Alternative Synod Leaders Prosecuted In Bulgaria

Forum18 yesterday reported on the dispute in Bulgaria between two wings of the Bulgarian Orthodox Church. The "Alternative Synod" was created by members who claimed that Patriarch Maksim was improperly elected to head the Church in 1971. Now two Alternative Synod leaders are being prosecuted for claiming to be Orthodox bishops, despite their lawyer's claim that the charges violate required separation of church and state in the country. Article 274, part 1, of the Criminal Code, punishes by large administrative fines or up to one year in prison anyone who is found to be "unwarrantedly committing an act within the scope of the office of an official which he does not occupy." Forum 18 says the cases were brought at the instigation of the Bulgaria's National Security Service. The Patriarchate remains the wing recognized by the rest of the Orthodox world and favored by government officials. Officials say that Bulgaria's 2002 religion law was specifically aimed at "reuniting" the divided Orthodox Church.

U.S. Agencies Debate Whether Title VI Covers Anti-Semitism

Today's New York Sun reports that the U.S. Department of Education is backing away from an earlier position that permitted it to investigate complaints of anti-Semitic harassment at universities receiving federal funds. Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color or national origin by recipients of federal funding. However, Title VI does not mention religious discrimination.

In 2004, the Department's Office of Civil Rights said that under Title VI it could investigate discrimination against students of Jewish heritage even if they are Caucasian and American born. This is consistent with the U.S. Supreme Court's holding in the 1987 case of Shaare Tefila Congregation v. Cobb that held Jews could make a racial discrimination claim under a 19th century federal law because at the time it was passed Jews were considered a distinct race. Recently, however, Stephanie Monroe, head of the Department of Education's Office of Civil Rights, has apparently taken the position that while harassment driven by a student's perceived Jewish ethnic origin would be subject to an OCR investigation under Title VI of the 1964 Act, harassment because of a student's Jewish religious beliefs, such as the wearing of a kippa, would not be covered by Title VI.

Meanwhile, the U.S. Civil Rights Commission is also bogged down in dispute over how far it should go in addressing anti-Semitic propaganda and harassment on campuses, including anti-Semitic activities disguised as anti-Israel advocacy. The issue will be on the agenda of the Commission's April 3 meeting.

City Council Prayer Dispute In Canada

The debate over legislative prayer has now moved to Canada. Today's Globe and Mail reports that the city of Laval is trying to retain its practice of opening council meetings with a non-denominational prayer. City resident Danielle Payette, an atheist, filed a religious discrimination complaint with the Quebec Human Rights Commission complaining about the practice. Payette is backed by Mouvement Laïque Quebecois which promotes the separation of church and state. The case will be heard by the Human Rights Commission tomorrow.

DC Circuit Holds Damages Not Available From U.S. Under RFRA

Yesterday in Webman v. Federal Bureau of Prisons, (DC Cir., March 28, 2006), the U.S. Court of Appeals for the DC Circuit held that damages are not an available remedy for individuals suing under the Religious Freedom Restoration Act. It held that RFRA's authorization of "appropriate relief against a government" did not waive the federal government's sovereign immunity against damage claims. This is the first circuit court opinion directly dealing with the issue.

NY Civil Liberties Union Sues Coast Guard Over Merchant Marine Religious Bias

Just two days after the New York Times reported that the U.S. Coast Guard is considering changing its policy prohibiting wearing of religious head coverings indoors while in uniform, the New York Civil Liberties Union filed a related religious discrimination suit against the Coast Guard on behalf of Muslim ship worker Khalid Hakim. The suit involves Coast Guard requirements for licensing merchant marine crew members who serve on commercial ships. Newsday yesterday reported that the suit accuses the Coast Guard of requiring anyone seeking a merchant marine license to submit photographs showing himself or herself without a head covering. Before September 2001, Hakim regularly received licenses after submitting photographs in which he wore his Kufi (religious skull cap). After 9-11, the Coast Guard said Hakim would have to remove the kufi. However, without explanation, the Coast guard issued Hakim a new license shortly before the NYCLU suit was filed. The full text of the complaint in Hakim v. Chertoff, charging that Hakim's rights under the First Amendment and the Religious Freedom Restoration Act were violated, is available online.

Religious Party Gets 3rd Highest Number of Seats In Israel's Election

While the big news out of yesterday's Israeli election is that the Kadimah Party won the most seats in the Knesset (28), less noted was the fact that the party receiving the third highest number of seats (13) was the Sephardic religious party, Shas. (Results from Arutz Sheva.) Earlier this month Ynet News reported on Shas' platform which includes the following:

• Integrating Jewish tradition into the education system. The doctrine guiding the party's platform is that Israel is the Jewish people's state and Jewish identity must be preserved when it comes to decision making, while curbing moves that would see "a country of all its citizens" emerging. The party does not call for a state based on religious law, but rather, "a state with a Jewish soul" where Jewish character is preserved within state laws.
• Every diplomatic question on the agenda has answers in Jewish law. The party's spiritual leader, Rabbi Ovadia Yosef, determines the party's official position. Yosef and other leading rabbis believe territorial compromise is allowed, but only when life is at stake and something is received in return.

