USCIRF Praises DOJ Changes Protecting Asylum Seekers

On Monday, the U.S. Commission on International Religious Freedom (USCIRF) issued a release praising action taken by the Justice Department earlier this month to protect legitimate asylum seekers from abroad (including those facing religious persecution at home) from unfair deportation under the expedited removal system. The changes were based on recommendations made by USCIRF in a 2005 study titled Report on Asylum Seekers in Expedited Removal. USCIRF Chair Felice D. Gaer urged the Department of Homeland Security to also make recommended changes "to bring an end to jail-like detention for legitimate asylum seekers by DHS."

New Report Decries "Patriot Pastors"

People for the American Way foundation, the NAACP, and the African American Ministers Leadership Council have recently issued a report titled The Patriot Pastors’ Electoral War Against the 'Hordes of Hell'. The report's Summary begins: "A new generation of Religious Right leaders is turning conservative churches into political machines for far-right Republican candidates .... Christians may hold the most powerful political offices in the country, but to these pastors, Christians are on the verge of being thrown into jail for professing their faith. Political opponents aren't just wrong, they are the 'hordes of hell' and the 'forces of darkness'." The report focuses particularly on activities in Ohio, Texas, Pennsylvania, Florida and Missouri. [Thanks to Blog from the Capital for the lead.]

Muslim Parties Oppose Pakistani Women's Rights Bill

In Pakistan, according to AKA/DAWN, the government Monday proposed to amend the "Hudood Ordinance" of 1979 that deals with property rights, rape and adultery. The law is widely seen as discriminatory against women, particularly in its procedures for proving rape charges. (See prior posting.) The proposed legislation also seeks to amend Pakistan Penal Code, the Criminal Procedure Code and the Dissolution of Marriages Act of 1939 to provide "relief and protection to women against misuse and abuse of law and to prevent their exploitation". However, the Protection of Women's Rights bill is strongly opposed by the Muttahida Majlis-i-Amal (MMA), an alliance of six Islamic parties. They say that the bill is "un-Islamic". Many of its members tore up copies of the draft bill when Pakistan's law and justice minister introduced it. A senior member of the MMA alliance told BBC News that proposal is part of an attempt to secularize Pakistan. However, the prime minister said that the ordinance is an attempt to conform to Muslim law promoting women's rights. Other amendments to the Hudood Ordinance lessening the harsh penalties for adultery were enacted last month.

Delaware School District Rejects Settlement; Insurer Doesn't Want To Pay

In Wilmington, Delaware, according to today's News Journal, a federal judge has unsealed records in a pending lawsuit by Graphic Arts Mutual insurance company against the Indian River School Board. The insurance company wants an order excusing it from paying the school district's legal bills in a suit claiming the school improperly promotes Christianity. (See prior posting.) The insurance company says the District refused to go along with a proposed settlement of the case. The settlement would have imposed a new policies and guidelines applicable to classrooms and to graduation and baccalaureate ceremonies. The school board says the settlement language would even have required the elimination of references to "Christmas Break" on school calendars. Another unrelated provision that was a deal breaker would have required the school board to admit two children from the family of one of the plaintiffs to the district's arts school ahead of others on the waiting list for admission. A counterclaim filed by the school district charges that the settlement was negotiated by the insurance company without consulting school board attorneys and disregarded the school board's interests in favor of those of the insurance company.

UPDATE: A posting on Jews On First dated Aug. 24 gives additional details on the dispute between Indian River School District and its insurer, including links to all the unsealed pleadings in the litigation.

UPDATE: A report from the News Journal on Aug. 24 says that the Indian River School District has now drawn up an alternative settlement proposal.

Evangelical Pastor Arrested For Trespassing At Mormon Pageant

In Clarkston, Utah, an evangelical Christian minister who describes himself as a "missionary to Mormons" was arrested for trespassing last Friday when he and eight others handed out religious tracts at the Clarkston Cemetery amphitheater. Today's Salt Lake Daily Herald reports that the incident occurred at the Clarkston Pageant that depicts the life of Martin Harris, an early follower of Joseph Smith, founder of the Mormon church. Organizers of the pageant said that Daniel "Chip" Thompson, director of Solid Rock Christian Fellowship, who was handing out pamphlets comparing Mormonism with other forms of Christianity, was rude and was shouting offensive remarks-- charges denied by Thompson. Thompson says his rights were violated because the cemetery is public property. However, Clarkston's city clerk says the cemetery is "reserved" each summer by local church leaders for the pageant which is a ticketed event. Cache County Sheriff Chad Jensen says that the property reverts to "quasi-private" status during the event. Earlier this month, another evangelical pastor was arrested at the pageant for disorderly conduct after a dispute about his taping the pageant for use in Christian videos he produces.

