Utah Supreme Court Upholds Polygamy Ban

Yesterday, in State of Utah v. Holm (UT Sup. Ct., May 16, 2006), Utah's Supreme Court yesterday upheld the constitutionality of the state's bigamy statute which provides that "[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." Utah Code Ann. § 76-7-101. The majority held that the state's statute bars polygamous marriages that are solemnized through religious ceremonies even when no state marriage license has been sought.

The court rejected defendant's claim that outlawing polygamous marriage violates his free exercise rights under Art. I, Sec. 4 of Utah's constitution. In so holding, the majority focused on the explicit ban on polygamy placed in Utah's constitution (Art. III, Sec. 1) as a condition of statehood, as required by the 1894 federal Utah Enabling Act. The majority also rejected the contention that criminalizing religiously motivated plural marriage violates the First Amendment to the U.S. Constitution. Finally the court rejected the defendant's claim that the U.S. Supreme Court's 2003 decision in Lawrence v. Texas protects polygamous relationships as a fundamental liberty interest.

The case involved the conviction of FLDS member Rodney Holm, who had been a police officer in Hilldale, Utah. Charges were filed after he married a 16-year old third wife (the sister of his first wife), and fathered her two children.

An interesting dissent by Chief Justice Durham takes the position that Utah's polygamy ban only applies to licensed marriages, and not to a mere religious union where there has been no attempt to obtain state recognition of marital status or the legal benefits of marriage. She also held that imposing criminal penalties on Holm’s religiously motivated entry into a religious union violates the state constitution's provisions protecting religious freedom. Finally she argued that if Holm's polygamous relationship had been with an adult instead of a minor, it would be protected under the U.S. Supreme Court's Lawrence v. Texas holding.

The Salt Lake Tribune reports on the case in two news articles. 1, 2 .

Milwaukee Deputy Sheriffs Claim Religious Rights Violation

In Milwaukee, Wisconsin, the union representing deputy sheriffs filed suit yesterday alleging that their religious rights were violated when the sheriff allowed a speaker from the Fellowship of Christian Centurions to appear at the department's mandatory roll call. The speaker invited deputies to attend an seminar to learn how Christ had affected people's lives and how employees could then affect others' lives through Christ. Yesterday's Milwaukee Journal Sentinel reports that the civil rights suit was filed after a Milwaukee County Circuit Judge denied the union's request earlier Tuesday for a temporary restraining order.

Kentucky ACLU Seeks To Stop Planned Graduation Prayer

The ACLU of Kentucky filed suit yesterday in federal district court on behalf of a Russell County High School senior who objects to plans for a clergyman to offer a prayer at his school's graduation this Friday. The Lexington Herald-Leader reports that the suit asks for a preliminary injunction, arguing that U.S. Supreme Court precedent bar clergy-led prayer at commencement ceremonies.

UPDATE: On Friday, U.S. District Judge Joseph McKinley granted a temporary restraining order in the case. (Louisville Courier-Journal).

Egyptian Court Suspends Pro-Bahai Ruling Pending Appeal

Reuters reports that Egypt's Supreme Administrative Court decided on Monday to suspend the implementation of an earlier lower court ruling that allowed Bahais to have their religion recognized on official documents. (See prior postings 1, 2.) The suspension apparently was imposed to prevent the new ruling from taking effect while the case is on appeal.

Government Censors Take Aim At Da Vinci Code Movie

All around the Middle East and Asia, Christian groups are pressing to have government censorship boards ban the showing of the Da Vinci Code, or at least to cut out some of its scenes or limit it audience to adults. The movie is scheduled for worldwide release at the end of this week. The Pittsburgh Tribune-Review reported Sunday that in Egypt, the likelihood of a ban is so great that distributors have decided not to schedule a showing. Bahrain, Israel, Kuwait, Oman, Qatar and the United Arab Emirates are the only Middle Eastern countries now scheduled to show the film.

In India (CNN-IBN report) the Information and Broadcasting Ministry has said that the film will not be cleared until it is screened by the Catholic Churches Association of India. In Thailand, according to the Bangkok Post, the censorship committee of the Police Registration Division has agreed to cut out the last ten minutes of the movie. Christian groups say that portion of the film distorts the Bible by claiming that heirs of Jesus are alive today. Malaysia is permitting the movie to be shown. The Philippines gave the film an "adults only" certificate, which prohibits those under 18 from seeing the movie in theaters. (Reuters report.) In Korea, Seoul's Central District Court on Tuesday rejected a petition by the Christian Council of Korea seeking to prevent the film's screening. (Korea Times report.) [Thanks to Geoff Rapp for the lead to some of this information.]

