California Supreme Court Upholds Conduit Financing For Religious Schools

Yesterday in a 4-3 decision, California's Supreme Court upheld the governmentally-sponsored conduit financing of campus improvements at three pervasively-sectarian religious schools. Under the arrangement, state and local governments expend no public funds, but Community Development Authorities act as issuers of tax-exempt bonds to permit the schools to finance construction at lower interest rates than they would otherwise have to pay.

In California Statewide Communities Development Authority v. All Persons Interested In the Matter of the Validity of a Purchase Agreement, (CA Sup. Ct., March 5, 2007), a majority of the court held that the arrangement did not violate either California's Constitution (Art. XVI, Sec. 5) that bars state support for any school controlled by a sectarian denomination; nor does it violate the First Amendment.

The majority held that financing would be valid if it met 4 tests: it must serve the public interest and provide no more than an incidental benefit to religion; it must be equally available to secular and sectarian institutions; the program must prohibit use of bond proceeds for "religious projects"; and the program must not impose any financial burden on the government. The court went on to hold that the first of these tests would be met so long as the school provides a broad curriculum in secular subjects, and remanded the case to the trial court for it to determine whether the schools offer a sufficiently broad variety of secular courses.

The dissent argued that California's Constitution prohibits the state from acting as a fundraiser for schools. The Associated Press yesterday reported on the court's decision. [Thanks to How Appealing for my updated link to the opinion.]

Parliamentary Committee On Religious Freedom and Britain's Sexual Orientation Regulations

Last week, Britain's Joint House of Lords/ House of Commons Committee on Human Rights issued its report, Legislative Scrutiny: Sexual Orientation Regulations. Among other things, the report examines the impact on freedom of religion of anti-discrimination regulations already in effect in Northern Ireland, and those that will go into effect next month in the rest of Britain.
It says that in order to protect freedom of conscience, religion and belief, exemptions should assure that no one will be required to perform same-sex marriages, admit homosexuals to their religious organizations, or allow them to join in their activities or use their premises if this would violate their religious belief. It recommends that the new Regulations for Great Britain contain a narrow definition of harassment on the basis of sexual orientation in order to avoid incompatibility with freedom of speech religion and belief.

The report also recommended that there be no exemption for government-supported faith schools from the regulations that prohibit discrimination on the basis of sexual orientation. It says:

Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong. [This] would not prevent pupils from being taught as part of their religious education the fact that certain religions view homosexuality as sinful. In our view there is an important difference between this factual information being imparted in a descriptive way as part of a wide-ranging syllabus about different religions, and a curriculum which teaches a particular religion’s doctrinal beliefs as if they were objectively true. The latter is likely to lead to unjustifiable discrimination against homosexual pupils.

LifeSiteNews yesterday reports on reactions to the Joint Committee's report.

Indiana Hate Crimes Bill Dies In Legislature

Last week, a proposed hate crimes bill in the Indiana legislature (HB 1459) died under pressure from conservative Christians who opposed giving special protection on the basis of sexual orientation or gender identity. The bill would have permitted victims of a criminal offense to bring a civil action to recover damages if the person who committed the offense knowingly or intentionally selected the victim because of the victim's color, creed, disability, national origin, race, religion, sexual orientation, gender identity, or sex. Also, targeting individuals on these bases would have been an aggravating circumstance in sentencing for a crime. Indiana is only one of five states without a hate crimes law.

The American Family Association of Indiana pushed a grassroots campaign that resulted in many e-mails to legislators from those opposed to the law. Then Rep. Jackie Walorski proposed an amendment that would have made the hate crimes law apply to a fetus. Democrats who control the House of Representatives decided to shelve the legislation in order to avoid a divisive debate on abortion. These developments were reported by WDC Media and by 365Gay.com.

