Bolivian President Withdraws Proposal To End Religion Classes In Schools

The Washington Post reported yesterday that in Bolivia, President Evo Morales has withdrawn a proposal to replace religious education with ethics classes in the country's school curriculum. The change had been opposed by the country's powerful Catholic Church. Bolivia is in the process of rewriting its constitution. With an 80% Catholic population, Bolivia's current Constitution (Art. 3) recognizes Catholicism as the official religion. The Church however is willing to accept a change to eliminate that formal status. (See prior posting.) It is more concerned that society in general not become less religious.

City-Owned Theater Refuses Film Offensive To Church

In Maumee, Ohio, the city-owned Maumee Indoor Theater has turned down the makers of "Twist of Faith" who wanted to engage the venue to show their Oscar-nominated documentary about a firefighter who confronts the trauma of boyhood sexual abuse by a Catholic priest. Toledo Blade columnist Russ Lemon today says that the promoters were willing to guarantee the city that it would not lose money on a week-long showing of the film, but Maumee-- just named an "All-American City"-- did not want to offend the Catholic Church.

Justice Alito Gets St. Thomas More Award

U.S. Supreme Court Justice Samuel Alito, Jr. was honored yesterday by members of the St. Thomas More Society in his home town of Trenton, New Jersey for his contributions to "family, church and society". The Times of Trenton reports that Alito received the diocese's St. Thomas More Award after attending the fourth annual Red Mass, a tradition that originated in the Middle Ages. In his remarks, Justice Alito said that St. Thomas More, who was executed for opposing King Henry VIII's claim to be head of the Church of England, would be disappointed that today in parts of the world people are still killed for converting to Christianity. He added that More might be proud of religious freedoms in the U.S., but would be disappointed by pop culture.

Pennsylvania Home Schooling Case Appealed

The Altoona (Pennsylvania) Mirror reports today that an appeal has been filed with the U.S. 3rd Circuit Court of Appeals in Combs v. Homer Center School District. (See prior posting.) In the case, the district court rejected free exercise challenges to Pennsylvania's home schooling regulations. Parents say that it is "sinful" for them to provide state authorities with a portfolio of their children’s work and a log of their educational goals. The Home School Legal Defense Association is coordinating the legal challenge.

Nursing Student Fails To Prove Free Exercise Claim

In Olojo v. Kennedy King College, 2006 U.S. Dist. LEXIS 42109 (ND Ill., June 7, 2006), a nursing student at a state community college filed a series of claims against her teacher and the school, one alleging a violation of the free exercise clause. Badejoko Olojo claimed that her professor, Kina Montgomery told her "not to ever mention the name of Jesus anytime she is engaged in a conversation with her." Also, upon learning of Olojo's pregnancy, Montgomery asked Olojo whether she would like to use contraceptives to terminate the pregnancy. Olojo explained that her religious beliefs prevented her from doing so. The court concluded that Olojo made no allegations that Prof. Montgomery inhibited her ability to practice her religion in any way. The court found Olojo's other statutory civil rights claims so frivolous that it imposed Rule 11 sanctions on the attorney involved.

Recent Books and Law Review Articles

New Books:
James Lowell Underwood & W. Lewis Burke (eds.) , The Dawn of Religious Freedom In South Carolina (Univ. of South Carolina Press, March 2006).

Matthew Levitt, Hamas: Politics, Charity and Terrorism in the Service of Jihad (Yale University Press), reviewed in today's New York Times.

From SSRN:
Clark B. Lombardi & Nathan J. Brown, Do Constitutions Requiring Adherence to Sharia Threaten Human Rights?: How Egypt's Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law , 21 American Univ. International Law Review 379-435 (2006).

From SmartCILP:
Symposium on Law & Politics as Vocation, 20 Notre Dame Journal of Law, Ethics & Public Policy 1-512 (2006).

Court Rejects Free Exercise Claims In Divorce Case

In MacFarlane v. MacFarlane, (Oh. Ct. App., Cuyahoga County, June 22, 2006), an Ohio appellate court rejected a wife’s attempt to move jurisdiction over the divorce and custody case filed by her husband to the Diocesan Tribunal of the Cleveland Catholic Diocese. Among the grounds for denying her request was that child custody disputes are not subject to arbitration and that she had waived any right to arbitration when she filed her own complaint for legal separation with the court.

The court also rejected the wife’s claim that her free exercise rights had been infringed when the court gave custody of the couple’s children to their father. The mother claims that this prevents her from home schooling the children and therefore is unable to raise them in the Catholic faith. The court found that the trial court had not been motivated by a preference for a particular religious belief, or by any antagonism to the Catholic faith, but instead acted to protect the best interests of the children. Moreover, nothing prevents the mother from attending religious services with the children or enforcing religious beliefs with them in the home.

