President Signs Bill Transferring Mt. Soledad Cross To Feds

President Bush today signed H.R. 5683 that provides for Federal acquisition of the Mt. Soledad Veterans Memorial in San Diego, California. (White House Release.) The signing follows a federal district judge's decision on Friday to refuse a request that the President be enjoined from signing the bill. The Memorial, which is comprised mainly of a 43 foot cross, has been the subject of 17 years of litigation. That litigation promises to continue as District Judge Barry Moskowitz set the case for further argument next month once the federal government has taken title to the cross. Saturday's Voice of San Diego reports on these developments and the background leading up to them. (Also see prior posting.) The new law vests title to the property in the federal government immediately, but gives the parties a year to decide on the amount that should be paid to the city for the taking. Under the new law, the Mount Soledad Memorial Association that built and maintains the memorial will continue to maintain it. But its members are concerned about added complexity when they wish to add new plaques or hold ceremonies, once the memorial is federally owned.

No Establishment Clause Problem With Ban Of Prostitution Near Churches

Oklahoma law imposes enhanced sanctions on those who operate houses of prostitution within 1000 feet of a church or school. (21 Okl. Stat. Secs. 1028, 1031). In Maxwell v. State, 2006 Okla. Crim. App. LEXIS 34 (OK Ct. Crim. App., Aug. 8, 2006), the Oklahoma Court of Criminal Appeals rejected a defendant's claim that his conviction for maintaining a house of prostitution within 1,000 feet of a church violates the Establishment Clause. The court held that the term "church" in the statute applies also to other houses of worship such as synagogues or mosques. The court went on to hold that the statute has the secular legislative purpose of deterring prostitution-related activities in areas where families with young children and the elderly can reasonably be expected to gather. It also found that the primary effect of the statute is not the advancement of religion, nor does it foster excessive government entanglement with religion.

Challenge To Faith-Based Jail Program Moves Ahead

Moeller v. Bradford County, 2006 U.S. Dist. LEXIS 66613 (MD PA, Aug. 10, 2006), disposed of various preliminary motions in a case challenging the constitutionality of federal, state and local funding of a faith-based vocational training program in the Bradford County (PA) Correctional Facility. The program, operated by the Firm Foundation, is a prison ministry that requires its staff to adhere to Christian beliefs. The program is the only vocational training available to inmates and routinely includes proselytization. Government funds are not limited to the program's secular aspects. A Pennsylvania federal district court held that it will entertain jurisdiction over state constitutional claims for injunctive and declaratory relief. It also held that the plaintiffs' complaint was adequate to give notice of the claims to the defendants and that the complaint adequately states an Establishment Clause claim.

Recent Articles On Law, Religion and Religion Clauses

From SmartCILP:

• Bernard M. Levinson, The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers In Light of Deuteronomy, 27 Cardozo Law Review 1853-1888 (2006).
• Michael R. Marrus, A Jewish Lobby at Nuremberg: Jacob Robinson and the Institute of Jewish Affairs, 1945-1946, 27 Cardozo Law Review 1651-1665 (2006).

From SSRN:

• Eric Claeys, Justice Scalia and the Religion Clauses: A Comment on Professor Epps, (Washington University Journal of Law and Policy, Vol. 21, 2006).
• Frederick M. Lawrence, The Hate Crime Project and its Limitations: Evaluating the Societal Gains and Risk in Bias Crime Law Enforcement, (GWU Legal Studies Research Paper No. 216).

Investment Frauds Target Church Members

Affinity fraud-- investment schemes aimed at defrauding members of a particular church-- is on the rise. An AP article yesterday set out examples of church members being bilked out of millions of dollars. A typical approach is for a fraudster to first make a generous donation to the church, pulling in an implicit endorsement from the minister. Church members may be further enticed by the suggestion that they donate part of their investment earnings to the church. The SEC last year issued an Investor Alert warning about these kinds of schemes.

