Supreme Court, In Religion Case, Interprets Prisoner Litigation Requirements Strictly

The U.S. Supreme Court yesterday, in a 6-3 decision, interpreted the federal Prison Litigation Reform Act to made it harder for prisoners to get into court to challenge their treatment while incarcerated. The case, Woodford v. Ngo (June 22, 2006), involved a complaint by Viet Mike Ngo, who was placed in administrative segregation for "inappropriate activity" in the prison chapel, and later was prohibited from participating in various religious activities, such as confession, Holy Week services and Bible study. Yesterday's Washington Post reported on the decision.

42 USC 1997e(a) requires a prisoner to exhaust "such administrative remedies as are available" before bringing suit in federal court. The majority, in an opinion written by Justice Alito, held that this means that a prisoner who has missed a deadline for filing an administrative remedy is precluded from suing in federal court. Otherwise, they said, a prisoner could ignore the prison's internal grievance system. Chief Justice Roberts and Justices Scalia, Kennedy and Thomas joined the opinion. Justice Breyer wrote a concurring opinion generally agreeing, but saying that the exhaustion principle has some exceptions.

The dissent, written by Justice Stevens, and joined by Justices Souter and Ginsburg, said that all Congress meant was that the prisoner's grievance had to be turned down administratively before he sues. An administrative denial of a prisoner's claim because he failed to comply with some procedural deadline meets the exhaustion requirement and should allow the prisoner to proceed to federal court to vindicate his constitutional rights. The dissenters said that prisoners have little incentive to purposely evade using the prison's internal grievance system before filing suit.

New Jersey Court Refuses To Enforce Islamic Marriage Contract Provision

Newsday reported yesterday that an Essex County, New Jersey trial court has refused to enforce a previous agreement between a divorcing husband and wife that if the marriage broke up, the wife would get $50,000 as the mahr-- a payment to the wife that is part of the traditional marriage contract under Islamic law. American Muslims are increasingly asking civil courts to intervene in religious disputes such as this. In a similar case in 2002, a court in Passaic County upheld a $10,000 mahr as a legally enforceable contract between the husband and wife.

UPDATE: The case is Attia v. Amin (20-4-4287, Chancery Div., Essex County). Apparently the court's refusal to enforce the agreement stemmed from its conclusion that the amount of the payment was unfair and inequitable. Also important to the court was its finding that the agreement had been signed by the husband under duress, out of fear that if he did not do so the marriage would not take place and he would be deported. [From Daily Decision Alert forwarded by Steven Sholk, from Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.]

Indian Court Reverses Ban On Da Vinci Code

The Hindu reports that in India yesterday, the Andhra Pradesh High Court quashed the state government's order prohibiting the screening of The Da Vinci Code. The court said, "Freedom of speech and expression contributes to the richness and equilibrium of human existence." It also said that the Home Department officials who banned the film had not even seen it. Instead, the official "mechanically certified" the veto of a few objectors. The court ordered the government to pay damages of Rs. 10,000 each of the two film distributors who brought suit, and Rs. 2,500 to an individual plaintiff in the case.

10th Circuit Issues Slightly Revised Opinion In Land Use Case

On Tuesday, the U.S. 10th Circuit Court of Appeals vacated its former opinion in Grace United Methodist Church v. City of Cheyenne, (10th Cir., June 20, 2006), and issued a revised opinion with minor changes in it, again rejecting a church's appeal of a ruling that prevented it from constructing a day care center on property it owned. The Court of Appeals also upheld the district court's decision that Mountainview Homeowner's Association had standing to intervene in the case.

Court Upholds Secret Service Seizure Of Gospel Tracts That Look Like Currency

Religion News Service reports that on Tuesday a federal district court in Dallas, Texas denied a preliminary injunction to the Great News Network in its dispute with the U.S. Secret Service. The evangelical ministry based in Denton, Texas has been handing out gospel tracts that resemble $1 million bills. The tracts, that are the same size as a dollar bill, feature feature "1,000,000," a picture of President Grover Cleveland and, in small type, the words "This is Not Legal Tender" and "Department of Eternal Affairs." On the back, around the edge, the tract says: "The million-dollar question: Will you go to heaven?" The United States does not issue a $1 million bill.

