Jury Award For Denying Religious Burial To Stillborn Fetus Upheld

Today's New York Daily News reports that a Brooklyn judge has upheld a $2 million jury award against Brooklyn Hospital Center in a case brought by a Nigerian couple whose 21-1/2-week stillborn infant's remains were disposed of by the hospital's pathology department instead of being turned over to the couple for a religious burial. The father is chief of the Ibo tribe in his homeland. The couple suffered severe emotional distress because they believe a soul wanders forever if a loved one is not interred in a tribal burial ground. The full opinion in Emeagwali v. Brooklyn Hospital Center (Sup. Ct. Kings County, Feb. 22, 2006) is available online.

Prisoner Free Exercise Decisions Newly Released

The Oregon federal district court has recently released its opinion in Alvarez v. Hill, 2005 U.S. Dist. LEXIS 40494 (D. Ore., Dec. 14, 2005). It granted summary judgment to defendants, finding that restrictions placed on a Native American prisoner at Oregon's Snake River Correctional Institution did not substantially burden his exercise of religion. Plaintiff had challenged prison regulations relating to religious volunteers, the frequency with which inmates were allowed to attend the sweat lodge, drum ceremonies, and the restrictions on wearing headbands.

In Young v. Medden, (ED Pa., Feb. 23, 2006), a wide-ranging lawsuit against prison officials, a Pennsylvania federal district court permitted a prisoner to proceed with various claims alleging violation of his free exercise rights and of RLUIPA. Willie Young, a believer in African Traditional Spirituality claimed that officials at two different prisons interfered with his ability to practice his religion.

In McElyea v. Schriro, 2006 U.S. Dist. LEXIS 6765 (D. Ariz., Feb. 13, 2006), an Arizona federal district court judge dismissed a Jewish prisoner's religious exercise claims, finding that the prisoner's "multiple frivolous motions and filings are malicious and vexatious and based on complaints which are designed to harass and antagonize the Defendants". His complaints centered primarily on his ability to observe certain rules regarding the Sabbath and kosher food, and on his objection to the prison's permitting persons to attend Jewish services who are not Jewish according to Orthodox Jewish religious law.

Conservative Ohio Board Member Defends Removing Intelligent Design

Conservative Republican Martha Wise was the leader in getting Ohio's Board of Education last week to remove references to Intelligent Design from Ohio's science curriculum standards. (See prior posting.) On Wednesday, she wrote a fascinating op-ed in the Cincinnati Enquirer:

I believe in God the creator. I believe in freedom. I believe in America, and the state of Ohio, and the Republican Party, fiscal conservatism, fairness and honesty. These values guided me last week to lead the Ohio Board of Education to remove creationism from our state's Science Standards and Model Curriculum.

You may ask: Why would being a creationist make me want to remove "critical analysis"/"intelligent design" creationism from the standards? It's simple, really: It is deeply unfair to the children of this state to mislead them about the nature of science. The future of Ohio's prosperity depends on a well-educated workforce that understands science. The future of religious freedom in this country depends on the electorate understanding that modern science is not a threat to faith....

Our board had to decide whether to waste millions of taxpayer dollars to hear a federal judge tell them the same thing Judge Jones told the Dover, Pa., board. We chose to stand up for kids, for the state of Ohio, for freedom of religion, and for the integrity of science. The public trusts us to uphold first-class standards and to protect democracy and religious freedom. So, we set aside our differences and did the right thing for Ohio and Ohio's children.

Israel Supreme Court Appoints Mediator In Dispute Over Museum Construction

Israel's Supreme Court has appointed retired Justice Meir Shamgar as a mediator to resolve a dispute over the building of a museum on the site of a ancient Muslim cemetery in Jerusalem. Rather ironically, the museum is being built by the U.S.-based Simon Wiesenthal Center to promote interfaith tolerance. The Wiesenthal Center says that the cemetery was deemed abandoned under a ruling of a Muslim judge. BBC News yesterday reported that the court ordered a suspension of construction work for 30 days while the mediator tries to fashion an acceptable compromise.