In addition to the 13 seats won by Shas, two other religious party slates did reasonably well. The National Union/National Religious Party got 9 seats, and United Torah Judaism won 6 places in the 120-seat Knesset.

Lutheran School's 1st Amendment Defense Against Discrimination Claim Rejected

In Riverside, California Monday, a judge refused to dismiss a case brought against a Lutheran high school on behalf of two students who were expelled because the school suspected that they were maintaining a lesbian relationship. The San Diego Union-Tribune yesterday reported that by allowing the case to proceed to trial, Superior Court Judge Gloria Connor Trask implicitly rejected defense arguments that their First Amendment free exercise rights precluded application of the Unruh Civil Rights Act to the private religious school. (See prior related posting.) The case is Mother Doe v. California Lutheran High School Association.

San Francisco Reaction To Catholic Adoption Agency Stand

The refusal earlier this month of Boston's Catholic Charities to continue to offer adoption services if required to place children with gay and lesbian parents triggered events leading to a heated exchange last week in San Francisco on the same issue. The San Francisco Chronicle and KTVU TV reported last week on the controversy. In the Vatican, Cardinal-elect William Levada, the former archbishop for San Francisco, was asked by the press to comment on the Boston situation. He said, "it has been, and remains, my position that Catholic agencies should not place children for adoption in homosexual households."

In response to this, first the San Francisco Chronicle wrote a measured editorial criticizing Levada's statement. Then the San Francisco Board of Supervisors unanimously passed a strongly worded non-binding resolution. It said in part: "It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great city's existing and established customs and traditions, such as the right of same-sex couples to adopt and care for children in need." Also, San Francisco Mayor Gavin Newsom, a divorced Catholic, canceled his planned trip to Rome to attend the elevation of Levada at a ceremony held last Friday. Finally, the National Center for Lesbian Rights said last week that it might sue the Roman Catholic Archdiocese of San Francisco if it bans its affiliated social service agency from allowing adoptions by same-sex couples.

Dutch Agency Finds Discrimination Against Muslim Teaching Applicant

In Netherlands, the Dutch Equal Treatment Commission has held that the Regional Education Center in the city of Utrecht illegally "discriminated, indirectly, on the basis of religion," when it rejected Fatima Amghar who had applied for its teacher training program. Today's Khaleej Times reports on the case. Amghar's Muslim religious beliefs preclude her from shaking hands (or otherwise coming into physical contact) with men over 12 years of age. The Education Center argued that shaking hands was a routine part of a teaching assistant's job. However, the Equal Treatment Commission said that "there are other conceivable manners of greeting that can be considered proper and respectful".

Connecticut Captive Audience Bill Killed In Committee

The Stamford, Conn. Advocate reports that on Monday a legislative committee defeated the "captive audience bill". The legislation would have prohibited companies from requiring employees to attend meetings at which management expresses opinions on political or religious matters. Opponents said the legislation was hostile to business, and Connecticut is attempting to attract more employers. An AFL-CIO spokesman said that his group would continue to press for the legislation.

Church Challenges To Building Limits Survive Motion To Dismiss

In The Cathedral Church of the Intercessor v. The Incorporated Village of Malverne, 2006 U.S. Dist. LEXIS 12842 (ED NY, March 6, 2006), a New York federal district court denied the Village of Malverne's motion to dismiss a suit brought against it challenging its refusal to permit the expansion of a church building of a Charismatic Episcopal congregation. The court found that plaintiff's complaint adequately alleged an equal protection claim based on selective enforcement of governmental regulations. It also permitted plaintiffs to move forward on both substantive and procedural due process claims, on claims of retaliation and on RLUIPA claims. Finally the court held that the city officials being sued had not alleged sufficient facts to show that they had qualified immunity.

Senate Committee Approves Immigration Bill with Church Protections

With Republicans divided on the issue, the Senate Judiciary Committee yesterday approved a wide-ranging immigration reform bill. The New York Times reports that the bill was praised by immigrant advocacy organizations and church groups that had been demonstrating in recent days in favor of immigrant rights. The bill includes an amendment authored by Sen. Dick Durbin (D-IL) which protects charitable organizations and churches involved in offering humanitarian assistance. They will be protected from prosecution even if in providing assistance they aid undocumented aliens. A release from Sen. Durbin's office reports that this amendment was adopted by a bipartisan vote of 10-7. (See prior related posting.) If this bill is passed by the full Senate, it will still need to be reconciled with H.R. 4437, a more restrictive bill already passed by the House. [Thanks to Blog From the Capital for the lead.]

