More New Prisoner Cases

In Hardeman v. Stewart, (10th Cir., July 21, 2006), an inmate raised equal protection and free exercise claims, arguing that prison authorities had refused to recognize the Hebrew Israelites as a separate religion, and had denied him access to various requested religious items. The district court dismissed the claims because the Prison Litigation Reform Act precludes damages for non-physical harm, and any request for injunctive relief was moot because the inmate was transferred to a different facility. The Court of Appeals affirmed.

In Williams v. Bitner, (3d Cir., July 25, 2006), the Third Circuit Court of Appeals held that prison officials did not have qualified immunity in a claim for damages by a Muslim inmate who alleged that his First Amendment free exercise rights had been violated. Pennsylvania prison authorities had assigned Henry Williams to work as a cook in the prison kitchen. He was disciplined after he refused, on religious grounds, to help prepare a meal that contained pork.

In Scott v. Mecklenburg Correctional Center, 2006 U.S. Dist. LEXIS 49905 (WD Va., July 21, 2006), a Virginia state inmate challenged the prison's refusal to approve his participation in a Bible correspondence course in which he had previously enrolled. He also complained that he was not permitted to take his Bible into the recreation yard. A federal district court found that prison officials had a legitimate interest in restricting transient inmates' participation in long term correspondence courses. They also did not discriminate against plaintiff because no materials, secular or religious, are permitted in the recreation yard.

Native American Religious Concerns Cost Washington State $58M

In December 2004, the Washington State Department of Transportation stopped construction of a massive dry dock in Port Angeles, Washington, even though the state had already spent $58 million on it. At the time, the reason for the cancellation was said to be archeological concerns. The dock was located on the site of Tse-whit-zen, an important Klallam Indian village containing at least several hundred intact burials. (Background from History Link.org.) Now it appears that the real reason for ending construction was religious objections raised by the Lower Elwha Klallam tribe.

Washington's Peninsula Daily News yesterday reported that a letter to the auditor investigating the closing down of the project from Allyson Brooks, head of the state Department of Archaeology & Historic Preservation, revealed the true motivation of state officials. She wrote: "the underlying issue . . . is how we incorporate cultural values and religious beliefs into our decision-making processes in a manner that is fair, sensitive, constitutional and still results in a complete project.''

Over 350 bodies of tribal members were reburied after construction began, but the Klallam tribe wanted the remains returned to the Tse-whit-zen site. They believe their ancestors are angry that their remains were removed. Tribal members put red ochre below their eyes when they visit the site to ward off ancestors' anger, and they ceremonially wash with water containing snowberries when they leave so they will not take their ancestor's anger home.

High School Coach Wins Right To Join His Team's Prayers

In Newark, New Jersey today, East Brunswick High School football coach Marcus Borden won his federal civil rights suit in which he claimed the right to pray along with his team's players. The court rejected the high school's contention that the Establishment Clause was violated when coach Borden would silently bow his head and "take a knee'' while his players engaged in student-initiated, student-led, nonsectarian pre-game prayer. The Central Jersey Home News Tribune, reporting on the decision, quoted Borden's attorney, Ronald J. Riccio, who said that the decision "reaffirms that government can't be hostile to religion." The lawsuit was filed last November. (See prior posting.)

Promoters Of Baptist Affinity Fraud Convicted

Both today's Washington Post and today's Arizona Republic report that two former executives of the Baptist Foundation of Arizona were found guilty Monday on 3 counts of fraud and one count of knowingly conducting an illegal enterprise in what has been called the largest "affinity fraud" ever. More than 11,000 investors lost more than $550 million in total. The investors, many of them elderly, were encouraged to invest their money at promised high rates and at the same time "do the Lord's work," building Baptist churches and retirement homes. Defendants William Crotts and Thomas Grabinski, however, were acquitted of 23 counts of theft. The jury found that they did not personally profit from the Ponzi scheme. Instead they got in over their heads and then tried to cover it up. Defense attorneys had argued that the foundation could have been able to pay off investors if state regulators had not forced it to stop selling securities in 1999.