US Supreme Court Dismisses School T-Shirt Case As Moot In Complex Procedural Move

Today the U.S. Supreme court engaged in a complex procedural maneuver in Tyler Harper v. Poway School District (Case No. 06-595). Last April, in a 2-1 decision, the U.S. 9th Circuit Court of Appeals refused to issue a preliminary injunction in a challenge by a student to Poway High School’s banning of his wearing a T-shirt condemning homosexuality in religious terms. (See prior posting). In October, a petition for cert was filed. (See prior posting). However, these proceedings did not finally decide the question of whether a permanent injunction should issue, and whether requested declaratory relief and damages should be awarded. Subsequently, in January, as cross motions for summary judgment were pending, the district court dismissed the claims brought by Tyler Harper as moot because he has graduated. It also rejected the First Amendment and state law challenges to the Poway, California school's hate behavior policies brought by Tyler's sister, Kelsie Harper, who had been added to the case through an amended complaint. (See prior posting).

Today the U.S. Supreme Court granted the writ of certiorari in the preliminary injunction proceedings, but without further briefing or argument vacated the lower court judgment and remanded the case to the 9th Circuit with instructions to dismiss Tyler Harper's appeal as moot. The Supreme Court also rejected the motion by Tyler Harper’s sister, Kelsie Harper, to intervene at the Supreme Court level in order to prevent the case from being moot. Her claims, however, are still pending on appeal in the lower courts.

En Banc Rehearing Sought In 7th Circuit In Campus Preaching Case

Last week, a petition for rehearing en banc was filed with the U.S. 7th Circuit Court of Appeals in Gilles v. Blanchard. (ADF Press Release.) The 3-judge panel in the case had upheld the refusal of a state university-- Indiana's Vincennes University-- to permit a traveling campus evangelist from preaching uninvited in the center of campus. (See prior posting).

Recent Prisoner Free Exercise Cases

In Holley v. California Department of Corrections, 2007 U.S. Dist. LEXIS 12683 (ED CA, Feb. 23, 2007), a California federal district court dismissed a prisoner's RLUIPA and Equal Protection claims, finding that defendants are entitled to qualified immunity. Plaintiff had claimed that he should be allowed to grow his hair for religious reasons despite prison grooming requirements.

In Fisher v. Virginia Department of Corrections, 2007 U.S. Dist. LEXIS 13063 (WD VA, Feb. 23, 2007), a Virginia federal Magistrate Judge recommended that certain of defendants' summary judgment motions be denied and that a prisoner be permitted to proceed with various of his First and Fourteenth Amendment and RLUIPA claims asserting that prison officials would not allow him to possess a "Thor's Hammer" pendant, central to his practice of Asatru, even though they allowed inmates of other religions to possess religious medallions. -- UPDATE: On March 15, the court adopted the Magistrate's report and recommendation, 2007 U.S. Dist. LEXIS 18270.

In Rose v. Snyder, 2007 U.S. Dist. LEXIS 13342 (SD IL, Feb. 27, 2007), an Illinois federal district judge approved the recommendations of Magistrate Judge denying the claims of a Rastafarian prisoner that he should be permitted to wear dreadlocks in violation of prison grooming rules.

In Abdullah v. Frank, 2007 U.S. Dist. LEXIS 13215 (ED WI, Feb. 26, 2007), a Wisconsin federal district court denied a motion for summary judgment by a Sunni Muslim prisoner who claimed that his rights under RLUIPA and the free exercise clause were infringed when he was denied the right to possess a turban/Kifiyyah, a Thawb and a silver ring in order to carry out the practices of his religion. The court found that questions of fact remained as to whether plaintiff's religious practices had been substantially burdened and whether prison officials acted in an intentionally discriminatory manner.

In Judd v. Adams, 2007 U.S. Dist. LEXIS 14502 (ED CA, Feb. 20, 2007), involved a claim by a prisoner who was an adherent of the Asatru/Odinist faith that he had difficulties in getting permission to keep a Thor's hammer medallion and alter cloth. A California federal Magistrate Judge dismissed the claims, but gave the prisoner the right to file amended complaints as to his First Amendment and RLUIPA claims.

