New Books, Journals and Articles

New Books:

• Charles C. Haynes, Sam Chaltain and Susan Glisson, First Freedoms: A Documentary History of First Amendment Rights in America, (Oxford University Press, July 2006). The book is reviewed by the First Amendment Center.
• Nazila Ghanea-Hercock, Alan Stephens & Raphael Walden, Does God Believe in Human Rights?, (Martinus Nijhoff, Nov. 2006).

New Journal:

• Religion & Human Rights (Martinus Nijhoff, 2006: Volume 1)

Articles from SSRN

• Brian Leiter, Why Tolerate Religion?, (May 25, 2006).

Articles from bePress:

• Gregory A. Kalscheur S.J., Christian Scripture and American Scripture: An Instructive Analogy?, (to appear in Journal of Law and Religion, Vol. 21).

Law Review Articles (via SmartCILP):

• Cynthia V. Ward, Coercion and Choice Under the Establishment Clause, 39 University of California Davis Law Review 1621-1668 (2006).
• Nakul Krishnakumar & Heath Lynch, Tenth Annual National Juvenile Moot Court Competition Winning Brief, 5 Whittier Journal of Child & Family Advocacy 277-300 (2005).

California House Passes Housing Discrimination Bill

On Thursday, the California Assembly, by a bipartisan vote of 48-31, passed and sent on to the Senate, the Civil Rights Housing Act of 2006 (AB 2800). The bill strengthens and standardizes 17 housing discrimination provisions in California law. The bill prohibits discrimination on the basis of religion, as well as on the basis of a number of other characteristics, according to a press release issued Saturday by Equality California.

Religious Broadcaster Wins Again In Attempt To Buy TV Station

Last July, a California appellate court invalidated a decision by Coast Community College District, which was selling off its Public Television Station, to reject a high bid from the religious Daystar Television Network. The religious broadcaster's bid was rejected in favor of a lower bid from the KOCE Foundation that would keep the station as part of the PBS system. Upon the petition of both parties, the court granted a rehearing, and on Thursday reached the same result that it had before, but for different legal reasons. In Word of God Fellowship, Inc. v. Coast Community College District, (Cal. 4th App. Dist., May 25, 2006), the court found that it was improper for Coast Community College to materially amend a public contract in favor of a private bidder after the bidding is closed and the contract was awarded.

In reporting on the decision today, the Los Angeles Times points out that Coast Community College is also defending a second lawsuit seeking $20 to $30 million in damages brought by Daystar, alleging that the district and board trustees violated Constitutional freedom of religion protections when it refused to sell the station to the Christian broadcaster. Richard Sherman, the attorney for Daystar, said that Daystar would be more willing to settle the second suit if the district offers the station for sale again.

Senate Passes Bill To Honor Dalai Lama With Medal

Yesterday, the U.S. Senate by unanimous consent passed S. 2784 calling for the award of a Congressional gold medal to the 14th Dalai Lama in recognition of his contributions to peace, non-violence, human rights, and religious understanding. The bill had broad bipartisan support, with 73 co-sponsors. An identical bill, H.R. 4562, is pending in the House of Representatives. A release on the bill from Sen. Dianne Feinstein’s office, one of the bill’s primary sponsors, points out that under Congressional rules, Congressional Gold Medals require the support of at least two-thirds of the Members of both the Senate and House before they can be signed into law by the President.

Scholarly Papers On Gay Marriage And Religious Liberty

Earlier this month, the Becket Fund for Religious Liberty posted online seven papers from a private conference it hosed last December titled "Scholars’ Conference on Same Sex Marriage and Religious Liberty". An Associated Press report today summarized the findings of those papers: "If gay marriage becomes recognized under law across the country, religious groups could face challenges to customary ways of doing business, even to their finances."

