Church and Politics In Mexico

Mexidata Info yesterday reported on the growing controversy in Mexico over the role of the Catholic Church in Mexican politics. Article 130 of the Mexican Constitution provides that clergy may not participate in partisan political activities except to vote for a chosen candidate. The church-state issue has been focused by Pope Benedict XVI's remarks recently about narcotics trafficking in Mexco, and remarks by a Mexican bishop suggesting that the Church is involved in laundering drug money.

What Is The Issue In O Centro?

On November 1, the case of Gonzales v. O Centro Espirito will be argued before the U.S. Supreme Court. There seems to be a basic disagreement among interested parties on what issue the Supreme Court will be deciding in the case. When the Court granted cert., it defined the issue as follows: "Whether the Religious Freedom Restoration Act ... requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty."

The government's brief defines the issue in this way. (See prior posting.) On the other hand, the respondent's brief (UDV Church) takes a narrower position-- the issue is the standard for issuing a preliminary injunction under the Religious Freedom Restoration Act. That does seem to be what the 10th Circuit's en banc opinion was about.

More interesting, perhaps, is skirmishing of a different sort that is going on in amicus briefs. Marci A. Hamilton, Professor at Cardozo Law School and church-state expert filed a brief on behalf of two "Tort Claimants Committees", groups of individuals suing the Catholic Church-- in particular, the Archdiocese of Portland and the Diocese of Spokane. Each religious entity has filed for bankruptcy. The claimants are seeking damages for prior sexual abuse, and in each case, the Diocese or Archdiocese is asserting that RFRA shields it from liability in some way. The Tort Claimants Brief argues that the Court should use this case to focus on the constitutionality of RFRA as applied to the federal government, and should hold that the law is unconstitutional. (The brief is available on Westlaw at 2005 WL 1630009). [Update- the brief is also available here.]

The brief argues that RFRA violates the separation of powers, is beyond Congress enumerated powers, and violates the Establishment Clause. While this argument might seem so far removed from the Court's original grant of certiorari that it could be ignored, a large number of civil rights groups have used their entire joint amicus brief to respond to Prof. Hamilton's constitutional arguments. They argue that the Court should not reach the constitutional issue, but, if it does, they urge the Court to uphold the constitutionality of RFRA as it applies to the federal government. Fourteen civil rights groups signed this joint amicus brief-- including some of the most influential groups in the area of church-state law. Among the signers were Becket Fund for Religious Liberty, American Jewish Congress, People for the American Way, American Jewish Committee, and the Unitarian Universalist Association.

States Have Offices For Faith-Based Initiatives

Twenty-six states and the District of Columbia now have offices to encourage faith-based initiatives, according to this morning's Grand Forks, North Dakota Herald. However, in North Dakota, the advisory panel on faith-based initiatives that was approved by the legislature last March has not yet even held its first meeting.

Religious Profiling In New Jersey?

New Jersey State Police who have been implementing federally mandated reforms to end racial profiling are now at the center of a dispute about religious profiling. The Newark Star-Ledger today reports that State Police have barred agents of the New Jersey Office of Counter-Terrorism (OCT) from filing reports in the State Police database, claiming that over 100 reports entered into the Statewide Intelligence Management System (SIMS) appeared to target suspects only because they practiced Islam or had connections to Muslim groups. OCT officials say that the reports were merely incomplete because supervisors did not have time to review them. The Governor's office called a meeting between state agencies to deal with the controversy. While the parties agreed that counter-terrorism agents were not intentionally profiling, they will not be allowed to file reports in SIMS until New Jersey's Attorney General finishes an investigation of the matter.

Hughes In Egypt Opposes Religious Extremism, Pushes Religious Freedom

The increasingly complex interaction of the U.S. government with religion in the post- 9/11 world is illustrated by Under Secretary of State Karen Hughes' trip to Egypt yesterday. Her first stop as Under Secretary for Public Diplomacy and Public Affairs was the 1000 year old center of Islamic learning in Cairo, Al-Azhar, where she emphasized the importance of fighting terrorism and religious extremism. Al-Azhar's leader, Sheik Mohammad Sayyed al Tantawi, was one of the first to condemn the Sept. 11 attacks. He also strongly condemned this year's London subway attacks. (See prior posting.) The U.S. State Department has released the text of Secy. Hughes' remarks made after her visit. She spoke about interfaith dialogue and the importance of religious freedom in the United States.