Police Can Help Church Eject Trespassing Worshipper

In Ferreira v. Harris, 2006 U.S. Dist. LEXIS 41734 (ND Okl., June 20, 2006), plaintiff was a dissident member of a Woodland View Jehovah’s Witness Congregation in Tulsa, Oklahoma. After Ferreira claimed that God has selected him as an "other sheep", the church informed Ferreira that he had been disfellowshipped. When Ferreira continued to attend services anyway, first the church asked him to sit in the back of the congregation, and later it asked him to leave. When he refused, the Congregation called Tulsa police who arrested him for trespassing. Ferreira then filed suit in federal court claiming that the city and church officials violated his state and federal constitutional rights. He also claimed that the Oklahoma trespassing laws are unconstitutionally vague and that the city of Tulsa, in violation of the Establishment Clause, had used funds to support a religious group.

The court held that the church autonomy doctrine precludes it from reviewing the church’s decision to shun, and then exclude, Ferreira, since the decision was based on the church’s interpretation of religious doctrines. It went on to hold that governmental enforcement of trespassing statutes did not violate Ferreira’s free exercise rights. The statute is a neutral law of general applicability that protects worshippers from disturbance of the peace and poses only an incidental burden on Ferreira’s exercise of religion.

The court also rejected Ferreira’s Establishment Clause claim—that the city had spent over $19,150 to keep him imprisoned for attempting to attend church services. The trespass laws were not enforced in a manner that favored any particular religion. Finally, the court also rejected Ferreira’s vagueness claims as well as his civil rights conspiracy claims under 42 USC Section 1985.

European Court Blocks Deportation To Iran For Flogging

On Thursday, the European Court of Human Rights handed down a decision in the case of D. and Others v. Turkey , holding that that there would be a breach of Article 3 of the European Convention on Human Rights (the prohibition of inhuman or degrading treatment or punishment) if Turkey's decision to deport an Sunni woman to Iran is enforced. (Press release by Council of Europe.) A.D., a Sunni Muslim woman married P.S., a Shia man, in a Sunni ceremony in Iran. Two days after the wedding the couple were arrested at the behest of Shia religious authorities. Three weeks later an Islamic court judge declared the marriage void and fined the couple. Subsequently they were informed that they had each been sentenced to 100 lashes for fornication, though the imposition of the sentence on the wife was postponed. The couple then fled to Turkey where they were denied permanent asylum. They sued when the Turkish government told them they risked deportation back to Iran.

Court Rejects Free Exercise Challenge To Migratory Bird and Eagle Protection Laws

In United States v. Winddancer, 2006 U.S. Dist. LEXIS 41574 (MD Tenn., June 19, 2006), a Tennessee federal district court rejected claims of Ed Winddancer that his free exercise rights, as protected by the Religious Freedom Restoration Act (RFRA), are infringed by enforcing against him the provisions of the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA). Winddancer, who did not belong to federally recognized tribe, had been indicted for violating restrictions on possessing and bartering eagle and certain other bird feathers. As to the MBTA Winddancer only had standing to mount a “facial” challenge, since he could have applied for a permit and did not. The court held that he had not even alleged that there were not constitutional applications of the MBTA.

As to the BGEPA, the court held that the government has shown that its regulations further the compelling interests of preserving bald and golden eagles, and preserving recognized federal Indian tribes. It also found that the government had used the least restrictive means to do so. To expand access, as Winddancer advocated, to any sincere adherent of a Native American religion, even if the person was not a member of a recognized tribe, would create serious Establishment Clause problems.

Recent Prisoner Free Exercise Cases

Here is a new group of prisoner free exercise cases:

In Shilling v. Crawford, 2006 U.S. Dist. LEXIS 40845 (D. Nev., June 13, 2006), a Nevada federal district court permitted a Washington state prisoner who had been incarcerated for 18 months in Nevada to proceed against some of his named defendants in his claim that his free exercise and equal protection rights were infringed when he was denied kosher food. He alleged that the prison denied kosher food and other Judaic services to prisoners who were not born Jewish, while the prison accommodated religious dietary needs of other religious groups.

In Pinkston-El v. Snyder, 2006 U.S. Dist. LEXIS 41183 (SD Ill., March 28, 2006), an Illinois federal Magistrate Judge recommended that the First Amendment and Equal Protection claims of a prisoner challenging the Illinois Department of Corrections grooming policy be dismissed. Plaintiff, a member of the Moorish Science Temple wished to wear his hair in dreadlocks. Prison officials pointed to the problem that this posed in searching for possible contraband.