Secret Service agents seized the tracts earlier this month after a North Carolina resident tried to deposit one in his personal bank account. (GNN release.) Great News Network argued to the court that the seizure violated its freedom of speech, press and religion. Brian Fahling, senior trial attorney with the American Family Association Center for Law & Policy, said that millions of the tracts have been distributed by Great News Network and others who have ordered them from Living Waters Publications, based in Bellflower, Calif.

Mt. Soledad Appeal Rejected By 9th Circuit

The San Diego UnionTribune reports that yesterday the U.S. 9th Circuit Court of Appeals turned down San Diego's appeal of a district order to remove the Mt. Soledad Cross or face a fine of $5000 per day. (See prior posting.) San Diego Mayor Jerry Sanders said that the city would comply with the order district court order if no other way of preserving the cross can be worked out.

UPDATE: Apparently the 9th Circuit's action was a refusal to grant a stay of the district court's order during the appeal of the case. At the same time, the 9th Circuit scheduled oral argument in the case for the week of October 16, 2006, long after the district court's deadline for removing the cross. (Release by Thomas More Law Center.)

UPDATE 2: The city of San Diego announced on Thursday that it will ask the U.S. Supreme Court to review the 9th Circuit's decision. (AP report.)

Appellate Arguments In Satmar Dispute Heard

On Tuesday, a New York state appellate court in Brooklyn heard arguments in litigation that will determine which of the sons of the recently deceased Satmar Rebbe, Moses Teitelbaum, will control the group's $500 million of property. Yesterday's New York Sun says that the issue before the court was whether Rabbi Moses Teitelbaum had the power in 2001 to expel the president of the Satmar congregation from the community, and whether a civil court can decide this question. A decision will help determine whether Rabbi Zalman or Rabbi Aaron will have control over assets ranging from cemetery plots to one of the world's largest synagogues which is under construction. (See prior posting.)

Religious Objections To Union Membership Interpreted By Washington AG

Washington state Attorney General Rob McKenna has issued an Opinion (AGO 2006 No. 14) interpreting RCW 41.80.100. The statute provides that state employees with a religious objection to union membership need not join the union representing an agency's employees. Instead, the objecting employee can make payments to the union for purposes that would be in harmony with his or her individual conscience. The AG's Opinion ruled that a state employee may assert a strongly held private religious objection to union membership, even if the objection is not based on the teachings of an established church or religious body. However, the worker's objection to union membership must be a religious one, and not merely a philosophical, sociological, ethical, or moral objection. Yesterday's Olympian reports on the issuance of the AG's Opinion.

Molestation Conviction Reversed For Excessive Focus On Victim's Religious Beliefs

In State of West Virginia v. Bolen, (W.Va. Sup. Ct., June 16, 2006) (majority opinion; dissent), the Supreme Court of Appeals of West Virginia ordered a new trial in the case of Matthew Bolen who had been sentenced to prison for first degree sexual assault. The state charged that when Bolen was 16, he repeatedly engaged in oral sex with a 7 year old neighbor boy.

Throughout the trial, the prosecution made extensive remarks about the victim's spiritual commitment, faithful church attendance and missionary activities. In his closing statement to the jury, the prosecutor suggested that a person as religious as the victim would not lie and risk burning in Hell for doing so. The Supreme Court found the trial judge committed plain error and the prosecutor acted improperly in ignoring West Virginia Rule of Evidence 610 which provides: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

Justice Maynard dissenting said that Bolen's counsel never objected at trial to the state's references toBolen'ss religion. Today's Charleston (W. Va.) Daily Mail reports on the decision.

Religious Coalition Formed To Oppose US Use Of Torture

Earlier this month, a group of religious leaders announced the formation of a new group, the National Religious Campaign Against Torture. Its first project was an ad published in the New York Times and elsewhere beginning June 13, urging the United States to abolish torture without exceptions. The Washington Post last week reported that the signers of the ad came from a broad range of religious groups and include a number of conservatives. Deputy White House press secretary Dana Perino, in response to the ad, said: "this government does not torture, and we adhere to the international conventions against torture. That is our policy, and it will remain our policy." The new group supports applying a torture ban to every arm of the U.S. government; closing secret U.S. prisons around the world; ending the rendition of suspects to countries that use torture; and granting the Red Cross access to all detainees.

