City Land Swap Challenged As Unconstitutional

In Coeur d'Alene, Idaho, a proposed land swap between the city and the Salvation Army is being criticized as unconstitutional by Americans United for Separation of Church and State. The Coeur d'Alene Spokesman Review today reports that the swap will be carried out through the city's Parks Foundation. Land valued at $1 million will be given to the Salvation Army in exchange for a different parcel of nearly equal value. The Salvation Army will use the land to construct a $30 million community center that will house athletic facilities and a 400-seat chapel. The city will also spend $3 million to prepare the land for construction.

Pressure For Evolution, Creationism In Curriculum Continues

Controversy on the teaching of evolution-- or its alternatives-- in public schools continues. In Idaho, science teachers have approved a policy that favors teaching evolution as understood by the scientific community. Fox12 News reported yesterday that the Idaho Science Teachers Association is now officially on record against teaching intelligent design in the science classroom.

Meanwhile, the Associated Press on Tuesday reported on a fascinating resolution aimed at placing the Tennessee state education commissioner on the spot. State Sen. Raymond Finney has introduced SR 17 in the Tennessee state Senate. The resolution is worth being quoted at length:

BE IT RESOLVED ... that the commissioner of the department of education ... is hereby respectfully requested by this body to respond to the following questions:

(1) Is the Universe and all that is within it, including human beings, created through purposeful, intelligent design by a Supreme Being, that is a Creator?

Understand that this question does not ask that the Creator be given a name. To name the Creator is a matter of faith. The question simply asks whether the Universe has been created or has merely happened by random, unplanned, and purposeless occurrences.

Further understand that this question asks that the latest advances in multiple scientific disciplines –such as physics, astronomy, molecular biology, DNA studies, physiology, paleontology, mathematics, and statistics – be considered, rather than relying solely on descriptive and hypothetical suppositions.

If the answer to Question 1 is “Yes,” please answer Question 2:
(2) Since the Universe, including human beings, is created by a Supreme Being (a Creator), why is creationism not taught in Tennessee public schools?

If the answer to Question 1 is "This question cannot be proved or disproved," please answer Question 3:

(3) Since it cannot be determined whether the Universe, including human beings, is created by a Supreme Being (a Creator), why is creationism not taught as an alternative concept, explanation, or theory, along with the theory of evolution in Tennessee public schools?

If the answer to Question 1 is "No" please accept the General Assembly’s admiration for being able to decide conclusively a question that has long perplexed and occupied the attention of scientists, philosophers, theologians, educators, and others....

Bill sponsor, Sen. Finney, a retired physician, lives some 60 miles from the town of Dayton, TN where the famous 1925 Tennessee Scopes Monkey Trial was held.

Montana Senate Keeps Child Health Contraceptive Payments Ban

The Great Falls Tribune reports that on Tuesday the Montana state Senate approved Senate Bill 500 by a vote of 25-24. However, a day later the result was reversed when, on its third reading, the vote was 25- to 25. The bill would have removed a ban on payment for contraceptives by the Children's Health Insurance Program. The program provides medical insurance to children from low income families. State Sen. Roy Brown illustrates the opposition: "This is going to take general fund dollars and put it in a program that to some portion of our society is against their religion."

Iran Universities Continue Discrimination Against Baha'is

The Baha'i World News Service yesterday reported that Baha'is in Iran continue to suffer discrimination in higher education. Last fall, the government removed a question about the applicant's religion from entrance examination papers, and for the first time in 25 years, a significant number of Baha'i students were admitted to Iranian universities. But now, at least 70 of the 178 who were admitted have been expelled as their religion becomes known. Baha'is are the largest religious minority in Iran, but have faced systematic discrimination since the 1979 Islamic revolution.

