Probationer With Religious Objections Permitted To Give Swab DNA Sample

The Violent Crime Control and Law Enforcement Act of 1994 creates a federal index of DNA samples from convicted offenders, crime scenes, and unidentified human remains. 42 USC Sec. 14135a (d) (1) requires probation officers to collect a DNA sample from individuals on federal supervised release. In United States v. Holmes, 2007 U.S. Dist. LEXIS 11597 (ED CA, Feb. 20, 2007), a California federal district court agreed with Elden Holmes who was on supervised release that he should be able to provide a buccal swab DNA sample rather than a blood sample because of his religious objections to having his blood drawn. The court found that under the Religious Freedom Restoration Act, drawing blood would impose a substantial burden on Holmes free exercise of religion, that the government lacks a compelling interest in requiring a blood sample instead of a cheek swab sample, and that forcing Holmes to submit to a blood-based DNA test is not the least restrictive means of achieving the government's compelling interest in obtaining his DNA profile.

Indiana Church's Zoning Challenge Rejected

In Digrugilliers v. Consolodated City of Indianapolis, 2007 U.S. Dist. LEXIS 11485 (SD IN, Feb. 15, 2007), and Indiana federal district court denied a preliminary injunction to a Baptist Church that was cited by the city for being in violation of zoning ordinances. The court rejected plaintiff's argument that requiring the Church to apply for a zoning variance unduly burdens its religious practice under the First Amendment and RLUIPA. The court found no basis to conclude that nonreligious land uses are treated more favorably than religious uses in seeking or receiving a variance. It said that religious land uses implicate land use concerns not posed by permitted uses such as community centers and auditoriums, including limiting the commercial viability of surrounding land because businesses such as liquor stores and adult bookstores cannot locate nearby. The court also rejected claims that the zoning ordinance infringed the Church's free expression rights, finding among other things that the ordinance is not a content-based restriction on speech. Finally it rejected claims under the Equal Protection clause and RLUIPA's anti-discrimination provisions.

Schools' Barring of Student Religious Literature Found Unconstituitonal

In Morgan v. Plano Independent School District, 2007 U.S. Dist. LEXIS 11557 (ED TX, Feb. 20, 2007), a Texas federal Magistrate Judge issued proposed findings in a case challenging policies in two Plano, Texas elementary schools that prohibit students from distributing invitations and tickets to church events to fellow students and prohibit them from giving fellow students pencils, brownies and candy cane pens with religious messages. The court held that the allegations, if proven, demonstrate that a number of the defendants engaged in unconstitutional viewpoint discrimination in banning religious viewpoint material while permitting students to distribute secular material to their classmates. The findings recommended the denial of motions to grant qualified immunity to those defendants. (See prior related posting.)

UPDATE: In a later proceeding in the same case at 2009 U.S. Dist. LEXIS 60179 (Feb. 27, 2009), the court denied qualified immunity to the school principal who stopped an elementary school student from passing out religious-themed pencils in the cafeteria and outside on school grounds during and after school hours.

Former Court Administrator Claims Religious Motives In Her Dismissal

Yesterday's Detroit News reports on a religious discrimination lawsuit filed by Julie Pucci, the former deputy administrator of Michigan's 19th District Court. Pucci was in a live-in sexual relationship with District Judge William Hultgren. In March 2005, Pucci was promoted to Deputy Administrator, but moved back to her deputy administrator position after the Michigan Supreme Court advised her to do so. Subsequently, Judge Mark Somers became chief judge of the 19th District Court. He reorganized the court and eliminated Pucci's position. Her lawsuit claims that Somers took that action because of his religious objections to her relationship with Hultgren. Pucci claims that Somers routinely forces his Christianity on the court, for example by asking defendants about their church attendance.

Suit Filed Over School's Objection To Jesus Halloween Costume

A federal lawsuit was filed on Tuesday against the Abington Township (PA) School District and a principal of one of its schools over last year's Halloween activities. According to a report by the AP and a release by the Alliance Defense Fund, students at Willow Hill Elementary School were to wear a costume at school on Halloween if they wanted to take part in the school's parade and party. A 4th grader and his mother objected on Christian religious grounds to promoting Halloween and its pagan elements. So they proposed that the student come to school dressed as Jesus.

However, school Principal Patricia Whitmire objected saying that the costume would violate the school's policy against advocating religion-- even though other students would dress as witches and warlocks. When the student appeared in the Jesus costume, Whitmire told him to remove the "crown of thorns" that was part of his costume and not identify himself as Jesus. The complaint in the case (full text) seeks a declaratory judgment that defendants action violated the student's free speech, free exercise of religion, due process and equal protection rights.