Michigan Excludes Some Religious Employers From Health Plan Requirement

The Michigan Civil Rights Commission yesterday ruled Michigan employers that provide prescription drug plans to their employees cannot exclude coverage for federally approved prescription contraceptive drugs and devices. The Associated Press reports, however, that the ruling excludes religious employers from the requirement. Exempt groups are nonprofit organizations that primarily employ and serve people who share the same religious tenets as the employer. However the exclusion does not cover employee plans offered by religiously affiliated hospitals and social service agency that serve the general public. The ruling made under the state's Elliott-Larsen Civil Rights Act covers small businesses that are excluded from a similar U.S. Equal Employment Opportunity Commission ruling.

Arguments Underway In Challenge To Australian Religious Hatred Law

The Age reports on interesting arguments that are under way this week in the Court of Appeals of the Australian state of Victoria. Victoria's Racial and Religious Tolerance Act prohibits inciting hatred against a person or class of persons. In an appeal by the Christian group, Catch the Fire Ministries, and two pastors , the Islamic Council of Victoria argued that villifying Islam necessarily vilifies Muslims who hold those beliefs. The appellants argued that one could hate ideas without hating individuals who hold them. If the law is not interpreted that way, they argued, it becomes a blasphemy law. The pastors charged with violating the law claimed more generally that it violates free expression guaranteed by Australia's constitution and that it violates international treaties signed by Australia. The case grows out of comments made by Pastor Daniel Scott at a seminar on Islam sponsored by Pastor Danny Nalliah's Catch the Fire Ministries, and comments in an online newsletter. (Background from CNSNews.com.).

More Prisoner Free Exercise Cases

In Smith v. Kurmis, 2006 U.S. Dist. LEXIS 57667 (ND IN, Aug. 3, 2006), an Indiana federal district court dismissed the complaint of a pre-trial detainee who argued that placing him in administrative segregation violated his free exercise of religion by preventing him from attending religious services.

In Pinkston-El v. Snyder, 2006 U.S. Dist. LEXIS 58001 (SD IL, Aug. 17, 2006), an Illinois federal district court accepted the recommendation of a Magistrate Judge and rejected a prisoner's statutory and constitutional free exercise challenges to the Illinois Department of Corrections grooming policy. That policy prohibits "hairstyles that create a risk that contraband hidden in the hair cannot be detected or that impede searches for contraband or that pose a risk that contraband hidden in the hair may injure the employee(s) charged with searching the offender." Plaintiff Pinkston-El, a member of the Moorish Science Temple, had taken a Nazarite vow that precluded him from cutting his hair.

In Shidler v. Moore, 2006 U.S. Dist. LEXIS 58097 (ND IN, Aug. 9, 2006), an Indiana federal district court permitted a Sunni Muslim prisoner to move forward with his 1st and 14th Amendment and RLUIPA claims involving denial of prayer oil, denial of communal worship and denial of participation in Ramadan activities, as well as his complaint that classifying him as a Christian and preventing him from using his religious name on his mail prevented him from practicing his religion.

Recent Articles On Religion and Law

From SSRN:
Allan J. Samansky, Tax Consequences When Churches Participate in Political Campaigns (August 2006).

___________

Recently published in Law Reviews (in part from SmartCILP):

Steven Goldberg, Cutter and the Preferred Position of the Free Exercise Clause, 14 William & Mary Bill of Rights Journal 1403-1419 (2006).

David M. Smolin, Overcoming Religious Objections to the Convention on the Rights of the Child, 20 Emory International Law Review 81-110 (2006).

T. Jeremy Gunn, The Religious Right and the Opposition to U.S. Ratification of the Convention on the Rights of the Child, 20 Emory International Law Review 111-128 (2006).

Patrick McKinley Brennan, The "Right" of Religious Liberty of the Child: Its Meaning, Measure, and Justification, 20 Emory International Law Review 129-155 (2006).

Steven H. Resnicoff, Supplying Human Body Parts: A Jewish Law Perspective, 55 DePaul Law Review 851-874 (2006).

William E. Stempsey, Religion, Philosophy, and the Commodification of Human Body Parts, 55 DePaul Law Review 875-888 (2006).

Li-ann Thio, Control, Co-Optation and Co-Operation: Managing Religious Harmony in Singapore's Multi-Ethnic, Quasi-Secular State, 33 Hastings Constitutional Law Quarterly 197 (2006).

Francis J. Beckwith, The Court of Disbelief: The Constitution's Article VI Religious Test Prohibition and the Judiciary's Religious Motive Analysis, 33 Hastings Constitutional Law Quarterly 337 (2006).