Worcester City Council Backs Invocations

Yesterday's Worcester (MA) Telegram & Gazette reported that Worcester City Council voted 6-5 to block Mayor Konstantina B. Lukes from seeking a legal opinion from the city solicitor on the legality of opening Council meetings with sectarian invocations. The issue was raised after Council's Dec. 5 meeting at which a local minister led an invocation that included "remember what Christmas is all about – it's about Jesus, in whose name we pray". That prayer led the Massachusetts Chapter of Americans United for Separation of Church and State to request that invocations be eliminated entirely from Council meetings.

Religious Objection-- Among Others-- Raised To Ohio's New Smoking Ban

The Ohio Department of Health yesterday held hearings on proposed rules to implement a state-wide indoor smoking ban in businesses and other public places that was approved by Ohio voters last November. Today's Columbus Dispatch reports that among the many vociferous opponents of the ban was one Native American woman who said the proposed rules would violate her First Amendment right to freedom of religion because she uses tobacco in spiritual rituals.

SCOTUS Hears Arguments Today On Taxpayer Standing To Challenge Faith-Based Inititative

Today, the U.S. Supreme Court hears oral arguments in Hein v. Freedom From Religion Foundation, raising the question of whether taxpayers have standing to bring an Establishment Clause challenge to expenditures and activities of President Bush's Office of Faith-Based and Community Initiatives. The 7th Circuit said they did. (See prior postings: 1, 2 .) Detailed background on the case can be found in a posting at The Roundtable, written by Professors Ira Lupu and Robert Tuttle. An editorial in today's New York Times urges the Supreme Court to affirm the 7th Circuit's grant of standing.

UPDATE: The Los Angeles Times has an account of today's oral arguments in the case.

UPDATE: The full transcript of today's oral arguments in the Hein case is now available online.

UPDATE: Dahlia Lithwick at Slate has a particularly interesting account of the oral argument.

LA Trial of Temple 420 Leader On Marijuana Charges Starts Friday

The Daily News of Los Angeles earlier this week reported on Friday's upcoming trial for possessing and transporting marijuana of Rev. Craig X Rubin who runs Temple 420. (See prior posting.) The Temple considers marijuana a sacrament, and Rubin distributes it six days each week to more than 400 Temple members, each of whom has paid a $100 initiation fee. Members are asked to donate $60 for each one-eighth ounce of marijuana they receive. Rubin claims that their activities are protected by the Free Exercise clause. The Daily News says: "Temple 420's tenets stem from Rubin's Jewish childhood, conversion to Christianity and experience taking peyote in American-Indian sweat lodges. A pro-pot Republican partial to dark suits and red ties, Rubin hangs the American flag behind his podium and gushes about Ronald Reagan."

Opinion Rejects Free Exercise Challenge To Teaching Children Respect For Gay Couples

Lexis has now made available the court's opinion in Parker v. Hurley, 2007 U.S. Dist. LEXIS 12751 (D MA, Feb. 23, 2007), a case that rejects Free Exercise, privacy and substantive due process claims by parents who were opposed to a Lexington, Massachusetts school's use in kindergarten of books that portray homosexual couples in a positive manner. (See prior posting.) Parents who sued believed that homosexuality is immoral. Following First Circuit precedent, the court held that "the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent's religious beliefs do not violate their First Amendment right to exercise their religion." The court found that schools have a reasonable basis for teaching young children to respect differences in sexual orientation.

Property Ownership In Michigan Church Split Is Before State Court

Sunday's Grand Rapids, Michigan Press carried a story about a case scheduled for trial yesterday in state court involving the question of who owns the property of the Lamont, Michigan Christian Reformed Church. The battle is between those congregants who remained loyal to the parent body and local members who formed a new church-- allegedly a majority of the congregation-- after their pastor was defrocked by the parent body. At issue in the case is whether the Christian Reformed Church follows an hierarchical structure as to property disputes as well as to doctrine. If the judge finds it does, under settled First Amendment precedent he will leave determination of the property dispute to a church body. The dispute has begun its way through the Christian Reformed Church's decision making procedures, with a regional body already ruling in favor of those who remained loyal to the parent group. [Thanks to Brian D. Wassom for the lead.]