3rd Circuit Grants Rehearing In Title VII "Ministerial Exception" Case

The U.S. Third Circuit Court of Appeals yesterday, sitting en banc, vacated the original 3-judge decision and granted a rehearing before a new 3-judge panel in Petruska v. Gannon University, (3rd Cir., June 20, 2006). The original decision, handed down last month, expanded the ability of ministerial employees to bring Title VII employment discrimination claims against churches and religious institutions that employ them through interpreting the "ministerial exception" to Title VII more narrowly than other circuits have. (See prior posting.) Among the issues that may be raised on rehearing is that one of the two judges in the majority in the original decision-- Judge Edward R. Becker who wrote the majority opinion-- died after the opinion was written but before it was formally issued by the court. [Thanks to How Appealing and to Marty Lederman via Religionlaw.]

Two Prisoner Free Exercise Cases Dismissed

Federal courts have summarily dismissed two recent prisoner free exercise cases. In Foley v. Schriro, 2006 U.S. Dist. LEXIS 40438 (D. Ariz., June 15, 2006), an Arizona federal district court dismissed without prejudice a prisoner's claim that he was being denied the diet required by his religion. The court found that the prisoner had failed to allege the specific religion he practices, that his religion mandates that he receive specific food items for a religious diet, or that the refusal to supply him with the requested diet substantially burdens his practice of religion.

In Berberich v. Federal Bureau of Prisons, 2006 U.S. Dist. LEXIS 40180 (ED Mich., May 30, 2006), a Michigan federal district court dismissed on res judicata grounds a federal inmate's claim that authorities burdened his free exercise of religion by refusing to permit him to possess wooden rune staves. Plaintiff had already lost a case making the same claim against the Federal Bureau of Prisons in a South Dakota federal court.

Scottish University Recognizes Student Wiccan Group

St. Andrews University in Scotland-- Prince William's alma mater-- has agreed to officially recognize the student Wiccan group on campus. This permits the Wiccans to use University facilities just like other recognized student groups. The Universe Newsroom today reports that the University was concerned that refusing to recognize the group could subject the school to prosecution under Britain's human rights laws. Apparently the university did place some conditions on recognition. At Wiccan events, participants may not utter incantations or spells that might harm others, raise spirits or to call up dark forces, or engage in ritual nudity.

Last-Minute Problems In Adoption of New Red Cross Symbol So Israel Can Join

Yesterday the White House announced that President Bush was transmitting to the Senate for ratification Protocol III to the Geneva Conventions of 12 August 1949 relating to the Adoption of an Additional Distinctive Emblem. In simple terms, Protocol III (full text) recognizes a new symbol, the red crystal, for use by the International Red Cross in addition to the currently recognized red cross and red crescent used by humanitarian bodies in various countries.

Behind this announcement lay a long history of political disputes within the International Red Cross. When the state of Israel was formed, it did not feel it appropriate to adopt a cross or crescent for its humanitarian organization. So instead it adopted a red star of David as the symbol for its equivalent group, the Magen David Adom (MDA). This became an excuse for Arab countries to exclude Israel from membership in the International Committee of the Red Cross, arguing that there is a risk of confusion in the proliferation of symbols by ICRC organizations. Nevertheless, the MDA, which has particular expertise in disaster relief, has cooperated closely with the IRC since the 1990's. Under pressure from the American Red Cross which has withheld millions of dollars in dues to protest MDA's exclusion, in 2005 a compromise was reached. By a vote of 98-27 with 10 abstentions, the Red Cross Movement voted to create a new third neutral symbol- the red crystal.

The Red Crystal will actually serve two purposes. It will be able to be used alone in countries where use of a religious symbol is problematic. But it will also be able to be used by national Red Cross organizations that can place their own symbol inside the diamond shaped red crystal. So MDA will be able to use the crystal with the star of David inside as its internationally recognized symbol.

The final step in approving all of this, which was supposed to be pro forma, is the vote at the International Conference of the Red Cross and Red Crescent being held in Geneva yesterday and today. A 2/3 vote of approval is needed. At the last minute, a new problem occurred. Pakistan and Tunisia have insisted on adding language that would effectively condemn Israel's occupation of the West Bank. Conference organizers had hoped that they had a compromise that would avoid this kind of dispute. The group was planning to admit the Palestinian Red Crescent as a member at the same time they adopted the new symbol. But now the prospects for all of this remain uncertain. These developments are covered in stories yesterday and today by the Washington Times, the Gulf Times, and SwissInfo.

UPDATE: U.N. Watch says that as of 4 pm Wednesday afternoon in Geneva, Islamic countries at the ICRC Conference have rejected attempts at compromise, to the dismay of ICRC President Dr. Jakob Kellenberger.