A Primer For Tomorrow's Dover Intelligent Design Trial

Tomorrow in Harrisburg, Pennsylvania, a trial will begin in federal district court on the Dover Area School District's policy on intelligent design. Intelligent design has become a flash point in the war over the role of religion in American society, and Kitzmiller v. Dover Area School District seems destined to become a symbolic battle. Today's Pittsburgh Post-Gazette has an excellent summary of the opposing views. At the heart of the case is a statement that the school district requires biology teachers to read to ninth-grade students:

The Pennsylvania Academic Standards require students to learn about Darwin's theory of evolution and eventually to take a standardized test of which evolution is a part. Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. The theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book, "Of Pandas and People," is available for students who might be interested in gaining an understanding of what intelligent design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments.

Resources on the trial are proliferating. A particularly good source for all the primary legal documents, background and developments is the website created by the National Center for Science Education. The Discovery Institute has set up a website linking to background from the pro-intelligent design point of view. Bloggers are covering developments extensively. Ed Brayton's Dispatches From the Culture Wars is one blog that has been following the case for some time. Finally, among the flood of articles, Live Science's series on evolution vs. intelligent design seems particularly useful.

Crosses In Las Cruces Seal Challenged

In an Albuquerque, New Mexico federal district court, a lawsuit has recently been filed challenging the presence of three crosses in the official emblem of the city of Las Cruces, New Mexico. The Associated Press reported on Friday that the suit also claims that the city violated the Civil Rights Act of 1964 by requiring prospective employees to fill out job applications that include religious symbols.

This may be a harder case than most, because here the religious symbol is tied closely to the name and history of the city. The Las Cruces Sun-News today points out that the city's name, often translated as "The Crosses", may well have originated from groups of crosses that marked the graves of massacre victims in the area. Plaintiffs in the lawsuit, however, claim that they have been forced to view "the pervasive religious symbols endorsed by the city of Las Cruces and the state of New Mexico," and that they feel excluded from public participation in government activities.

Religious Revival In Mongolia

Yesterday's Salt Lake Tribune reports that since the collapse of communism in 1990, religion is flourishing in Mongolia. Christian groups of all sorts, as well as traditional Mongolian religions, are actively involved in the Asian nation. Mormons are particularly visible as they travel from house to house.

Boston Archbishop Urges Signing of Ballot Petition Against Gay Marriage

In Massachusetts, the Catholic Church is spearheading a drive to collect 66,000 signatures on a petition to get an anti-gay marriage proposal on the 2008 ballot. The Boston Globe today reported that Boston Archbishop Sean P. O'Malley has issued a letter that is to be read at masses this week end. It urges parishioners to sign the petition as a way to protect traditional marriage. The ballot proposal would ban gay marriage and would make no alternative provision for civil unions. However, Bishop O'Malley's letter also says "There is no room in the Church or in society for rejection, disregard or mistreatment of a person because of their sexual orientation." Meanwhile other religious leaders in Massachusetts, organized as the Religious Coalition for the Freedom to Marry, support civil marriage for gay couples.

School's Withdrawal Of Speaking Invite Poses No 1st Amendment Problem

Last week, the U.S. Ninth Circuit Court of Appeals, in an opinion short on facts, rejected a First Amendment claim in Carpenter v. Dillon Elementary School Dist. 10, 2005 U.S. App. LEXIS 20364 (Sept. 19, 2005). Fortunately, the Rutherford Institute's website gives us additional facts. The District 10 School Board originally approved inviting an evangelical Christian motivational speaker to appear at a voluntary school assembly. The school required that he not discuss his religious faith or the religious youth rally scheduled for that evening. Subsequently the board withdrew the invitation, concerned that the assembly might violate church-state separation requirements. The Ninth Circuit upheld the school board's decision, finding that the speaker had not been denied "the type of governmental benefit or privilege the deprivation of which can trigger First Amendment scrutiny".