Convicted Sex Offender Raises Religious Objections To Electronic Monitoring

In Davis City, Iowa, a state trial judge faces an unusual problem of religious accommodation. According to today's Des Moines Register, Scott Smith was ordered, under Iowa's sex offender registry law, to wear an electronic monitor as a condition of his probation after he served 210 days on work release. But Smith says this will infringe on his religious beliefs. Smith was a leader in the Brotherhood of Christ when he was charged in 2003 with sexual abuse and indecent contact with two teenage girls. Brotherhood of Christ members, including Smith's wife and children, live in a largely self-sufficient Iowa community that prohibits the use of electricity, claiming that using electricity in daily life can cause people to disobey God. Smith lives in a home without electricity, telephone or running water on land adjacent to church property. His family visits him there. Brotherhood of Christ leader, Ron Livingston, said the court-ordered electronic monitor in the home could adversely influence Smith's children and take away from the teachings of the community. Livingston testified that Smith has been told he might be allowed back into the fold if he follows its religious requirements.

Hindu Board Calls For Murder Of Controversial Artist

WebIndia123 today has a rather astounding report from the Indian state of Uttar Pradesh. It says that after the state's Haj Minister, Haji Yaqub Qureshi, offered a reward of 510 million Rupees (approx. $11.5 million) to anyone who killed the Danish cartoonist who drew the now-infamous caricatures of Muhammad, the state's Hindu Personal Law Board decided to follow suit. It announced a similar reward for anyone beheading prominent artist M.F.Hussain. Hussain is charged with portraying Hindu deities and Bharat Mata in the nude. His painting was displayed on a website, and in an exhibition in New Delhi. Ashok Pandey, president of the Hindu Personal Law Board was quoted as saying:

Those who are endangering religion and nation, should be eliminated for everyone's good. Anyone who kills Hussain for making obscene paintings of goddess Sarswati and Bharat Mata, the Danish cartoonist, those in the German company printing pictures of Ram and Krishna on tissue paper and the French filmmaker desecrating Lord Shiva will be given Rs 51 crore in cash.

Hussain has apologized and withdrawn the picture from auction.

HHS Settles With ACLU In Challenge To Funding Of Abstinence Program

Yesterday it was announced that the U.S. Department of Health and Human Services has entered a settlement with the American Civil Liberties Union in a case challenging the constitutionality of federal funding of an abstinence-only sex education program know as "The Silver Ring Thing". (ACLU release.) The ACLU charged that the program was using taxpayer funds to promote religious doctrines. HHS already suspended funding of SRT in August 2005, saying that the program "may not have included adequate safeguards to clearly separate in time or location inherently religious activities from federally-funded activities." In yesterday's settlement (full text), HHS agreed that it will not fund SRT's program as currently structured. In any future applications for federal funding, SRT must comply with prohibition on using federal funds to support inherently religious activities. In addition, HHS agreed to closely monitor any grant applications by SRT for the next two years. The Alliance Defense Fund, which had intervened in the case to support SRT, said that it was pleased that SRT would be permitted to apply for funding in future years. (Report from The Reality Check.)

Non-Buddhists Object To New Broadcast Services In Bhutan

In the Himalayan Kingdom of Bhutan, the government, with the aid of the International Telecommunications Union, has begun to offer nationwide satellite television services. Yesterday's Asia News reports that while Bhutanese authorities see this as a landmark, minority religious groups are protesting that it is a tool to entrench Buddhist cultural hegemony over the country and keep control over other groups. Kamali Chetri, a nurse, complained that with programming that is largely Buddhist in content, "the gap between the Buddhist majority and immigrant Hindus, Christians and Nepalese animists is bound to grow. It doesn't really foster co-existence."

