New Scholarly Articles On Church-State

From SmartCILP:
Chris Kemmitt, RFRA, Churches and the IRS: Reconsidering the Legal Boundaries of Church Activity In the Political Sphere, 43 Harvard Journal on Legislation 145-180 (2006).

From SSRN:
Kyle Duncan, Subsidiarity and Religious Establishments in the U.S. Constitution, (forthcoming in Villanova Law Review).

Department of Justice Plans Single-Faith Pre-Release Program For Prisoners

Yesterday's Washington Post reported on the Justice Department's plans to create a single-religion, faith-based pilot program to prepare federal prison inmates for release. On March 30, the Bureau of Prisons (BOP) issued a formal Request for Proposals (RFP) from private contractors to run the program, called "Life Connections". The RFP says that the government "intends to make multiple awards for the provision of single-faith, residential reentry programs at one or more pilot site locations." The plan is to set aside cells at up to six federal prisons for the voluntary experiment that aims to "facilitate personal transformation for the participating inmates, and thereby reduce recidivism." $3 million has been appropriated for the program. A BOP spokesperson said it is possible that different prisons could host programs run by different faith groups. Some academics say that the program poses serious constitutional issues. The Department of Justice says the program is constitutional because it is voluntary and gives participating inmates no special advantages.

New Mississippi Law May Permit Teaching of Creationism

Yesterday's Biloxi Sun-Herald reported that Mississippi Governor Haley Barbour has signed into law H.B. 214 that may allow the teaching of both intelligent design and creationism in public school classrooms. The new law provides:

No local school board, school superintendent or school principal shall prohibit a public school classroom teacher from discussing and answering questions from individual students on the origin of life.

Secular Democracy Promoted For Nepal

Following popular demonstrations in Nepal that forced the king to reinstate the Parliament, now the country's second-largest party, the Communist Party of Nepal-Unified Marxist Leninist, is urging that the country become a secular republic. Currently, Nepal is a Hindu kingdom. Daily India yesterday reported on these developments.

3rd Circuit Invalidates Registration Law For Door-To-Door Proselytization

The 3rd Circuit Court of Appeals yesterday struck down a Mt. Lebanon, Pennsylvania ordinance that required registration of door-to-door canvassers who planned to hand pamphlets or written material to residents, or to discuss with them issues of religious or public interest. The case is Service Employees Int’l. Union, Local 3 v. Municipality of Mt. Lebanon, (3rd Cir., April 28, 2006). While the suit was brought by a union that wanted to conduct a get-out-the-vote campaign, the decision is also important for religious groups that wish to proselytize door-to-door. The court held that "the challenged ordinance is not tailored to serve Mt. Lebanon’s legitimate interest in preventing crime and fraud. At the same time, that ordinance substantially burdens a broad range of speech which enjoys the highest level of First Amendment protection." The Associated Press yesterday reported on the decision

Baptist Official Speaks on Church-State Issues

On Friday, the Baptist Standard reprinted parts of a lecture given earlier in the month by Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty. The remarks were part of his Maston Christian Ethics Lectures at Hardin-Simmons University’s Logsdon School of Theology. His title was "The Top 10 Lies About Church & State". He contended that "lies" about the relationship of church and state in America were being perpetuated both by "people who should know better", and by other "well-intentioned souls who simply have been misled".

Hawaii Court To Order Artifacts Removed From Cave

Last December, the 9th Circuit Court of Appeals upheld an earlier district court ruling involving a dispute between competing native Hawaiian groups over valuable burial artifacts. A native Hawaiian group was ordered to return 83 valuable burial objects to the Bishop Museum so that 13 other claimants could help decide their final resting place. Following that decision, federal trial court Judge David Ezra ordered the parties to conduct a Hawaiian mediation process called hooponopono to decide how the items could be removed from Kawaihae, or Forbes Cave, and where they should then be kept. Today’s Honolulu Star Bulletin reports that since then the sides have been meeting under the guidance of mediators, but yesterday it was reported that still no resolution had been reached. So Judge Ezra will now issue a court order requiring the cave to be opened and the objects to be removed in the safest possible way, so all claimants can examine them and have input into their final disposition. (See other related postings, 1, 2, 3.)