WTC Memorial Encounters Church-State Issue

Plans for the building of a memorial to 9-11 victims at New York's World Trade Center site are about to bog down in a church-state dispute. After the World Trade Center collapsed, two girders in the shape of a cross were left standing. They became a center of reverence for rescue workers, and religious services were held near the beams. They still remain standing at Ground Zero because clergy groups objected to their removal for storage. On Friday, according to the Associated Press, WTC Memorial Foundation President and CEO Gretchen Dykstra agreed to find some way to permanently display the girders in the memorial that is being built. In a letter to the Port Authority of New York and New Jersey, Dykstra said: "We agree wholeheartedly that this important and essential artifact belongs at the WTC site and affirm that its respectful placement, possibly with the memorial museum, will be a considered part of our content planning process." She went on: "The artifact will be treated with utmost respect, but again as a public institution, we will not explicitly offer religious services in association with the artifact."

This decision does not set well with American Atheists. A press release e-mailed widely by AA yesterday reaffirms its long-standing opposition to including the cross as part of the memorial. The group's Communications Director, Dave Silverman, said that including the cross ignores the diverse background of the 9-11 victims. "It wasn't just certain types of Christians who died that day," he said. "Jews, Muslims, Atheists and others were victims of the terrorists. A memorial should be inclusive and remind us what we share in common as a nation, and not promote religious differences."

Supreme Court Discusses Taxpayer Standing

Yesterday the U.S. Supreme Court decision in DaimlerChrysler Corp. v. Cuno (May 15, 2006) denied plaintiffs' standing to challenge state tax benefits offered by Ohio to attract industry to the state. One of plaintiffs' arguments was that taxpayers should have standing to make a dormant commerce clause challenge, just as they have standing to challenge government expenditures under the Establishment Clause. Here is what the Court said about that claim:

Quite apart from whether the franchise tax credit is analogous to an exercise of congressional power under Art. I, § 8, plaintiffs' reliance on Flast is misguided: Whatever rights plaintiffs have under the Commerce Clause, they are fundamentally unlike the right not to "'contribute three pence . . . for the support of any one [religious] establishment.'" Indeed, plaintiffs compare the Establishment Clause to the Commerce Clause at such a high level of generality that almost any constitutional constraint on government power would "specifically limit" a State's taxing and spending power for Flast purposes.... [S]uch a broad application of Flast's exception to the general prohibition on taxpayer standing would be quite at odds with its narrow application in our precedent and Flast's own promise that it would not transform federal courts into forums for taxpayers'"generalized grievances."...

The Flast Court discerned in the history of the Establishment Clause "the specific evils feared by [its drafters] that the taxing and spending power would be used to favor one religion over another or to support religion in general." ... The Court therefore understood the "injury" alleged in Establishment Clause challenges to federal spending to be the very "extraction and spending" of "tax money" in aid of religion alleged by a plaintiff.... And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.

LA Times Suggests Solution For Historic Mission

An editorial in today's Los Angeles Times suggests some solutions to the problem of paying for repairs of the historic Mission San Miguel Arcangel. The Roman Catholic Church that owns the Mission says it does not have the $15 million needed for its repair. California has refused to provide state funds for the repairs because of limitations in the state constitution on funding of religious institutions. Attempts to get federal funding have not materialized. State Sen. Abel Maldonado has proposed a state constitutional amendment to qualify any religious building on the state or national registers of historic places for government funding, but the LA Times thinks that this goes too far. Instead, it suggests that San Miguel be deeded to the state, and then leased back to the Church at nominal cost for its religious services.

ACLU Files FOIA Request On Monitoring of Mosques

Yesterday, the ACLU of Southern California announced that it has filed a Freedom of Information Act request on behalf of several Muslim-American groups and mosques in southern California in order to obtain information on reported government monitoring of religious institutions. Shakeel Syed, executive director of the Islamic Shura Council said: "We are people of faith and our mosques are peaceful and tolerant places of worship. But people are being scared away from worship because of reports that mosques and those who pray at them are being monitored. People are afraid that practicing their religion or even visiting a mosque will make them a suspect of the government." Today's Los Angeles Times, covering the story, points out that in January, the FBI acknowledged that its agents have monitored mosques, Muslim-owned businesses and homes throughout the country for radiation levels.

Dutch Parliamentarian, Critic Of Islam, May Lose Citizenship

According to today's New York Times, the government of Netherlands is threatening to revoke the citizenship of a prominent member of Parliament, Ayaan Hirsi Ali. Minister of Immigration Rita Verdonk claims that Ali, a refugee from Somalia who arrived in the Netherlands 14 years ago, gave false information when she applied for political asylum, and later for Dutch citizenship. Ali said she has explained many times that she changed her name and birth date when she arrived in Netherlands, escaping from an arranged marriage. Ali has been an outspoken critic of conservative Islam and its treatment of women. She was the writer of a television documentary on violence against Muslim women that led to the murder of filmmaker Theo van Gogh. The killer pinned a note to van Gogh's body saying that Ms. Ali would be next. Ali, who plans to move to the United States anyway, says that the Dutch government is trying to silence her.

