9th Circuit Lets School Ban Anti-Gay T-Shirt

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals yesterday upheld the right of a California high school to ban a student from wearing a T-shirt proclaiming: "Be Ashamed, Our School Embraced What God Has Condemned", and "Homosexuality Is Shameful". In Harper v. Poway Unified School District, (9th Cir., April 20, 2006) (majority opinion, dissent), the court, in a decision written by Judge Stephen Reinhardt, refused to grant Tyler Chase Harper a preliminary injunction finding that it was unlikely that he would succeed on the merits of his free speech, free exercise of religion or establishment clause claims. The court found that Harper's wearing of his T-shirt collided with the rights of other students' right to be free from verbal assault. The court also held that there was no evidence that the school's actions imposed a substantial burden on Harper's free exercise of religious belief. It said the Constitution does not prohibit the school from teaching the virtues of tolerance, even if that is inconsistent with a student's religious views. Finally the court found that the school had a legitimate secular purpose in taking the action it did.

Judge Alex Kozinski dissenting, argued that the court should have granted a preliminary injunction preventing the school from banning Harper's T-shirt and barring the school from enforcing its anti-harassment policy as overbroad. He argued that the school was engaged in viewpoint discrimination, and that there was insufficient evidence that the statements on Harper's T-shirt in fact harmed gay and lesbian students. Today's Los Angeles Times reports on the decision.

Jamaica's Prime Minister Moves To Ally Churches With Government

Jamaica's recently-elected prime minister, Portia Simpson Miller, has created a good deal of concern in her nation as she has taken steps to mix religion with government. Yesterday's Trinidad & Tobago Express carried an editorial raising questions about her claim that she was appointed by God to run the country, and about her proposal to name pastors to all state boards. Today's Jamaica Express reports that Miller has won support of the influential Jamaica Council of Churches (JCC) for her proposal that clergy become members or chairmen of all new state boards. Philip Robinson, president of the JCC, said that the Prime Minister's moves "ought to have been a natural expectation since we are a Christian country". The JCC represents most of the mainline Protestant, Catholic and Orthodox churches in Jamaica.

Religious Freedom An Issue During China President Hu's Visit To Washington

As China's President Hu Jintao visited the White House yesterday, he may have been less than pleased at the extent to which issues of religious freedom in China found their way onto his agenda. In his welcoming remarks at Hu's arrival ceremony (full text), President Bush said: "As the relationship between our two nations grows and matures, we can be candid about our disagreements. I'll continue to discuss with President Hu the importance of respecting human rights and freedoms of the Chinese people. China has become successful because the Chinese people are experience the freedom to buy, and to sell, and to produce -- and China can grow even more successful by allowing the Chinese people the freedom to assemble, to speak freely, and to worship."

Hu's remarks contained only the following generalization on the issue: "We are ready to enhance dialogue and exchanges with the U.S. side on the basis of mutual respect and equality to promote the world's cause of human rights."

During the welcoming ceremony, a Chinese woman reporter from The Epoch Times who had been admitted into the White House grounds with press credentials began shouting at Hu: "President Hu, your days are numbered. President Bush, make him stop persecuting Falun Gong." (Reuters report.) Outside the White House, hundreds of demonstrators from Falun Gong, and from a Tibetan youth group, among others, carried signs and shouted slogans. In today's edition, The Epoch Times apologized for its reporter's actions, but reiterated its concern over charges that Falun Gong practitioners are being killed so that their organs can be used for transplantations.

In Tuesday's New York Sun, the Chair and Vice-Chair of the U.S. Commission on International Religious Freedom had published a detailed op-ed piece outlining China's human rights problems. It called on President Bush to urge China's release of all individuals imprisoned or detained because of their religious beliefs or practices.

A.D. vs. C.E.-- Is This The New Christian Political Flash Point?

