Texas Supreme Court Rejects Professional Negligence Suit Against Pastor

In Westbrook v. Penley, (TX Sup. Ct., June 29, 2007), the Texas Supreme Court held that it "would unconstitutionally entangle the court in matters of church governance and impinge on the core religious function of church discipline" if it were to take jurisdiction over a suit in which a congregant charged her pastor with improperly disclosing confidential information received during a secular counselling session to church elders. Pastor "Buddy" Westbrook, Jr. and church elders then sent a letter to congregants telling them that they should "break fellowship" with Peggy Lee Penley because she intended to divorce her husband without any Biblical basis for the divorce and she had a "biblically inappropriate" relationship with another man. The court concluded that "the secular confidentiality interest Penley's professional-negligence claim advances fails to override the strong constitutional presumption that favors preserving the church's interest in managing its affairs." It explained that imposing civil liability on the pastor for professional negligence "would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required...."

California Court Restrains Radical From Going Near Mosque

An Orange County, California judge has issued a restraining order sought by members of Irvine's Islamic Center. The order prevents Craig Monteilh from going near the mosque or its employees. Yesterday's Los Angeles Times reports that mosque members became concerned after Monteilh, a recent convert to Islam, began discussing jihad and said he wanted to get involved in a terrorist operation. Some worshippers have stopped attending because of Monteilh's presence. The Islamic Center has charged that the FBI has it under surveillance, but the FBI denies this.

Alabama Governor Proclaims "Days of Prayer for Rain"

Alabama Governor Bob Riley last Thursday issued a formal Proclamation (full text and press release) setting the week of June 30 to July 7 as "Days of Prayer For Rain". The Florence (AL) Times Daily reports that Riley was responding to a once-in-50-years drought in northern Alabama. The Proclamation encourages "all Alabamians to pray individually and within their houses of worship for sufficient rain". The Governor's press release quotes Don Wambles, Director of the Alabama Farmers Market Authority, a state agency, who said: "We need God’s forgiveness and our land needs His healing."

Court OK's School's Ending Of Mohawk Thanksgiving Address Over PA System

In New York state, parents of Mohawk Indian children last week lost their equal protection challenge to a decision by the Salmon River School District to end the practice of reciting the Mohawk Thanksgiving Address (in the Mohawk language) over a school's public address system and at other school events. In Jock v. Ransom, (ND NY, June 28, 2007), a New York federal district court held that school officials were justified in relying on advice of their attorneys that the Address might be considered a religious prayer and its recitation might be seen as violating the Establishment Clause. The court concluded that plaintiffs had not proven purposeful discrimination by school officials, particularly since it now allowed students to voluntarily go to the gymnasium twice a week to recite the Address an permitted its recitation in the cafeteria where students lined up before graduation.

This week's New York Law Journal reports on the decision, pointing out that two-thirds of the school district's students are American Indians and that the recitation of the Address was originally an attempt to raise awareness among non-Indian students of Mohawk culture.

Iowa Permits Faith-Based Prison Program To Continue Pending 8th Circuit Decision

Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause. The Des Moines Register yesterday reported that Prison Fellowship will be permitted to operate the program without the state funding it has been receiving, but authorities will be able to shut it down immediately if the 8th Circuit agrees with last year's district court decision invalidating the program. The district court suspended its order while the appeal is pending. Prison officials also said they intend to seek bids for a new "values-based" treatment program at Newton Correctional Facility next year.

Recent Articles of Interest

From SSRN:
Cass R. Sunstein, On the Tension Between Sex Equality and Religious Freedom, (June 2007, U. of Chicago, Public Law Working Paper No. 167).

Ira C. Lupu & Robert W Tuttle, Instruments of Accommodation: The Military Chaplaincy and the Constitution, (West Virginia Law Review, Vol. 110, 2007).

Joshua D. Dunlap, When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception, (82 Notre Dame Law Review 2005 (2007)).

From Bepress:
Patrick McKinley Brennan, The Decreasing Ontological Density of the State in Catholic Social Doctrine, (Villinova Univ. Working Paper Series, 2007).

