9th Circuit Rejects Prisoner's Religious Diet Claim

In Stewart v. Stewart, (Dec. 16, 2005), the U.S. 9th Circuit Court of Appeals upheld the dismissal of a former prisoner's free exercise claim, finding that Arizona prison officials had a clear penological interest in requiring inmates on the prison's religious diet to sign for each meal. It also rejected plaintiff's claim that serving him regular meals, rather than the religious diet, for six months amounted to cruel and unusual punishment.

U.S. House Resolution Criticizes Saudi Religious Education

On Monday, the U.S. House of Representatives passed H. Con Res. 275 urging the government of Saudi Arabia to speed up educational reform in that country. Of particular interest are the findings in the "Whereas" clauses of the Resolution that focus on the nature of religious education in the Saudi Kingdom. The introductory clauses point out that "Islamic religious education is compulsory in public and private schools at all levels in Saudi Arabia" and that "the religious curriculum is written, monitored, and taught by followers of the Wahhabi interpretation of Islam, the only religion the Government of Saudi Arabia allows to be taught".

The preamble go on to say that "rote memorization of religious texts continues to be a central feature of much of the educational system of Saudi Arabia, leaving thousands of students unprepared to function in the global economy of the 21st century." It continues: "some textbooks in Saudi Arabian schools foster intolerance, ignorance, and anti-Semitic, anti-American, and anti-Western views", and "these intolerant views instilled in students make them prime recruiting targets of terrorists and other extremist groups".

The vote on the Resolution was 351 Yes; 1 No; 2 voting Present. Here is the floor debate on the measure. The lone No vote was Republican Texas Congressman Ron Paul.

6th Circuit: Surprising Ten Commandments Ruling

A surprising 10 Commandments decision was handed down by the U.S. 6th Circuit Court of Appeals yesterday. ACLU of Kentucky v. Mercer County (Dec. 20, 2005), involved a display of historical documents, including the 10 Commandments, in the Mercer County courthouse. The display, titled "Foundations of American Law and Government", is identical to the one found unconstitutional by the U.S. Supreme Court last June in the McCreary County case. However, according to the 6th Circuit, a very different history of of the county's purpose was present here. The 6th Circuit upheld this display, saying:

Here, unlike McCreary County, Mercer County’s stated purpose was more than a mere "litigating position." Instead, it is supported by context, including the explanatory document and the eight other objectively historical and secular documents. A reasonable observer would not view this display as an attempt by Mercer County to establish religion. Instead, he would view it for what it is: an acknowledgment of history.

The court continued:

The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to "the separation of church and state." This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.... Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address.... Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow.

While the court found a secular purpose in the display, Carroll Rousey, a retired dry-wall contractor who paid for and put up the 2001 Mercer County display, was quoted in an article in today's Columbus, Georgia Ledger-Enquirer as saying, "I feel that this is what the Lord wanted me to do."

Christian Coalition's 2006 Agenda

The Christian Coalition has set its legislative agenda for 2006, according to a report carried on Tuesday by the Christian Wire Service. Its top 10 goals are (1) support of multicast/ must-carry legislation to protect Christian broadcasters; (2) confirmation of Pres. Bush's judicial nominees; (3) making existing federal tax cuts permanent; (4) passing the Unborn Child Pain Awareness Act; (5) passing the Broadcasting Decency Enforcement Act; (6) supporting legislation to stop discrimination against Christians in the military; (7) passing the Child Interstate Abortion Notification Act; (8) passing the Houses of Worship Free Speech Restoration Act; (9) passing legislation to protect display of the 10 Commandments; and (10) passing Holly’s Law which would suspend sales and investigate the abortion pill, RU 486.

Editorials Support Judge's Intelligent Design Decision

From around the nation, newspaper editorial comment this morning strongly supports yesterday's decision by Pennsylvania federal district court judge John E. Jones' banning Intelligent Design from science classrooms. Here are links to a sampling of editorials: Detroit Free Press, Provo Utah Daily Herald, Harrisburg Pennsylvania Patriot-News, Wichita Kansas Eagle, Dayton Ohio Daily News, Philadelphia Daily News, Baltimore Sun, Pittsburg Kansas Morning Sun.