Muslim Students Want Released Time For Friday Prayers

Last week, the Howard County (Maryland) Times reported that the county's Muslim community is asking public school officials to excuse Muslim students early from school every Friday afternoon so they can attend prayer services and religious instruction. School officials, however, object saying that this would cause students to miss twenty percent of a course over the school year. Instead a committee set up by the school board to study the issue has proposed an alternative policy: "students with an approved, documented religious obligation that cannot be fulfilled at any other time may be lawfully excused from class once per week for a thirty minute period or less ... to fulfill that obligation within the school building." Muslim students would rather be able to leave the building to attend traditional services held weekly at an Interfaith Center. Congregational prayer on Fridays is required of Muslim men and encouraged for Muslim women.

The Howard County Board of Education will hold a public hearing on the issue on May 23. Meanwhile there has been a vigorous discussion of the question on Religionlaw listserv.

California Defendants Challenge Eagle Protection Act Distinctions

Copley News Service yesterday reported on criminal charges pending in California against Manuel Rodriguez-Martinez and Mario Manuel Vasquez-Ramos, two Native American religious ceremonial leaders charged with illegally possessing eagle feathers. Members of federally recognized Indian tribes can obtain eagle parts for ceremonial use from the National Eagle Repository. Federal law otherwise prohibits possession of bald and golden eagle feathers and parts. The two defendants here do not qualify to access the National Eagle Repository because they are connected with Indian tribes based in Mexico.

California U.S. District Court Judge S. James Otero earlier this month rejected the defendants' claim that distinguishing between recognized tribes and others with sincere religious beliefs is unconstitutional. So the defendants will now plead guilty and appeal Judge Otero's ruling to the 9th Circuit, claiming that their free exercise rights are being infringed. Federal authorities also suspect that the defendants were involved in the theft of two golden eagles from the Santa Barbara zoo six years ago. However they have been unable to find sufficient evidence to pursue a prosecution for that crime. (See prior related posting.)

City Kept Preachers Too Far From Pride Fest Event They Were Protesting

In World Wide Street Preachers' Fellowship v. Reed, (MD Pa., May 8, 2006), a Pennsylvania federal district court issued a declaratory judgment (but not a permanent injunction) after finding that Harrisburg, Pennsylvania authorities violated the free speech rights of two ministers who wished to talk or preach in opposition to homosexual conduct near PrideFest, a gay pride festival being held in the city's Riverfront Park. The city's permit ordinance was treated as allowing the permit holder to exclude individuals for any reason-- including speech-- from the permit area. Here plaintiffs were barred from preaching in an unused space within the area covered by PrideFest's permit. The court found that this restriction was not narrowly enough tailored to serve the city's interest in merely protecting use of space by a permit holder. The court also found First Amendment problems with enforcement of a 50-foot no-speech zone by a city police officer at one end of the PrideFest event area. Alliance Defense Fund, which represented the preachers, issued a release on the decision.

India Supreme Court Hears Unusual Muslim Divorce Case

Outlook India reports that India's Supreme Court today heard arguments in a case involving a Muslim couple seeking police protection for their marriage. In 2003, Nazma Biwi's husband Sher Mohammed, while drunk, divorced her by pronouncing triple talaq. He later changed his mind and decided to live with his wife and three children. Even though the couple originally received a religious ruling that the divorce was ineffective because it was carried out under intoxication, local clerics at Bhadrak in Orissa issued a Fatwa holding that the couple was divorced and could not live together unless Nazma performed 'Nikah Halala' (marrying another man, consummating the marriage, then getting a divorce and remarrying her first husband). The couple obtained a protective order from a lower court in India in April, but claim the local government has not enforced the order. Nazma and Sher are currently living apart because of threats from the community. Orissa government counsel Shibo Shanker Mishra claims that the government has complied with the lower court order.

Initial Win For Church In Lawsuit Challenging Differential Fee Schedule

In Canyon Ridge Baptist Church v. City of San Diego, (SD Cal., May 12, 2006), a California federal district court refused to dismiss a claim brought by a church group challenging the charging of higher fees for it to use the Kearney Mesa Recreation Center than for comparable secular groups. (See prior posting.) The court permitted plaintiffs to move ahead with claims under the U.S. and California constitutions alleging free speech, equal protection, due process, free exercise and establishment clause violations. Lawyers for the Alliance Defense Fund that represented Canyon Ridge Church (news release) will argue in court today for the issuance of a preliminary injunction.