Kazakhstan Considering More Restictive Religion Law

Forum 18 yesterday reported that Kazakhstan's Religious Affairs Committee in the Justice Ministry is drafting new restrictive amendments to the nation's 2005 Religion Law. (See prior posting.) Under consideration are provisions to ban all unregistered religious activity. Registered religious groups with fewer than 50 adult citizen members would be prohibited from publishing or importing religious literature, setting up companies to produce religious objects or distribute theological literature, maintaining open places of worship or religious buildings, seeking or accepting donations, or conducting charitable activities.

Justice Department Announces New Religious Freedom Initiatives

Yesterday, the U.S. Department of Justice released its Report on Enforcement of Laws Protecting Religious Freedom: Fiscal Years 2001- 2006. (AP report.) It also issued a press release announcing the First Freedom Project-- a number of new initiatives to promote religious freedom. Attorney General Alberto J. Gonzales says the department will: (1) create a Department-wide Religious Freedom Task Force; (2) initiate a program of public education to make certain that people know their rights and that community leaders bring religious liberty concerns to the department's attention; (3) hold a series of regional training seminars for religious, civil rights and community leaders; (4) launch a new website with information on laws protecting religious freedom and how to file a complaint; and (5) distribute informational literature on how to file religious discrimination complaints.

The Attorney General also announced these initiatives in a speech before the Executive Committee of the Southern Baptist Convention. (Full text.) In the speech he referred to the events of 9-11, saying that:"Nothing defines us more as a Nation – and differentiates us more from the extremists who are our enemies – than our respect for religious freedom."

He also praised the leadership of President George W. Bush, saying: "Most Americans believe in God. And so they naturally understand and accept the limitations and imperfections that are a part of being human. Perhaps because of our frailties, most of us yearn for heroes, we are attracted to and inspired by leaders who perform extraordinary deeds or at least inspire others in worthy causes. I believe this is why many Americans share a natural curiosity—a fascination—about the President of the United States.... [T]here are very few individuals as strong in their faith as George W. Bush."

Yesterday's Tennessean reported on the Attorney General's speech. It quoted Hedy Weinberg, executive director of the Tennessee branch of the American Civil Liberties Union, who wondered why the announcement of the new initiatives was made to a meeting of a single religious group rather than to an interfaith gathering.

Cert. Denied In Staten Island Billboard Case

Yesterday, the United States Supreme Court denied certiorari (Order List) in Okwedy v. City of New York, (Case No. 06-676). The case involves a constitutional challenge to action taken by the president of the Borough of Staten Island who wrote a billboard company urging it to taken down an anti-gay billboard advertisement posted by Keyword Ministries church. (See prior posting.) SI Live reported on the denial of cert.

U.S. Religious Conservatives Oppose Ratification of Treaty On Gender Discrimination

Conservative leaders, including conservative religious groups, are initiating an effort to prevent U.S. ratification of Convention on the Elimination of All Forms of Discrimination Against Women. The Convention was adopted by the United Nations General Assembly 28 years ago, and 185 countries are a party to it. The United States signed the treaty in 1980, but it has never been ratified by the Senate. BP News reported yesterday that supporters of the treaty have asked Sen. Joseph Biden, chairman of the Senate Foreign Relations Committee, to schedule a vote on the treaty March 8, International Women's Day. Rep. Lynn Woolsey has circulated a letter to members of the House of Representatives seeking support for a non-binding resolution asking the Senate to ratify the Convention.

Now, however, Rep. Chris Smith along with pro-life organizations have circulated their own letters opposing the treaty, arguing that it "will be distorted and used against provisions like parental involvement laws, the ban on barbaric partial-birth abortions and conscience protection for people of faith -- not to mention promoting taxpayer funding for abortion." Opponents are particularly concerned with Article 12 of the Convention that provides: "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning."

Prisoners' Inter-Religious Dialogue Is Not Religious Practice

A Wisconsin federal district court took a novel approach in denying a claim by an atheist prisoner that he should be permitted to form a study group for inmates who designate themselves as atheists, humanists, freethinkers and "other" and inmates who have no religious preference. In Kaufman v. Schneiter, (WD WI, Feb. 15, 2007), the court said:

petitioner is not challenging the prison’s decision to deny atheists the opportunity to meet together to discuss their commonly held religious beliefs. Instead, petitioner alleges that he asked prison officials to authorize a group for inmates of differing religious and philosophical persuasions, including inmates with no religious preference at all, to meet together to discuss their differing ideas. Such an activity is more akin to a debate society meeting than to a group religious practice. Although petitioner might wish to share his atheist beliefs with others (just as a Christian inmate might wish to evangelize his fellow prisoners), prison officials do not violate inmates' free exercise rights when they refuse to permit gathering of inmates of different religious or philosophical persuasions for the purpose of facilitating inter-religious dialogue.

