West Virginia School's Jesus Portrait Stolen-- Is Case Moot?

The AP yesterday reported on an unexpected twist in the case challenging the constitutionality of a portrait of Jesus hanging in Bridgeport, West Virginia High School. (See prior posting.) Around 4:00 am Thursday morning, an intruder broke into the school and stole the controversial painting. Three security cameras caught the thief in action, but the person's face was obscured. U.S. District Judge Irene M. Keeley has set Feb. 27, 2007 as a trial date in the constitutional challenge. An interesting question is whether, assuming the stolen painting is not found, the case is now moot.

UPDATE: On Saturday, the Times West Virginian reported that the Harrison County School Board accepted Alliance Defense Fund's offer to defend the display of the Jesus portrait. ADF, as well as 7 other law firms, had offered free representation. The $150,000 raised for the Board for defense costs will be held in case the Board loses and is required to pay costs and punitive damages. Also lawyers for both sides say the suit will go ahead even though the portrait has been stolen. The Board has rejected the offer of a replacement portrait for the one stolen, pending the outcome of litigation.

Recent Prisoner Free Exercise Cases

In Dawson v. Schwarzenegger, 2006 U.S. Dist. LEXIS 56226 (ED CA, Aug. 11, 2006), a California federal Magistrate Judge held that a group of challenges under RLUIPA to the California prison system's grooming rules by Native American inmates are moot because the rules have been amended to permit the wearing of hair by prisoners in any style so long as it does "not extend over the eyebrows, cover the inmate's face or pose a health and safety risk".

In Raiford v. Wallens Ridge State Prison, 2006 U.S. Dist. LEXIS 56271 (WD VA, Aug. 11, 2006), a Virginia federal district court rejected an inmate's claim that his free exercise rights were violated when he did not receive appropriate meals for Passover and when he was denied the Common Fare Diet. Inmate Thomas Raiford failed to offer evidence of his religious beliefs requiring him to receive such meals.

In Watts v. Director of Corrections, 2006 U.S. Dist. LEXIS 56193 (ED CA, Aug. 10, 2006), a California federal Magistrate Judge, ruling on summary judgment motions, recommended that Rastafarian prisoner's RLUIPA and equal protection claims in connection with California hair length grooming standards for prisoners go to trial. In its motion the state failed to show that its grooming standards were the least restrictive means of furthering the its interest. The equal protection claim focused on the fact that the state's policy was applicable only to male prisoners. However because the state has subsequently changed its grooming standards, the only relief that can be available is expungement of plaintiff's disciplinary reports.

In Smith v. Beauclair, 2006 U.S. Dist. LEXIS 56561 (D ID, Aug. 11, 2006), an Idaho federal district court denied state prison officials' motions for summary judgment on some of the RLUIPA claims of by an inmate who had requested accommodation of various of his individualized versions of Cherokee religious practices. Plaintiff was permitted to move ahead on his request for accommodation for use of a Sacred Fire, exceptions to the grooming standards, and use of medicinal herbs, but not on his claims for tobacco smoking, daily smudging of his cell and a special diet. The court granted qualified immunity to individual defendants on damage claims against them, but warned that "this ruling should not be construed as a license to ignore future religious accommodation requests from inmates with individualized religious beliefs."

In Price v. Scott, 2006 U.S. Dist. LEXIS 57263 (ND IN, Aug. 14, 2006), an Indiana federal district court ruled against an inmate who alleged that correctional authorities prevented him from practicing his Native American religion in violation of the First Amendment, RLUIPA and the American Indian Religious Freedom Act. The court held that prison officials fully satisfied their obligation to accommodate the plaintiff's religious beliefs when they offered him a transfer to a different prison that had an active Traditional Native American religious group.

German Authorities Say Madonna Concert Might Violate Ban On Insulting Religion

Pop star Madonna will be under scrutiny by German prosecutors Sunday as she performs on tour in Dusseldorf. In her performance, as part of an appeal to her audience to donate to AIDS charities, Madonna, wearing what appears to be a crown of thorns, sings from a mirrored Cross. People Magazine yesterday reported that authorities will be looking to see if the performance violates the ban against insulting religious beliefs in a manner that might disturb the peace.. Authorities do not plan to send observers to the concert, but instead will rely on media reports. The performance may be protected by German laws protecting artistic freedom. Madonna says: "I don't think Jesus would be mad at me and the message I'm trying to send."

UPDATE: It was reported on Aug. 22 that prosecutors have decided against opening an invetigation of Madonna's concert performance. (Myrtle Beach Sun-News.)

Boise, Idaho 10 Commandments Initiative Can Proceed

On Monday the Idaho Supreme Court ruled 4-1 that a challenged ballot initiative can proceed. The initiative asks Boise residents whether a Ten Commandments monument, donated in 1965 by the Fraternal Order of Eagles, should be placed back in a city park. The monument was moved to the grounds of a cathedral in 2004. The case, In re Initiative Petititon for A Ten Commandments Display, (ID Sup. Ct., Aug. 14, 2006), held that the challenge to the initiative was not ripe for adjudication. At issue was whether the initiative called for action that was merely administrative in nature, in which case it is not a proper subject for a voter initiative. The court said that it would not rule on that issue now, because the initiative might never pass, or if it did, City Council might exercise its authority to amend or reject it. Justice Trout dissenting thought that the case was ripe, and that the proposal was administrative so that the city is not required to hold an initiative election on it. Tuesday's Seattle Times covered the decision. [Thanks to Blog from the Capital for the lead.]