San Bernadino Student Group Challenges Nondiscrimination Policies

The Associated Press yesterday reported on a battle over university anti-discrimination policies taking place at California State University, San Bernadino. There the Christian Student Association is seeking university recognition that will entitle it to funding and use of university facilities. However the university has refused to approve the group's charter. California law prohibits student groups at public universities from excluding students because of their religion or sexual orientation. The CSA's proposed constitution includes a statement on sexual morality and requires members and officers to be Christian. Here, as at other universities where similar disputes are taking place, CSA argues that the non-discrimination requirements violate the group's religious freedom. The organizer of the CSA chapter at San Bernadino is Ryan Sorba, who is also president of the campus Young Republicans and is a controversial figure on campus. Similar anti-discrimination policies at California State University campuses in Long Beach and San Diego are the subject of a lawsuit filed last month by the Alliance Defense Fund. (See prior posting.)

No Appeal Likely In Intelligent Design Case

It is unlikely that today's Intelligent Design decision from Dover, Pennsylvania will be appealed. (See prior posting.) In November, Dover voters ousted almost all of the school board members who had initiated the policy and replaced them with individuals who oppose the teaching of intelligent design in science classes. (See prior posting.) The Associated Press reports today that the new school board president, Bernadette Reinking, said the board intends to remove intelligent design from the science curriculum and place it in an elective social studies class. As to today's court decision, she said, "As far as I can tell you, there is no intent to appeal."

Dover School District Loses Intelligent Design Case

Pennsylvania U.S. District Judge John E. Jones III today ruled unconstitutional a required disclaimer calling Dover, Pennsylvania high school students' attention to the theory of intelligent design. (See prior posting.) Reports on today's court decision are available from both CNN and BBC News. The contested statement was required by the Dover Area school board to be read in all 9th-grade biology classes. In its opinion, the court found that "the classroom presentation of the disclaimer, including school administrators making a special appearance in the science classrooms to deliver the statement, the complete prohibition on discussion or questioning ID, and the 'opt out' feature all convey a strong message of religious endorsement" by government.

The 139-page opinion in Kitzmiller v. Dover Area School District is a strong endorsement of arguments by the plaintiffs that the school board's action violated the First Amendment's Establishment Clause. The full opinion is available online here. [Thanks to Ed Brayton for posting it].

In finding that the Dover school board violated the Establishment Clause of the U.S. Constitution and Article 1, Sec. 3 of the Pennsylvania constitution , the court applied both the “endorsement” test and the Lemon test.

It held that an objective student would view the disclaimer read in class as a strong endorsement of religion; and that an objective adult member of the Dover community, aware of the social context in which the ID policy arose, would view school board policy and the conduct of board members as a strong endorsement of a religious view.

Applying Lemon, the court found that the language, legislative history and historical context in which ID policy arose "inevitably lead to the conclusion that Defendants consciously chose to change Dover’s biology curriculum to advance religion". The court made extensive findings that Intelligent Design "is not science". It found that ID violates the ground rules of science by invoking supernatural causation; it employs "the same flawed and illogical contrived dualism that doomed creation science"; and ID has failed to gain acceptance in the scientific community. The court then concluded that since ID is not science, its only real effect is the advancement of religion.

In concluding his opinion, Judge Jones wrote:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

House of Lords Permits Sex Discrimination Claim By Minister

Great Britain's House of Lords has overturned a decision of Scotland's highest court, the Court of Session, and has permitted a minister to assert a claim for sex discrimination in employment, according to Personnel Today. Helen Percy claimed she lost her clergy position with the Church of Scotland after having sexual relations with a church elder, even though the church had "not taken similar action against male ministers who are known to have had/are having extra-marital sexual relationships". In Percy v. Church of Scotland Board of National Mission, (Dec. 15, 2005), the House of Lords in a 4-1 decision held that a minister is an employee protected by the Sex Discrimination Act of 1975. The 1921 Church of Scotland Act gives the church the right to govern its own affairs on "matters spiritual. But the House of Lords held that "a sex discrimination claim would not be regarded as a spiritual matter even though it is based on the way the church authorities are alleged to have exercised their disciplinary jurisdiction".