From SmartCILP:
Tom Lewis, What Not To Wear: Religious Rights, the European Court, and the Margin of Appreciation, 56 International & Comparative Law Quarterly 395-414 (2007).

David Morris Phillips, The Unexplored Option: Jewish Settlements in a Palestinian State, 25 Penn State International Law Review 75-205 (2006).

Reuven (Ruvi) Ziegler, The French "Headscarves Ban": Intolerance or Necessity?, 40 John Marshall Law Review 235-266 (2006).

Colloquium: Religion and Immigration. Articles by Amelia J. Uelmen, Michael Scaperlands, Stephen H. Legomsky, Elizabeth McCormick, Patrick McCormick, Marta Vides Saade, Kathryn A. Lee and Michael J. Churgin. 83 University of Detroit Mercy Law Review 829-953 (2006).

Symposium: Law and Religion. McElroy Lecture by Cass R. Sunstein; articles by Deniz Coskun, Peter Cumper, Peter Edge, Silvio Ferrari, Charles I. Lugosi, Asher Maoz, Kurt Martens, Renata Uitz and Howard J. Vogel. 83 University of Detroit Mercy Law Review 567-827 (2006).

Businessman Challenges Indonesia's Limits On Polygamy

Indonesian law permits polygamy only where a first wife is childless, or terminally ill or unable to fulfill her sexual obligations and where that wife gives her consent. However recently a number of prominent Indonesians, claiming that Islam allows up to four wives, have ignored the legal restrictions. Now, according to the Sydney, Australia Herald, an Indonesian businessman has begun a court challenge to Indonesia's restrictions on polygamy. Muhammad Insa says that his right to religious freedom is being restricted by the Marriage Act (background), and has filed suit in the Constitutional Court challenging the Marriage Office's refusal to permit him to take a second wife without getting his present wife's agreement.

9th Circuit Decides Burden of Proof In Reverse Religious Discrimination Case

In a 9th Circuit case from last month, the court decided on the appropriate burden that a plaintiff must carry to avoid dismissal before trial in a case alleging "reverse" religious discrimination under Title VII. In Noyes v. Kelly Services, (9th Cir., May 29, 2007), a former Kelly Services employee alleged that her supervisor repeatedly favored and promoted his coreligionists-- members of the Fellowship of Friends-- and passed over Noyes for promotion because she was not share those religious beliefs. The court held that once the employer articulated a non-discriminatory reason to explain a prima facie showing of discrimination, the plaintiff needed to come forward with proof that the explanation was a pretext. At the summary judgment stage, plaintiff can raise enough of an issue that the case must go to trial if she presents either direct evidence of discrimination or indirect evidence that undercuts the credibility of the employer's explanation.

Georgia Officials Exclude Muslim Woman Wearing Hijab From Courtroom

In a press release yesterday, the Council on American-Islamic Relations said that security officers at the Valdosta, Georgia Municipal Court refused to allow a Muslim woman to enter the courtroom wearing her hijab (headscarf). The woman decided to plead nolo contendere to her speeding ticket, after being informed that court rules would prevent her from wearing her head covering into the courtroom at any time. Later, through the clerk of courts, Judge Vernita Lee Bender apologized, but apparently said "we have rules that everyone has to follow". CAIR has written Georgia's Attorney General asking him to take appropriate steps to prevent this kind of religious discrimination, which CAIR says violates federal civil rights protections and is inconsistent with the Georgia Code of Judicial Conduct.

Two Plaintiffs Lose Religious Discrimination Suits

Two Title VII employment discrimination decisions alleging religious bias were handed down this week. In Postell v. Greene County Hospital Authority, 2007 U.S. Dist. LEXIS 46593 (MD GA, June 27, 2007), a Georgia federal district court held that a nurse who had been fired had failed to prove religious discrimination, despite a letter from her supervisor that said: "You had an incredible opportunity to shine as a manager and most importantly as a Christian and you failed."

