7th Circuit Orders Preliminary Injunction: SIU Must Recognize Christian Legal Society

Yesterday in a 2-1 decision, the U.S. 7th Circuit Court of Appeals decided that the Christian Legal Society at Southern Illinois University School of Law should be granted a preliminary injunction requiring the Law School to recognize it as an official student organization, despite the Law School 's claim that CLS violated the school's non-discrimination policy. Christian Legal Society v. Walker, (7th Cir., July 10, 2006), is one of a series of cases that has been filed around the country challenging attempts by public law schools to deny recognition to CLS chapters that insist their members and officers abide by a statement of Christian faith that includes rejecting sexual activity outside of heterosexual marriage. The CLS requirement excludes from voting membership both (1) non-Christians and (2) active gays and lesbians. The challenge at SIU focused primarily on exclusion of gays and lesbians.

The majority opinion said that CLS had demonstrated a likelihood that it would succeed on the merits. First, it is unclear that CLS in fact violated the language of the University's non-discrimination policies. The EEO policy applies to the university itself, and the majority doubted that this encompassed student organizations. Second, the majority held that it is likely that CLS will succeed in showing that its right of expressive association has been unconstitutionally infringed. SIU's only interest appears to be in suppressing particular ideas expressed in CLS's statement of faith. Finally, the majority said it was likely that CLS could show that the University's policy has violated its free expression rights because the policy has been applied in a discriminatory manner. It appears that other student organizations that exclude members based on religious belief or gender have not been denied recognition.

Judge Wood's dissent argued that the trial court had not abused its discretion in denying CLS a preliminary injunction. He disagreed with the majority's conclusions about CLS's likelihood of success on the merits, emphasizing the lack of evidence on crucial issues at this stage of the proceedings. He concluded: "If CLS wanted to forbid membership to all African-Americans, or to mixed-race wedded couples, or to persons of Arabic heritage, surely SIU would be entitled at a minimum to say that [it]... would have to sustain itself without any state support-- even if it could root such a membership policy in a religious text..... [T]he indirect impact of ... recognition of a student group maintaining such a policy is that SIU ... may be seen as tolerating such discrimination. Given that universities have a compelling interest in obtaining diverse student bodies, requiring a university to include exclusionary groups might undermine their ability to attain such diversity."

An AP story in the Washington Post discusses the decision. Jeremy Richey's Blawg has links to all the briefs that were filed in the case and to recordings of oral arguments. The 7th Circuit had previously granted CLS an injunction to reinstate it as a recognized group while the appeal was being argued. [Thanks to Ted Olsen at Christianity Today, and to Rory Gray for leads.]

Pakistan's Hudood Ordinance Amended

Last Friday, Pakistan's President signed an amendment to the Hudood Ordinance that had been enacted by religious conservatives under the military dictatorship of General Muhammad Zia-ul-Haq, supposedly to bring Pakistani law into conformity with the Quran. IRIN News, reporting on the amendment, says that the Hudood Law permits women to be sentenced to death for having sex outside marriage. It did not allow for women to be released on bail and specified a mandatory prison sentence at a minimum for violations. The amendment signed Friday allows women to be released on bail instead of serving their prison time, and the government immediately began releasing some of the 6500 women in jail under the law. The government said it would provide legal and financial assistance to help rehabilitate them. Pakistan’s Minister for Women’s Affairs, Sumaira Malik, called the ordinance "un-Islamic", and President Musharif said that he wants to the Ordinance to be totally repealed.

New York Has First Hasidic Police Recruit

Today, the New York City Police Academy has its first Hasidic Jewish police recruit. The New York Post reports that Joel Witriol, a 24-year-old Talmud scholar from Brooklyn, starts his training today. The Police Department has accommodated his religious needs by granting Witriol an exemption from its hairstyle rules so he can keep his beard and his peyot, and it will excuse him from working on the Jewish Sabbath and holidays. When Witriol graduates, he will be only the third Hasidic police officer in the country.

New York City Aids Private Religious Schools

Under state law, New York City must provide the same transportation for parochial school students as it gives to public school students (NY Educ. Law Sec. 3635). The New York Sun today reports that New York City Council has allocated $1 million out of this year's $15 billion school budget so Jewish day schools can buy their own busses to accommodate their longer school day. The city is routing the funds to schools through Agudath Israel of America. Last year, the city spent $2.5 million to put computers in Jewish and Catholic schools. And the city's Industrial Development Agency has made tax-exempt bonds available for financing construction at some local private and parochial schools. Critics, citing the chronically underfunded public school system, call the grants to religious schools "pork barrel" spending-- probably not the best choice of terms for the grants to Orthodox Jewish institutions. About a half million students in New York City attend private and parochial schools. Religious schools say they are saving the state money by keeping children out of the public school system.