Brief Filed For Congress Members Supporting National Motto

An amicus brief (full text) was filed yesterday by the American Center for Law and Justice in federal district court in Sacramento, California on behalf of 47 members of Congress in support of the government's request to dismiss a pending lawsuit filed by Michael Newdow challenging the constitutionality of the national motto, "In God We Trust." (See prior posting.) The release announcing the filing quotes this from the brief: "The Establishment Clause was never intended as a guarantee that a person will not be exposed to religion or religious symbols on public property, and the Supreme Court has rejected previous attempts to eradicate all symbols of this country's religious heritage from the public's view. Although enterprising plaintiffs can find support for just about any proposition in the Court's multifarious Establishment Clause pronouncements, a claim that the national motto violates the First Amendment borders on frivolous."

Supreme Court Hears Arguments On Depriving Prisoners of Protected Material

Yesterday, the U.S. Supreme Court heard arguments in the case of Beard v. Banks (04-1739), raising the question of whether state prisons may deprive inmates of access to newspapers and magazines as part of their punishment for violating prison rules. According to the AP's report on the case, Pennsylvania prison officials permit inmates in the high-security disciplinary unit to have access to religious materials, two paperback books of general interest, their legal documents and letters from family. But newspapers, magazines and personal photographs are banned. The Becket Fund For Religious Liberty had filed an amicus brief (full text) in the case arguing that if the Court permits fundamental rights to be taken away as punishment in order to modify behavior of prisoners, in the future officials might begin to deprive inmates of religious texts as well as secular ones.

In the decision below, the Third Circuit had held the restrictions unjustified. Circuit Judge (now Justice) Samuel Alito dissented, finding the restrictions constitutional.

New Scholarly Publications Of Interest

From SSRN:

• Neal D. Schuett, The Struggle to Define Jihad: A Religious Belief or Secular Philosophy?

From SmartCILP:

• Steven P. Aggergaard, Religion, Speech, and the Minnesota Constitution: State-Based Protections Amid First Amendment Instabilities, 32 Wm. Mitchell Law Review 719-767 (2006).
• Daniel A. Crane, A "Judeo-Christian" Argument For Privatizing Marriage, 27 Cardozo Law Review 1221-1259 (2006).
  

Florida Voucher Programs Face Uncertain Future

Yesterday's Lakeland, Florida Ledger reports on the latest skirmish on school vouchers in the Florida. In January the Florida Supreme Court struck down the state's Opportunity Scholarship Program on state constitutional grounds, holding that the program interfered with the state's providing a "uniform" school system. The Court did not reach the issue of whether the program violates the state constitution's prohibition on aid to religious organizations. (See prior posting.)

Now pro-voucher politicians, including Governor Jeb Bush, want an amendment to the state constitution to protect vouchers, claiming that otherwise the ACLU will bring suit to invalidate those voucher programs still in existence. However, the ACLU says it has no intention of challenging either the McKay Scholarship Plan for students with special needs or the Bright Futures program that provides funds for college students. The Florida House of Representatives has a proposed constitutional amendment under consideration, but nothing has happened in the Senate.

The House measure, HJR 1573, proposes a constitutional amendment that provides, in part: "the Legislature is not limited from enacting and funding for the people education programs, public or private, without regard to the religious nature of any provider or participant..." The amendment would also provide that "every child deserves an equal opportunity to receive a quality education regardless of his or her family's income, religion or race. Funding for quality education through classroom instruction is paramount, and the legislature shall ensure that funding provided for public schools shall primarily be used for classroom instruction rather than administrative expenditures."

John Kirtley, a Tampa millionaire who has supported vouchers, says that the ACLU's statement that it does not intend to challenge the McKay or Bright futures programs is a ruse. He thinks the group will wait until it is too late to get a constitutional amendment on the November ballot, and will then file suit against remaining voucher programs. The ACLU agrees that it is considering challenging a program approved in 2002 that funds private pre-school programs, including programs run by religious groups.

Rahman Case Sent Back to Prosecutors; Protests In Some Cities

Yesterday, Afghanistan's Supreme Court, under intense pressure from Western countries, dismissed the case against Abdul Rahman and sent it back to prosecutors to look into problems with the evidence against him, according to reports in yesterday's Guardian and today's Financial Times. Judge Ansarullah Maulavezada, who had been set to try Abdul Rahman for converting from Islam to Christianity, said the case had been dropped because of questions over Rahman's mental state and whether he held dual citizenship in Germany. Meanwhile, Rahman asked for a Bible, insisting he was sane and was willing to die for his faith.