Loud Speakers On Bulgarian Mosque Challenged

In Sofia, Bulgaria, both mayor Boiko Borissov and the ultra-nationalist group Ataka have called for removal of the loudspeakers on the Banya Bashi mosque that are used to call the faithful to prayer. The mayor said that the volume of the loudspeakers has been turned down. He urged Christian and Muslim leaders to continue the Bulgarian tradition of peaceful co-existence. The Sofia Echo reports on this as well as on a pending case before Bulgaria’s Commission for Protection Against Discrimination involving two Muslim girls who were banned from wearing traditional Islamic headscarves in school.

Jerusalem Gay Pride Parade Cancelled Because Of Security Concerns

As reported previously, Orthodox Jewish, Muslim and conservative Christian leaders in Jerusalem have called for cancellation of the planned Aug. 10 GLBT World Pride Parade. To Be Publications reported yesterday that the fighting between Israel and Lebanon's Hezbollah has led to the fulfillment of those religious leaders' demands. Orthodox Jews threatened to stage massive counter-demonstrations to the GLBT parade. Jerusalem police had planned to bring in reinforcements from other cities to protect the marchers. Because of the new war with Hezbollah, not only are those reinforcements not available, but some members of Jerusalem's police force have been deployed outside of the city, closer to the war zones. World Pride organizers say they will hold an alternative event.

9th Circuit Issues New Opinions Denying Asylum To Chinese Christian

In Gu v. Gonzales, (9th Cir., July 21, 2006), the U.S. 9th Circuit Court of Appeals last week, by a 2-1 vote, upheld the findings of an Immigration Judge denying asylum to a Chinese citizen who claimed past persecution, and fear of future persecution, because of his distribution of Christian religious literature and his attending an unofficial "house church". In doing so, the court withdrew opinions issued in December 2005 reaching the same result (429 F.3d 1209), and substituted new opinions. [CORRECTED-- thanks to several readers.]

Italian Case Challenging Existence of Jesus Reportedly To Be Heard By European Court of Human Rights

Religion Clause reported last February that an Italian judge dismissed a suit against a priest in Viterbo, Italy. The suit charged that the priest's assertion that Jesus had lived violated Italian laws against deceit and impersonation. In March, an appeal in the case was filed with the European Court of Human Rights. (Text of Application to Court.) Today, the website of Luigi Cascioli, the plaintiff who brought the charges against the priest, reports that the European Court of Human Rights has agreed to hear the appeal. The case is Cascioli v. Italy, Case No.14910/06.

Public Schools Try To Accommodate Various Religious Holidays

Public schools and colleges around the country are increasingly being asked to accommodate the holiday observances of students from a wide variety of religious faiths. Some have not been responsive to the requests, but others have. From a school-wide holiday, to a ban on scheduling exams on particular days, to merely permitting a student to have an excused absence, at least some schools are seeking the correct balance, according to an Associated Press article last Friday. Earlier this month the New York state Legislature passed SB 7461 a bill that requires the state Department of Education to make a bona fide effort to schedule state mandated exams on days other than religious holidays. The bill was introduced after the decision by the Department of Education last January to begin statewide tests for third, fourth and fifth-graders on the Islamic holiday of Eid-ul-Adha.

Asatru In Prisons Poses Concerns

An AP story yesterday discusses the growing problems within American prisons posed by prisoners' practice of Asatru-- a pagan religion with roots in Viking mythology. Attention has been focused on the religion as Michael Lenz is scheduled to be executed in Virginia later this week. During an Asatru worship ceremony, Lenz thought that another inmate, Brent Parker, had committed blasphemy, and so he killed him to protect the honor of the gods. The religion is sometimes associated with beliefs in White supremacy, though that connection is disputed by most of its leaders. Britt Minshall, a Baltimore pastor who ministers to inmates, says that some white inmates who felt threatened by black prison gangs formed their own gangs and then found Asatru as a belief system to provide additional security.