RLUIPA Does Not Apply To Eminent Domain

Section 8 of the Religious Land Use and Institutionalized Persons Act limits its application to any "zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land... ." In Faith Temple Church v. Town of Brighton, 2005 U.S. Dist. LEXIS 33389 (WD NY, Dec. 19, 2005), a New York federal district court held that RLUIPA does not apply to a city's use of eminent domain to take land to expand a park. Faith Temple Church had contracted to purchase the 66-acre site for a new church campus. The court said, "Eminent domain is hardly an arcane or little-known concept, and the Court will not assume that Congress simply overlooked it when drafting RLUIPA." Today's Rochester Democrat and Chronicle reports on the decision.

Dover "Intelligent Design" Decision To Be Released Later Today

MSNBC reports that yesterday the Harrisburg, Pennsylvania federal district court sent out an advisory e-mail saying, "Judge [John E.] Jones is expected to file his opinion in the Kitzmiller v. Dover case at some point" on Tuesday. The 6-week long trial challenging the Dover, Pennsylvania school board's decision to teach students about the theory of intelligent design has captured extensive national attention. (See prior posting.) The pleadings, briefs, and parties' proposed findings can all be accessed from a special page on the district court's website. Religion Clause will post information on the decision later today as soon as it becomes available.

Op Eds On Church-State

Emotions on issues of church and state run high this time of year. I have tried not to fill Religion Clause with endless links to op-ed pieces, even though ones on-topic appear in newspapers daily. However, occassionally it is worth pointing to examples that are particularly well-written. Here are two from this past weekend's papers. One is from Cynthia Tucker, editorial page editor for the Atlanta Journal-Constitution, titled Campaign For Religious State Is No Blessing. The second from Saturday's Toledo, Ohio Blade by Rabbi Barry Leff is titled Yes, Virginia, It Really Is A Christmas Tree.

Magistrate Defers To Prison Security Concerns In RLUIPA Case

An extreme example of deference to prison authorities' claims in RLUIPA cases is reflected in a recently available Magistrate's decision, Spratt v. Wall, 2005 U.S. Dist. LEXIS 33266 (D RI, Nov. 21, 2005). A convicted murderer, Wesley Spratt, was a gifted preacher who for seven years had preached on a weekly basis at Christian religious services in his Rhode Island prison's maximum security unit, always under the supervision of prison clergy. Spratt saw this as his calling from God. When the prison administration changed, however, Spratt was prohibited from continuing, and Spratt sued claiming an infringement of his free exercise of religion. Authorities argued that security is threatened whenever inmates are given positions of authority or perceived authority, citing unrest and violence at the prison during the 1970's. Accepting this claim, a federal Magistrate Judge found that there are no less restrictive means available to accomplish the prison system's compelling security interest and recommended that summary judgment be granted to defendants.

French Government Issues Brochure For Hajj Pilgrims

January 8, 2006 marks the beginning of this year's Hajj, the pilgrimage to Saudi holy sites required at least once in a lifetime from faithful Muslims. Islam Online reported last week that despite its emphasis on secularism, the French government has published a 5-page guide for French Muslims heading to Saudi Arabia. The French Foreign Ministry has issued thousands of the brochures in French and Arabic to provide key advice, like avoiding deadly stampedes. The brochure also contains basic information on legal rights against travel agents who default on their promises. Last year, 3,000 French pilgrims were left stranded at Saudi airports due to disorganization and unconfirmed flight reservations by some tour operators. Meanwhile Saudi Arabia has enacted a new law to regulate Hajj tour operators. However it does not take effect until after this year's Hajj.

Study Results Boost Faith-Based Prisons

Faith based programs in prison got a boost this month by a newly-published study. Prof. Kent R. Kerley, of the criminal justice department at the University of Alabama at Birmingham was lead author. The Washington Times yesterday reported on the study, conducted at the Mississippi State Penitentiary, which found that "religiosity" -- believing in a higher power, attending worship services regularly and participating in faith-based prison programs -- directly reduces inmate arguments, and indirectly then reduces the fights that typically follow arguments. The article, titled Religious Participation and Negative Prison Behaviors is in Vol. 44 Journal for the Scientific Study of Religion, pp. 443-457. (Abstract). Co-authors with Dr. Kerley are Todd L. Matthews and Jeffrey T. Schulz.