House Homeland Security Chairman Endorses Religious Profiling

Today's Newsday reports that Rep. Peter King, (R-NY), chairman of the U.S. House of Representatives Homeland Security Committee, has endorsed religious and ethnic profiling. He would require persons of "Middle Eastern and South Asian" descent to undergo additional security checks, saying "if the threat is coming from a particular group, I can understand why it would make sense to single them out for further questioning." King has said that while not all Muslims are terrorists, all recent terrorists have been Muslim. Legal and law enforcement officials, however, have rejected racial and religious profiling both on constitutional grounds and on grounds of effectiveness.

Jewish Groups Split Over Taking Federal Homeland Security Funds

The current issue of New York's Jewish Week reports that Jewish groups-- usually strong supporters of separation of church and state-- are divided over whether to accept federal funds to increase security at local synagogues. United Jewish Communities and a number of other Jewish groups are urging the Department of Homeland Security to release $25 million that has been appropriated to help non-profits increase their security, and are seeking additional appropriations from Congress for next year. However Mark Pelavin, associate director of the Religious Action Center of Reform Judaism, disagrees. He says: "If our security needs are pressing enough that we are lining up at the public trough, then they should be pressing enough that our own community will make meeting those needs a priority.... It is not healthy for our community to come to depend on the government to take care of our communal needs."

Petition For Cert Filed In Establishment Clause Standing Case

A petition for certiorari to the U.S. Supreme Court has recently been filed by the U.S. Justice Department appealing the 7th Circuit's decision in Grace v. Freedom From Religion Foundation, Inc. The question presented, as described by the brief is: "Whether taxpayers have standing ... to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government." The 7th Circuit found standing. (See prior posting). The underlying claim challenges White House spending for conferences and other activities promoting the President's Faith Based Initiative. The Roundtable on Religion and Social Welfare Policy discusses the petition at greater length. [Thanks to Blog from the Capital for the lead.]

Georgia Tech Changes Speech Code To Settle Suit By Conservative Students

In response to a suit filed on behalf of students by the Alliance Defense Fund, Georgia Institute of Technology has agreed to change portions of its speech code for students living in on-campus housing. Yesterday's Atlanta Journal Constitution reports that the school has agreed to eliminate language that prohibits students from any attempt to "injure, harm" or "malign" a person because of "race, religious belief, color, sexual/affectational orientation, national origin, disability, age or gender." The Christian and Jewish plaintiffs alleged that the speech code infringed free expression by religious conservatives who wish to speak out against homosexuality and feminism. Under the court order issued yesterday embodying the settlement between the parties, Georgia Tech will need court approval if it changes its speech code any time in the next five years. Praising the settlement, Alliance Defense Fund Senior Legal Counsel David French said: "Officials at Georgia Tech had been enforcing draconian speech codes that prohibited any kind of student speech they deemed to be 'intolerant.' This is a tremendous victory for free speech."(See prior posting.)

California Proposal To Fund Mission Repair Formally Defeated In Committee

In California on Tuesday, by a vote of 2-0 the Senate Judiciary Committee formally rejected Senate Constitutional Amendment 32 that would have permitted state funding for repair of California's 21 historic missions. (Palm Springs Desert Sun.) Today's Los Angeles Times sets out the church-state arguments of committee chairman Sen. Joe Dunn-- the money would have funded churches that are used regularly for religious services. However Sen. Abel Maldonado, whose proposal would have placed the funding issue on the November ballot disagrees. He says that the missions are important parts of California's early history. He framed the proposal as a constitutional amendment because, as reported in an earlier posting, the California attorney general believes that funding would violate present provisions in the state's constitution. Earlier, Judiciary Committee staff had suggested a compromise-- specify in the amendment the maximum number of church services that may be held at historic sites that will get state funding. (Ventura County Star.)

5th Circuit Finds Bible Display In Courthouse Monument Unconstitutional

The U.S. 5th Circuit Court of Appeals yesterday issued a fascinating 2-1 decision upholding an Establishment Clause challenge to a monument on the grounds of the Harris County, Texas courthouse. The monument was originally erected in 1953 by a local Christian charity to honor William S. Mosher, a prominent Houston businessman and philanthropist. The top of the monument was a glass-topped display that included a Bible to memorialize Mosher's Christian faith. From 1988 to 1995 the Bible was removed from the monument, and the monument fell into disrepair. In 1995, John Devine was elected judge after campaigning on a platform of placing Christianity back into government. Devine and his court reporter solicited private donations to refurbish the monument, to restore a Bible to the display case, and to add neon lighting around the Bible. In Staley v. Harris County, Texas, (5th Cir., Aug. 15, 2006), the court held that the circumstances surrounding this refurbishment gave a predominately religious purpose to a monument that previously was primarily secular.

A dissent by Judge Jerry Smith argued that the majority has "enable[d] a candidate for political office to alter the character and constitutionality of a longstanding, privately-owned memorial merely by invoking religion and making benign alterations to the monument’s appearance.... This formerly unknown principle of constitutional law-- which perhaps should be crowned the 'Principle of Devine Intervention' --has serious doctrinal and practical consequences."

Yesterday's Houston Chronicle covers the decision. It reports that the county is likely to seek en banc review of the decision.

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.