O Centro Impacts Peyote Charges In Utah

Today's Deseret News reports that the U.S. Attorney's Office for Utah has announced it is dropping felony peyote distribution charges against the founders of a Utah County-based Native American Church. While the announcement came one day after the U.S. Supreme Court held that the Religious Freedom Restoration Act protected a Brazilian church's use of hoasca, the decision to drop the peyote charges stemmed from an agreement with prosecutors signed two weeks ago by James "Flaming Eagle" Mooney and his wife, Linda Mooney. The agreement provided that charges would be dropped in exchange for the Mooneys agreeing to refrain from possessing, buying, using or distributing peyote "until they become members of a federally recognized tribe or there is a definitive clarification of the law regarding the use of peyote by court ruling or legislative action." Under the agreement, the Mooneys can be re-indicted on the same charges if they violate its terms. The statute of limitations were also waived on the charges.

In light of the U.S. Supreme Court's decision in the O Centro case, Mooney now says he will seek to have the court throw out his agreement with prosecutors and confirm his right to use peyote in religious ceremonies. Mooney says that while he fights his agreement, members of his church should be free to resume their ceremonies without his participation. However U.S. District Attorney Criminal Division Chief Richard Lambert took the position that federal law still requires anyone who uses peyote for religious purposes to be a member of a federally recognized Indian tribe. "Congress has spoken on this," Lambert said, pointing out that unlike hoasca, which is unregulated, Congress has specifically regulated peyote. He said that anyone using peyote who is not a member of a federally recognized tribe, including members of Mooney's church, is still breaking the law.

Dispute Over Muslim Census In Indian Armed Forces

India's Supreme Court has set March 6 as the date to hear a challenge to a proposed census of Muslims serving the the armed forces of India. Yesterday's edition of The Hindu reported that the Court refused a plea to speed up its hearing on the case brought by Lt. Gen R. S. Kadyan, a former Deputy Chief of the Army Staff, who contends that the census would be divisive and would undermine the secularism of the armed forces. However the case may be moot. Yesterday the UPI reported that India's Defense Minister, Pranab Mukherjee, told the upper House of Indian Parliament that the armed forces would be excluded from the survey. The controversy began after Indian Prime Minister Manmohan Singh set up a committee, headed by former Chief Justice of the Delhi High Court, Rajinder Sachar, to study the status of the country's Muslim minority and suggest ways to improve their social mobility. (Background).

Competing Opinions On Constitutionality Of Utah's Proposed Voucher System

The Salt Lake Tribune reports that on Wednesday, the Utah School Boards Association released two legal opinions that say H.B. 184, a school voucher bill before the Legislature, is unconstitutional. Former Utah Supreme Court Justice Michael D. Zimmerman said HB184 violates prohibitions in Utah's constitution against using public funds for religious education (Art. I, Sec. 4, Art. X, Sec. 9). A second opinion, by attorney Harold G. Christensen, says that the voucher bill violates Utah's constitutional provisions providing for the creation of a public education system (Art. X, Sec. 1). Parents for Choice in Education disagrees, citing a legal opinion by attorney Maxwell A. Miller taking the position that the Utah constitution supports indirect funding for private education.

Catholicism Making Gains In Vietnam

Yesterday's Christian Science Monitor chronicles the quiet gains that Catholicism is making in Vietnam-- a country that the U.S. Commission on International Religious Freedom has categorized as a "country of particular concern" because of its more general lack of religious freedom. Of the country's six official religions, Catholicism ranks second behind Buddhism, claiming 5 to 7 million followers. It is gaining popularity among young urban Vietnamese who are enjoying the country's rapid economic growth. While Vietnam still does not have diplomatic relations with the Holy See, senior Vatican emissary Cardinal Crescenzio Sepe visited Vietnam in November ordaining 57 new priests at Hanoi's cathedral. Sepe also met with Deputy Prime Minister Vu Khoan. For many, Catholicism is still associated with the French colonizers whose rule ended in 1954.

