Pharmacist Loses Claim Against Wal-Mart

A Wisconsin federal district court ruled last week that there are limits to required accommodation of pharmacists' religious beliefs, according to LifeNews yesterday. Pharmacist Neil Noesen had sued Wal-Mart and a staffing agency that had placed him there for religious discrimination, alleging that he was fired last summer for refusing to fill prescriptions for drugs that he says can cause an abortion. However, Judge John Shabaz dismissed the suit, finding that Noesen had gone further, placing telephone callers seeking the drugs on hold indefinitely. He also refused to help customers coming into Wal-Mart seeking the drug find other pharmacists or pharmacies to fill their prescriptions. Noesen had previously been fired from K-Mart for refusing to fill similar prescriptions. Noesen's pharmacy license expired on Wednesday. The state board had ordered him to attend state ethics classes and pay back almost $21,000 in costs the state incurred to investigate him, as a condition for getting his license back. Noesen has not met these requirements.

Connecticut To Pay Fee For Church Convention In State

The United Church of Christ had been planning to hold its national convention in Connecticut at the new Convention Center in Hartford. However, according to yesterday's Hartford Courant, when a labor dispute at the Center led the union involved to call for a boycott, the Church withdrew. Now Connecticut Governor M. Jodi Rell has salvaged the convention for her state by agreeing to have the state pay a $100,000 fee for an alternative site-- the older Hartford Civic Center. Recently elsewhere when tax funds have been used to subsidize church conventions, critics have raised church-state separation questions. (See prior posting.) [Thanks to Donald C. Clark, Jr. via Religionlaw for the lead.]

Arkansas Governor Defends His Version of Prison InnerChange Program

According to the Associated Press yesterday, Arkansas Governor Mike Huckabee says that his state prison's InnerChange program is constitutional. He says that the Bible-based program in the Arkansas prison system is sufficiently different from Iowa's that the recent federal court decision striking down Iowa's faith-based program should not affect Arkansas. Huckabee says that the Arkansas program is totally funded by private contributions, is totally voluntary and does not require Christian conversion or belief to participate. It is designed to give inmates the skills they need to succeed in society. The only state funding involved is used to house and feed the participating inmates.

Recent Prisoner Decisions

In Wilson v. Tillman, (3d Cir., June 2, 2006), the U.S. Third Circuit Court of Appeals rejected a free exercise and equal protection claim by a prisoner in a group home pre-release program. Pennsylvania state prisoner John Wilson is a descendant of Ethiopian Jews. Adappt House insisted that he go on a required outing to a park with other residents on a Saturday instead of attending religious services. The court upheld the requirement as having a legitimate penological interest, and found that Wilson took advantage of an alternative-- praying alone before the trip began.

In Perez v. Frank, 2006 U.S. Dist. LEXIS 34990 (WD Wis., May 25, 2006), a Wisconsin federal district court permitted a Muslim prisoner to proceed with RLUIPA and free exercise clause claims (and for some complaints, establishment clause claims) growing out of prison authorities denying him adequate quantities of prayer oil, denying him the right to engage in study and group prayer, and denying him various religiously required foods. It refused to permit him to proceed with his claim that the prison denied him access to rest rooms for Wudu (ablutions) when the unit's day room was closed.

More On The Marriage Protection Amendment Debate

As the Senate today debates the Marriage Protection Amendment (see prior posting), with a vote possible tomorrow, proponents warn that without it religious organizations may end up being forced to provide benefits to same-sex couples even if doing so violates the organizations' religious beliefs. Others say that this fear is exaggerated. (Chicago Tribune story.) Meanwhile some others note that the date set for a Senate vote, June 6, 2006, has the ominous abbreviation "6 6 06". (The Conservative Voice.)

Marriage Protection Amendment Going To Senate; Any Establishment Clause Problem?

The U.S. Senate is set this week to begin consideration of S.J.Res. 1, the proposed Marriage Protection Amendment to the U.S. Constitution. It provides: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." President Bush's Saturday Radio Address focused on his support for the Amendment. The Los Angeles Times says that no one expects the amendment to get the 67 votes it needs to pass the Senate.

For watchers of church-state issues, however, the mobilization of religious coalitions on both sides of the issue is interesting. The Chicago Tribune reports that the Religious Coalition for Marriage (Catholics, Evangelicals, Southern Baptists, and Orthodox Jews) favors the amendment while Clergy for Fairness (Episcopal Church, United Church of Christ, United Methodist Church, Reform Jews) is campaigning against it. This is not the only issue involving rights of gays and lesbians that has forced church groups to take competing political stands. In Washington state, the debate over forcing a referendum on the state's new civil rights act that protects gays and lesbians has also generated competing religious coalitions. (Tacoma News Tribune, June 4.)

In 1971 in Lemon v. Kurtzman, Chief Justice Burger wrote: "Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect." Does that mean that there is a special Establishment Clause problem with the current debates over gay rights?

Gideons Hand Out Bibles In Colorado Schools

Yesterday's Vail (Colorado) Daily reports that for the second year in Summit County, Colorado, the Gideons were permitted to distribute Bibles inside school buildings. Superintendent Millie Hamner said attorneys advised that if the Gideons were excluded, other outside groups such as Rotarians who hand out dictionaries and college recruiters who distribute college information would need to be excluded as well. Before this, Gideons had been restricted to the streets outside the schools.

Alabama Democratic Court Candidate Looks For Religious Voters

The Columbus (Georgia) Ledger-Enquirer today reports that Al Johnson, the Democratic candidate for the Alabama Supreme Court, is trying to capture conservative religious votes from the Republicans. Johnson's supporters display bumper stickers reading: "I am a Christian; I own a gun; I am a Democrat; Johnson for Justice." And when asked about his views, Johnson says, "I am as conservative as the Holy Scriptures; and I am as liberal as the love of Jesus. The problem in Alabama right now is most of our elected officials live by the first part of that and forget the second part."

Israeli Court Blocks Rabbi's Ruling On Cursing Parrot

In Israel this week, according to YNet News, a civil court in Tel Aviv has issued an order temporarily preventing the owner of a parrot from carrying out a rabbi's ruling that the bird, which screeches curses and unbecoming phrases, be put to death or at least have its tongue cut out. The court issued the restraining order at the request of the Let Animals Live Foundation. Later this week the court will make a final determination on the bird's fate.

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."