Texas Republican Convention Includes Religious Themes

From Tuesday to Saturday of this past week, the Republican Party of Texas held its 2006 Convention. Today's Dallas Morning News reports on the heavy religious influence that pervaded the Convention. One of the scheduled functions on Saturday was a Prayer Rally at which party leader Tina Benkiser assured the delegates that God is chairman of the Party and was watching over the Convention. The Party Platform adopted on Saturday included language declaring that "America is a Christian nation" and that "God is undeniable in our history and is vital to our freedom." It continued, "We pledge to exert our influence toward a return to the original intent of the First Amendment and dispel the myth of the separation of church and state."

Recent Law Review Articles

From SmartCILP:

Donald L. Drakeman, Reynolds v. United States: The Historical Construction of Constitutional Reality, 21 Constitutional Commentary 697-726 (2004).

Stephanie L. Shemin, The Potential Constitutionality of Intelligent Design? 13 George Mason Law Review 621-695 (2005)

Selected Papers from the Terrence J. Murphy Institute Conference: Sacrifice and the Common Good in the Catholic Tradition. 3 University of St. Thomas Law Journal 1-138 (2005).

NCAA Accuses Some Religious Schools Of Being Diploma Mills

According to an Associated Press report on Friday, the NCAA has discovered that some non-traditional, religiously-affiliated high schools are operating as diploma mills, with some engaging in outright fraud in the student credentials they certify. Next week the NCAA will release the name of schools from which it will no longer accept transcripts. A lawyer representing some of the parochial schools was quoted as saying that the NCAA's intrusion into their affairs would be an unconstitutional violation of church-state separation. This will likely be a difficult argument to maintain in light of the 1988 U.S. Supreme Court decision in NCAA v. Tarkanian which held that the NCAA was not involved in state action in recommending to a state University that it suspend its basketball coach for violating NCAA rules.

Mt. Soledad Appeal Filed At Last Minute

The San Jose Mercury News today reported that just hours before the deadline that had been imposed by a trial court for removal of the Mt. Soledad Cross, the city of San Diego formally asked the 9th Circuit Court of Appeals for a stay of the order. (See prior posting.) City Attorney Mike Aguirre said he did not expect the appeal to succeed, but that he had a duty to try in order to respect the will of the voters who have approved measures designed to preserve the Cross. San Diego Mayor Jerry Sanders said that if the stay is not granted, the city will obey the judge’s ruling and avoid paying the $5000 per day fine that will otherwise be incurred.

InnerChange Prison Program Held Unconstitutional

In a decision that could have broad implications for the Bush administration’s Faith Based Initiative, an Iowa federal district court yesterday held that a state-financed prison treatment program affiliated with Charles Colson’s Prison Fellowship Ministries is "pervasively sectarian" and violates the First Amendment’s Establishment Clause. (See prior posting.) Yesterday’s New York Times and today’s Washington Post report on the 140-page decision in Americans United for Separation of Church and State v. Prison Fellowship Ministries, (SD Iowa, June 2, 2006), which requires InnerChange to return $1.5 million in funding that it has received from the state of Iowa.

The court explained at length the evangelical Christian theology of InnerChange, and how it differs from the beliefs of a number of other Christian groups. It also explained the "transformational model" used by InnerChange in its program—one that instead of attempting to teach inmates to manage their behavior, attempts to "cure" prisoners by identifying sin as the root of their problems and changing their relationship with God. The court found that while the primary purpose of state officials in bringing the InnerChange program to Iowa was to reduce recidivism, funding of the program has the primary effect of advancing religion because state funds are being directed to a pervasively religious program. It concluded that it could not separate out the secular parts of InnerChange’s program for funding because the transformational model used makes it impossible to distinguish sectarian from religious aspects of rehabilitation. The court also found that participation by inmates in InnerChange was not the result of true private choice between alternative programs. There are a number of incentives for inmates to choose InnerChange, and there are no similar alternative secular programs for inmates to choose. Thus the state is unconstitutionally entangled with religion in the program.