The Associated Press reports on a fascinating new controversy swirling around an educational decision made by the Kentucky Board of Education this week. At issue is whether schools should drop the traditional way of indicating historical dates. Should the designations B.C. (before Christ) and A.D. (Anno Domini, Latin for "In the Year of Our Lord") be changed in teaching and texts to a designation becoming more common—C.E. (Common Era) and B.C.E. (Before the Common Era)? A draft of a new teachers' guidebook proposed moving to the new designation. This however led to objections from groups like the Family Foundation of Kentucky, which said, "Not only will this lead to confusion on the part of the students, but this is a not-so-subtle way of hiding the substantial influence of religion in the history of Western civilization."

Kentucky Governor Ernie Fletcher also announced his opposition to the change during a ceremony in which he signed a recently passed bill permitting display of the 10 Commandments on public property. Lisa Gross, a spokeswoman for the Kentucky Department of Education, said that the new designations are coming into wider use, and students need to know about them in case they encounter them on college placement tests. Finally, the Kentucky Board of Education found a compromise. (WorldNetDaily, Louisville Courier-Journal.) It voted on Tuesday to use both versions, so that textbooks will reflect a date as 700 A.D./C.E. The Kentucky Family Foundation is still not happy. It accuses the Board of merely attempting to be "politically correct"-- a position taken in a formal Resolution in 2000 by the Southern Baptist Convention.

Over the week end I will post more background on this issue that could become another flash point in U.S. politics of religion.

Report On Future Of Religious Freedom In U.S.

The Report from an October 2005 Conference on "The Future of Religious Freedom In America" sponsored by McCormick Tribune Freedom Museum and the First Amendment Center has been released online. The release announcing the report says that its major recommendations include: updating and widely distributing consensus guidelines on religion in public schools; developing new consensus guidelines on religion in the public square and religious accommodation in the workplace; educating government officials on religious freedom issues; creating a task force on protecting Native American religious practices and traditions; and exploring international religious liberty issues, especially in relation to U.S. foreign policy.

Suit Challenges Mobile Home Park's Prayer Ban

The United States Justice Foundation announced on Wednesday that it had filed a lawsuit against a Warner Springs, California mobile home park to force it to permit residents to use the park’s common areas for prayer meetings. The suit claims that harassment and interference with tenants’ prayer meetings violate the U.S. and California constitutions, and California’s Unruh Civil Rights Act.

Toledo Courthouse 10 Commandments Monument OK'd By Court

On Tuesday, a federal district court in Toledo, Ohio, rejected an ACLU challenge to a 10 Commandments monument on the grounds of the Lucas County courthouse. Finding that the monument had been donated by the Fraternal Order of Eagles to combat juvenile delinquency, the court in ACLU v. Board of Commissioners of Lucas County, Ohio (ND Ohio, April 18, 2006), held that neither the primary purpose nor effect of the display was to endorse religion. In so holding, the court followed the lead of the U.S. Supreme Court last June in its Van Orden v. Perry decision involving a similar monument. Having rejected the federal constitutional claims, the court declined to exercise supplementary jurisdiction over a claim that the display violated the Ohio constitution. It dismissed that portion of the suit without prejudice. Wednesday’s Toledo Blade reported on the decision. [Thanks to How Appealing for posting the full decision.]

Louisiana Sales Tax Exemptions For Religions Held Unconstitutional

In New Orleans Secular Humanist Association, Inc. v. Bridges, 2006 U.S. Dist. LEXIS 20020 (ED La., April 17, 2006), a Louisiana federal district court granted a preliminary injunction, finding that five Louisiana statutes that grant various sales tax exemptions explicitly to religious organizations, and not to others, violate the First Amendment’s Establishment Clause. The court concluded that the statutes have both the purpose and effect of benefiting religion.

Nevada Summit On Faith-Based Grants Organized By Sen. Reid

Last Tuesday, U.S. Democratic Senator Harry Reid convened the Northern Nevada Faith-Based Services Summit in Reno, according to yesterday’s Reno-Gazette Journal. The participants discussed issues such as housing, senior services, drug abuse and gang violence. The event was designed to acquaint religious organizations with federal resources available to them and provide them information on how to apply for faith-based grants. It was also aimed at bringing together religious and secular social service providers and private business. Many of the speakers were skeptical of President Bush’s Faith-Based Initiative. Dr. Bob. Edgar, general secretary of the National Council of Churches of Christ said, "There's been a lot of talk about the faith-based initiative. It is my fear that President Bush thought the faith-based initiative would simply be, 'Lets take all the welfare programs and dump that on the churches and synagogues and mosques.' The faith-based initiative must be based on partnership."