Arkansas Candidates On Intelligent Design

Today's Arkansas Democrat Gazette reports on views of candidates for statewide office in Arkansas on the issue of teaching intelligent design. Not surprisingly, views are mixed. Of particular interest are the views of Democratic nominee for governor, Mike Beebe. He says that he believes in intelligent design, and that information on it should be "available" to students. However he did not indicate whether he thought the theory should be a required part of the state's public school curriculum. He argued that availability "would provide Arkansas students background they need to wrestle with these and other fundamental questions as they become adults. I believe both should be available because one is the consensus theory of the scientific community, and the other is the predominant belief of most Arkansans and Americans."
Beebe did not say whether the theory should be a required part of the state’s curriculum.

By contrast, Democratic candidates for attorney general and lieutenant governor say the science curriculum should be left to science teachers, not politicians. AG candidate for Dustin McDaniel said: It's up to our churches and our families to explain exactly how the scientific parts of the universe are created by God. He added, "I’m not running to be the state’s science officer."

Republican candidate for lieutenant governor, Jim Holt, said teachers should have the option to teach about intelligent design. He called evolution "a fraud theory" and argued that keeping ID out of public schools is censorship.

UPDATE: On Monday, Democratic nominee for governor Mike Beebe clarified that while he believes information on intelligent design should be available to students, court rulings require that the theory be taught only in churches, faith organizations and private groups. (Arkansas Democrat Gazette, Aug. 15).

Atheist Family Files Civil Rights Claims Against School and Sheriff's Department

In Oklahoma, a federal civil rights suit has been filed on behalf of the Smalkowski family against the Hardesty, OK Public Schools and the Texas County Sheriff's Department. The suit alleges that daughter Nicole Smalkowski was forced from the Hardesty school basketball team for refusing to take part in reciting the Lord's Prayer after a game, and she was later suspended when her family complained. Subsequently Chester Smalkowski got into an altercation with the school principal over these events, was charged with assault and was acquitted. (See prior posting.) Smalkowski alleges that the District Attorney offered to drop charges if the family moved out of the county. (See prior posting.) American Atheists, whose national legal director is one of the attorneys representing the Smalkowskis, has issued a press release on the case.

Chinese Journalist Detained For Reporting On Protests Against Church Demolition

On Friday, the Committee to Protect Journalists issued a release protesting China's treatment of Hangzhou journalist Zan Aizong. Zan was charged with "disturbing public order" and placed under a seven-day administrative detention for writing about arrests and injuries involving thousands of Christians protesting the July 29 demolition of a church in Hangzhou. (See prior posting.) His articles were posted on web sites in China and overseas. Today's Taipei Times has further coverage of the journalist's arrest.

Christian Street Preacher's Civil Rights Claims Will Proceed To Trial

Marcavage v. City of Philadelphia, 2006 U.S. Dist. LEXIS 55643 (ED PA, Aug. 3, 2006), involves civil rights claims by Michael Anthony Marcavage, a devout Christian who believes that it is his "Biblical mandate" to educate people about "the sinful nature of our country." Marcavage engages in open-air preaching, distributing of Gospel literature, sidewalk ministering, and the displaying of signs opposing sexually oriented businesses, homosexuality and abortion. His activities have led to a series of encounters with police, including two arrests. A Pennsylvania federal district court refused to grant most of the motions by both plaintiff and defendants for summary judgment on Marcavage's free speech, free exercise of religion and equal protection claims, as well as certain other claims, finding that there are issues of fact as to whether Marcavage's activities threatened public safety and as to whether police reaction was based on the content of Marcavage's speech. The court did dismiss the claims against the city of Philadelphia that alleged failure to adequately train police and that city policy was to violate his rights.

NC Court Rejects Free Exercise Defense To Drug Charges

In State v. Carignan, (NC Ct. App., July 18, 2006), a North Carolina appellate court rejected arguments by Benjamin Carignan that his prosecution for possession of marijuana and of drug paraphernalia violated his constitutionally protected rights of free speech and religion. Carignan says that he is an ordained minister in the Universal Life Church and smokes marijuana for religious reasons as part of his adherence to the Hawaiian Cannabis Ministry. The court found that there had been no showing that the prosecution violated Carignan's free speech rights, and that neither state nor federal protections of religious freedom were violated by the prosecution.

North Korea's First Russian Orthodox Church

The Associated Press reports that North Korea's first Russian Orthodox Church held it inaugural mass on Sunday. Vice Premier Kwak Pom Gi and other government officials attended the service at Pyongyang's Trinity Church. Ho Il Jin, the chairman of the Korean Orthodox Church Committee, said rather cryptically that the North Korean government will "successfully manage and operate the church". The opening is expected to help relations between North Korea and Russia.

