Navy Chaplains Lose Evidentiary Challenge

Plaintiffs have suffered a loss in a long-running challenge to the Navy Chaplain Corps' hiring, promotion and retention policies. Adair v. Winter, 2006 U.S. Dist. LEXIS 64327 (DDC, Sept. 11, 2006), involves issues at the discovery stage of the case that was brought by current and former Navy chaplains and an agency that certifies chaplains. Plaintiffs claim that Naval policy favors liturgical Christian sects over non-liturgical Christian sects. This opinion involves a constitutional challenge to 10 USC 618(f) that denies plaintiffs civil discovery of the proceedings of Naval officer promotion boards. The court held that there is no constitutional right to privileged evidence in the case, and that the board proceedings are not essential to plaintiffs' proving their claim. (See prior related posting.)

Boston Religious Leaders Urge Muslims To Do More To Repudiate Terrorism

The Boston Globe reports that yesterday in commemoration of 9/11, there was an "unusually candid, two-hour conversation among many of the most important religious leaders in Massachusetts, including rabbis, imams, and bishops, as well as several dozen clergy and lay leaders" that urged the Islamic community to be more vocal in distancing itself from those who support violence and terrorism. Some Muslims at the meeting suggested that the media had not adequately covered voices within the Muslim community that do condemn violence. The meeting also covered other concerns, such as Muslim fears of discrimination and Jewish concerns over anti-Semitism.

More Limits On Jurisdiction Of Israel's Rabbinic Courts

In another blow to the jurisdiction of rabbinical courts, Israel's High Court of Justice ruled yesterday that rabbinical courts do not have jurisdiction to grant a divorce to a couple where only one of the spouses is Jewish. The Jerusalem Post reports that the case had been pending for ten years while the parties lobbied the Knesset for legislation that would specifically grant religious courts jurisdiction over mixed marriages. The decision turned on an interpretation of the 1953 Rabbinical Court Adjudication Law (Marriage and Divorce). (See prior related posting.)

Pentagon Chapel Is Busy Venue

Yesterday's Washington Post profiles the chapel at the Pentagon building, constructed after the 9/11 attack on the building. No permanent symbols of particular religions appear in the chapel, and its stained glass windows all have secular themes. Many faiths use it, and their symbols are brought out for their services. On Fridays, the chapel is busy: Catholic Mass at 11:30, a Jewish service at 12:30 and an Islamic service at 2.

Boston Court Refuses To Apply Anti-SLAPP Law To Mosque's Defamation Suit

A decision that is particularly interesting as we today commemorate the anniversary of 9/11 has just become available on LEXIS, even though it was handed down almost 8 weeks ago by a state trial court in Boston. Islamic Society of Boston v. Boston Herald, Inc., 2006 Mass. Super. LEXIS 391 (Super. Ct., Suffolk Co., July 20, 2006), grows out of efforts of the Islamic Society of Boston (ISB) to build a new mosque in Roxbury on land that was part of an urban redevelopment project. The mosque purchased land from the Boston redevelopment authority for the mosque. (See prior posting.) However a media campaign and litigation in opposition to the mosque developed by individuals who asserted that ISB was directly connected to and funded by radical terrorist organizations. This publicity prevented ISB from raising sufficient funds to finally build the mosque.

At that point, ISB and two individuals connected with it brought a defamation action alleging that their public vilification damaged their reputation and led to donors being unwilling to contribute funds to ISB. Defendants in the case responded by asserting that the defamation action is barred by Massachusetts' anti-SLAPP statute -- a law designed to prevent use of lawsuits against citizens who petition the government on a matter under review, or to encourage such review. In this decision, the court holds that the anti-SLAPP law does not bar the defamation action because the challenged statements were made to turn public opinion against ISB, and not to affect or obtain government review of the mosque project.

The court concluded: "The instant case not only involves a claim for libel but it also touches on the right to the free exercise of one's religion: The Complaint ... alleges that ... that [plaintiffs] were targeted because they were Muslim, in violation of their civil rights. To prevent them from pursuing relief at this early juncture ... would come dangerously close to applying [the anti-SLAPP law] in an unconstitutional manner."

No Immunity For Principal In Recess Bible Reading Case

L.W. v. Knox County Board of Education, 2006 U.S. Dist. LEXIS 64138 (ED TN, Sept. 6, 2006), is a suit by a Christian 5th grade student at Karns Elementary School in Knox County, Tennessee, challenging the school's policy that precludes him from informally reading and discussing the Bible with fellow students during recess. The suit alleges violations of the student's First Amendment rights. In response, the principal of Karns Elementary School filed a $3 million counterclaim alleging libel and slander. In this opinion, a federal district judge dismissed the principal's counterclaim on jurisdictional grounds and held that the principal did not have qualified immunity in the student's lawsuit against her. The school claims that the denial of the student's rights came from a misunderstanding about the kind of Bible study that was being proposed. (See prior posting.) The court found that "L.W.'s right to read and discuss the Bible at recess with his friends is a clearly established right under the First Amendment."