In State of Ohio v. Whitaker, (OH Ct. App., march 2, 2007), an Ohio appellate court vacated the imposition of a 12-month prison sentence on Troy Whitaker, an adherent of a Native American religion, after he violated his community control by being unsuccessfully discharged from an alcohol residential treatment facility. Whhitaker had refused to cut his hair in violation of the program's grooming requirements. The court found that the state had not shown that forcing Whitaker to cut his hair is the least restrictive means to enforce any compelling interest the state has. It also held that Whitaker did not have to prove his Native American heritage to assert his claim.

Settlement Reached In Religious Expression Suit Against NC High School

Alliance Defense Fund announced last week that it has reached a settlement agreement with the Sampson County North Carolina Board of Education in a suit challenging a student's suspension for distributing materials outside of class as part of a nationwide "Day of Truth". The Day focuses on Christian beliefs that oppose homosexuality. In November, a North Carolina federal district court had issued a temporary injunction against Midway High School's policies on distribution of materials. (See prior posting.) In the settlement agreement, the school confirmed it had changed its policies in response to the temporary injunction and agreed to permit religious speech in the future. It also acknowledged that religious T-shirts are permitted at school and expunged the wrongful suspension from the record of student Benjamin Arthurs.

Many New Scholarly Articles Of Interest

From SSRN:
Michael J. Gerhardt, Why the Catholic Majority on the Supreme Court May Be Unconstitutional, University of St. Thomas Law Journal, Vol. 4, 2007 .

Kinari Patel, The Constitutional Paradox Posed by Permitting Polygamy in India, (February 24, 2007).

Perry Dane, Separation Anxiety: A Review Essay on Noah Feldman's "Divided By God", (Journal of Law and Religion, Forthcoming).

Ryan Benjamin Witte, I'm the Mommy, That's Why: A Minor's Right to Free Exercise when it Conflicts With a Parent's Hybrid Right Under Smith.

Nathan B. Oman, "United States v. Reynolds" , ENCYCLOPEDIA OF MORMON HISTORY, Paul Reeve & Ardis Parshall, eds. (ABC-Clio, Forthcoming).

From Bepress:
Gregory A. Kalscheur , S.J., Catholics in Public Life: Judges, Legislators, and Voters, (February 26, 2007).

Cyra Akila Choudhury, (Mis)Appropriated Liberty: Identity, Gender Justice, and Muslim Personal Law Reform in India, (2007).

From SmartCILP:
Vaughn E. James, The African-American Church, Political Activity, and Tax Exemption, 37 Seton Hall Law Review 371-412 (2007).

Symposium: End of Life Decision Making: The Right to Die? Articles by Steven H. Aden, Kathleen M. Boozang, Lois Shepherd, Wendy E. Parmet, Edward James Furton, Mark C. Rahdert, Corrine Parver, Joseph B. Straton, M.D. and Max Lapertosa. 15 Temple Political & Civil Rights Law Review 323-500 (2006).

Symposium: Religion, Division, and the Constitution. Introduction by Richard W. Garnett; articles by Lawrence B. Solum, Frederick Mark Gedicks, Stephen M. Feldman, David E. Campbell and Paul Horwitz. 15 William & Mary Bill of Rights Journal 1-146 (2006).

Symposium: Religion in the Public Schools. Articles by Steven G. Gey, Laura S. Underkuffler, Arnold H. Loewy, Jay D. Wexler, Richard B. Katskee, Luke Meier and Anthony R. Picarello, Jr. 5 First Amendment Law Review 1-200 (2006).