Judge Excludes Religious Appeal In Closing Arguments

Monday's Philadelphia, Mississippi Evening Bulletin reported on a fascinating ruling made by Mississippi federal district court judge Michael P. Mills. Trial attorney Jim Waide represents a police officer in a suit in which the officer claims he was fired because he criticized the Grenada, Mississippi police chief. Attorney Waide is known for appealing to jurors' religious beliefs in his closing arguments. For example, he has been known to ask the jury to consider "what would Jesus do?". At the request of attorney Gary Friedman, representing defendants, the judge has issued an order prohibiting either attorney from making religious references "in such a manner as can reasonably be construed to indicate that the jury should consider the teachings of or beliefs of the deity or any religious references in addition to or to the exclusion of the law." Friedman argued that counsel should not be put in the position of having to object to religious references in front of the jury.In explaining his order, Judge Mills wrote: "Religious values should not be used for temporal or adversarial gain or to invoke sectarian prejudice or bias. Such tactics have no utility in an unbiased search for the truth and as such are improper in the courtroom." Needless to say, attorney Waide does not agree, arguing that the nation's Christian heritage and the law are intertwined.

Serbia Guilty of Not Preventing Genocide of Muslims, But Not Guilty of Comitting Genocide

The New York Times reports that yesterday the International Court of Justice in The Hague issued a decision in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, (Summary of Judgment). In the case, Bosnia had sued Serbia civilly for committing genocide in the massacre of Bosnian Muslims at Srebrenica in 1995. The court found that Serbia was not guilty of committing genocide, but that it did violate its obligation to prevent genocide. It found that Serbia also violated its treaty obligations when it failed to transfer Ratko Mladić to the International Criminal Tribunal for the Former Yugoslavia. Details of the decision are discussed in ICJ Press Release 2007/8.

Cert. Denied In Challenge To Polygamy Laws

Yesterday the U.S. Supreme Court denied certiorari (Order List) in Holm v. Utah (Case No. 06-535). Petitioners had asked the court to review a decision of the Utah Supreme Court that upheld the constitutionality of Utah's polygamy laws. Petitioners argued that the right to privacy precludes states from regulating intimate relationships that occur outside of marriage. (See prior posting.)

French Supreme Court Finds Humorist's Remarks Were Anti-Semitic

France's Supreme Court of Appeal has reversed a decision of the Versailles Court of Appeal that had exonerated humorist Dieudonné M’Bala M’Bala of making a public racial insult against the Jewish community. Yesterday's European Jewish Press reports that the Supreme Court found that Dieudonné's words-- published in 2002 --were "clearly anti-Semitic". It rejected the lower court's holding that Dieudonne's remarks were not aimed at Jews, but instead at the influence of religion.

Quebec Soccer League Prohibits Wearing Hijab In Games

One of the rules of the Quebec Soccer Federation prohibits players from wearing headgear during the game. Yesterday's Winnipeg Free Press reports that last Sunday, an 11-year old Muslim girl was told by the referee that she must remove her hijab (head scarf) if she wanted to play in a tournament being held near Laval. The action, taken by a Muslim referee, has provoked controversy, with some arguing that it is another example of inadequate accommodation of individuals' religious practices. The Muslim Council of Montreal urged Quebec to follow the lead of the Ontario Soccer Association that allows players to wear religious clothing on the field.

New Religious Liberty & Church-State Articles

From SSRN:
Camil Ungureanu, The Relation Between Democracy and Religion: Towards a European Discursive “Model”?, (December 2006).

Thomas Charles Berg, Can Religious Liberty be Protected as Equality?, Texas Law Review, Vol. 85, No. 5, April 2007

From SmartCILP:
Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and Religion, 71 Brooklyn Law Review 61-123 (2006).

