Councilman Loses In Attempt To Offer Christian Prayers

In Turner v. City Council of the City of Fredericksburg, Case 3:06-cv-00023-JRS (ED VA, Aug. 14, 2006), a federal district court dismissed the claim of city council member Hashmel Turner that his First Amendment rights were violated when he was not permitted to offer a specifically Christian opening prayer at city council meetings. The court found that his opening prayer is government speech, not private speech. Thus, "City Council can restrict what is said on its behalf during the opening prayer without infringing on the speaker’s viewpoint." The court went on to hold that the Establishment Clause prohibits sectarian legislative prayers, and the city's policy of requiring nonsectarian prayer is not an Establishment Clause violation. The decision is covered in today's Richmond Times-Dispatch which says that Turner is likely to appeal.

School Board Will Defend Jesus Portrait

The Harrison County, West Virginia Board of Education has raised more than the $150,000 it needed to mount a defense in a suit brought by the West Virginia ACLU and Americans United to force Bridgeport High School to remove a painting of Jesus that has hung in the school for many years. (See prior postings 1, 2.) The Associated Press yesterday reported that now the board will select lead counsel from among eight national advocacy groups that have offered legal help. Dennis Swindle, a local minister who defends the painting, said: "The ACLU is saying they have the right to come in and find a few people who disagree with the majority and use them to overtake the majority. All we're saying is, 'not without a fight.'" The school board itself has seen the controversy as something of a distraction from its concerns about educational issues.

Family Sues On School Reassignment That Interferes With Religious Class

In Raleigh, North Carolina, a Mormon family is suing the Wake County School board over the reassignment of their younger daughter, Brittany Bailey, to a new high school. The parents say that requiring her to go to a different school than her older sister attends will prevent Brittany from attending an early-morning religious class essential for the family's Mormon faith. WRAL.com reports that previously Brittany went to school with her older sister to school after the religious class. On Tuesday, a judge refused to order that Brittany remain in her old school while the case was being litigated. The school board decided not to make exceptions to reassignments for siblings because it would make it difficult to fill seven new schools.

New Voter Registration Drive In Evangelical Churches

Today's Los Angeles Times reports that James Dobson's Focus on the Family is beginning a massive new voter registration drive through Christian evangelical churches. The program was announced in an e-mail to supporters last week. It is recruiting county and church coordinators in 8 states: Maryland, Montana, Tennessee, Michigan, Ohio, Pennsylvania, New Jersey and Minnesota. In Ohio, 3 million copies of voter registration instructions will be distributed in bulletins by 15,000 churches. Focus on the Family will also distribute voter guides detaiing candidates' views on issues such as same-sex marriage, abortion, and stem cell research. Critic Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, says that Dobson is jeopardizing the tax exemption of churches that take part in this project. Organizers of the project, however, say that they are within the law so long as they merely register voters and discuss values, and do not endorse a specific candidate or party.

Yemen Court Finds Jihad Permissible

Yesterday's Wall Street Journal [subscription required] reported on a decision handed down last month by Yemeni Judge Mohammed al-Baadani who sits on the country's special terrorism court. He ruled that Yemeni law was not violated when 19 defendants traveled to Iraq to kill American soldiers and fight with al Queda. He said that the country's law, which includes elements of Sharia, was not violated because Islamic law permits jihad against occupiers of Muslim lands. The law only prohibits attacking U.S. or Western targets outside of occupied land. The judge has been surprised by the strong criticism of his decision by the U.S. embassy and by the judge's own family members who live in the United States. The judge says that a contrary ruling would have made martyrs of the defendants. Indeed it appears that prosecutors had not charged the defendants for their activity in Iraq, but only with plotting attacks against a Western hotel in Aden and against other Western targets-- and the prosecution showed no evidence to support these charges.

Developments In Navy Chaplain's Court Martial

More developments were reported yesterday in the upcoming court martial of Navy Chaplain Gordon J. Klingenschmitt (see prior posting) who is charged with disobeying an order by praying while in uniform at a press conference in front of the White House earlier this year. Agape Press reports that Klingenschmitt's attorneys are asking a military judge to dismiss the charges before the scheduled court martial proceedings on September 11. The Associated Press reports that Klingenschmitt's attorneys are also asking the court to turn over as evidence in the court martial thousands of pages of e-mails about how to handle Klingenschmitt that were sent to or from Rear Adm. Frederic R. Ruehe who is in charge of the Navy's Mid-Atlantic region. They seek to have Ruehe removed from having any authority over the case, claiming he is biased.

Indian Supreme Court Stays Law On Qualifications For Hindu Priests

According to The Hindu yesterday, the Supreme Court of India on Monday temporarily stayed enforcement of a new law enacted by the state of Tamil Nadu that provides for the appointment of archakas (priests) in Hindu temples without discrimination on the basis of caste or creed. (See prior posting.) Traditionally archakas were only Brahmins. A 3-judge panel of the court issued the stay in a suit charging that the new law violates Articles 25 and 26 of India's constitution. Challengers argue that those section guaranteeing freedom of religion are violated when the law permits appointment of archakas who do not have the qualifications required by the Agamas. The court gave the state 6 weeks to respond to the lawsuit.

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.