Religious Issues Face New Israeli Government

Earlier this month, as is traditional in Israel, Prime Minister Ehud Olmert presented to the Knesset the Basic Guidelines that will govern the policies of his new government. On religious matters, those Guidelines were brief. First they provide that "the status quo, as it pertains to religion, will be maintained." However, the new government did promise to "act immediately to pass legislation solving the problem of 'those prevented from marrying'." Presumably this means that the government will move ahead to authorize civil marriages in Israel, despite earlier reports that the Shas party had gotten a commitment to the contrary as part of its arrangements for joining the government.

The marriage issue has become more pressing recently. The New York Jewish Week on Friday carried a long article detailing ways in which Israel's Chief Rabbinate is making approval procedures more difficult for individuals seeking to be married by a rabbi. The Rabbinate is requiring extensive proof that both parties desiring to marry are in fact Jewish. The large number of Russians granted citizenship even though they were not Jewish according to religious law has been a significant factor in the crackdown. Also, changes in the office of the Chief Rabbinate has been a factor. A new official, Rabbi Yigal Krispel, is in charge of determining which rabbis' certifications will be accepted as proof that an individual was validly converted to Judaism. Krispel is less familiar with many U.S. and other diaspora rabbis than was his predecessor.

Other religious pressures are simmering in Israel as well. While Israel's High Court of Justice has just upheld the "Tal law" granting exemptions from military service to ultra-Orthodox yeshiva students, the Court suggested that the Knesset should act to make changes in the law. And yesterday, YNet News ran an article questioning why haredi (ultra-Orthodox) girls are excused from military or other national service requirements, while other Israeli girls are required to serve. The exemption for haredi men is justified by the country's need for Torah scholars. But the haredi community does not permit girls to study Torah.

Vermont Catholic Diocese Tries To Shield Assets

The Roman Catholic Diocese of Burlington is placing the assets of each of Vermont's 130 parishes in a separate charitable trust. Today's Rutland Herald reports that the move is an attempt to shield parish assets from claims against the Diocese in priest sexual abuse cases. The Diocese has settled several of those cases, and the lawyer representing 19 men accusing priests of prior sexual abuse says the charitable trust arrangement is a violation of Vermont's fraudulent conveyance law.

Florida High Schools Move Graduations Out Of Church

Yesterday's Orlando Sentinel reports that four high schools in Brevard County, Florida, this year will hold their graduations in secular venues. Last October, the Brevard County School Board settled a suit brought by Americans United For Separation of Church and State, agreeing that they would no longer hold graduation in houses of worship unless religious symbols were concealed or removed. The schools had been using Calvary Chapel, a church at the foot of a 25-foot-tall Christian cross. Last year's graduations were still there because the court held there was not enough time to reschedule the ceremonies then. But this year, the schools are complying with the settlement agreement. Interestingly, three of the four schools are holding their graduations this year on Saturday morning, and no one seems to have raised any question about whether this creates a problem for students who observe Saturday as their Sabbath.

Toledo Priest And Diocese Face Further Legal Problems

The murder conviction on Thursday of Toledo, Ohio Catholic priest Gerald Robinson for the murder of a nun in 1980 is not the end of legal problems for the priest or Toledo's Catholic diocese. Today's Toledo Blade reports that Robinson and the diocese are defendants in a civil suit filed by a 40-year old woman and her husband alleging that the woman was raped and tortured in ritual abuse by Robinson when she was a young girl. Also, Lucas County (Ohio) Prosecutor Julia Bates is still considering obstruction of justice charges against the Toledo Diocese for failure to turn over documents the state requested during its lengthy murder investigation of Robinson.

Iranian Letter In Islamic Context

Last week's letter from Iranian President Mahmoud Ahmadinejad to President George W. Bush, full of appeals to Bush's religious values and heavy on quotes from the Koran, seemed somewhat bizarre by Western diplomatic standards. However, according to columnist Amir Taheri in today's Jerusalem Post the letter fits squarely into Islamic traditions that date back to the Prophet Muhammad himself. In 625 AD, Muhammad wrote letters to the rulers of Persia, Byzantium and Ethiopia calling on them to convert to Islam. In 1987, Iranian leader Ayatollah Ruhallah Khomeini wrote a letter to Soviet Premier Mikhail Gorbachev inviting him to convert to Islam before Iran would assist the Soviet Union in Afghanistan. Taheri argues that instead of ignoring Ahmadinjad's letter, Bush should respond by inviting him to convert to liberal democracy.