In Nuha Saabiraah El v. City of New York, 2007 U.S. Dist. LEXIS 46443 (SDNY, June 26, 2007), a New York federal district court dismissed on res judicata grounds a claim by a fired employee of the New York Department of Corrections. Plaintiff claimed that her dismissal violated her 1st and 14th Amendment and her statutory rights because the Department of Corrections, in disciplining her, was motivated by the fact that she was associated with the Moorish-American faith-- a group that DOC thought posed security concerns.

Michigan Supreme Court Rejects Church's RLUIPA Claim

On Wednesday, in Greater Bible Way Temple of Jackson v. City of Jackson, (MI Sup. Ct., June 27, 2007), the Michigan Supreme Court rejected a claim by Greater Bible Way Temple that Jackson, Michigan violated the Religious Land Use and Institutionalized Person's Act by refusing to rezone property on which the church wished to build an assisted living apartment complex. In a rather broad-based reversal of the court of appeals (see prior posting), the Supreme Court said:

We conclude that a refusal to rezone does not constitute an "individualized assessment," and, thus, that RLUIPA is inapplicable. Further, even if RLUIPA is applicable, the building of an apartment complex does not constitute a "religious exercise," and even if it does constitute a "religious exercise," the city of Jackson’s refusal to rezone plaintiff's property did not substantially burden plaintiff's religious exercise, and even if it did substantially burden plaintiff's religious exercise, the imposition of that burden is in furtherance of a compelling governmental interest and constitutes the least restrictive means of furthering that interest.

Two justices wrote concurring opinions urging reversal on narrower grounds. Yesterday's Jackson Citizen Patriot reported on the decision. [Thanks to Brian D. Wassom for the lead.]

City Amends Noise Ordinance and Settles Preacher's Challenge to Restrictions

The Jacksonville, Alabama News reported Wednesday that the city of Jacksonville has settled a civil rights lawsuit brought against it by Rev. Wesley Sewell challenging the city's restrictions on use of loudspeakers and its permit ordinance. (See prior posting.) The city will pay Sewell $500 in damages and $9500 in attorneys' fees. The settlement came after the city changed its loudspeaker ordinance to extend from 10 feet to 30 feet the distance sounds can project without violating the anti-noise ordinance.

British Sources Say Tony Blair Will Convert To Cathoicism

Largely overlooked in the U.S. media are reports out of Britain last week that Tony Blair, who has just resigned as Britain's prime minister, will convert to Catholicism. The Guardian is among those papers reporting on Blair's apparent decision. Blair's wife is Catholic and his children have been raised as Catholics. However, he has held off formal conversion apparently for political reasons. While there is not a specific ban on the prime minister being a Catholic, British law does bar the king or queen from becoming Catholic or marrying a Catholic. Christian Today last week reported that Blair's meeting last Saturday with Pope Benedict XVI was in part in preparation for his conversion. Commenting today on Blair's move, Ireland's Southern Star says that the remaining prohibitions on British monarchs embracing Catholicism, which stem from the 1701 Act of Settlement, violate the European Convention on Human Rights, Sec. I, Art. 9. In an interesting aside, the Southern Star article refers to the Old Bailey website that links to records of over 100,000 trials that took place between 1674 and 1834, including "cases of 'notorious papists' who suffered appalling death sentences for offences such as saying mass."

Moldova's President Rejects Parliament's Law On Religious Groups

Itar-Tass reported yesterday that Moldova's President, Vladimir Voronin, has refused to sign a new law on religious faiths passed by Parliament last month. He returned it to parliament for revisions, heeding objections raised by the Moldovan Orthodox archdiocese. Orthodox priests object that the law does not distinguish traditional denominations from newer religions that have multiplied in Moldova in recent years. They also say that the law does not distinguish pseudo-religious and commercial cults from mainstream religions. A long-standing dispute exists over whether the Moldovan Orthodox Church is a legitimate religious group. The Russian Orthodox Church says it is not, but Moldova granted it official recognition in 2002 after a decision of the European Court of Human Rights called for that step to be taken. (Background).