Strict Sharia Being Introduced In Somalian Courts

In Somalia, Sheikh Hassan Dahir Aweys, the new leader of the Council of the Islamic Courts that has taken control in Mogadishu says that all of Somalia must be governed by Sharia (Islamic law). Reuters South Africa today quotes Aweys as saying, "I want the world to respect our sharia and beliefs and cooperate with us and also recognize our administrations and humanity. They should work with us as free people who have a right to choose their own future and religion." Meanwhile, in contrast to the moderate form of Islam that has been prevalent in Somalia, courts are now beginning to apply strict sharia. Whipping has been imposed as a criminal sentence and Islamic courts announced plans to stone five rapists to death.
A leading Mogadishu cleric has said that Muslims who do not pray five times a day should be killed.

Alliance Defense Fund Profiled

Today's Washington Post profiles the Alliance Defense Fund and its work in fighting to give religion a place in public life. The Arizona-based conservative Christian organization has an annual budget of $20 million. One of ADF's founders, D. James Kennedy, says, "What we are really trying to protect are the things this country was founded on." However critics, like Americans United executive director Barry Lynn argues: "They're not for some form of generic religious freedom. They're for Christian superiority, that Christians take over the courts. They are living in this fantasy world where the majority religion, Christianity, is claimed to be literally under attack." Gary S. McCaleb, ADF's director of litigation, says that the group is involved in 80 to 100 open cases at any one time, and files one to two new cases each week. Last November, an AP article in the Post similarly profiled the group.

Recent Publications of Interest

From NELLCO LSR:

Catharine P. Wells, Who Owns the Local Church? A Pressing Issue for Dioceses in Bankruptcy, (forthcoming in Seton Hall Legislative Journal v. 29, no.2 (2005)).

From SSRN:

R.L. Eisgruber & D. Mariah Riah Zeisberg, Religious Freedom in Canada and the United States, (International Journal of Constitutional Law, Vol. 4, Issue 2, pp. 244-268, 2006).

From SmartCILP:

Symposium: Borrowing the Land: Cultures of Ownership in the Western Landscape, 83 Denver University Law Review 943-1093 (2006).

Symposium: Catholics and the Death Penalty: Lawyers, Jurors & Judges, 44 Journal of Catholic Legal Studies 277-378 (2005).

FLDS Member Convicted On Sex Charges In Polygamous Marriage

Today's Salt Lake Tribune says that last week's conviction of Kelly Fischer on two sex-crime charges related to his "spiritual" polygamous marriage to a 16-year-old girl may provide a blueprint for bringing similar charges against other members of the FLDS Church, including its leader, Warren Jeffs, if he is ever found. In Fischer's case, a conviction was obtained even though there was no testimony from the victim or eye witnesses. Charges against 7 additional men are pending. Mohave County Attorney Matt Smith says his objective is to send a message to FLDS members that it is unacceptable for older men to have sex with girls under 18, and that religious belief is no shield for that behavior.

July Trial In Marijuana Charges Against Church of Cognizance Founders

Today's Arizona Daily Star reports that the federal court trial of a couple charged with possessing 172 pounds of marijuana that they claim is for religious use is scheduled to begin July 18 in Las Cruces, New Mexico. A revised complaint adds charges of conspiracy to distribute marijuana, and includes two more defendants. The couple, Dan and Mary Quaintance, are founders of the Church of Cognizance, whose members eat or drink marijuana daily as a way of becoming more spiritually enlightened. The Church says it has 72 monasteries around the country in members' homes. Its motto is: "With good thoughts, good words and good deeds, we honor marijuana; as the teacher, the provider, the protector."

The Quaintances are relying on the U.S. Supreme Court's decision earlier this year in the UDV case to support their free exercise claims. However Charles Haynes, a senior scholar at the First Amendment Center, says the federal government is in a stronger position to win against the religious use of marijuana than it was for the hallucinogenic tea involved in UDV because of the prevalence of marijuana and the federal government's concern about a marijuana drug problem.

India's Supreme Court Orders Protection For Intermarrieds

The Supreme Court of India on Friday ordered police to provide new protections to young men and women who enter inter-caste or inter-religious marriages. Latta Singh v. State of U.P., (Sup. Ct. India, July 7, 2006), was a case involving violence and frivolous criminal charges brought by the unhappy family of a woman who married out of her caste. Not only did the court quash unjustified criminal charges, but it went out of its way to provide additional protections in the future.