Swedish Muslim Group Wants Legal Accommodations; Others Object

The Jerusalem Post reported on Friday that the Swedish government and moderate Muslims in Sweden have strongly rejected a call by Mahmoud Aldebe, head of Sweden's largest Islamic organization, for the enactment of special laws to aid Muslims in observing their religious obligations. Aldebe’s letter was sent to each of Sweden’s parliamentary parties on behalf of the Swedish Muslim Association, as Sweden moves toward fall elections. The letter suggested that Muslims should be given time off work for Friday prayers and Islamic holidays; imams should approve all divorces between Muslim couples; public swimming pools should have one night a week for women-only to swim; imams should have the right to teach Islam to Muslim children in public schools; and special Muslim cemeteries should be established. The only politician who seems to agree with the proposal is Ebtisam Aldebe, running as a member of the Centre Party. (Brussels Journal report.)

Hindu Couple In New York Lose Battle To Keep Cows In Village

I have previously posted information about the appeal filed by an Angelica, New York, Hindu couple, Stephen and Linda Voith, challenging a trial court's decision that prohibits them from keeping their six cows (considered sacred in Hindu beliefs) within the city limits. (Legal background.) On Friday, the Appellate Division affirmed the trial court’s determination. In Village of Angelica v. Voith, (App. Div., April 28, 2006), the court held that husband Stephen Voith had lost in a prior case after fully litigating the same free exercise defenses raised in this case. That operated as collateral estoppel to preclude both him, and his wife Linda who is in privity with him, from relitigating the issue. On the question of whether the town’s ordinance was violated, the court held their leasing of 12 non-contiguous acres did not satisfy the requirement that the animals be kept on at least a 10-acre area. Also the court said that the Voith’s claim that their animals are companions or pets did not bring them into compliance.

PBS Feature On Religion and Politics In Ohio

On Friday, the PBS public affairs program NOW devoted much of its show to issues of religion and politics in a show titled “God’s Country? Religion and Politics In Ohio”. Transcripts from the show and other resources on the topic are available at the show’s website.

Foundation Labeled As Terrorist Claims Free Exercise Infringement

In federal district court in Oregon today, according to The Oregonian, the Al-Haramain Islamic Foundation filed suit against the federal government demanding return of 155 boxes of religious materials-- including Qur'ans, written commentary on the life of the Prophet Muhammad, and other materials designed to explain Islam. The materials were seized two years ago by the Treasury's Office of Foreign Assets Control, as it investigated alleged terrorist activity by the Foundation. In September 2004, the Foundation was designated a global terrorist organization. Treasury officials said it sent money to Islamic fighters in Chechnya, while the Foundation says it merely operated a mosque and distributed Islamic literature to prisoners. The Foundation argues that the government's refusal to release the seized documents violates its First Amendment rights.

Defendant Charges Police Insensitivity To Religious Garb

In Rolling Meadows, Illinois, this week's guilty plea to a misdemeanor battery charge by a Muslim woman brought to an end a disputed encounter between a demonstrator and police, according to Wednesday's Muslim News. Last October 15, Rehana Kahn was arrested while taking part in an immigration rights demonstration. Kahn's version of events is that police rudely ordered her to remove her hijab (headscarf), ignoring her religious concerns. The police version is that while a female officer was searching Kahn, her hijab slipped down 2 or 3 inches, and that Kahn then physically hit 3 different officers. While the battery charge could have led to a year in jail, the judge sentenced Kahn, and 3 co-defendants, to 240 hours of community service and a year of court supervision.

Byrd Introduces School Prayer Amendment

West Virginia Senator Robert Byrd yesterday introduced in Congress a proposed amendment to the U.S. Constitution that would allow voluntary prayer in public schools. The proposed amendment reads:

Nothing in this Constitution, including any amendment to this Constitution, shall be construed to prohibit voluntary prayer or require prayer in public school, or to prohibit voluntary prayer or require prayer at a public school extracurricular activity.

The Charleston Daily Mail reports that this is the eighth time in 43 years that Byrd has introduced the proposal. The Daily Mail also says that it has learned from Byrd's office that Byrd has talked about his amendment and the original intent of the drafters of the First Amendment with Supreme Court Chief Justice John Roberts. The full text of Byrd's expansive speech introducing the amendment is available from his website.

In Minsk, Passover Seder Deemed Unfit For Children To See

In Belarus earlier this month, Minsk city officials refused permission for the local Hassidic Jewish community to hold a Passover seder at the state-owned Palace for Children and Youth. Forum18 reported yesterday that a city official said that the refusal was probably because "it wouldn't be very good to have a religious event at a children's institution – I'm sure you understand." Under the country's religion law, all religious events held outside designated places of worship require official permission. Eventually the Hasidic group held a smaller seder at a synagogue cafeteria, where government permission was not required.