Mark Early, president of Prison Fellowship Ministries, said the decision is so broad that it appears to ban a prison program like InnerChange even if it is privately funded. InnerChange plans to file an appeal. [Thanks to Douglas Laycock via Religionlaw for the lead, and to How Appealing for the link to the opinion.]

Report On Religious Right's Political Power In Texas

The Texas Freedom Network Education Fund has released a 52 page report titled "The Anatomy of Power—Texas and the Religious Right in 2006". The Report’s Executive Summary identifies four main conclusions: (1) The religious right controls the leadership of the Republican Party of Texas; (2) San Antonio businessman James Leininger is working to purge from office those Republicans who do not support the agenda of the religious right; (3) Conservative evangelical pastors are using their church positions to advance the religious right’s agenda through the Texas Restoration Project; and (4) David Barton, vice chair of the state has become a key recruiter of conservative evangelicals, telling them that the separation of church and state is a doctrine inconsistent with the Founders’ intent created by activist judges. [Thanks to The Wall of Separation blog for the lead.]

Muslim Prisoners' Free Exercise Challenge To Double-Celling Rejected

Jones v. Goord, 2006 U.S. Dist. LEXIS 34835 (SDNY, May 26, 2006), involved a challenge to New York state’s administration of a policy for double-celling its maximum security prisons. In the case, a New York federal district court rejected the First Amendment claims made on behalf of Muslim prisoners that double-celling gives them insufficient room to pray, that a cellmate may render a cell unclean and therefore unfit for prayer, that the morning call to prayer could disturb a sleeping cellmate, that several prayers must be made in solitude, and that certain rituals require privacy which is not available in a double cell. The court also refused to permit plaintiffs to amend their complaint to assert a RLUIPA claim, finding that any such claim had been waived.

Profile Of U.S. Special Counsel For Religious Discrimination

Last Wednesday, NPR’s All Things Considered carried a 4+ minute profile of Eric Treene, the Justice Department’s Special Counsel for Religious Discrimination. Some observers are critical of him arguing that he is promoting religion in the public sphere. Audio of the coverage is available online. [Thanks to Blog From the Capital for the lead.]

Baptist Church's Zoning Claim Dismissed In Part By 11th Circuit

In Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, (11th Cir., June 1, 2006), the U.S. 11th Circuit Court of Appeals affirmed a Florida district court's decision dismissing the RLUIPA claim brought by an Hispanic Baptist congregation. The church was challenging Broward County's refusal to grant it a zoning variance to permit it to use property for a church building. However, the Court of Appeals reversed the district court's dismissal of the congregation's Section 1983 claim. In that part of its lawsuit, the church had alleged that the county had violated its equal protection, due process and free exercise rights in denying it the zoning variance.

Kentucky Graduation Prayer Decision Now Available On LEXIS

A previous posting discussed the issuance of a temporary restraining order prohibiting organized prayer at the recent Russell (Kentucky) High School graduation ceremony. The text of the court’s opinion in the case is now available on LEXIS, Doe v. Gossage, 2006 U.S. Dist. LEXIS 34613 (WD Ky., May 24, 2006). (Also see related posting.)

Reform and Conservative Petition Israel High Court On Mikvahs On Eve Of Shavuot

Tonight begins the Jewish holiday of Shavuot. The holiday is both an agricultural festival and one that commemorates the giving of the 10 Commandments to Moses at Mt. Sinai. Part of the synagogue ritual on the holiday is the reading of the Biblical book of Ruth. The book is the story of a Moabite woman who converts to Judaism. Today on the eve of the holiday, YNet News reports on a dispute in Israel that relates to religious conversion. The Masorti (Conservative) Movement and the Movement for Progressive Judaism (Reform) have petitioned the High Court of Justice claiming that the National Authority of Religious Affairs has discriminated against them by denying them use of Mikvahs (ritual baths), that are used in the conversion process (as well as by religious Jews at other times). The organizations say that when Conservative and Reform rabbis arrive at public mikvahs of local religious councils-- which are financed by a public budget-- they are repeatedly denied entry by mikvah employees.