It said: "If the parents ... do not approve of such inter-caste or inter-religious marriage the maximum they can do is ... cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such ... marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl [who is not still a minor]... undergoes inter-caste or inter-religious marriage ..., the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence ... is taken to task by instituting criminal proceedings by the police against such persons...."

Friday's Times of India covers the decision.

Atheist Law Center Disbanded

Larry Darby, the Holocaust denier who lost his race for Alabama attorney general in the Democratic primary this year, announced yesterday that he has formally dissolved his organization, the Atheist Law Center. Darby said the Center was formed to advocate for separation between religion and government. His statement on the closing of the Center was riddled with anti-Semitic rhetoric. He concluded by stating: "I no longer categorically deny the existence of God. My views have changed based on experiences or understanding of the world around me. I appreciate the wisdom of Thomas Jefferson who, in the Declaration of Independence, spoke of the laws of nature and of nature's God. I agree with moral precepts put forth by Jesus of Nazareth and I am Christian in a sense that Jesus of Nazareth would approve."

German Ban On Muslim Teacher Wearing Headscarf Found Discriminatory

In the German state of Baden-Wuerttemberg, an administrative tribunal has found illegal discrimination in a Stuttgart school's enforcement of a law that prohibits "outward expressions that undermine the neutrality of the government or peace between political and religious creeds in school." The school refused to permit a Muslim teacher to wear a headscarf while she taught, but Catholic nuns are permitted to wear veils when they teach. Expatica as well as Jurist both covered the decision yesterday.

DC Circuit Says In Chaplain Case That Establishment Clause Violation Creates Per Se Irreparable Injury

Yesterday, in Chaplaincy of Full Gospel Churches v. England, (DC Cir., July 7, 2006), the District of Columbia Court of Appeals reversed the trial court and remanded for further findings a suit alleging that the Navy has unconstitutionally maintained a religious quota system for the promotion, assignment, and retention of Navy chaplains that disadvantages chaplains of non-liturgical Protestant faiths (i.e. Baptist, Evangelical, Pentecostal, and Charismatic chaplains.) Plaintiffs had moved for a preliminary injunction, arguing that their evidence demonstrated that Catholic Naval Reserve chaplains were favored and permitted to remain on active duty beyond mandatory separation age limits. This they argued violated the Establishment Clause.

The district court had denied the motion for an injunction, in part because plaintiffs had not demonstrated irreparable injury. The Court of Appeals, however, held that the Navy's violation of the Establishment Clause constituted per se irreparable injury. It remanded the case to the trial court for it to determine whether plaintiffs had also shown the other 3 elements necessary for a preliminary injunction: likelihood of success on the merits, the injunction will not substantially injure other parties and that it will further the public interest.

Justice Kennedy Stays Order To Remove Mt. Soledad Cross

The battle to preserve the Mt. Soledad Cross took on new life yesterday. U.S. Supreme Court Justice Anthony Kennedy issued an in-chambers opinion granting a stay of the federal district court's order to remove the cross pending final disposition of the appeal to the Ninth Circuit. (See prior posting.) The Ninth Circuit had denied a stay of the district court order to remove the cross, though it had ordered expedited briefing and scheduled argument for Oct. 16, 2006. Earlier this week Kennedy issued a temporary stay. Now in San Diegans for the Mt. Soledad National War Memorial v. Paulson, (Sup. Ct., July 7, 2006), Kennedy, sitting as Circuit Justice, wrote:

[T]he equities here support preserving the status quo while the city's appeal proceeds. Compared to the irreparable harm of altering the memorial and removing the cross, the harm in a brief delay ... seems slight. In addition, two further factors make this case "sufficiently unusual" ... to warrant granting a stay. First, a recent Act of Congress has deemed the monument a "national memorial honoring veterans of the United States Armed Forces" and has authorized the Secretary of the Interior to take title to the memorial on behalf of the United State if the city offers to donate it. Sec.116, 118 Stat. 3346.... Second, San Diego voters, seeking to carry out the transfer ... have approved a ballot proposition authorizing donation of the monument to the United States. While the Superior Court ... has invalidated the ballot proposition [on state constitutional grounds,] ... if the state appellate court reverses ... and allows the memorial to become federal property, its decision may moot the District Court's injunction, which addresses only the legality under state law of the cross' presence on city property....

Today's San Diego Union-Tribune has a story on Justice Kennedy's decision.
[Thanks to SCOTUS Blog for the link.]