New Yorker Article Features Role Of Christian Right In Ohio's '06 Elections

This week's New Yorker Magazine profiles the central role of the Christian religious right in this year's Ohio gubernatorial election. Republican candidate J. Kenneth Blackwell, whose political history is chronicled in the New Yorker piece, has strong appeal to conservative Christians. The article titled Holy Toledo: Ohio’s Gubernatorial Race Tests the Power of the Christian Right, also focuses on Pastor Rod Parsley's Reformation Ohio and Rev. Russell Johnson's Ohio Restoration Project.

Recent Law Review Articles

From SmartCILP:

Babek Rod Khadem,The Doctrine of Separation in Classical Islamic Jurisprudence, 4 UCLA Journal of Islamic & Near Eastern Law 95-142 (2004-2005).

Jed Kroncke, Jed, Substantive Irrationalities and Irrational Substantivities: The Flexible Orientalism of Islamic Law, 4 UCLA Journal of Islamic & Near Eastern Law 41-73 (2004-2005).

Caleb E. Mason, Faith, Harm, and Neutrality: Some Complexities of Free Exercise Law, 44 Duquesne University Law Review 225-273 (2006).

Symposium: Law and Religion, 8 University of Pennsylvania Journal of Constitutional Law 335-513 (2006):

Howard Lesnick, The Consciousness of Religion and the Consciousness of Law, With Some Implications for Dialogue;

Imad-ad-Dean Adman, American and Muslim Perspectives on Freedom of Religion;

Marie A. Failinger, Against Idols: The Court As a Symbol-Making or Rhetorical Institution;

Stephen M. Feldman, The Theory and Politics of First Amendment Protections: Why Does the Supreme Court Favor Free Expression Over Religious Freedom?

Kent Greenawalt, Common Sense About Original and Subsequent Understanding of the Religion Clauses.

Civil Rights Division Hiring Has Been Changing

An interesting article in this morning's Boston Globe reports that the Bush administration has quietly been changing hiring practices at the Justice Department's Civil Rights Division. Political appointees at the Justice Department have been given more authority in decisions on hiring of lawyers for the Division. Hiring committees made up of veteran career lawyers have been disbanded. Since this began in 2003, only 42% of new hires have civil rights organization experience. In the 2 years before that, 77% had such experience. Since 2003, new hires were more likely to have been members of the Federalist Society or members of the Republican National Lawyers Association. This has also led to a change in the kind of cases being brought by the Civil Rights Division. Fewer traditional voting rights and employment discrimination cases are being brought, while more reverse discrimination and religious discrimination cases alleging discrimination against Christians are being filed.

The Globe found that the law schools from which new hires graduated has also changed. More Southern and Midwestern law schools are now represented. Previously new hires tended to be from "elite" eastern law schools. The average US News & World Report ranking for the law school attended by successful applicants hired in 2001 and 2002 was 34, while the average law school rank dropped to 44 for those hired after 2003.

Defenders of the new policy say first that it tends to balance the liberal bias of former hires. Second, they say that while many hires now do not have a background with civil rights organizations, they often clerked for federal judges where they obtained substantial constitutional law experience.

Indonesian Editor To Face Trial On Muhammad Cartoons

In Indonesia, the editor of the online newspaper Rakyat Merdeka has been released from prison, but he will still be required to stand trial for posting cartoons of the Prophet Muhammad on his newspaper website earlier this year. Friday's Sydney Morning Herald reported that the Indonesian editor, who posted the cartoons while reporting on the controversy over the cartoons' first appearance in Denmark, was charged with two counts of "inciting animosity and hatred" towards Islam. He faces a possible maximum sentence of 5 years in prison. [Thanks to Jurist for the information.]

Washington Pharmacy Board Rethinking Proposed Rule

The Washington State Board of Pharmacy has postponed until August 31 a vote on controversial new proposed rules that would permit pharmacists to refuse to fill prescriptions for personally held moral reasons. Saturday’s Seattle Times says that the Board may be considering changes in its proposal. Gov. Christine Gregoire and women's advocates have criticized the proposal because it could hinder patient access to emergency contraceptives.