Fired University Chaplain Now Asserts A Title IX Discrimination Claim

After losing her attempt to get the U.S. Supreme Court to review her Title VII gender discrimination claims (see prior posting), former Gannon University chaplain, Lynette Petruska, has asked a federal district judge to permit her to file a claim under Title IX of the 1964 Civil rights Act. That provision requires gender equality by schools that receive federal funding. Petruska's Title VII claim was rejected under the "ministerial exception" doctrine, and at issue will be whether the same exception applies in Title IX cases. Yesterday's Philadelphia Daily News reports that Petruska, a former Catholic nun, is now an attorney in St. Louis.

President Helps Rededicate DC's Islamic Center

Yesterday, President George W. Bush participated in the rededication of Washington, DC's Islamic Center. The rededication took place 50 years after President Eisenhower attended the original dedication of the Center. In his remarks (full text), the President said:

The greatest challenge facing people of conscience is to help the forces of moderation win the great struggle against extremism that is now playing out across the broader Middle East. We've seen the expansion of the concept of religious freedom and individual rights in every region of the world -- except one. In the Middle East, we have seen instead the rise of a group of extremists who seek to use religion as a path to power and a means of domination.

The President also announced that, for the first time, he would appoint a special envoy to the Organization of the Islamic Conference as part of the country's efforts to reach out to Muslim communities around the world. A White House "Fact Sheet" emphasized the opportunity that exists to help forces of moderation oppose radicals who purport to act in the name of Islam.

British Schools Face Problems In Attempt To Serve Halal Lunches

Two local Councils in Britain find themselves in the middle of a dispute in the Islamic community over which bodies are the appropriate certifiers of Halal meat. Schools in the localities have halal meat on their lunch menus, but have recently changed their meat supplier. This Is Lancashire yesterday reported that the Lancashire Council of Mosques has urged parents to have their children select vegetarian options or take their own lunches until the controversy is resolved. The new supplier gets its meat from New Zealand, and the meat is certified by the non-profit Halal Food Authority. Salim Mulla, secretary of the Lancashire Council of Mosques, says they want the meat certified instead by the Halal Monitoring Committee. Lancashire County Council has replaced meat with an alternative option until the situation is resolved, while Blackburn with Darwen Borough Council is keeping halal meat on the menu, but is meeting with mosque council leaders to resolve any problems.

Judge Refuses To Keep Media Out of Imams' Civil Rights Trial

Omar T. Mohammedi, a New York attorney for the six imams who have filed a civil rights action after they were removed from a US Airways flight at the Minneapolis airport, has lost his bid to reduce media access to the trial proceedings. Mohammedi says that he and his clients have received anonymous death threats after inaccurate media coverage of the lawsuit. The Associated Press yesterday reported that U.S. District Judge Ann Montgomery refused Mohammedi's request that members of the media be removed from an electronic distribution list, that they be excluded from attending hearings in the case and that proceedings in the case be held in closed session. The judge also told Mohammedi that future communications in the case should be filed through the court's electronic filing system, instead submitting requests off the record as Mohammedi had done in seeking less media involvement.

New Abuse Charges Against Saudi Arabia's Commission for Prevention of Vice

The Associated Press reported yesterday that new charges of police brutality have been raised against an officer in Saudi Arabia's Commission for the Propagation of Virtue and the Prevention of Vice. Last week, three officers were charged with involvement in the death of a detained border patrol guard. (See prior posting.) The new charges involve last month's death in detention of Sulaiman al-Huraisi who was taken into custody after a raid on his house because he was suspected of having large amounts of alcohol. Alcohol is illegal in Saudi Arabia. The governor of Riyadh said that several officers who were not part of the official team charged with making the raid nevertheless took part in it. One of those individuals severely beat al-Huraisi.

School Board Debates Religious Released Time Program

Canastota, New York's Board of Education on Tuesday debated the extent to which it should release students who wish to attend religious education classes at the end of the school day. Yesterday's Oneida Dispatch reports that St. Agatha's Church wants the school to bus students to classes at the church for the last hour of the school day. School officials prefer releasing students only after the school day is over. Supporters of the religious education program say that moving the classes to after normal school hours will significantly reduce student attendance at them.