Temple Replica Found To Violate Zoning Code

In Matter of Winston v Town of Bedford, Zoning Board of Appeals, (S.Ct., Westchester Co., Feb. 27, 2007), a New York state trial court upheld a decision of a zoning board that found a replica of an 8th century Mayan Temple in a couple's back yard violates Bedford, New York's zoning code. The court rejected a claim that the zoning decision violates the couple's free exercise rights and RLUIPA, finding that the property owners could have built the replica elsewhere on their 13-acre estate and have been in compliance with the zoning code's setback requirements. The court also rejected the owners' claim that the replica was not a "structure" as that term is used in the zoning provisions. Friday's New York Journal News reports on the decision, pointing out that the property owners are an heir to the Harry Winston jewelry fortune and his wife.

Michigan Limit On Prisoner Suits Held Unconstitutional

Yesterday's Lansing State Journal calls attention to a January federal court decision that restores Michigan prisoners' rights to litigate free exercise claims. In Mason v. Granholm, 2007 U.S. Dist. LEXIS 4579 (ED MI, Jan. 23, 2007), the court struck down a provision that excludes prisoners from coverage under the Michigan Elliott-Larsen Civil Rights Act. The Act protects against religious (as well as other types) of discrimination in furnishing of public services. However in 2000, the Michigan legislature amended the law to provide that "public service does not include a state or county correctional facility with respect to actions and decisions regarding an individual serving a sentence of imprisonment". The court held that the amendment violates prisoners' right to equal protection of the laws. It concluded that "the state legislature has not attempted to deter frivolous lawsuits, but rather preclude meritorious ones."

International Body Upholds Soccer Hijab Ban

The International Football Association Board meeting Saturday in Britain has upheld a ruling by a Canadian soccer referee that a Muslim girl could not wear her hijab while playing in a championship game. (See prior posting.) Today's Toronto Star reports that the international group decided that it is up to the referee to decide whether the girl's headscarf violated Law 4 that provides a player "must not use equipment or wear anything that is dangerous to himself or another player (including any kind of jewellery)." The Muslim girl's team withdrew from the championship games last Sunday in protest of the ruling.

Jordan Journalists Oppose Proposed Law Against Villifying Religion

The Jordan Press Association yesterday passed a resolution opposing a proposed new press and publication law that would allow imprisonment of journalists for "defamation, vilification or abuse of religion". Today's Kahleej Times reports that the lower house of Jordan's Parliament is currently considering the proposed bill.

Saudi Virtue Commission Offical Defends Its Work

Arab News today reports on an interview with the director of the Madinah branch of Saudi Arabia's Commission for the Promotion of Virtue and the Prevention of Vice. Sheikh Suleyman Tuwaijri outlined five roles for the Commission: preventing "the growth of deeds and ideologies that pollute the pristine Islamic religious faith"..., "maintaining the practice of religious rites in society"..., "maintaining a sense of morality among people and protecting the honor of women by protecting them from being violated or harassed..., protecting the sanity and soundness of the human mind and intellect by preventing the manufacture and circulation of narcotics and intoxicants..., [and] protecting the cultural and ideological identity of society by [keeping] ... deviant ... publications ... and material from the reach of the public."

Tuwaijri rejected the allegation that the Commission denies women their rights. He said that the Commission "strongly intervenes when men try to harass [women] or tempts them to gratify their undignified impulses. The commission gives utmost importance to protect women’s rights and freedom that are accorded to them by the Shariah." He added, however that there are some things, which "are mistakenly claimed to be part of women’s freedom such as the immodest exhibition of their body and some other activities considered beyond the permissible limits of moral regulations fixed by Saudi society and the Shariah." He said that these "are in fact violations of the rights of other members of society who want to live in a morally chaste and unpolluted environment."