Land Urges Religious Concerns Be Part of Foreign Policy

Richard Land, a commissioner of the U.S. Commission on International Religious Freedom, spoke at a conference on religious tolerance held at Rice University on Sept. 21. The Baptist Press yesterday reported on his interesting remarks:

Future [American] leaders must take religion seriously. Otherwise, foreign policies will fall short. Our leaders must factor religion into domestic and foreign policies [if America hopes to continue to have an impact on peace and freedom around the world.]... If the 20th century was a century of ideology, the 21st century is shaping up to be a century of religion. The more we ignore the reality of how religion plays a role in conflicts, the more problems we will have....

Land is also president of the Southern Baptist Ethics & Religious Liberty Commission.

Hindu Group Supports Wiccan In Supreme Court

The Hindu American Foundation has filed an amicus brief in support of a petition for writ of certiorari, asking the U.S. Supreme Court to grant review in the case of Simpson v. Chesterfield County. Spero News reported yesterday on the brief (full text) which backs reversing the Fourth Circuit's decision that a Wicccan leader could be denied the opportunity to be among those who present invocations at county board of supervisors meetings.

Lawyer Nikhil Joshi, a member of HAF's Board of Directors said: "This is perhaps the most blatant affirmation of religious discrimination by any court to date. If allowed to stand, the Fourth Circuit’s decision will allow Chesterfield County to continue to selectively dole out certain governmental privileges to members of majority religions over others."

Indian Court Reverses Book Ban

In 2003, the government of West Bengal (India) banned the book Dwikhandita ("Split in Two") by Bangladeshi writer Taslima Nasrin. The state's Home Secretary, Amit Kiran Deb, said that if the book were not banned, “it could ignite communal tension." (Background article.) Yesterday's issue of The Statesman reports that the ban has been reviewed and reversed by a three-judge Special Bench of Calcutta High Court. The court held that the ban would only be justified under the law if the book violated Indian Penal Code, Sec. 295A that provides: "Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens ..., by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment... or with fine, or with both."

The court says that the book criticizes Bangladesh for becoming a theocratic state, and was not specifically intended to insult Islam. Another report on the court's decision in the Calcutta Telegraph says that the court directed the government to return the books it had seized to the book's publisher. However, after the decision was handed down, the Jamiat-e-Ulama-e-Hind (Council of Muslim Theologians) declared at a rally in Calcutta that the author would not be allowed to enter any district in Bengal. "She has tarnished Islam in her book and must be punished," said its general secretary, Siddikullah Choudhury.

Does FEMA Require Blessing Of Recovered Bodies?

An article in the Sept. 26 issue of Newsweek says that in the Hurricane Katrina clean-up, FEMA requires that contractors engaged in recovery work of must make certain that chaplains bless bodies that are retrieved. Yesterday, Rabbi David Saperstein, head of Reform Judaism's Religious Action Center, wrote FEMA seeking clarification. His letter said: "Americans affected by Katrina practiced and continue to practice a diverse array of faiths or choose no faith at all. Just as government may not establish religion among its citizenry, it may not impose prayer upon individuals after their passing." The Newsweek article, Cash and 'Cat 5' Chaos, reports that when a FEMA spokewoman was asked if that was mixing church and state, she responded: "A prayer is not necessarily religious. Everybody prays."

Bet Din To Decide On Case Against Mohel

In a politically sensitive case, the city of New York withdrew its lawsuit against an Orthodox mohel suspected of transmitting herpes to three baby boys-- one of whom died. The mohel used an unusual procedure-- metzitzah b'peh-- in their circumcisions. (See prior posting.) New York's Jewish Week reports today that after nearly a year of investigation the city has turned the matter over to a chasidic rabbinical court (a Bet Din) in Williamsburg, Brooklyn. This appears to be the first time that New York City has turned a public health matter over to a religious court.