Nigerian Group Presses For Law Protecting Religious Freedom

The Christian Lawyers Fellowship of Nigeria (CLASFON) plans to sponsor a bill in the National Assembly to insure religious tolerance in the country. This Day reports on a press conference held this past week end by the President of CLASFON, Jonathan Kish Adamu, who says that his group, along with the Afri Foundation hopes to counteract the continuing religious conflict in both the northern and southern parts of Nigeria. With support from Open Society Initiative for West Africa, plans are underway to hold a series of conference across Nigeria to broaden support for such a law.

Court Holds RLUIPA Applies To Private Prisons

In Dean v. Corrections Corporation of America, 2006 U.S. Dist. LEXIS 57962 (ND MS, Aug. 16, 2006), a Mississippi federal district court issued an opinion containing an important interpretation of the Religious Land Use and Institutionalized Persons Act. It held that, putting together the complex definitional sections of the statute, RLUIPA applies to a private correctional facility holding prisoners under contract with a state so long as the state receives federal funds for some part of its state prison system.

Religious Displays and Harrison County, WV

Apparently the picture of Jesus in a Harrison County, West Virginia high school that has been the subject of recent litigation (see prior posting) is not the only instance of questionable religious displays in that county. The Charleston (WV) Gazette , in an article about the painting, reports that:

Tokens of Christianity, such as crosses or religious mottos, can be seen in schools and government buildings all over Harrison County. In a women's bathroom at the Harrison County Board of Education offices, there are a few amenities on the toilet. An extra roll of toilet paper. A bottle of cucumber-melon scented spray. Alongside them sits a powder blue, leather bound pocket bible titled "New Testament: Psalms Proverbs."

Federal Pre-Emption Requires Objector To Furnish SS Number For Drivers License

In Lewis v. State of Idaho Department of Transportation, (ID Ct. App., Aug. 17, 2006), an Idaho appellate court rejected an appeal by Lawrence Lewis who was denied a drivers' license when he refused to furnish his social security number. Lewis believes his social security number "is either the precursor to, or actually is, the biblical 'mark of the beast'." Apparently realizing that a claim under the First Amendment would be difficult to maintain, Lewis instead relied on Idaho's Free Exercise of Religion Act that requires the state to show a compelling interest and use of the least restrictive means when free exercise is burdened even by a neutral law. The court, however, found that federal law, 42 U.S.C. § 666(a)(13)(A), requiring states to collect social security numbers of drivers license applicants, pre-empts the state's Free Exercise of Religion Act. The federal provision was enacted as part of Congress' attempt to facilitate interstate child support enforcement. Saturday's Salt Lake Tribune covers the decision.

Teens Urge Repeal Of Anti-Polygamy Laws

In Salt Lake City, Utah on Saturday, over a dozen children and young adults from polygamist families spoke at a rally. They urged Utah to change its ban on polygamy so they can practice their religion as they choose. The AP's report on the rally that drew about 250 supporters says speakers emphasized that they are well treated by their families, supported and encouraged to obtain an education.

Wiccan Prison Chaplain May Proceed With Establishment Clause Claim

In McCollum v. State of California, 2006 U.S. Dist. LEXIS 58026 (ND CA, Aug. 8, 2006), a Wiccan clergyman who is a volunteer chaplain in a California prison challenged California's policy that limits salaried prison chaplain positions to members of five faiths. Only Protestant, Catholic, Jewish, Muslim and Native American clergy can be hired. The court dismissed a number of plaintiff's claims, in some cases because they related to prisoners' free exercise of religion, not to his own. The court, however, permitted plaintiff to proceed on his Establishment Clause claim challenging the Five Faiths policy. It also permitted him to proceed on equal protection and First Amendment retaliation claims relating to various denials of access as a volunteer chaplain to Wiccan prisoners.

Religious Objections To Recitation Of India's National Song

Saturday's Daily India.com reports that a clash is brewing between the Indian government and Muslim clerics in the state of Uttar Pradesh over the singing of India’s national song, "Vande Mataram". India’s Human Resource Development Minister, Arjun Singh, has called on all schools in the country to recite the first two stanzas of the song on Sept. 7, to celebrate the 100th anniversary of the adoption of the song as India’s national anthem. Maulana Khalid Rasheed, who heads the Firangi Mahal and is a member of the All India Muslim Personal Law Board, announced that the recitation of the song by Muslim students is un-Islamic. He explained that "the song tends to equate the nation to god and Islam does not permit this. Even Prophet Mohammad cannot be placed on an equal pedestal with Allah, the almighty."