Indian Government's Haj Subsidy Debated

Yesterday's Times of India carried an interesting debate on whether the subsidy that the Indian government gives to Haj pilgrims should be withdrawn. B. N. Shukla says yes, arguing that the subsidy violates provisions in the Indian constitution prohibiting the government from giving benefits to one faith to the detriment of others. Sociologist Imtiaz Ahmad says no, arguing that the government in fact has been subsidizing practices of other religious communities in various ways, so the Haj subsidy is merely an issue of equal treatment.

The Haj begins on December 29, 2006. The Allahabad High Court has told the central government and the government of Uttar Pradesh that, pending a final hearing, they may no longer pay a subsidy for Haj pilgrims. The subsidy now comes in the form of reduced airfares on Air India or Indian Airlines. (Times of India.) The court's decision however permits the government to continue to provide for the safety and well being of religious pilgrims. (India eNews.)

Recent Articles and Book On Law, Religion and Politics

From NELLCO:

• Paul Robinson, et. al., Shari'a, Legality, and the Freedom to Invent New Forms: Americans Drafting an Islamic Model Penal Code (July 28, 2006).

From SmartCILP:

• Kent Greenawalt, David C. Baum Memorial Lecture on Civil Rights and Civil Liberties. Objections in Conscience to Medical Procedures: Does Religion Make a Difference?, 2006 University of Illinois Law Review 799-825.
• Alexandra R. Harrington, Resurrection From Babel: The Cultural, Political, and Legal Status of Christian Communities in Lebanon and Syria and Their Prospects for the Future, 13 Tulsa Journal of Comparative & International Law 217-248 (2006).
• Melynda J. Price, Litigating Salvation: Race, Religion and Innocence in the Karla Faye Tucker and Gary Graham Cases, 15 Southern California Review of Law and Social Justice 267-298 (2006).

New Book:

• Ryan Sager, The Elephant in the Room: Evangelicals, Libertarians, and the Battle to Control the Republican Party, Wiley (August 25, 2006).

Religion and Candidates For Texas Governor

An article in today's San Antonio Express-News explores the role of religious faith in Texas' gubernotorial race among 5 candidates. The candidates differ significantly in their emphasis. Democrat Chris Bell says: "Jesus never said, 'Heal the sick unless politics gets in the way'" Republican incumbent Rick Perry's campaign replies: "Liberal Democrats tend to view compassion by how many people are on the welfare rolls or getting assistance from the state." And independent candidate Kinky Friedman says: "If you're not doing good, I don't think any religious activity makes a lot of sense."

Malaysia Human Rights Official Suggests New Religious Affairs Ministry

In Malaysia that has been racked with religious controversy recently, Tan Sri Abu Talib Othman, chairman the Human Rights Commission of Malaysia, has suggested that country create a Religious Affairs Ministry to deal with disputes between different religions or issues that cannot be resolved within a religious group. The Star (Malaysia) today reports that Abu Talib also called for repeal current laws that deny access to the courts.

FLDS Leader Seeks Return Of Seized Records

Arrested leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), Warren Jeffs, is asking a federal court in Las Vegas, Nevada to order a return of papers, laptops and recording devices seized from his vehicle, claiming that they are protected by the First Amendment's Free Exercise clause. Today's Salt Lake (UT) Tribune reports that Jeffs' attorney, Richard Wright, says the items are confidential religious writings and teachings of the FLDS, as well as privileged communications with FLDS members. FBI agents say that among the items found when Jeffs was arrested were names of people who had sheltered the leader of the polygamous sect while he was a fugitive on the FBI's "most wanted" list.

Establishment Clause Claim Against Veteran's Affairs Department Survives

Last week, in Freedom From Religion Foundation v. Nicholson, (WD WI, Sept. 5, 2006), a Wisconsin federal district court denied a motion to dismiss an Establishment Clause lawsuit against the Department of Veterans Affairs brought by the Freedom From Religion Foundation. The suit challenges the VA's integration of chaplain services into patient medical care. Each VA medical center patient is given a spiritual and pastoral care screening to determine whether to offer pastoral care for a "spiritual injury or sickness". The court held that the language in the VA's spiritual assessment form that links a patient's spiritual health to his or her physical health could demonstrate that the VA impermissibly favors religion over non-religion by sending a message to non-religious veterans that they might not recover fully if they do not believe that spirituality plays an important role in their treatment. It may also impermissibly entangle government and religion. The holding permits the parties to present evidence so the court can determine whether or not the VA chaplaincy program is unconstitutional or is instead an appropriate accommodation of Free Exercise rights of patients. (See prior related posting.)