Dover Schools Pay $1 Million To Plaintiffs For Lawyers' Fees

The Dover (Pennsylvania) Area School District, which in December lost a high profile case challenging its attempts to teach about intelligent design, has now agreed to pay $1 million to cover the plaintiffs' attorneys' fees. Lawyers say the settlement was designed to discourage school boards from considering similar action in the future. Yesterday's Philadelphia Inquirer reported that the school board unanimously approved the agreement at its public meeting yesterday. Board member Bryan Rehm, a plaintiff in the case, abstained.

School's Lease With Church OK Under Georgia Constitution

In Taetle v. Atlanta Independent School System, (Jan. 17, 2006), the Georgia Supreme Court held that the Georgia constitution was not violated by a school district leasing classroom space from a church to create a kindergarten annex. The lease, entered into in order to alleviate overcrowding in the public school, also provided that that the school system would pay for renovations and improvements on the church's property, for which it would receive a credit for rents owed. The court held that Georgia's prohibition on use of public funds to aid any church or sectarian institution did not preclude this sort of arms-length commercial lease.

German Man Prosecuted For Insulting the Quran

In Muenster, Germany, authorities are prosecuting a 61-year-old businessman under Section 166 of the German Criminal Code that prohibits insulting faiths, religious societies or organizations dedicated to a philosophy of life in a manner that is capable of disturbing the public peace. The businessman printed the word "Koran" on toilet paper and sent it to a mosque in Duisburg and to German television stations. Prosecutors say the case was brought to their attention by a complaint the government of Iran sent to the German foreign ministry in Berlin. Yesterday's Expatica reported on the case.

UPDATE: On Feb. 23, the AP reported that the businessman charged in the case was convicted of disturbing the peace and given a one-year suspended jail sentence.

Court Upholds Student's Dismissal For Suggesting Church

The decision has just become available in Watts v. Florida International University, 2005 U.S. Dist. LEXIS 40310 (SD Fla., June 9, 2005). The case, decided by a Florida federal judge some 8 months ago, involved John Watts, a state university student, who was terminated from a Master of Social Work program "for inappropriate behavior related to patients, involving religion". Watts recommended to a patient that she seek a bereavement support group. When the patient inquired where she could find such a group, Mr. Watts provided several options, one of which was "church," because the patient's assessment indicated that she was Catholic. The mention of a religious alternative was apparently the offending behavior. The court held that dismissing the student for giving this advice did not violate either his right to free speech or to the free exercise of religion. Watts did not show how preventing him from providing the information to the patient constituted a substantial burden on the exercise of his central religious beliefs.

Bahrain Defers Ratification of International Covenant on Civil and Political Rights

Bahrain's parliament yesterday refused to ratify the United Nations International Covenant on Civil and Political Rights, which has already been adopted by 146 other nations. Today's Gulf Daily News says that instead, Parliament referred the matter to its Foreign Affairs, Defense and National Security Committee to include reservations stemming from conflicts between the Convention and Islamic Sharia law. Among the concerns expressed by members of Parliament is the Convention's protection of the right to convert to another religion and the right of women to marry without their fathers' consent.

Anti-Harassment Training Does Not Infringe Free Exercise of Religion

Last Friday in Morrison v. Board of Education of Boyd County, (ED Ky., Feb. 17, 2006), a Kentucky federal district court held school training classes aimed at reducing anti-gay harassment did not burden students' free exercise of religion. The classes did not require any student to disavow his or her religious beliefs, or to endorse homosexuality, bisexuality or transgendered persons. The ACLU had joined the school district in defending against a challenge to the anti-harassment training sessions. (ACLU release.) Students challenging the training sessions were represented by the Alliance Defense Fund.

Preliminary Thoughts On Today's O Centro Decision

The Supreme Court's O Centro decision today, upholding a preliminary injunction requiring an exemption from U.S. drug laws for the sacramental use of hallucinogenic tea (see prior posting), is interesting for several reasons.