More Prisoner Free Exercise Cases

A number of prisoner free exercise decisions have recently become available. Some date back a few months. In all of them, inmates were unsuccessful in challenging prison or halfway house rules:

In Smith v. Ozmint, 2006 U.S. Dist. LEXIS 54852 (D SC, March 31, 2006), a South Carolina federal district court accepted a Magistrate Judge's recommendation that a preliminary injunction be denied in a RLUIPA challenge to prison grooming policies by a Rastafarian prisoner.

In Wren v. Johnson, 2006 U.S. Dist. LEXIS 54183 (SD TX, July 26, 2006), a Texas federal district court dismissed an action by a Native American prisoner who alleged that he was denied the opportunity to participate in sweat lodge and pipe ceremonies.

In Grigsby v. Sims, 2006 U.S. Dist. LEXIS 55599 (SD OH, Aug. 10, 2006), an Ohio federal district court dismissed an inmate's claim that his free exercise rights were violated when he was required to work on Sundays. The inmate failed to present evidence to support his claim that he is a practicing Christian who sincerely believes that Sunday should be observed as a day of rest. UPDATE: For the Magistrate Judge's report and recommendations in the case (adopted by the court), see 2006 U.S. Dist. LEXIS 59860 (SD OH, June 28, 2006).

In Roberts v. Ozmint, 2006 U.S. Dist. LEXIS 55486 (D SC, Aug. 7, 2006), a South Carolina federal district court rejected a Hebrew Israelite prisoner's claim that forced haircuts violate his free exercise rights.

In Hastings v. Marciulionis, 434 F. Supp. 2d 585 (D WI, June 6, 2006), a Wisconsin federal district court rejected an inmate's challenge to rules of a halfway house program that prevented him from leaving to attend religious services or a Pow Wow during his first 14 days in the program and which precluded him from possessing an eagle feather at the halfway house.

Court Does Not Stop City-Sponosored "Day of Faith"

In Jacksonville, Florida, a federal district judge Saturday morning refused to issue an injunction against Saturday's "Day of Faith" event sponsored by Mayor John Peyton, Sheriff John Rutherford and Jacksonville's city council. The sponsors invited the city's faith communities to take part in the rally to "take back our neighborhoods" after the city experienced a large increase in murders this year. The lawsuit claimed that it is a violation of the First Amendment for the city to sponsor a religious event on city property with city funds. News4Jax.com reported that the judge did not rule on the constitutional issue, finding instead that the parties were not given adequate notice of the suit. The suit was not filed until late Friday afternoon.

Religious Issues Dominate Murder Trial In Turkey

In Turkey on Friday the trial of Alparslan Arslan and eight accomplices began. Arslan is accused of the May 17 shooting in the Council of State, Turkey's highest administrative court, that wounded four judges and killed one. The shooting, according to Reuters, was prompted by Arslan’s anger over a ruling by the court that upheld denying promotion to a Muslim kindergarten teacher for wearing a headscarf outside of the classroom. (See prior posting.) The AP reports that during Friday’s trial, Arslan twice unsuccessfully attempted to escape from toe courtroom to attend Friday prayers. The first attempt came in the morning after the presiding judge refused to interrupt the proceedings so the defendant could go to pray. The second attempt came in the afternoon when Arslan heard the call for prayer from a nearby mosque.

"Ministerial Exception" Blocks 2 Title VII Race Cases

In Bogan v. Mississippi Conference of the United Methodist Church, 433 F. Supp. 2d 762 (SD MI, May 5, 2006), a Mississippi federal district court rejected a racial discrimination claim filed under Title VII by an African-American pastor who argued that he and other African-American pastors had not been promoted to higher paying church positions because of their race. They were offered positions only with churches that had majority African-American members, and which generally paid less than other churches. He also claimed that he was placed on administrative leave for absences from his parsonage while Caucasian pastors were not similarly penalized. However the court held that the "ministerial exception" to Title VII, rooted in first Amendment concerns, required it to dismiss the case. It also rejected plaintiff’s attempt to rely on the Religious Freedom Restoration Act.