House of Representative Supports Christmas Symbols

The Christmas wars found their way into Congress last week, as the House of Representatives on Thursday passed H. Res. 579 by a vote of 401 yeas, 22 nays, 5 voting present and 5 not voting:

Whereas Christmas is a national holiday celebrated on December 25; and Whereas the Framers intended that the First Amendment to the Constitution of the United States would prohibit the establishment of religion, not prohibit any mention of religion or reference to God in civic dialog: Now, therefore, be it Resolved, That the House of Representatives—
(1) recognizes the importance of the symbols and traditions of Christmas;
(2) strongly disapproves of attempts to ban references to Christmas; and
(3) expresses support for the use of these symbols and traditions, for those who celebrate Christmas.

Friday's Virginian-Pilot reported that the resolution was introduced by Rep. Jo Ann Davis, a conservative Christian member of Congress from Virginia. Speaking in favor of the proposal during House debate, Davis lamented, "Christmas has been declared politically incorrect." In response to concerns that her resolution amounted to government promotion of religion, Davis amended her original resolution to make clear that she wants to protect Christmas traditions simply "for those who celebrate Christmas."

Democratic Rep. Robert C. Scott, also from Virginia, accused Davis of being more concerned about the symbols of Christmas than the substance. He argued: "Instead of legislation that respects the spirit of Christmas, Congress in just these past few weeks has passed a budget that includes mean-spirited attacks on the least of us. For those who are hungry, we are cutting food stamps. For those who are sick, we are cutting Medicaid."

Alabama Bill To Permit Teaching About Bible

In Alabama, House Majority Leader Ken Guin has pre-filed HB 58 that, if enacted, will authorize public school systems to offer an elective course in grades 9-12 on the Bible's influence on history, arts and literature, according to Saturday's Montgomery Advertiser. The bill, however, has been criticized by some state school board members because it takes the unusual step of specifying the precise textbook that must be used in the elective course. It is The Bible and Its Influence, published by the Bible Literacy Project. (See prior posting.) The text book has been endorsed by advocates of church-state separation and by a wide spectrum of religious leaders. Nevertheless, some local school boards feel that their autonomy is threatened by the legislative imposition of particular books by title.

Muslim Prisoner Denied Right To Wear Beard

In Gooden v. Grain, 2005 U.S. Dist. LEXIS 32960 (ED Tex., Dec. 13, 2005), a Texas federal district court rejected the RLUIPA and equal protection claims of a Muslim prisoner who was prevented by the Texas prison system's grooming policy from growing a quarter-inch beard. The court held that the grooming policy did not not impose a substantial burden on the prisoner's practice of his religion. Alternatively, even if it did impose a substantial burden, it furthers the compelling governmental interest of security and does so by the least restrictive means. Finally the court found that the policy applied equally to all religious groups and was not adopted with the intent to discriminate against Muslims.

EU Says Spain Must End VAT Tax Exemption For Catholic Church

On Friday, the Commission of the European Union formally requested that Spain bring its tax arrangements with the Vatican in line with EU law. (EU Release.) It told Spain that EU tax law is violated by a 1979 agreement providing the Catholic Church an exemption from Spain's value added tax on the purchase of goods. Reporting on the development, Ireland Online pointed out that the EU did give Spain an alternative. Spain can charge the tax and then reimburse the Church for some or all of the tax that it has to pay.

Americans United Opposes Alito Nomination

On Friday, Americans United for Separation of Church and State issued a 22 page report opposing confirmation of Supreme court nominee Samuel A. Alito. (AU press release.) The report concluded:

Judge Alito has on occasion been solicitous of free exercise rights — at least for non-prisoners. On the other hand, he has given broad license to religious majorities to use the public schools and other official settings to broadcast their religious messages without regard for the competing rights and interests of religious minorities.... Both the straightforward holdings and the underlying tenor of Judge Alito’s decisions in Establishment Clause cases contrast sharply with Justice O’Connor’s views. Throughout her career on the Court, Justice O’Connor has been keenly attuned to the plight of religious minorities in society as a whole, and most especially in the public schools. But Judge Alito’s focus has been elsewhere: on religious majorities’ ability to express their views through governmental instrumentalities, at government owned facilities, and in government-organized enterprises like the public schools.