Teaching Biblical Literacy In Public Schools

New York Newsday reported yesterday that a new text book designed for teaching about the Bible in public high schools has just been published. The Bible and Its Influence attempts to avoid legal and religious disputes. The Bible Literacy Project of Fairfax, Va., spent five years and $2 million developing the book which has been endorsed by experts in literature, religion and church-state law. The book follows principles from a 1999 agreement between educational and religious groups, "The Bible and Public Schools," brokered by Bible Literacy and the First Amendment Center.

Meanwhile, another curriculum for teaching about the Bible in high school which has been severely criticized, has just been revised. Wednesday's Baptist Standard reported that the National Council on Bible Curriculum in Public Schools has issued a revision of its teaching guide, The Bible in History and Literature. The revision reflects a number of the constitutional and academic criticisms that surfaced last month in a review of the curriculum published by the Texas Freedom Network. (See prior posting.)

Jehovah's Witnesses Lose Facial Challenge To Puerto Rico Controlled Access Law

In an opinion that has recently become available, the federal district court in Puerto Rico last month rejected a facial constitutional attack by Jehovah's Witnesses to the Commonwealth's Controlled Access Law. In Watchtower Bible and Tract Society of New York v. Ramos, 2005 U.S. Dist. LEXIS 20652 (USDC PR, Aug. 9, 2005), the law that permits residential associations to close off neighborhoods in order to prevent crime was upheld against a series of First Amendment claims. Jehovah's Witnesses believe that they have a Bible-based duty to tell others about the contents of the Bible, and do this by going door-to-door in residential neighborhoods. The court rejected plaintiffs' facial challenge that claimed the law violated their speech, press, associational and religious exercise rights, as well as Fourth Amendment and right to travel claims. However, the court allowed plaintiffs' to present further evidence on their claims that the law was unconstitutional "as applied" to them.

New Religion Clause Scholarship

From SmartCILP:
Francis J. Beckwith, Gimme That Ol' Time Separation: A Review Essay (Reviewing Philip Hamburger, Separation of Church and State.) 8 Chapman Law Rev. 309-327 (2005).

G. Sidney Buchanan, Evolution, Creation-Science, and the Meaning of Primary Religious Puropose, 58 SMU Law Rev. 303-317 (2005).

Posted online:
Robert K. Vischer, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, forthcoming in Stanford Law & Policy Review. (Abstract)

Muslim Firefighter Loses Bid To Keep Beard On Job

Yesterday, a common pleas court judge in Philadelphia ruled against a Muslim firefighter, agreeing with the city that the firefighter cannot wear a beard on the job. The Associated Press reported yesterday that the court found the city's concern about safety problems with the seal on respiratory masks posed by beards was a compelling interest that justified an exception to the protections granted by Pennsylvania's Religious Freedom Protection Act. "Directive 13 (the facial-hair ban) ... is the least restrictive means of furthering its compelling interest in maximizing safety for its members," Common Pleas Judge James Murray Lynn wrote in his order. The court had granted a preliminary injunction to the firefighter pending this decision. (See prior posting.)

RI Supreme Court Rejects Opening Birth Records Based On Mormon Beliefs

On Sept. 19, in In re Philip S., the Rhode Island Supreme Court ruled against an adoptee, now an adult, who claimed that his Mormon religious beliefs should permit him to discover the identity of his birth mother. He claimed that he had a religious duty to trace his ancestry. Additional details of the case, in which the court placed a high value on confidentiality of adoption proceedings, are reported in today's Providence Journal. The Court avoided ultimately deciding a difficult constitutional issue by holding that the petitioner presented the Family Court with no meaningful evidence to support his claim of good cause to open his records other than his own subjective assertions about what he considered to be the requirements of his religion. In a footnote, however, the Court said: "While we make no definitive holding at this time, it is our tentative view that, unless a petitioner’s religious beliefs can be “translated” into a more secular context (such as being a constituent element of a particular petitioner’s psychological need), we do not see how deferring to such a belief would be anything other than a preferential treatment by government based upon religion."