Rahman is being moved to to Pul-i-Charki, a high security facility housing hundreds of Taliban convicts, after fellow prisoners threatened to kill him at Kabul's main jail. Deputy Attorney General Mohammed Eshaq Aloko said Rahman would be sent to the Aliabad hospital in Kabul for psychiatric evaluation and might be examined by U.S. or NATO doctors. He raised the possibility that Rahman might be sent abroad for treatment, opening the possibility of his being granted political asylum abroad.

Meanwhile, India's NDTV reports that thee has been a "massive uproar" across Pakistan in protest against the court's decision to dismiss the Rahman case. Thousands protested in the northern city of Mazar-e-Sharif.

In a related development, in India, the Supreme Court has before it a petition to dissolve all Islamic and Sharia courts in the country. Outlook India today reports that Advocate Vishwa Lochan Madan filed the complaint, alleging that the courts threaten the Indian judicial system.

UPDATE: A March 28 report from the Chicago Tribune says that Rahman has been released into the custody of the Afghan Independent Human Rights Commission and the United Nations mission in Afghanistan. Also, it appears that Monday's demonstrations in Mazar-e-Sharif involved hundreds, not thousands as reported above.

Coast Guard Policy On Religious Head Coverings May Change

This week, the Coast Guard's Uniform Board will meet in Washington. On its agenda, according to today's New York Times, is the issue of whether it will relax its restrictions on wearing of religious head coverings with Coast Guard Uniforms. The Times article recounts the problems faced by Jack Rosenberg, a Hasidic Jew who is a certified pilot and has enlisted in the Coast Guard. While his skullcap is concealed by his uniform hat worn outdoors, wearing his skullcap indoors would violate the Coast Guard General Uniform Policy (Sec. 2.A.1.) requiring that religious items must be concealed or worn only during religious services.

The other military services have a different rule. Back in 1986, in the case of Goldman v. Weinberger, the U.S. Supreme Court upheld Air Force regulations that prohibited an Orthodox Jewish Air Force officer from wearing his yarmulke indoors. However, Congress quickly responded and in 1987 enacted 10 USC 774 that permits members of the armed forces to wear "neat and conservative" items of religious apparel with their uniforms so long as the item does not interfere with performance of military duties. The Department of Defense promulgated regulations consistent with the provision. Department of Defense Directive DODD-1300.17 (Feb. 3, 1988). Since the Coast guard is under the Department of Homeland Security rather than the Department of Defense, DOD directives apparently do not apply to it, even though it would seem that 10 USC 774 also applies to the Coast Guard. 10 USC 101 defines "armed forces" for purposes of Title 10 to include the Coast Guard.

Inmate Claims Veganism Is a Religious Belief

Does belief in a vegan diet amount to a religion? That is the contention in a lawsuit filed against Sacramento, California's jail by Eric Taylor McDavid who is being held there on charges of conspiring to blow up Nimbus Dam and a nearby fish hatchery in Rancho Cordova, and a U.S. Forest Service genetics lab in Placerville. According to today's report from the Sacramento Bee, Mark Reichel, McDavid's attorney, argues that his client's beliefs are protected under the Religious Land Use and Institutionalized Persons Act. He claims his client's avoidance of animal products comes from "strongly, sincerely and firmly held beliefs, which are the same as a religious belief."

The sheriff's legal affairs spokesman, Lt. Scott Jones, says veganism is a lifestyle choice. He says the jail only makes dietary accommodations for medical reasons, and McDavid will get sufficient nutrition even if he only eats the acceptable portions of his meals. Also, inmates who keep kosher, halal and vegetarian diets can supplement their diets with items for sale in the jail's commissary. Jerry Read of the Corrections Standards Authority said his office does not regulate religious diets. He adds, "Case law changes too often. It comes up a lot - I don't know how many lawsuits there are, but enough that we can't keep up with it."

Prince Charles Speaks At Conservative Saudi University

As part of his tour of the Middle East, yesterday Britain's Prince Charles spoke to a small VIP audience at Imam Muhammad Saud Islamic University. The Associated Press reported on the visit. The University, which produces many of Saudi Arabia's Wahhabi clerics and Islamic judges, is seen by many as the center of Saudi conservatism. While Charles did not specifically mention the lack of religious freedom in Saudi Arabia, he did say: "Islam called Jews and Christians the peoples of the book because they, like Muslims, are a part of a religion of sacred texts." Because the sexes are segregated in Saudi Arabia, Camilla, the Duchess of Cornwall, had a different schedule from her husband. She visited the Nahda Philanthropic Society for Women, the first women's charity to be set up in Saudi Arabia.