First, there was some uncertainty as to how broadly the Court would rule. (See prior posting.) In its actual decision, the Court resolved both the narrow issue of the standard for issuing a preliminary injunction under RFRA, and broader substantive issues of the meaning of RFRA. On the issue of the standard for a preliminary injunction, the Court ruled clearly "that the burdens at the preliminary injunction stage track the burdens at trial." It is the government's burden to show a likelihood of success on the merits at trial. It is not up to the challengers to prove that the government would likely fail at trial.

On the broader issue, the Court made it clear that when RFRA requires the government to show a compelling interest in order to substantially burden a person's exercise of religion; generalized interests are insufficient:

RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person' -- the particular claimant whose sincere exercise of religion is being substantially burdened.

This does not mean that there can never be a compelling interest in uniformly applying a law to everyone. The Court says that if religious accommodations would seriously compromise the Government's ability to administer a law, that could be a compelling interest. The Court points to cases holding that exemptions to paying Social Security taxes could undermine the tax system, and exemptions to Sunday blue laws could undermine the need for a uniform day of rest. But the Court thought that O Centro was different:

Here the Government's argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to 'rule[s] of general applicability.'

This reasoning would seem to extend beyond RFRA and apply also to cases under the Religious Land Use and Institutionalized Persons Act.

The Court does not totally preclude the possibility that at trial, the Government will eventually be able to carry its burden of showing a compelling interest and that the Controlled Substances Act was the narrowest means of furthering that interest. It seems to particularly leave open that possibility in connection with the government's argument that it had a compelling interest in complying with the 1971 U.N. Convention on Psychotropic Substances. But so far the government has not, in the Court's view, made a persuasive case.

Finally, the Court did not accept the invitation of at least one amicus brief to focus on the constitutionality of RFRA as applied to the federal government. The opinion's language, however, suggests that while the Court previously struck down the application of RFRA to the states, it has little doubt about the constitutionality of RFRA as applied to federal regulations that impinge upon religious practices.

Supreme Court Upholds Church's Right To Use Hallucinogenic Tea

In a unanimous 8-0 decision today in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (full opinion), the U.S. Supreme Court ruled that the Bush administration cannot block a New Mexico church from using a hallucinogenic tea for religious purposes. Bloomberg News reports:

The U.S. Supreme Court, saying law enforcement goals in some cases must yield to religious rights, ruled that the Bush administration can't block a New Mexico church from using a hallucinogenic tea.

In a unanimous opinion written by Chief Justice John G. Roberts Jr., the court today said the church, a 130-member branch of a Brazilian denomination, is protected by the 1993 Religious Freedom Restoration Act. The justices upheld a preliminary injunction barring federal prosecution of church leaders.

The case put the Bush administration in the unusual position of opposing religious groups, including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals, both of which backed the New Mexico church. The government contended the tea, known as hoasca, is dangerous and illegal.

Here are excerpts from the Court's Syllabus of its opinion:

The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV's sacramental use of hoasca....
The Government's argument that, although [under RFRA] it would bear the burden of demonstrating a compelling interest at trial on the merits, the UDV should have borne the burden of disproving such interests at the preliminary injunction hearing is foreclosed by Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666....
Also rejected is the Government's central submission that, because it has a compelling interest in the uniform application of the Controlled Substances Act, no exception to the DMT ban can be made to accommodate the UDV.... RFRA and its strict scrutiny test contemplate an inquiry more focused than the Government's categorical approach.... [T]he Government's mere invocation of the general characteristics of Schedule I substances cannot carry the day.... The peyote exception has been in place since the Controlled Substance's Act's outset, and there is no evidence that it has undercut the Government's ability to enforce the ban on peyote use by non-Indians.
The Government argues unpersuasively that it has a compelling interest in complying with the 1971 U.N. Convention [on Psychotropic Substances].... At this stage, it suffices that the Government did not submit any evidence addressing the international consequences of granting the UDV an exemption, but simply relied on ... the general (and undoubted) importance of honoring international obligations and maintaining the United States' leadership in the international war on drugs. Under RFRA, invocation of such general interests, standing alone, is not enough.