Officials' Motives Found Relevant To RLUIPA Claim

In Denver First Church of the Nazarene v. Cherry Hills Village, 2006 U.S. Dist. LEXIS 49483 (D. Colo., July 19, 2006), a Colorado federal district court denied a motion filed by the city of Cherry Hills to prevent plaintiff, a church, from taking the deposition of various members of City Council, the Planning and Zoning Commission and the Board of Adjustment. Denver First Church of the Nazarene brought suit under RLUIPA challenging the city’s refusal to grant its applications to expand its current church building, and to rezone certain lots so the church could add parking. The court, rejecting various claims of privilege, found that depositions were appropriate because the motives of city officials are relevant to plaintiff’s claims under RLUIPA.

Arizona City Debates New Church Zoning Rules

In Scottsdale, Arizona, the leaders of 50 churches have mobilized to oppose proposals from the Scottsdale Planning Commission to require a conditional use permit for the building of new churches, or major expansion of current ones, in single family residential areas. Yesterday's East Valley Tribune reports the Commission’s proposal, that will be discussed at an August 23 public meeting, would apply not just to houses of worship but also to private schools, colleges, universities, community buildings and private recreational uses. Scottsdale residents are concerned about increasing noise, traffic and parking problems especially from the proliferation of large church campuses. Howard Myers, president of the Desert Foothills Property Owners Association complained that operations of some large churches have extended to longer hours and go on every day of the week as they rent or give use of church premises for many programs and permit installation of cell phone towers on their property.

Funeral Protesters Challenge Missouri Ban

Rev. Fred Phelps and his followers from Kansas City’s Westboro Baptist Church have outraged many by picketing the funerals of Iraq and Afghanistan war veterans claiming that U.S. tolerance of homosexuality and other sinful activity is causing the deaths of Americans in those wars. (See prior related posting.) In response, Missouri, a number of other states, and the federal government have all enacted laws prohibiting picketing a location where a funeral is being held. Now, on behalf of Phelps, the ACLU of Kansas and Western Missouri has filed suit claiming that the anti-picketing law violates the First Amendment free speech and free exercise rights of Phelps and his religious followers. Today’s Washington Post reports on the lawsuit that was filed yesterday in federal court in Jefferson City, Missouri. The plaintiffs argue that Missouri’s statute unconstitutionally regulates speech on the basis of its content.

Rastafarian Prison Employee's Religion Claims Move Ahead

In Booth v. Maryland Department of Public Safety & Correctional Services, 2006 U.S. Dist. LEXIS 49313 (D. Md., July 7, 2006), a Maryland federal court refused to dismiss state breach of contract and state constitutional claims by a Rastafarian employee of the Maryland prison system who was first demoted and then fired for refusing to remove his dreadlocks. However plaintiff’s federal claim against a prison warden was dismissed on the ground that the warden enjoyed qualified immunity.

NJ Homeowner Seeks Religious Tenants-- May Violate Law

In New Jersey, a homeowner’s religious freedom claim could fail because it falls between the cracks of the state law’s exclusion for renting out part of an owner-occupied home. Yesterday’s Morris County Daily Record reports that homeowner Joe Fabrics requires the four tenants in his New Brunswick, NJ property to sign a lease that informs them that "This is a Christian household" and "If you hate God, don’t move in". The director of New Jersey’s Division of Human Rights says that this could be illegal religious discrimination. Fabrics owns a two-family home. He occupies it as a residence and also rents to four other tenants. New Jersey’s Law Against Discrimination, Sec. 10:5-5(n) excludes from coverage "the rental (1) of a single apartment … in a two-family dwelling, the other occupancy unit of which is occupied by the owner as a residence; or (2) of a room or rooms to another person or persons by the owner … of a one-family dwelling occupied by the owner … as a residence at the time of such rental."

Fabrics, who says that his home contains two religious statues that weep holy tears, says that if after he makes his feelings clear, someone who does not believe in God insists on moving in, he will let them do so.