In Ajabu v. St. James United Methodist Church, 2006 U.S. Dist. LEXIS 55014 (MD GA, Aug. 8, 2006), a Georgia federal district court relied on the ministerial exception to Title VII to dismiss a case brought by a black pastor who claimed that he was terminated as Associate Pastor of a white church for racial reasons, and that the church's claim of doctrinal differences was merely a pretext.

Controversy Over Sunday Use Of City Ball Fields

The Waterbury, CT Republican-American reported Wednesday on a decision taken last month by the Watertown (CT) Parks and Recreation Commission to reinstate a prior policy that precluded the granting of permits for Sunday morning use of the city’s athletic fields by sports teams. This had been the city’s policy until last March when the Commission, under pressure from youth sports organizations, voted to allow the recreation department to issue Sunday morning permits. After clergy and residents objected to the new policy, arguing that Sunday mornings should be reserved for religious services and quality family time, the Commission reinstated its old policy. That action, in turn, has led the state chapter of American Atheists to object. Its director, Dennis Paul Himes, wrote the Commission saying that he personally felt the well-being of families and upbringing of children would be improved "by spending time in practically any activity except going to church." He urged the Commission to let individuals decide for themselves what Sunday activities they prefer.

RI Auto Dealer Sunday Closing Law Upheld

In Lynch v. Autoplex, C.A., 2006 R.I. Super. LEXIS 98 (RI Super., July 25, 2006), a Rhode Island trial court held that the state's Sunday Motor Vehicle Law does not violate the Establishment Clause. The law (RIGL 31-5-19) requires auto dealerships to remained closed on Sundays.

US Muslims Object To Bush's Statement On Terror Arrests

In a statement in Green Bay, Wisconsin yesterday, President George W. Bush reacted to British arrests in an alleged terrorist airplane bombing plot, saying: "The recent arrests that our fellow citizens are now learning about are a stark reminder that this nation is at war with Islamic fascists who will use any means to destroy those of us who love freedom, to hurt our nation. " Reuters reports that leaders of Muslim advocacy groups in the United States strongly criticized the President's choice of language. Nihad Awad, executive director of the Council on American-Islamic Relations, said: "We believe this is an ill-advised term and we believe that it is counterproductive to associate Islam or Muslims with fascism. We ought to take advantage of these incidents to make sure that we do not start a religious war against Islam and Muslims."

Good News Clubs Win Again In 4th Circuit

Yesterday in Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, (4th Cir., Aug. 10, 2006), the U.S. 4th Circuit Court of Appeals again struck down the Montgomery County Maryland Public Schools' policy on approval of take-home flyers. The suit was brought by the Good News Clubs that wished to publicize their after-school Bible group meetings offered to elementary school students. In its second decision in the case, the court found that in a new policy adopted after an earlier one was struck down, the school system retained unfettered discretion in deciding which flyers could be sent home with children. Thus, even if the flyer policy involved merely a non-public forum, the unbridled discretion it gave to school officials violated free speech protections because it failed to assure that the policy would be administered in a viewpoint neutral manner. The Associated Press has a short article on the decision. [Thanks to Derek Gaubatz via Religionlaw for the information.]

Colorado Court Allows Church Challenge To Parking Limits

In Town of Foxfield v. Archdiocese of Denver, (Colo. Ct. App., Aug. 10, 2006), a Colorado appellate court considered challenges to an ordinance that restricted parking near the rectory of a Catholic parish. The rectory is used for housing, religious instruction, and gathering of parishioners, and the property also contains a small chapel. The court held that church activities affect interstate commerce sufficiently to make RLUIPA applicable. It also held that the parking ordinance's delegation of exclusive enforcement authority to citizens constituted governmental enforcement through individualized assessment under RLUIPA. The court held that the ordinance at issue was not exempt from Colorado's Freedom to Gather and Worship Act as a "general parking ordinance". Finally it held that the trial court should have applied strict scrutiny in assessing the constitutionality of the parking ordinance because it is not a neutral law of general applicability. There was evidence that it was specifically passed to target the rectory, and its enforceability only after the city receives written complaints from three neighbors creates the possibility of arbitrary enforcement. The decision is reported on by today's Rocky Mountain News. The Becket Fund provides background on the case.