This Week's Prisoner Free Exercise Cases

In Gillard v. Kuykendall, 2006 U.S. Dist. LEXIS 62291 (WD AR, Aug. 30, 2006), an Arkansas federal district judge accepted the recommendation of a magistrate judge and refused to dismiss a prisoner's claim that his free exercise rights were violated when he was required to mop and clean his cell every day, including his Sabbath day.

In Mark v. Gustafson, 2006 U.S. Dist. LEXIS 62376 (WD WI, Aug. 30, 2006), a Wisconsin federal district court rejected First Amendment and RLUIPA claims by a Wiccan prisoner whose "magic seals" were removed from his prison cell walls and door by prison officials.

In Shaka Zulu Acoolia v. Angelone, 2006 U.S. Dist. LEXIS 62574 (WD VA, Sept. 1, 2006), a Virginia federal district court rejected First Amendment and RLUIPA claims by a Rastafarian prisoner who was refused a strict vegan diet and instead served the prison's vegetarian Alternative Entree Menu that includes eggs, milk and sweets.

In Jackson v. Department of Correction, 2006 Mass. Super. LEXIS 389 (Middlesex County, Aug. 25, 2006) a Massachusetts Superior Court judge found that the state's Department of Corrections violated RLUIPA by failing to provide an Imam to perform jum'ah services at MCI-Shirley every Friday, and by having female correctional officers in non-emergency situations pat-frisk male Muslim inmates (including touching of the inmate's genital or anal areas). These practices were also found to violate a Massachusetts statute that requires equal treatment of prisoners who are not being disciplined. (See prior related posting.)

In Kaufman v. McCaughtry, (7th Cir., Sept. 7, 2006), the U.S. 7th Circuit Court of Appeals affirmed a trial court's holding that prison officials who denied atheists the right to form a study grope were entitled to qualified immunity because prior precedents were not clear on whether atheism was to be treated as a religion.

Saudi Religious Police Ban Sale of Dogs and Cats

In Saudi Arabia, the Muttawa, or religious police, have banned the sale of dogs and cats in the cities of Jiddah and Mecca. The Associated Press reported Friday that religious authorities have asked city officials to help them enforce the ban . Dogs are considered unclean in Muslim tradition, and generally pets are seen as a sign of unwanted Western influence. The inclusion of cats in the ban is puzzling. One of the Prophet Muhammad's closest companions always carried a kitten and took care of it.

Mandatory Boy Scout Membership Presentation Is Not Discriminatory

Oregon law prohibits religious discrimination (as well as discrimination on various other grounds) against any person in any public elementary or secondary school. On Friday, the Oregon Supreme Court in Powell v. Bunn (Sept. 8, 2006) held that requiring elementary school students to attend a presentation at which the Boy Scouts provided information and encouraged boys to join did not amount to discrimination against a student who was precluded from joining because the scouts limit membership to those who believe in God. Justice Kistler dissented. The case was discussed yesterday by Oregon Live.

Challenge To IL Requirement On Dispensing of Contraceptives Moves Ahead

On Wednesday, an Illinois federal district court held that a number of pharmacists as well as Walgreens (the former employer of five of them) can proceed with their declaratory judgment actions against the state of Illinois challenging a rule promulgated by the Illinois Department of Financial and Professional Regulation that requires pharmacies to dispense emergency contraceptives when presented with a prescription for them. Illinois takes the position that the rule applies to every pharmacist, even if filling the prescription would violate his or her moral or religious beliefs. This led Walgreens to change its former policy that had permitted individual pharmacists who had religious objections to refer the prescription on to another pharmacist at the same store or one close by. (See prior posting.)

In Menges v. Blagojevich, 2006 U.S. Dist. LEXIS 63671 (CD IL, Sept. 6, 2006), the court held that plaintiffs alleged sufficient facts to possibly show that Illinois' rule is not a neutral rule of general applicability. The court held that the case should move to trial. Plaintiffs claim that the Illinois rule was targeted at pharmacists to force them to either surrender their religious beliefs or else leave the practice of pharmacy, and thus the rule is subject to strict scrutiny review by the court. The court held that plaintiffs’ pleadings also adequately raise the issue of whether the Illinois rule was inconsistent with Title VII of the federal 1964 Civil Rights Act. The court however dismissed Walgreens request for a declaratory judgment that its prior pharmacist referral policy complies with Title VII and the Illinois pharmacy rules.