Hastings Christian Legal Society Loses Challenge To Anti-Discrimination Regs

On Monday, the Christian Legal Society at Hastings College of Law, lost its attempt to gain recognition as a student group while excluding non-Christians and those whose sexual activities violate Christian beliefs. (See prior postings 1, 2.) A California federal district court in Christian Legal Society v. Kane, (ND Cal., April 17, 2006), held that the University may apply its anti-discrimination policy and require recognized groups to eschew discrimination on the basis of religion or sexual orientation.

Examining the parties’ dispute over whether the University’s anti-discrimination rules regulate speech or conduct, the court found that they are permissible whichever way they are characterized. Even if it is a regulation of speech, the school has created a limited public forum, so that viewpoint neutral reasonable regulations are permissible. The fact that a policy particularly affects a group with a certain perspective or belief system does not render the policy viewpoint based. Also, the court found that the school was not forcing CLS to admit anyone as a member or officer; it was merely placing a condition on receiving university funding and using campus facilities. The court concluded that the University’s anti-discrimination policy does not violate CLS’s First Amendment rights to speech, association, or free exercise of religion. Nor does it deny CLS equal protection of law. The San Francisco Chronicle reported on the case on Tuesday. [Thanks to Blog from the Capital for the information, and Alliance Alert for posting the opinion.]

Towey, Head of Faith-Based Initiative Office, Resigns

H. James Towey, director of the White House Office of Faith-Based and Community Initiatives has resigned in order to become president of St. Vincent College in Latrobe, Pennsylvania. President Bush issued a statement thanking Towey for his more than 4 years of service. Americans United for Separation of Church and State urged the President to use the occasion of Towey's departure to close the Office of Faith-Based and Community Initiatives.

Police Charged With Violating Religious Rights In Questioning Muslim Girl

The Associated Press today reports that in Davis, California, the family of a 17-year old Muslim girl is suing Davis police for violating the girl's religious values. A male police officer questioned her without another adult being present. The girl was taken for questioning in her pajamas about 9:30 p.m. on June 13, after police suspected her of leaving the scene of a minor auto accident. The suit is continuing even though a judge has now thrown out the misdemeanor hit-and-run accident charge against the girl.

Malaysia Court Accused of Applying Sharia To Non-Muslims

In Kuala Lumpur, Malaysia, a dozen demonstrators protested a court decision last week that upheld a charge of indecency against an ethnic Chinese couple charged with kissing and hugging in a public park. The Washington Times today reports the protesters claimed authorities were applying Sharia legal principles to the non-Muslim Chinese and Indian communities. They said,"This is a manifestation of Islamization of Malaysia without respecting the rights and freedom of the non-Muslims." However, the Federal Court ruled broadly that kissing and hugging were not the norm for any Malaysians or other Asians. It said they were accepted only by Western moral standards.

Comment On Jury Selection In the Gerald Robinson Case-- What About Privacy?

Jury selection in the Fr. Gerald Robinson murder case in Toledo raises an interesting constitutional question: Is there a right to keep one's religious beliefs private? As the Toledo Blade reports today, potential jurors in the high profile case have been quizzed extensively about their religious backgrounds and beliefs. Several have been disqualified from serving either because their beliefs would make it difficult for them to convict a priest, or because they have anti-Catholic views. Admittedly this case-- where a former priest is accused of murdering a nun in a Catholic chapel-- is one where religious beliefs are relevant in assessing jury bias. However, suppose a potential juror objects to disclosing of his or her religious beliefs?

There seems to be surprisingly little precedent on this issue. Back in 1960, the U.S. Supreme Court decided a case that might shed some light on the question. In Shelton v. Tucker, 364 U.S. 479 (1960), the Court, in a 5-4 decision, struck down an Arkansas statute that required public school teachers to list every organization to which they had belonged or regularly contributed during the prior 5 years. The Court held that this requirement chilled teachers' 1st Amendment associational rights. It places pressure on teachers to avoid unpopular or minority organizations. The case as to jurors, however, is closer. The inquiry is more narrowly drawn-- they are not being asked about every organization to which they belong-- and the state interest is very strong. However, it is still troubling to contemplate the individual who is a member of an unpopular religious group being forced into court and quizzed at length on his or her beliefs.