A Particularly Literate and Engaging Decision In Oklahoma 10 Commandments Case

On Friday in Green v. Board of County Commissioners of the County of Haskell, (ED OK, Aug. 18, 2006), an Oklahoma federal district court ruled that a Ten Commandments monument on the Haskell County (OK) courthouse lawn may remain. The monument also contains the text of the Mayflower Compact. The conclusion of the court-- that the circumstances surrounding the approval and erection of the monument do not demonstrate that the primary purpose or effect of the monument is religious—is hardly unusual. What is unusual is the literate and amusing opinion written by federal district Judge Ronald A. White. The opinion, whose subheadings are inspired by Dante’s Inferno, accomplishes the nearly impossible task of keeping the reader enthralled for 43 pages.

While the opinion has been covered extensively—a release by Alliance Defense Fund, a story in the Tulsa World, a report from the Associated Press (including a photo of the monument), and a posting on How Appealing blog—none of these capture the truly refreshing flavor of the opinion. Here are a some excerpts:

The Findings of Fact are labeled "Cantico I". In part A. captioned "Here Is Set Forth The Story Of The Monument’s Erection And The Subsequent Although Not Necessarily Consequent Events", Judge White explains at length the setting and background of the monument. Focusing on the identity of the defendants, he writes:

The Commissioners during the relevant time period in this case were Henry Few, Kenny Short, and Sam Cole. Mr. Cole unfortunately died after this lawsuit was filed and only seventeen days after his deposition was taken. There is no known connection.

Describing the monument, he says:

This phrasing has been described by all parties to this litigation as the "King James Version" ("KJV") of the Ten Commandments. That description is not grossly inaccurate, but is something of a stretch…. The Monument’s text could best be described as a butchered paraphrase of the KJV. The only real similarities between them are the numerical order of the Commandments and the prodigious use of the idiom "shalt".

"Cantica II" of the opinion—The Conclusions of Law—contain some subheadings ("Cantos") that are direct quotes from Dante. Thus the first subpart is labeled "Justice the founder of my fabric mov’d: To rear me was the task of power divine, Supremest wisdom, and primeval love." Early on, Judge White engages in an extensive discussion of the meaning of "purgatory" in Catholic doctrine, criticizing the 6th Circuit for remarking that the Supreme Court’s two 10 Commandment decisions left them "in Establishment Clause Purgatory".

Particularly interesting is Judge White’s discussion in "Canto C" labeled "Here Is Set Forth The Catechism of McCreary and Van Orden". Focusing on whether the Haskell County monument was part of an integrated historical display, he wrote:

Suffice it to say that the Haskell County courthouse lawn is pure Americana. True, there is no grand integral design of the various monuments and displays on the lawn. They were dreamed up, developed and deposited over the years, each reflecting that generation’s view of what is appropriately historical, artistic and pretty. Perhaps the next generation will add the cannon or a nice shrubbery. In any event, this court does not fathom how artistic integration must be a bedrock constitutional requirement simply because a text of one of the displays contains religious sentiments.

Only a full reading does justice to the opinion.

Circumcision Opponents Being Undercut By Science

Saturday’s Washington Post carries an article about groups that are attempting to make male circumcision, along with female circumcision, illegal. Arguments by the groups are being undercut by the finding that circumcised men were less than half as likely as uncircumcised men to get HIV, and that female to male transmission is cut by 60% by male circumcision. Nevertheless, the group MGMBill.org is attempting to find members of Congress who will introduce the proposed legislation that they have drafted. Their proposal explicitly provides that in applying its prohibitions, "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."

Decalogue Builders Pay More Attention To Precedent Now

The Associated Press today reports that two new 10 Commandment monuments are being erected in southeastern Oklahoma, but with more careful attention to legal guidelines that the courts have set out. At the Atoka County Court House, the monument has several other displays near it such as a war and veterans memorial. At the dedication of the new monument, supporters were careful to talk about a celebration of America and not make it a religious service. In Coalgate, Oklahoma, a new monument is being put up on private property next to the court house lawn. The site will display the Oklahoma, American and Christian flags along with the King James version of the commandments.

Court Orders Mobile Home Park To Allow Religious Use of Clubhouse

Yesterday a San Diego, California trial court ordered Warner Springs Homeowners Association to allow residents at the mobile home park to use the park's common areas for Bible and prayer meetings, according to a release by the United States Justice Foundation. The court rejected the claim of the Homeowners' Association that it had a right to be free of religion in the community clubhouse. The residents' suit had claimed violations of the U.S. and California constitutions and of California's Unruh Civil Rights Act. (See prior posting.) [Thanks to Alliance Alert for the lead.]