Patrick M. Garry, A Congressional Attempt to Alleviate the Uncertainty of the Court's Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 Cumberland Law Review 1-23 (2006-2007).

Andrew Koppelman, You Can't Hurry Love: Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions, 71 Brooklyn Law Review (2006).

Winnifred Fallers Sullivan, John Randolph Tucker Lecture: Comparing Religions, Legally, 63 Washington & Lee Law Review 913-928 (2006).

Steven K. Green, "Bad History": The Lure of History in Establishment Clause Adjudication, 81 Notre Dame L.aw Review, 1717-1754 (2006).

Marci A. Hamilton & Rachel Steamer, The Religious Origins of Disestablishment Principles, 81 Notre Dame Law Review 1755-1791 (2006).

Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame Law Review 1793-1842 (2006).

NJ Rescue Mission Ordered To End Drug & Alcohol Treatment

In Asbury Park, New Jersey, the Market Street Mission, a gospel rescue mission seeking to operate a homeless shelter, was ordered last Thursday by the state Department of Social Services to stop providing alcohol and drug abuse treatment because the Mission has not obtained a permit. Yesterday's Asbury Park press reported on the new development. The battle between the Mission and local residents has been back and forth between the courts and the zoning board since 2005. The Mission believes its right to the free exercise of religion means it does not need a license. Asbury Park residents believe that the Mission will bring more homeless, unemployed people to the city and that the Mission does not properly screen its residents. In addition, Asbury Park is a city that was largely revitalized by a gay community, while the Mission believes that gays and lesbians require treatment for a sexual addiction.

Recent Prisoner Free Excercise Cases

In Searles v. Bruce, (10th Cir., Feb. 15, 2007), the U.S. 10th Circuit Court of Appeals dismissed an appeal for lack of jurisdiction under the "collateral order" doctrine that allows an interlocutory appeal of a denial of qualified immunity only on questions of law. Here a Jewish prisoner claimed prison officials denied him use of tefillin and denied him a meaningful religious observance of the Jewish festival of Sukkot.

In Henderson v. Frank, 2007 U.S. Dist. LEXIS 11064 (WD WI, Feb. 15, 2007), a Wisconsin the court federal district court rejected an Establishment Clause claim brought by a Taoist prisoner. held that a policy that creates seven "umbrella religions" under which all other religions fall, is merely a system to manage the many faith traditions and does not give any particular benefit to some religions that is denied to others. It also held that the prison's refusal to purchase Taosit religious texts for the prisoner failed to raise a Free Exercise claim.

Maine Bill Would Separate Clergy's Role In Marriages From Legal Recognition

A bill has been introduced into the Maine legislature that would separate the religious role of clergy in performing marriage ceremonies from the legal recognition of marriage. The bill, LD 779, titled An Act to Remove Clergy as Signatories on Marriage Licenses, was introduced by a legislator on behalf of Rev. Mark Rustin, a Congregationalist minister, who says that he does not want to be an agent for the state of Maine. The bill calls for the legal aspect of the marriage contract to be carried out by lawyers, justices, judges or notaries. Today's Village Soup Times reports that Rev. Rustin is concerned that the present role of clergy places them in a difficult position when they need help a couple get through a divorce. Also, he said, that sometimes older couples want the clergy’s blessing to live together, but do not want a legal marriage contract because they will then lose Social Security benefits. Some people think the bill will also impact the issue of same-sex marriages.

Challenge To Sale of Boston Land To Mosque Dismissed As Untimely

In Boston, a Superior Court judge has dismissed a lawsuit challenging on Establishment Clause grounds the sale of a parcel of land by the Boston Redevelopment Authority to the Islamic Society of Boston. The land was sold at a price well below its appraised value. Today's Boston Globe reports that the court held the appeal of the BRA's decision to be untimely. The judge found that the plaintiff was bound by the requirement that BRA decisions be appealed within 30 days. of the sale of the land. (See prior related posting.)