Suspended Christian Group Sues Georgia College

A college Christian outreach group, Commissioned II Love (C2L), has filed suit (text of complaint) in a Georgia federal court against Savannah State University claiming that the University violated the group's rights of speech, assembly, association and religion when it revoked its official recognition as a student organization for violating University rules. (Press release by ADF and NLF.) The University alleges that the group engaged in hazing, particularly by badgering members of fraternities and sororities. C2L claims that Greek letter groups violate Christian principles because they are founded on occult traditions, and generally encourage excessive drinking and premarital sex. It encourages students not to join Greek letter organizations or to deactivate if they are already members. The University also charged C2L with hazing because of its practice of having current members wash the feet of new members, as a symbol of Jesus' washing of his apostles' feet.

Proposal Would Amend Missouri Constitution to Permit School Prayer

HJR 19 has been introduced in the Missouri General Assembly. It proposes a state constitutional amendment that would "ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive nor in violation of other policies, rules, or standards, and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances". The proposed amendment also requires "that all free public schools receiving state appropriations ... display, in a conspicuous and legible manner, the text of the First Amendment of the Constitution of the United States".

Last Wednesday, the House Special Committee on General Laws heard testimony on the proposal. Saturday's issue of The Maneater reports that at the hearings, Rep. Beth Low argued that the amendment is unnecessary and would not accomplish its goals.

British Magistrate Denied Right To Opt Out Of Gay Adoption Cases

In Britain, the city of Sheffield’s Employment Tribunal has rejected a religious discrimination claim by a Justice of the Peace sitting as a magistrate in the Sheffield Magistrates' Court . The magistrate claimed that his Christian religious beliefs were violated when he was not permitted to opt out of overseeing cases involving adoptions by same-sex couples. The Employment Tribunal's decision prevents Magistrate Andrew McClintock from serving on the Family Panel, whose jurisdiction includes adoptions. BosNewsLife reported Saturday that the Tribunal ruled that "personal opinions" needed to be set aside in exercising the functions of public office. The Evangelical Alliance disagreed with the ruling, saying the case has to do with the need to make reasonable accommodation to religious conscience. Journal Chritien has additional background on the case.

California Christian School Loses RLUIPA Claim

On Friday, a jury in a California federal court ruled that Alameda County (CA) did not violate the Religious Land Use and Institutionalized Persons Act when it denied Redwood Christian Schools a permit to construct a new building. The San Francisco Chronicle says that the jury—after nearly a week of deliberations—decided that the county rejected the school’s request because of the need to keep land for agricultural use and open spaces. The jury rejected a claim that an earlier grant of a permit to a private non-religious school showed discrimination against Redwood. The non-religious school was building in an already developed area and was constructing a smaller building. Redwood Christian plans an appeal.

Anti-Jewish Remark Forces Candidate Out Of Mayoral Race

The Indiana Republican Party has asked Bob Parker not to file as a candidate for mayor of Indianapolis after Parker made a statement that was seen as reinforcing stereotyping of Jews. JTA reports today that Parker said: "I personally see Israel going into Iran and Syria in the next couple of months... It’s mainly because of the Jewish faction inside the Democratic Party. Most Jewish people are Democrats, and they bring that wealth."

Azeri Journalists On Trial For Insulting Muhammad

Interfax reported yesterday that a criminal trial of two journalists accused of insulting the Prophet Muhammad has begun in a court in Azerbaijan. The editor and a correspondent for Semet were charged with spreading ethnic, racial or religious hatred by publishing an article that allegedly insulted Islam.

UPDATE: The International Herald Tribune reported on Monday that the trial has been postponed as the court ordered a change of venue to the district where the newspaper offices are located instead of where the defendants live.

Kuwait Will Drop Religious Freedom From High School Curriculum

MEMRI today reports that Kuwait's education ministry plans to remove teaching about Article 18 of the Universal Declaration of Human Rights in the high school curriculum. Provision, which guarantees freedom of religion, including the right to change one's religion, is seen as contrary to Islamic law. In response, Kuwaiti reformist and intellectual Dr. Ahmad Al-Baghdadi has published two articles critical of Arab education and the mixing of religion into the teaching of secular subjects.