The dispute is part of the larger battle by the Reform and Conservative movements to obtain recognition of conversions performed by their rabbis. The Orthodox rabbinate in Israel has adamantly refused to recognize the legitimacy of conversions performed by non-Orthodox rabbis. The bitterness of the dispute is illustrated by the response of the minister in charge of religious councils, MK Yitzhak Cohen (Shas) to the High Court petition: "Conversions of Reform and Conservative organizations are virtual conversions, and they deserve to immerse in a virtual immersion. This is a vexing petition. The only immersion the Reform are aware of is Baptism. So they can continue to walk on water and leave the people of Israel alone."

Montana School District Sued Over Building Sale To Catholic School

In Missoula, Montana yesterday, the organization Good Schools Missoula announced that it had filed suit against the Missoula County Public Schools (MCPS) to challenge the lease and subsequent sale of the former Roosevelt Elementary School to the Loyola Sacred Heart High School Foundation for it to use as a Catholic school. The Missoulian today reported that the suit named MCPS, the foundation, and five individual MCPS trustees as defendants. The complaint alleges that the arrangements violated Art. X, Sec. 6 of the Montana Constitution that prohibits the state from directly or indirectly appropriating funds or making a grant of property to aid any sectarian institution. The suit claims that MCPS set the original lease rate to Loyola Sacred Heart Foundation at a quarter of fair market value, that it allowed the Foundation to extend its five-year lease while considering the sale, that MCPS rushed the sale process in a way that discouraged other bids, that the bid that was accepted was lower than another bid that had been submitted, and that the board had not properly accounted for the funds received in the sale.

9th Circuit Denies Prisoner Claim Regarding Halal Meat

Last week in Watkins v. Shabazz, (9th Cir., May 22, 2006), the U.S. 9th Circuit Court of Appeals affirmed the district court and denied a prisoner's claims under the 1st and 14th Amendments and RLUIPA that his ability to practice his Muslim religion was being infringed. The prisoner, who requested Halal meat, was given a choice by the prison to eat the nutritionally equivalent meat substitute provided by the prison, or to find an outside religious organization to contract with the prison to provide Halal meat. The court agreed with the findings below that these alternatives did not substantially burden the prisoner's practice of his religion andthat he was not discriminated against on the basis of his Muslim faith.

Group Plans 10 Commandments Across From Supreme Court

Today's Washington Post reports that the Christian evangelical group Faith and Action is taking strategic advantage of the fact that its offices are housed right across the street from the U.S. Supreme Court. It plans on Saturday to unveil an 850 pound granite sculpture of the Ten Commandments on its front lawn where it will be visible each day to the Justices as they come and go from the Supreme Court employee parking lot. However Erik Linden, a spokesman for the District of Columbia Department of Transportation, said the group needs a public space permit from his Department before displaying the monument as well as approval from the Historic Preservation Review Board because the townhouse in which the group's offices are located sits in a historic district. Bill Sisolak, chairman of the Historic Preservation Review Board zoning committee said: "It's a large object not in keeping with the historic nature of the neighborhood.... [I]n my opinion it doesn't appear to be in compliance." Faith and Action says it has tried unsuccessfully for five years to get the required permits, and now plans to move ahead without them based on "common law that governs garden displays."

New Repression Of Bahais In Iran Reported

The New York Times reports today that the government of Iran has recently intensified its campaign against the Bahai religious minority in the country. On May 19, authorities in Shiraz arrested and held without charges for six days some 54 Bahais who were involved in a community service project, many of them in their teens and early 20's. More than 70 others have been arrested in the last 18 months. Although the Bahais are the largest religious minority in Iran, they are considered "unprotected infidels". Unlike Jews and Christians, they do not have seats in Iran's Parliament set apart for them. Since December, the government newspaper in Tehran has published more than 30 anti-Bahai articles --even accusing Bahais of sacrificing Muslim children on holy days. (See related prior posting.)