The Associated Press yesterday discussed the decision, as did Blog from the Capital.

Pro-Life Minister's Suit To Protect Protest Rights Moves Forward

As a previous posting reported, on August 31, an Illinois federal district court granted a preliminary injunction against enforcement of Granite City’s ordinance that prohibits signs larger than 8 ½ x 11 along any parade route. The suit was brought by a minister and members of his family who wanted to carry anti-abortion signs large enough for politicians marching in the parade to see. Now in Michael v. City of Granite City, 2006 U.S. Dist. LEXIS 63638 (SD IL, Sept. 6, 2006), the court issued a decision dealing with a number of procedural issues as the case moves on. In addition to challenging the city’s sign limits, the suit also claims that police are restricting plaintiffs’ speech and free exercise rights by a policy of not protecting them against assaults by onlookers who disagree with their pro-life views. The court denied defendants’ motion to dismiss the suit on standing, inadequate pleading and immunity grounds.

Hindu Temple In India Wants Its Own Township

In the Indian state of Andhra Pradesh, there is growing tension between Christians and Hindus over Christian conversionary activities around the Sri Venkateswara temple that attracts over 50,000 visitors per day. Thursday’s Indian Catholic reports that Tirumala Tirupati Devasthanam (TTD), the administrative board that manages the temple, passed a resolution in July to ask the state government to create a new "religious township" out of the 332-square kilometer area around the temple and place it under temple jurisdiction. This would give the temple a status similar to Vatican City. Also, State Minister for Endowments J.V. Diwakar Reddy said in August that the state government is considering a new law to prohibit propagation of any religion other than Hinduism in Tirumala where the temple is located. Violators would risk to up to 2 years in prison and a fine of up to 2,000 rupees (US$43). And TTD is being asked to fire the non-Hindu employees that work at the temple site (several Muslims and 15 to 20 Christians).

Cobb County Invocations OK; But Not Planning Comm'n. Choice Of Clergy

Largely echoing the reasoning in his denial of a preliminary injunction, a Georgia federal district judge has upheld the practices of the Cobb County (GA) Commission in opening its sessions with prayer. In Pelphrey v. Cobb County, Georgia, Civil Action No. 1:05-CV-2075-RWS (ND GA, Sept. 8, 2006) [available through PACER], the court held that legislative prayer violates the Establishment Clause only if there is an impermissible motive in the selection of clergy; use of invocations to promote the beliefs of one religious sect or to disparage the beliefs of another; or maintenance of a practice that conveys governmental preference of one religious view over others. The court found that neither the identity of those offering invocations, nor the sometimes sectarian references in their prayers, were sufficient to violate the Establishment Clause. The court similarly upheld the selection procedures used by Cobb County in locating individuals to deliver invocations, even though it resulted in 96% of those delivering invocations being Christian.

However in a parallel challenge to the invocation policy of the Cobb County Planning Commission, the court found that its policies in 2003-04 for selecting individuals to deliver invocations did violate the Establishment Clause. "[C]ertain faiths were categorically excluded from the list of prospective speakers based on the content of their faith."

Today’s Atlanta Journal Constitution discusses the decision.

UPDATE: The opinion is now available on LEXIS at 2006 U.S. Dist. LEXIS 64294 (ND GA, Sept. 8, 2006),

California Mayor Sees Christian-Shiite Spiritual War

In Redding, California on Thursday, a ceremony titled "One Nation Under God" was held on the Shasta County Courthouse steps in commemoration of the Sept. 11, 2001 terrorist attacks. The event was co-sponsored by the county Sheriff's Department, the Shasta County Jail Chaplaincy, the Marshal's Office, PrayNorthstate, the Good News Rescue Mission and Sysco Foods. Friday’s Redding Record Searchlight reports that at the ceremony Mayor Ken Murray spoke about a war to the spiritual death between Christianity and Shiite Muslims.

Murray says he distinguishes between "mainstream" practitioners of Islam, and Shiites. He says, "Since the Crusades, there's been a spiritual battle for the hearts and minds of people. I think it's a historical reality, and the rubber's meeting the road again. Either the Judeo-Christian philosophy will survive or the Islamic philosophy will survive." Mayor Murray says the noontime event was not about government sponsorship of religion; rather it was about free speech by individual officials. Murray’s remarks apparently included allegations that Shiites believe that it is acceptable to lie, cheat, steal and kill, as long as it ultimately glorifies Allah. He added: "Folks, they're not like us. They're not like us at all, and for them, their war has been going on for 1,200 years."

UPDATE: Sacramento-area Muslims are asking for an apology from Mayor Murray. (Associated Press, Sept. 11).