Michigan House Passes Conscience Bill For HMOs and Insurers

Wednesday's Detroit Free Press (via Blog From the Capital) reports that the Michigan House of Representatives has passed two bills permitting insurance companies and HMO's to exclude from coverage any health care benefit on ethical, moral or religious grounds reflected in its articles, bylaws or mission statement. (HB 4745 and HB 4746). The New Standard last month carried an excellent background piece on this legislation, and similar proposals pending in other states. State Representative Scott Hummel, sponsor of the Michigan bills, said that they are preemptive measures to protect against future state mandates, such as a requirement to cover in vitro fertilization.

British Court Rejects Claim Of Burial Benefits Discrimination

In England last month, the Court of Appeal handed down an interesting decision rejecting a discrimination claim by Muslim families who had recently migrated to the United Kingdom. The families sought government benefits to pay for a funeral in their home countries rather than in Britain. In Esfandiari v. Secretary of State for Work and Pensions, [2006] EWCA Civ 282 (March 23, 2006), the court held that it did not violate the European Convention on Human Rights to allow burial benefits only for funerals in the United Kingdom, even though funerals abroad might be no more expensive. The Court said that recent migrants are not a group protected from discrimination by the Convention on Human Rights, as applied by the Human Rights Act 1998. Yesterday's Asian News discussed the case.

2nd Circuit Upholds Church's Right To Shelter Homeless Outside

On Wednesday, the 2nd Circuit Court of Appeals in Fifth Avenue Presbyterian Church v. City of New York, (2nd Cir., April 26, 2006), upheld a permanent injunction granted by a federal district judge in 2004 barring New York City police from dispersing or arresting homeless people sleeping out-of-doors on stairways of the Fifth Avenue Presbyterian Church. The court below in granting the injunction had found that the Church's practice of allowing homeless persons to sleep on its property is an exercise of sincerely held religious beliefs. [LEXIS link to trial court opinion.] The Becket Fund, which filed an amicus brief in the case, has background information on its website.

Pakistan Charges Foreign Papers, Internet Firms With Blasphemy, Capital Offense

Pakistan's Daily Times reports that the Muhammad cartoon controversy is still alive. Iqbal Haider, head of the People’s Support Movement in Pakistan, convinced Pakistan's Supreme Court on Tuesday to order police to register charges under Pakistan's blasphemy law against the Danish newspaper, Jyllands-Posten, its editor, publisher, a cartoonist, and newspapers in France, Italy, Ireland, Norway and the Netherlands that published derogatory drawings of the Prophet Muhammad. Violations of the blasphemy law can be punished by a sentence of death. Also charged were the Internet companies, Yahoo, Hotmail, and Google, who allowed access to the offending drawings. Haider says that now the government should contact the Interpol to bring the offenders to court in Pakistan. Prosecutors, however, say that Pakistan's courts have no jurisdiction since the offenses were committed outside the country. [Thanks to Jawa Report for the lead.]

Reform Rabbinical Leader Speaks At Liberty University

Earlier this week, Rabbi Eric Yoffie, President of the Union for Reform Judaism, spoke at Jerry Falwell's Liberty University. The liberal rabbi stressed those things that his Reform Jewish Movement believes in common with fundamentalist Christians. These include support for Israel, love for America's religious vitality, and concern about America' moral crisis. Yoffie's talk (full text) also emphasized the importance of church-state separation in the United States:

It is understandable, perhaps, that we may feel victimized and under attack and look for quick fixes. And so we hear calls, sometimes from evangelicals and sometimes from others, for prayer in the schools and lowering the wall of church-state separation. But let us beware of simple answers. As a Jew, I don't like it when other Jews find an anti-Semite under every bed; I don't believe that Judaism is seriously imperiled, and I don't think that Christianity is under siege either. Neither do I want to ask the government to solve our problems by imposing its will. Government coercion generates resentment, not godliness, and it is never a good idea to put the government in charge of our thinking.

Today's Forward has an excellent article on the talk that was given at as part of a Wednesday morning prayer service that is mandatory for students and faculty at the University.

Maine Supreme Court Upholds Vouchers Limited To Non-Sectarian Schools

Maine's Supreme Court on Wednesday upheld the state's ban on the use of school tuition vouchers at religious schools. In Anderson v. Town of Durham, (April 26, 2006), the court, in a 6-1 decision, reaffirmed the conclusion it had reached in a 1999 case. It found that subsequent U.S. Supreme Court precedents hold that the State may be permitted to pass a statute authorizing some form of tuition payments to religious schools, but it is not compelled to do so. Today's Morning Sentinel reports that 17,000 students from 145 small towns with no high schools are covered by the voucher program. Towns may pay for those students to attend a non-sectarian public or a private school, but they may not pay for attendance at religious parochial schools.