Ohio Supreme Court Refuses To Extend Limitation Period For Clergy Sexual Abuse

Yesterday, the Ohio Supreme Court held in a 5-2 decision that a clergy sexual abuse suit against the Catholic Archdiocese of Cincinnati was barred by the statute of limitations. In Doe v. Archdiocese of Cincinnati, (Ohio Sup. Ct., May 31, 2006), the court held that a minor who is the victim of sexual abuse has two years from the time that he or she reaches majority to assert claims against the employer of the perpetrator of sexual abuse. So long as the victim, at the time of the abuse, knew the identity of the perpetrator, the priest's employer, and that a battery has occurred, the statutory period for filing suit is not extended. The fact that the plaintiff did not discover until recently that the Archdiocese may have had knowledge of the abuse does not operate to extend the statute. The court said that it is up to the legislature to create changes in the statute of limitations for clergy sexual abuse. The Court issued a release summarizing the decision. Yesterday's Washington Post, reporting on the decision, points out that new Ohio legislation (SB 17) extends the time limit for future victims to 12 years after reaching adulthood.

Disagreement On Need For Permits For Public Preaching In Russia

Forum18 reported yesterday that there is growing disagreement among local officials in Russia on whether, despite the Constitution's protection (Art. 28) of the free dissemination of religious beliefs, the government may require religious groups to obtain permits to preach in public locations such as markets and streets. Most affected so far has been the Council of Churches Baptists whose members refuse on principle to register with the state authorities.

High Schoolers Unite Against KKK Support For Graduation Prayer

As an earlier posting reported, in Shelby County, Kentucky, the school board, after receiving a letter from the ACLU, cancelled planned formal prayers at the school's upcoming graduation. While that stance may have originally been divisive, students now support the decision after a member of the Ku Klux Klan protested the cancellation by demonstrating outside of Shelby County High School. According to today's Lexington (Kentucky) Herald-Leader, Klansman Michael Hibbs generated a counter-protest by 40 Shelby High School seniors. Klansman Hibbs, who used a Hitler salute to answer taunts, said said that he hopes to intimidate Muslim students and others who are against the "Christian principles this country was founded on." He added "These heathens come over here from whatever third-world country they come from and they've got the nerve to tell people how to live. If they want to come here and be free, they can come here and be free. But they aren't going to come here and tell us how to live."

Arshiya Saiyed, the Muslim student who originally objected to the planned prayers said: "Quite a few students have had opinions on what is going on but when it comes down to it, we don't hate each other, we just have different opinions. And here in America we can have that and we can embrace the fact that we are all different."

Splits Developing Among U.S. Religious Right

Today's Guardian carries an interesting story on the splits that are developing among conservative religious political activists in the United States. Some who are criticizing the religious right's partisan tactics, or who are embracing non-traditional issues such as the environment, find themselves the subject of criticism, or even threats.

Federal Court Upholds Pennsylvania Home Schooling Regulation

In Combs v. Homer Center School District, 2006 U.S. Dist. LEXIS 33871 (WD Pa., May 25, 2006), a Pennsylvania federal district court upheld Pennsylvania’s Act 169 that regulates home schooling of children. In several consolidated cases, parents challenged provisions that require them to document that their children have met requirements on days of attendance and hours of instruction in certain required subjects by submitting a portfolio containing sample work and an annual evaluation of the student’s progress prepared by a school psychologist or certified teacher. The parents argued broadly that according to their religious belief, the civil government lacks jurisdiction to approve or administratively supervise the education they provide. The court granted summary judgment to the school districts, rejecting challenges under Pennsylvania’s Religious Freedom Protection Act, and constitutional challenges based on the free exercise clause and the due process rights of parents to control the education of their children.