Kerala Government Probe of Actress' Visit To Indian Temple May Be Started

In the state of Kerala, in India, the Sabarimala Temple has become the center of world-wide attention lately. India eNews.com today reports on recent developments at the shrine which traditionally excludes women between 10 and 50 years of age. Only girls who have not attained puberty and women who have entered menopause are allowed to enter the temple, dedicated to Lord Ayyappa. However recently the Indian actress, Jaimala claimed that she had entered the temple in violation of this tradition and had inadvertently touched the temple deity some 18 years ago. On Tuesday the Kerala High Court accepted a petition seeking to order a government probe of Jaimala's actions. (Press Trust of India.) Meanwhile, the Travancore Devaswom Board, the custodian of the temple, said that it will begin a series of corrective rituals that will cost around half a million rupees and take almost two years to complete.

Delaware School District Remains At Center Of Prayer Debate

The Indian River School District in Delaware continues to be at the center of controversy about school prayer. An article in today's Sussex County (Delaware) Post reports that the board of education last week made minor changes in its policy on prayer at graduation ceremonies and baccalaureate services in the district. After a controversy in 2004, the board adopted a policy that provides that student-initiated, student-delivered, voluntary messages are permitted during such ceremonies. The most recent revisions deal with who is responsible for selecting student speakers and reviewing their speeches.

Lawsuits against the school district are pending challenging the Board's continuing practice of opening school board meetings with a prayer, its extensive pattern of school-sponsored prayer at graduation, and its promotion of Christianity in other contexts. (See prior postings 1, 2.) Last week, Jews on First published a long account of the charges against the school district and reported that the Jewish family that filed the 2004 lawsuit against the district felt it necessary to move to Wilmington, two hours away, out of fear of retaliation.

Jews For Jesus New York Subway Ads Are Controversial

A massive ad campaign on the New York City subways by Jews for Jesus (JFJ) has offended many Jews who ride the City's transit system, according to an article from today's New York Post. However, the guidelines for ads on New York subways adopted by MTA New York City Transit in 1997 only prohibit messages that discriminate on the basis of race, gender or sexual orientation, or those that contain images or sell services inappropriate for minors. Subway officials say that the First Amendment prohibits them from otherwise discriminating on the basis of their disagreement with an ad's message. JFJ has purchased ads in subway cars and on 42 illuminated panels at the Times Square subway station, urging Jews to accept Jesus as their Messiah. The ads are part of a broader $1.4 million campaign by Jews for Jesus that has sent 200 missionaries to New York City for the month of July. Today's New York Times reports that the missionaries will operate in all five boroughs and suburban counties, and will have special programs aimed at Russian-speaking Jews, Israelis and Hasidic Jews.

Church Sues To Keep Offering Classes In Its Building

The American Center for Law and Justice announced yesterday that it had filed suit in a Virginia federal district court to defend the rights of the McLean Bible Church to offer Bible study and religious ministry classes in its church building under its current use permit. The Church is one of the largest in the Washington, D.C. metropolitan area. The county claims classes were not included as part of the church’s permit and that if it wants to conduct them it must qualify as a college or university. The problem arose because of a 2001 agreement with Capitol Bible Seminary to administer some aspects of the Church's educational offerings. The suit claims that the actions of Fairfax County violate the Church's rights to religious free exercise under the Constitution and RLUIPA, as well as its freedom of speech and association, and its right to equal protection of the laws.

HUD Charges Apartment With Religious Discrimination

The U.S. Department of Housing and Urban Development brought an unusual housing discrimination case on Wednesday against Triple H. Realty, LLC of Lakewood, New Jersey. (HUD Press Release.) The complaint (full text) filed before an administrative law judge says that the owner, managing agent, and onsite superintendent of the Cottage Manor Apartments treated non-Jewish tenants less favorably than Jewish tenants in a number of ways, including imposing more restrictive rules and charging higher rents. The complaint alleged that respondents also attempted to set aside better-maintained buildings in the apartment complex for Jewish tenants. Non-Jewish Hispanic and African-American tenants were forced to transfer to buildings located in the rear of the apartment complex. The HUD complaint asks for a declaration that the respondents have violated the Fair Housing Act, an injunction against future violations, an award of damages and imposition of a civil penalty.

Fraud and Emotional Distress Claims Dismissed On First Amendment Grounds

In Peeler v. Way International, Inc., (Tenn. Ct. App., July 5, 2006), a Tennessee court of appeals upheld the dismissal of claims by a doctor and his wife against Way International, a worldwide religious organization. It found that many of the claims were barred by the statute of limitations and that the others would involve the court in determining the validity of The Way's religious doctrines and beliefs in a manner barred by the First Amendment's religion clauses. The suit alleged fraud and infliction of emotional distress resulting from The Way's teachings and mind control practices that required avoiding debt and "abundant sharing" of follower's assets. The plaintiffs feared being "marked and avoided" if they did not share their assets, which were allegedly not used for The Way's outreach purposes, but rather for the "prurient interests" its leadership.