Maryland Uses Economic Development Funds For Church Convention

Today’s Baltimore Sun reports on a provision in Maryland’s state budget bill enacted last month that provides a $150,000 grant to support a religious conference that will attract as many as 50,000 visitors to the state. On June 19-23, the National Baptist Convention plans to hold its Congress of Christian Education in Baltimore. Supporters of state funding say that the convention will bring tourism and economic activity to Maryland. The state grant will cover transporting convention attendees from hotels to the Baltimore Convention Center. It supplements $297,500 approved by Baltimore City Council for transportation and venue fees. The legislature stipulated that the state grant was contingent on review by the state attorney general. This week, Maryland Attorney General J. Joseph Curran Jr. issued an opinion concluding that the state could provide the grant funds without violating the First Amendment’s Establishment Clause.

Not everyone agrees that the conference with the theme “The Heavenly Vision: The Message of the Church" can appropriately be funded by the state. Montgomery County Delegate Richard S. Madaleno Jr. said "This is clearly a religious conference that is all about furthering the goals and the mission of one particular denomination. Which they are so welcome to do - but not at the taxpayers' expense." Americans United for Separation of Church and State has issued a statement opposing state funding. Pointing to a planned conference on the challenge to the Baptist faith by cults, AU executive director Rev. Barry W. Lynn told a Baltimore Sun reporter that the state clearly cannot subsidize attacks by one religious group on another.

City Issues Tax-Free Bonds To Finance Church Expansion

A decision earlier this month by the Clarksville Indiana Town Council raises an interesting church-state issue. The Terre Haute Tribune Star yesterday reported that the town agreed to issue $1.5 million in tax-free economic development bonds to finance the expansion of the First Southern Baptist Church of Clarksville. The bonds will finance part of the $2.5 million cost of the church's new Family Life Center that will contain a kitchen, an office suite, educational space and a gymnasium. The Center will not be used for worship services. The town's Economic Development Commission concluded that the new building, which can be utilized by the entire community, will benefit the economy by creating jobs and providing space for community outreach programs.

Special provisions in the Internal Revenue Code permit states and cities to issue bonds that offer tax-exempt interest to investors where the borrowings are used to finance property owned by a 501(c)(3) charitable organization. (For details, see IRS Publication 4077.) The arrangement does not involve using local tax monies for building of the new facility. Instead, the city borrows money from investors, contributes those funds to the construction of the building, and repays investors through payments from the church to the city made over the life of the building.

11th Circuit "Punts" On Textbook Evolution Sticker Case

In the notorious Cobb County, Georgia evolution textbook sticker case, yesterday the 11th Circuit punted. The decision is Selman v. Cobb County School District, (11th Cir., May 25, 2006). In 2001, the Cobb County, Georgia school board ordered stickers placed on their new biology textbooks that contained 101 pages on evolutionary theory. The stickers read: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered." A lower court upheld an Establishment Clause challenge (as well as a challenge under the Georgia constitution) and ordered the stickers removed. Now the Court of Appeals has remanded the case for the trial court to hear more evidence and enter new findings so that the Court of Appeals can review "the important constitutional issues" raised by the case.

The trial court's decision handed down last year applied the three-pronged Lemon test to conclude that the school board had acted unconstitutionally. It held that the school board had legitimate secular purposes in adopting the sticker: encouraging students to think critically, and reducing offense to students and parents whose beliefs may conflict with the teaching of evolution. However, the court found that the second prong of the Lemon test doomed the stickers. The school board's actions had the primary effect of advancing religion.

Here is the sentence supporting the conclusion on "effect" that particularly troubled the Court of Appeals: "in light of the sequence of events that led to the Sticker's adoption, the Sticker communicates to those who endorse evolution that they are political outsiders, while the Sticker communicates to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders." The key events were a letter and petition from individuals opposing evolution on religious grounds and pressuring the school board to adopt stickers and other measures to dilute the teaching of evolution. However the trial court record was unclear on whether these key documents in fact were submitted to the board before it made its decision on the stickers, and it does not appear that the key documents were in fact formally entered into evidence at trial.

The Atlanta Journal Constitution yesterday reported that both sides claim to be pleased with the decision. [Thanks to How Appealing via Blog From the Capital for the link to the case.]

