside of Israel who argued that the plan would encourage destruction of synagogues elsewhere in the world. (See prior posting ). The Palestinian Authority is not happy about the decision to leave the buildings standing, since the fear the bad publicity if they are not be able to prevent radical Palestinians from destroying the buildings. One Israeli official said that the buildings, from which all contents have been removed, might be sealed with cement to prevent their destruction.

UPDATE: On Monday morning, Aljazeera reported that Palestinians set fire to 3 abandoned Gaza synagogues as Israeli troops left the area. A synagouge in Netzarim was bulldozed after a group of youths burned it down.

Articles On Religion Clause Issues Published Recently

This week from SmartCILP:
Sheldon H. Nahmod, The Pledge As Sacred Political Ritual, 13 Wm. & Mary Bill of Rights Jour. 771-793 (2005).

Michael deHaven Newsom, Some Kind of Religious Freedom: National Prohibition and the Volstead Act's Exemption For the Religious Use of Wine, 70 Brooklyn Law Rev. 739-888 (2005).

L. Scott Smith, "Religion-Neutral" Jurisprudence: An Examination of Its Meanings and End, 13 Wm. & Mary Bill of Rights Jour. 815-870 (2005).

The Journal of Law and Religion, Vol. 20, Issue 1 has been published. A partial table of contents is available online.

National Days of Prayer and Remembrance Proliferate

National days of prayer and remembrance seem to abound. On Thursday, President Bush issued a Proclamation making September 16, 2005, a National Day of Prayer and Remembrance for the Victims of Hurricane Katrina. The President requested: "I ask that the people of the United States and places of worship mark this National Day of Prayer and Remembrance with memorial services and other appropriate observances. I also encourage all Americans to remember those who have suffered in the disaster by offering prayers and giving their hearts and homes for those who now, more than ever, need our compassion and our support."

Then on Friday, the President issued another Proclamation making September 9 through September 11, 2005 Days of Prayer and Remembrance to honor those killed by terrorism in the attacks of 9-11. The President asked the country to "pay tribute to the memory of those taken from us in the terrorist attacks in New York, in Pennsylvania, and at the Pentagon."

Indiana 10 Commandments OK'd

An Indiana federal district court judge has decided that a Ten Commandments monument can remain on the Gibson County, Indiana courthouse lawn, according to a report in today's Fort Wayne Journal Gazette. This reverses a ruling the judge made in January before the US Supreme Court set down standards for Ten Commandments monuments on public property.

Native American Prisoner Wins Nominal Damages

Today the Arkansas Democrat Gazette reported on a recommended decision by a federal district court magistrate in Fayetteville. She concluded that Benton County violated a former inmate’s rights under the First Amendment and RLUIPA when it banned his American Indian "prayer feather" from the county jail. The magistrate found that the denial substantially burdened Billy Joe Wolf, Jr.'s religious exercise. Wolf testified that he needed the feather to communicate with the "Great Spirit." Officials claimed that the feather could be used as a weapon, but Magistrate Beverly Stites Jones said that inmates are allowed to have pencils, toothbrushes and other items that are as potentially dangerous. The Magistrate recommended that the county pay Wolf nominal damages of $1.

Hawaiian Natives File Emergency Appeal On Burial Items

The Honolulu Star-Bulletin today reports that a native Hawaiian group has filed an emergency appeal to the US Ninth Circuit Court of Appeals after a federal district court judge in Hawaii ordered the group to return burial items so that 14 federally recognized native Hawaiian claimants could be consulted on what to do with the items. The group, Hui Malama I Na Kupuna 'O Hawaii Nei, reburied the items in 2000 to honor the wishes of kupuna (ancestors). In an affidavit supporting their appeal, a founder of the group said: "Specifically, it would be an extreme hewa (wrong) for me or any other Hui Malama member, if ordered, to take part in any effort to enter the Kawaihae burial cave, with two to three known caves, to remove the 83 moepu, as they belong to the kupuna buried therein," and that would harm "the integrity of the afterlife of these kupuna." It "amounts to stealing from the dead, an action that threatens severe spiritual consequences for anyone involved." Hui Malama has also said it does not want to return the items because it would be handing them over to the Bishop Museum that "acted as a fence for the original grave robbers."

Court TV Excluded From Intelligent Design Trial

A Pennsylvania federal district court has refused the request by Court TV to televise live the proceedings in the suit against the Dover Area School District challenging its teaching of intelligent design. The case denying the request is Kitzmiller v. Dover Area School Dist., 2005 U.S. Dist. LEXIS 19295 (MD Pa., Sept. 7, 2005).