Louisiana Gives Up On Redrafting Of Ten Commandments

The Louisiana legislature has withdrawn from its attempt to edit the Ten Commandments. 2theadvocate.com reports that on Monday the legislature passed an amended version of Senate Bill 476. The bill, sent to the governor for her signature, provides for the Louisiana Secretary of State's office to make available for display in public buildings a group of historical documents containing religious references, including the Ten Commandments, along with an explanatory statement about the relevance of these documents to America's religious history. The bill, as finally enacted, sets out the precise text of the Mayflower Compact, the Declaration of Independence and the Northwest Ordinance that is to be used, as well as the exact text of the accompanying explanatory document. However, it merely says that the displays may include "the Ten Commandments, as extracted from the Bible." This language was agreed upon after an embarrassing debate earlier this month on which wording of the Decalogue should be used.

Wal Mart Brings Jewish Population To Bible Belt County

The New York Times this morning carries a report on an unexpected kind of impact that Wal-Mart has had on Benton County, Arkansas, where its headquarters, as well as offices of many of its suppliers, are located. These businesses have brought a significant number of Jewish residents to this traditionally conservative Christian Bible Belt county. Two years ago Etz Chaim, the county's first synagogue, was opened, and Jewish residents are beginning to impact the life of their neighbors. Schools are attempting to avoid scheduling PTA meetings on Jewish holidays and the high school choir may incorporate some Jewish songs into its repertoire. The Jewish population has also had a culinary impact on the county. Ron Haberman has opened a restaurant that serves knishes, matzo ball soup and latkes next to a new 140,000-square-foot glass-enclosed Baptist church. And in a uniquely American twist, two local D.J.'s in Bentonville broadcast across the county Etz Chaim synagogue's first bar mitzvah.

Israeli Chief Justice Criticizes Lack Of Civil Marriage Option

The Jerusalem Post reported yesterday that Israeli Supreme Court President Aharon Barak has told a visiting delegation of American Conservative Jews that "The lack of civil marriage in Israel is a major violation of human rights." Barak was referring to the fact that under Israeli law, marriages are performed only by various religious authorities, and Jewish marriages are controlled by the Orthodox rabbinate. Marriages between members of different religions are not recognized. Irit Rosenblum, head of an organization called New Family, says his group plans to ask Israel's High Court to order the Interior Ministry to register any Israeli couple married in a civil ceremony.

UN Human Rights Council Holds Inaugural Session

Yesterday, the United Nations new Human Rights Council met for the first time in Geneva. Today's Financial Times reports that Secretary General Kofi Annan told the group that it ""must recognise . . . the importance of universality and objectivity and the need to eliminate double standards" in its work. Among the 47 newly-elected Council members are some with their own human rights problems-- China, Russia, Saudi Arabia and Cuba. The United States did not stand for election to the Council after complaining that the General Assembly had not built in sufficient safeguards to prevent countries that violate human rights from becoming members. (See prior posting.) Muslim countries plan to urge a debate in the Council on respect for religion after the recent controversy over published caricatures of the Prophet Mohammed.

Judge Denies Group's Petition To Intervene In Mt. Soledad Cross Case

In San Diego California, today's Union-Tribune reports that federal District Judge Gordon Thompson Jr. has, not unexpectedly, denied the request of San Diegans for the Mount Soledad National War Memorial to intervene in the litigation challenging the constitutionality of the Mt. Soledad Cross, saying that the group is much too late to become a party to the litigation that has been in the courts for 17 years. The petitioning group was behind Proposition A, a referendum last summer on donating the cross to the federal government for a national park. Currently the city of San Diego is involved in a last-ditch appeal of Judge Thompson's order to remove the cross or face fines of $5000 per day.

China Arrests Pastor For Printing Bibles

The Epoch Times reports that in China earlier this month Wang Zaiqing, a disabled family church pastor from Huainan city, was arrested for printing and distributing the Bible and other Christian literature. The arrest was based on a memo issued by the State Council on Religion Affairs and the Public Security Department in 1988 titled "Notice on Preventing and Dealing with Illegal Activities by Using Christianity". The document requires government approval for publication of Christian classics, books, or training activities of preachers. Dr. Li Boguang, a lawyer in Beijing representing Pastor Wang said that the 1988 document violates the Chinese constitution. A similar case was reported last November.