Another Indian State Considering Anti-Conversion Law

In India, the state of Chattisgarh this summer may become the eighth Indian state to adopt an anti-conversion bill, according to AsiaNews today. Introduced in the State Assembly at the request of the Bharatiya Janata Party, the bill would require a person wishing to change religion to inform a district magistrate one month in advance. The bill would also prohibit forcible conversion of others. The penalty for violating the law would be a fine of 50,000 to 100,000 rupees and imprisonment up to five years.

Suit Challenges Church's Attempt To Reform Sinners

Today's Dallas (Texas) Morning News reports on a fascinating suit winding it way through Texas state courts. Two individuals, identified only as John Doe and Jane Roe, told the pastor of Dallas' Watermark Community Church about certain sins they had committed, thinking the conversation was confidential. However church officials began a process of "care and correction" that they say is outlined in the Biblical book of Matthew. The process involves confronting the person one to one, and then increasingly going more public with the person's behavior until the person changes his or her conduct. Here Doe refused the private interventions and resigned from the church, but Watermark's bylaws say a member "may not resign from membership in an attempt to avoid such care and correction." As the church was about to send more than a dozen letters to people inside and outside the church who know "John Doe", Doe filed suit for an injunction to prevent the release of private information. At first the court granted a temporary restraining order, but it was dissolved when the church argued that the TRO violated its free exercise rights. Now the case is on appeal.

Indonesia Drops Plan To Remove Religion From ID Cards

Today's Jakarta Post reports that earlier this month, an official of the Indonesian Home Ministry said that consideration was being given to dropping religious identification from the country's national identity cards. Opposition to the move, however, has caused the plan to be shelved at least temporarily. Indonesia recognizes only six religions: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism. Others must choose one of these six faiths if they want a valid ID card. Human rights groups have long criticized this requirement as discriminatory.

Home School Official Fears U.N. Convention

LifeSiteNews yesterday reported on a creative legal spectre newly focused upon by the Home School Legal Defense Association. HSLDA Chairman and General Counsel, Michael Farris, warns that "activist judges" may find that the United Nations Convention on the Rights of the Child, which the U.S. has never ratified, is binding nevertheless on the U.S. as customary international law. If that were to happen, he claims, a court might find that the Convention undercuts a parent's right to control the religious education of his children.

Pointing to a in 1995 determination, apparently by the UN's Committee on the Rights of the Child, in which "the United Kingdom was deemed out of compliance" with the Convention "because it allowed parents to remove their children from public school sex-education classes without consulting the child", Farris says that, "by the same reasoning, parents would be denied the ability to homeschool their children unless the government first talked with their children and the government decided what was best." Farris suggests that Congress should act by defining customary international law, or by amending the Constitution to protect parental rights or clearly provide that international agreements do not supersede the Constitution.

German Chancellor Wants Religious References In EU Constitution

German Chancellor Angela Merkel has urged that there should be a reference to God and Christianity in the European Union Constitution, according to a report by EUobserver today. Spain, Italy and Poland had previously taken a similar position on the Constitution that is now on hold after it was rejected by France and Netherlands in referenda last year. Merkel's remarks came as she was about to meet with Turkish Prime Minister Recep Tayyip Erdogan today, and as tomorrow European leaders meet in Austria to discuss the next moves that should be taken on the EU Constitution.

Religious Accommodation Claim Against New York Transit Authority Rejected

In Bowles v. New York City Transit Authority, 2006 U.S. Dist. LEXIS 32914 (SDNY, May 23, 2006), a New York federal district court rejected Title VII, state law, and First Amendment claims by an ordained minister in Fellowship Tabernacle of Christ who was employed as a subway cleaner by the New York Transit system. The court found that plaintiff Warren Bowles had failed to prove the required elements of his claim that NYCTA had failed to accommodate his religious need to abstain from Sunday work. In fact, NYCTA did grant an accommodation after some delay. The court also rejected Bowles' claim that NYCTA had retaliated against him for filing suit to obtain religious accommodation.