In Shawn K. Odneal TDCJ-CID #917382 v. Dretke, 2006 U.S. Dist. LEXIS 41536 (SD Tex., June 21, 2006), a Texas federal Magistrate Judge dismissed Free Exercise, RLUIPA and Equal Protection claims of a prisoner who claimed he was denied the opportunity to attend Native American religious ceremonies regularly because prison authorities failed to have enough chaplains and also refused, alternatively, to let him conduct the ceremonies himself with prison personnel present.

In Simon v. Miami County Incarceration Facility, 2006 U.S. Dist. LEXIS 41889 (SD Ohio, March 8, 2006), an Ohio federal Magistrate Judge held that a prisoner’s claims that equal religious services were not provided to various faiths should be dismissed for lack of evidence.

California City Heading Off 2006 "Christmas Wars"

Thursday's San Diego Union Tribune reports that attempts to head off "Christmas wars" in 2006 are already underway. In Chula Vista, California last week, City Council approved a new policy for the city's Holiday Festival: "The City recognizes that many of the traditions of the holiday season have religious underpinnings, and although the Holiday Festival is secular, no person or group will be denied the opportunity to participate in the Festival based on the religious message conveyed by their performance." Sign-ups will be open first to instructors who teach city Recreation Department classes, local schools and student groups.

Last year, with no policy in place, a city employee had barred The Jesus Christ Dancers-- a group of 8-to 12-year-old girls who perform to Christian-themed music-- from performing at the Festival. The American Family Association had sued the city over the incident in a case that is still pending in federal court. The new policy does not apply to activities outside of the Recreation Department-sponsored Festival, such as the mayor's Christmas tree lighting ceremony and the Downtown Business Association's Yule parade.

Valedictorian Will Sue Nevada School Officials

On Thursday, the Rutherford Institute announced that it has agreed to represent Brittany McComb, the Las Vegas, Nevada high school valedictorian whose microphone was unplugged by school officials when she began to speak about her Christian beliefs during her graduation speech. (See prior posting.) Attorneys plan to file suit in federal court claiming that McComb's free speech rights were violated and that she was denied equal protection of the laws.

Meanwhile, another incident reported in the Colorado Springs, Colorado Gazette earlier this month suggests that students are beginning to plan to mislead school officials about what they will say at graduation. High schooler Erica Corder departed from the draft of her graduation speech that she had submitted to the principal in order to sound a religious theme that she feared would otherwise have been banned. At the Colorado Springs High School ceremony, 15 students co-wrote a speech and each delivered 30-seconds of it. Erica Corder's surprise 30 seconds included the following: "We are all capable of standing firm and expressing our own beliefs, which is why I need to tell you about someone who loves you more than you could ever imagine. He died for you on a cross over 2,000 years ago, yet was resurrected and is living today in Heaven. His name is Jesus Christ. If you don't already know Him personally, I encourage you to find out more about the sacrifice He made for you, so that you now have the opportunity to live in eternity with Him." The school's principal has told Corder to send an e-mail to parents to explain herself and acknowledge the school was not involved.

Christian-Themed Film Gets "PG" Rating; Controversy Erupts

Jews On First this week has posted an interesting group of articles about the action of the Motion Picture Association of America in giving a "PG" rating to a new movie, Facing the Giants, which the MPAA says has some thematic elements that parents might want to know about in deciding whether their children should see the film. The film has a strong Christian theme, and initial reports said that the MPAA was focusing on Christian proselytization in the film. (Scripps-Howard, June 6.) A June 8 Action Alert sent out by the American Family Association said:

The Motion Picture Association of America (MPAA) is now warning parents of movies which contain a reference to the Christian faith, equating Christianity as being on the same level of sex, violence and profanity when it comes to objectionable material.

The MPAA is controlled by Hollywood moguls known for their bitter opposition to Christianity.

A new family film featuring miracles and a pro-God theme has earned the PG rating because it would offend non-believers. The MPAA refuses to give movies which promote the homosexual lifestyle a similar warning. In other words, MPAA warns parents if a movie has Christianity presented in a positive manner but refuses to warn them if homosexuality is presented in a positive manner.

Facing the Giants is the story of a Christian high school football coach who uses his undying faith to battle the giants of fear and failure. Due to the Christian content, the MPAA rated it PG, placing it in the same offensive category as sex, violence and profanity.