However, the court did permit plaintiff to proceed with his claim that his rights under the First Amendment and RLUIPA were violated when prison officials refused to permit him to order literature about atheism.

New Jersey School Board Prohibits Religious Teaching In Wake of Class Recordings

In Kearny, New Jersey last night, the Kearny Board of Education held a heated meeting focusing on a teacher's religious proselytizing in class-- taped by a student. (See prior posting.) Civil rights groups have offered to represent the student, Matthew LaClair, in court. (New York Times.) WABC reported that the Board of Education yesterday adopted a policy that prohibits teaching of religion in schools. Teacher David Paszkiewicz, though, will keep his job. And the Board has already ruled that students can no longer tape classes unless they first ask for permission.

British Muslim Peer Speaks Out Against Niqab

In Britain, Lord Ahmed of Rotherham, the leading Muslim member of the House of Lords, reversed his prior position and spoke out against Muslim women in Britain wearing the niqab (full-face veil). This Is London reported yesterday that Ahmed, one of the Labour government's main Muslim supporters, said that "the veil is now a mark of separation, segregation and defiance against mainstream British culture." He said it is a "barrier to integration" that invites "harassment" from non-Muslims.

Cert. Denied In NY School Holiday Decorations Case

The U.S. Supreme Court today denied certiorari (order list) in Skoros v. New York (Case No. 06-171). In the case below, the 2nd Circuit last February in a 2-1 decision upheld a New York City Department of Education policy that allows the menorah to be displayed as a symbol of the Jewish holiday of Hanukkah and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but permits only secular symbols, and not a creche or nativity scene, to be displayed as a symbol of Christmas. (See prior postings 1, 2 ). The Supreme Court had the case on its calendar to consider at its conference seven previous times before it finally decided to deny cert. today. (See SCOTUS Blog). Today's AP reports on the case. [Thanks to Richard Watson for the information.]

San Diego Diocese Considering Bankruptcy Filing

The Roman Catholic Diocese of San Diego, California may become the fifth Catholic diocese in the United States to declare bankruptcy in the face of lawsuts over past priest sexual abuse of minors, according to yesterday's San Bernadino Press-Enterprise. In a letter to parishioners distributed Sunday by Bishop Robert Brom, the diocese said that attorneys had been unable to reach a settlement with lawyers for those who claim to have been molested by priests. The letter continued: "Good stewardship demands that settlements not cripple the ability of the church to accomplish its mission and ministries. If this cannot be done through settlement negotiations, the diocese may be forced to file Chapter 11 reorganization in bankruptcy court." A number of the pending suits name the San Bernadino diocese along with that of San Diego. John Manly, an attorney who represents plaintiffs suing both dioceses, says that San Diego's decision may pass more damages off to San Bernadino. He continued: "This is not about money. This is about disclosing information and giving people their day in court."

Ukraine Archives Takes Back Jewish Community's Torah Scrolls

In central Ukraine, the Jewish community of Zhitomir (run by Chabad) has been forced to return their remaining 10 Torah scrolls to the Zhitomir Regional State Archives. JTA yesterday reported that the scrolls originally belonged to synagogues and individuals in Zhitomir, but were confiscated by Nazis during their occupation of Ukraine in World War II or were seized by Communist authorities in anti-religious campaigns. The returned scrolls are among 290 held by the Archives which had loaned 17 of them to the Jewish community. However, in disputes about whether the scrolls had been damaged, the Archives has taken them back. The Jewish community hopes that Ukraine's legislature will enact a restitution law so the Torahs can be reclaimed.

Upcoming Conferences of Interest

On March 20, the Boston College Law & Religion Program will hold its inaugural conference titled Matters of Life and Death: Religion and Law at the Crossroads.

On April 12-13, the West Virgina University College of Law and the American Constitution Society will sponsor a conference titled The Religion Clauses in the 21st Century.

Army Chaplain Discharged During Attempt To Move To Wicca

Today's Washington Post reports on an army chaplain who was ordered out of Iraq and removed from the chaplain corps -- on a technicality-- as he attempted to change his affiliation from a Pentecostal Christian church to a Wiccan Congregation. Donald M. Larsen entered the chaplain corps under the endorsement of the Full Gospel Churches. When that church learned of Larsen's application to change endorsements to the Wiccan Sacred Well Congregation, it quickly pulled his endorsement. The Sacred Well could not step in immediately because it was still awaiting certification as an official endorser. The gap led the Army to pull Larsen's chaplaincy appointment.