Third Circuit Narrows Ministerial Exception In Title VII Cases

Yesterday in Petruska v. Gannon University, (3d Cir., May 24, 2006), the U.S. Third Circuit Court of Appeals expanded the ability of ministerial employees to bring Title VII employment discrimination cases against churches and religious institutions that employ them. In this case, Lynette Petruska, the first female chaplain at Gannon University, a diocesan college, claimed that she was demoted solely because she was a woman. The Court rejected the defendants' claims that the suit should be dismissed under the "ministerial exception" doctrine. It held that the First Amendment exempts religious institutions from Title VII when gender or other illegal discrimination is based on religious belief, religious doctrine or internal church regulations. But if a church discriminates for reasons unrelated to religion, the Constitution does not foreclose a Title VII suit. The court said, "we decline to turn the Free Exercise Clause into a license for the free exercise of discrimination unmoored from religious principle." Judge Smith dissented on this issue.

In holding as it did, the majority disagreed with six other circuits that have found the ministerial exception to be broader. Inside Higher Ed today reports on the case. [Thanks to Eugene Volokh via Religionlaw listserv for the lead.]

South Carolina Bill Will Permit High School Credit For Released Time Courses

The Associated Press reports that yesterday, the South Carolina House of Representatives passed a bill that would allow high school students to receive two elective course credits for taking off-campus released-time religion classes that currently they may take only on a non-credit basis. S0148 passed the House by a vote of 94-15. The bill must now go back to the Senate which passed the bill last month in slightly different form.

Hindus Protest Secularization Of Nepal

Nepal's Parliament last week passed a resolution providing that Nepal would no longer formally be known as a Hindu nation, despite a provision in the country's 1990 Constitution providing that it is a Hindu kingdom. (See prior posting.) The Associated Press today reports on protest strikes over the change staged by Hindus, closing down the city of Birgunj, 100 miles south of Katmandu. Last month, protests forced King Gyanendra to give up the powers he seized last year and reinstate Parliament.

San Diego Votes To File Appeal In Mt. Soledad Cross Case

In San Diego, California on Tuesday, city council voted 5-3 to direct city attorney Mike Aguirre to appeal the decision by a federal judge ordering removal of the Mt. Soledad Cross. (See prior posting.) The city faces a $5,000 per day fine if it does not meet the trial judge's 90-day deadline for the removal. Yesterday's Christian Post reports on this development, and on the city attorney's suggestion that perhaps the city could take down the cross, sell the land to the highest bidder, and let that person decide what to do with the land. The new owner might reinstall the cross.

Shooting Of Turkish Judges May Not Have Had Islamist Motivation

The killing of one, and the wounding of four other, Council of State judges in Turkey last week was originally reported as a crime motivated by Islamic religious fanaticism. However, yesterday EurasiaNet reported that Alparslan Arslan, who is accused of carrying out the shooting, seems instead to be an anti-democratic ultra-right wing nationalist. EurasiaNet also reports that Muzaffer Tekin, the individual suspected of masterminding the plot, has ties to organized crime in Turkey.

Recent Prisoner Free Exercise/ RLUIPA Cases

In Hernandez v. Schriro, 2006 U.S. Dist. LEXIS 32294 (D. Ariz., May 18, 2006), an Arizona federal district court denied injunctive relief to a Native American prisoner who claimed that prison officials prevented him from engaging in sweat lodge and pipe ceremonies with a Native American spiritual advisor, and denied him the right to have a headband or wear a medicine bag.

In Larry v. Goetz, 2006 U.S. Dist. LEXIS 32164 (WD Wis., May 18, 2006), a Wisconsin federal district court found that jail officials adequately responded to a former inmate's request fro a copy of the Quran, but permitted him to proceed with a First Amendment and RLUIPA claim that no Jumah services were available for him.

In Thomas v. Saafir, 2006 U.S. Dist. LEXIS 32178 (ND Cal., May 11, 2006), a California federal district court permitted a prisoner to proceed with a claim that he was wrongfully barred him from participating in Jumah services.