However, yesterday CTV.ca reported that after receiving 15,000 e-mails, MPAA said that the main reason for the PG rating was mature themes in the film, and its religious message is not the primary issue.

New York Challenges "Christian Skate Time" As Discriminatory

The Traditional Values Coalition this week sent a letter to New York Governor George Pataki complaining that the state's Division of Human Rights has warned an Accord, New York skating rink that its "Christian Music Skate Time" may violate the state's human rights law. (TVC press release.) NY Human Rights Law, Sec. 296(2 ) prohibits, among other things, religious discrimination by businesses. The agency wrote to the Skate Time 209 rink, and to the Ulster County Press in which the rink's Christian Skate Time was advertised, saying that the event during which contemporary Christian music is played for skaters "apparently denies or at a minimum, discourages non-Christian patronage" and "constitutes prima facie violation" of the Human Rights Law. TVC's letter defends the Christian Music Skate Time, saying that there are no special discounts for Christian skaters and no one is denied access to the rink if they are not Christian.

North Korea Criticizes US For Restricting Religious Freedom

The Associated Press reported yesterday that North Korea has turned the tables and accused the United States of religious repression because it did not permit the North Korean delegation into the U.S. to attend this week's General Assembly of the Presbyterian Church (USA) in Birmingham, Alabama. In the past, the U.S. State Department has charged North Korea with serious violations of religious liberty.

Florida Officially Adopts "In God We Trust" As Motto

In Florida yesterday, Gov. Jeb Bush signed into law a bill (H. 1145) formally making "In God We Trust" the official state motto. A House Staff Analysis had concluded that there likely were no serious Establishment Clause problems with adopting the motto. The Tallahassee Democrat reports that most people thought that this was already Florida's motto until two fourth-graders discovered that it was not formally in the state's statutes. Bush signed the law at a ceremony during this year's American Legion sponsored Boys State convention.

Japan's Supreme Court Rejects Challenge To Prime Minister's Shrine Visits

Today's Washington Post reports that Japan's Supreme Court has rejected a constitutional challenge to controversial visits by Prime Minister Junichiro Koizumi to Japan's Yasukuni Shrine which honors Japan's 2.5 million war dead, including criminals executed for war crimes after World War II. China and South Korea consider the shrine to be a glorification of Japan's past militarist policies. The court challenge, however, argued that the Prime Minister's visits to the shrine, which is also a Shinto Temple, were violations of the principle of separation of church and state. Koizumi argues that his visits were made in a private capacity to pray for peace. (See prior related postings: 1, 2, 3, 4. )

UPDATE: The Japan Times reported on June 24 that court dismissed the case on the ground that Koizumi's visits to the shrine in no way interfered with the plaintiffs' religious faith. The court avoided deciding whether Koizumi's visits were official or private.

Supreme Court Takes Expansive View Of Anti-Retaliation Provisions Of Title VII

In an decision yesterday, eight U.S. Supreme Court justices took an expansive view of what constitutes prohibited retaliation against workers who file discrimination complaints or assist in Title VII investigations or hearings. While the case involved discrimination on the basis of gender, it applies equally to religious discrimination. In Burlington Northern & Santa Fe Railway Co. v. White, (June 23, 2006), the court concluded that the anti-retaliation provisions of Title VII of the 1964 Civil rights Act (42 USC Sec. 2000e-3(a)), does not prohibit only retaliatory actions that relate to employment or occur at the workplace. They cover any action by an employer "that would have been materially adverse to a reasonable employee or job applicant.... [T]hat means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The Court said that "petty slights, minor annoyances and simple lack of good manners" do not amount to retaliation: "A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination."

Justice Alito concurred in the result of the case, but took a narrower view of the standard for retaliation than the other justices articulated. Today's New York Times reports on the decision.

House Hearings On "Public Expression Of Religion Act"

Yesterday, the House Judiciary Committee's Subcommittee on the Constitution held hearings on H.R. 2679, the Public Expression of Religion Act. The bill provides that in suits claiming that state and local officials have violated the Establishment Clause claims, courts may only grant injunctions and not award either damages or attorneys fees. Here is the full text of the testimony of the four witnesses who appeared before the panel. Wall of Separation blog summarizes the testimony of the 3 witnesses favoring the bill and the one against, and links to a letter from Americans United opposing the bill. The witnesses favoring the bill argued that federal law on separation of church and state is so confusing that lawsuits seeking to uphold the principle should be discouraged. Rep. John Hostettler of Indiana who introduced the bill argued that the ACLU was using the threat of recovering attorneys' fees to intimidate public schools and other government entities.