The Post reports: "Jim Ammerman, a retired Army colonel who is president and founder of the Chaplaincy of Full Gospel Churches, acknowledges that there is a longstanding agreement among endorsers not to summarily pull the papers of a chaplain who wants to make a valid switch. 'But if it's not a valid thing, all bets are off,' Ammerman says, adding that Wiccans 'run around naked in the woods' and 'draw blood with a dagger' in their ceremonies. 'You can't do that in the military. It's against good order and discipline.'" [Thanks to Prof. Steven Jamar via Religionlaw listserv for the lead.]

President's Day Brings Discussion of First President's Beliefs

Today is President's Day. The occasion has generated at least two interesting articles on the true nature of George Washington's religious beliefs. One by author Peter Lillback for the Philadelphia Evening Bulletin last week argues that scholars have underplayed the extent of Washington's Christian faith. Another by Beliefnet Editor-In-Chief Steven Waldman concludes: "By the definition of Christianity offered by modern-day liberal Christians, Washington would pass muster. He believed in God, attended church, endorsed the golden rule, and valued the behavioral benefits of religion. But for those who define being a Christian as requiring the acceptance of Christ as personal savior and the Bible as God's revelation, Washington, based on what we know, probably was not 'Christian.'" Finally, here is an article from several years ago on Beliefnet discussing the "controversial" religious views of Washington, Jefferson and Lincoln.

By the way, Presidents Day -- placed on the third Monday in February by the Uniform Monday Holiday Act of 1968 that became effective in 1971 (5 USC 6103) -- is still called "Washington's Birthday" in the federal statute. However, as explained by one U.S. Embassy's website: "President Nixon issued a proclamation declaring the holiday as "Presidents' Day" in 1971. President Nixon erroneously believed that a Presidential proclamation on the matter carried the same weight as an Executive Order. Since that change in 1971, the common term has been 'Presidents' Day'."

Here is a Proclamation issued last week by President Bush which, opting for historical accuracy, proclaims February 22 (not today) as the 275th anniversary of George Washington's birth. (It does not mention today's statutory holiday.) Steering away from controversy, the Proclamation-- in describing Washington's accomplishments-- says nothing about Washington's religious faith or beliefs.

State Reps Circulate Memo On Supposed Jewish Origins Of Evolutionary Theory

An AP article and one from the New York Times over the weekend discuss a memorandum from Georgia state Representative Ben Bridges. The memo says that evolution is a myth propagated by the ancient Jewish Pharisees, and that the Big-Bang theory derives from Kabbala (Jewish mysticism). The memo was apparently written by Marshall Hall, president of the Fair Education Foundation, who says that Bridges consented to his writing it and sending it out in Bridge's name. The memo was distributed to key legislators in California and Texas. In turn, Texas Rep. Warren Chisum, chairman of the state's House Appropriations Committee, sent the memo to all 149 other representatives in the Texas legislature. After a complaint from the Anti-Defamation League, Chisum has apologized

Recent Prisoner Free Exercise Cases

In Hyde v. Fisher, (ID Ct. App., Feb. 8, 2007), the Idaho Court of Appeals concluded that the trial court had erred in dismissing-- largely on procedural grounds-- a prisoner's federal RLUIPA claim and his state claim under the Free Exercise of Religion Protected Act. The prisoner claimed he had been denied the right to practice his Native American religion. The Court of Appeals temporarily remanded the case, which had gone through a full trial, for the court to enter findings of fact and conclusions of law on the statutory claims.

In Howard v. Epps, 2007 U.S. Dist. LEXIS 9716 (ND MI, Feb. 9, 2007), a federal district judge accepted a federal magistrate judge's recommendations that a Rastafarian prisoner's free exercise and equal protection challenges to prison hair-length policies be dismissed.

In Ashanti v. California Department of Corrections, 2007 U.S. Dist. LEXIS 10612 (ED CA, Feb. 15, 2007), a federal magistrate judge, in a long opinion, recommended granting summary judgment for defendants. The effect of this is to reject claims under the 1st, 8th and 14th Amendments by a prisoner that he is entitled to have his African-Muslim name appear as his only name on California Department of Correction records in connection with his current sentence.

Meanwhile the Associated Press today has coverage of a suit filed by a South Dakota prisoner who is seeking various religious items and privileges in order to be able to practice Asatru.