FLDS Church Loses Attempt To Keep Seized Documents Secret

A federal district court in Colorado has rejected an attempt by the Fundamentalist Church of Jesus Christ of Latter Day Saints to obtain a return to it of "religious" documents seized in connection with the prosecution of FLDS leader Warren Jeffs. In United States v. Jeffs , 2006 U.S. Dist. LEXIS 19358 (D. Colo., April 4, 2006), the court also refused to issue a protective order prohibiting public disclosure of the documents. The FLDS Church had argued that their public disclosure would impinge on its free exercise of religion. However, the court characterized this claim as "somewhat inexplicit and wholly unsupported", holding that merely calling the documents "sacred" is not enough to justify a protective order. (See prior related posting.)

Supreme Court Denies Cert. In Church Resistance To Subpoenas

The U.S. Supreme Court yesterday denied certiorari in two cases involving attempts by the Roman Catholic Diocese of Los Angeles to quash grand jury subpoenas for personnel records of two former priests who were being investigated for molesting minors. The cases are Roman Catholic Archbishop v. Superior Court of California (05-1017) and Does 1 and 2 v. Superior Court of California (05-1039), cert. denied, April 17, 2006. According to yesterday's New York Times, the Church had argued that the subpoena "inherently entangles the state in the internal religious life of churches and intrudes into religious practice." The California Court of Appeal, in a lengthy opinion, had upheld the subpoena. (See prior posting.) Today's Los Angeles Times also covers the case.

Author Reviews Presidents' Uses Of Public Religion

An interesting column by Jon Meacham, titled U.S. Benefits From Public Religion, is published in today's Detroit Free Press. It reviews both the sincere and the cynical use of religion and public prayer by past U.S. presidents, saying, "Cynics may dismiss prayer breakfasts and public piety as political, but the language of faith has been a perennial force at the highest levels." Meacham, is the author of "American Gospel: God, the Founding Fathers, and the Making of a Nation".

New Appointees To U.S. Holocaust Memorial Council

The White House announced yesterday that the President intends to appoint nine individuals to fill vacancies on the U.S. Holocaust Memorial Council. The Council has 65 members, 55 of whom are appointed by the President. All of the present appointments are for the remainder of five-year terms expiring January 15, 2011. Among the appointees are Nobel laureate Elie Wiesel and television personality Rebbetzin Esther Jungreis. The other appointees are: Debra Abrams of Florida; Norma Lerner of Ohio; Marvin A. Pomerantz of Iowa; Alan Neil Rechtshaffen of New York; J. Philip Rosen of New York; Bradley David Wine of Maryland; and Judith Yudof of Texas.

Recent Law Review Articles

Recently published articles from SmartCILP:

Nathan J. Brown & Clark B. Lombardi, The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996), 21 American University International Law Review 437-460 (2006).

Symposium: Law and Religion, 82 University of Detroit Mercy Law Review 509-686 (2005):

Hazard, Geoffrey C., Jr., McElroy Lecture. Law, Ethics and Mystery.
Baker, Anthony V., "through a glass darkly ...": Christianity, Law and Capital Execution In Twenty-First Century America.
Hartigan, Emily Albrink., Law Fragments.
Litman, Donna, Jewish Law: Deciphering the Code By Global Process and Analogy.
Richards, Peter Judson, Property and Epikeia: Theory, Life and Practice in the Western Christian Tradition.
Young, Stephen B., The Moral Basis of American Law: An Hypothesis.

Professor Says 1st Amendment Protects Political Preaching

Notre Dame Law Professor Rick Garnett has an interesting op-ed column this morning in USA Today. Titled Campaigning From the Pulpit: Why Not?, Garnett says that the First Amendment protects "political preaching and faith-filled activism". He concludes: "Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.... A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics."