Supreme Court Remands Notre Dame Case In Light of Hein Decision

On Friday, taking up the case of Notre Dame University v. Laskowski, (Case No. 06-582), the U.S. Supreme Court granted certiorari, vacated the judgment below and remanded the case to the 7th Circuit for further consideration in light of the Court's recent decision in Hein v. Freedom from Religion Foundation, Inc. In the Notre Dame case, the 7th Circuit had held that taxpayers had standing to challenge a grant from the Department of Education to Notre Dame University to fund a Catholic teacher training program. The case raised the unusual question of whether Notre Dame might have to repay past government funds it had already spent. (See prior postings 1, 2.) Unlike the expenditure in Hein that was from a general appropriation to the executive branch, the funds given to Notre Dame stemmed from a specific earmark by Congress in Sec.309 of the Consolidated Appropriations Act, 2000, Pub. L. 106-113, 113 Stat. 1501A-261 to 262 (Nov. 29, 1999). Today's Inside Higher Ed reports on the Supreme Court's action.

Accommodating Muslim Prayer In San Diego School Raises Controversy

Today's San Diego Union-Tribune reports on the debate in Oak Park, California over the actions at Carver Elementary School to accommodate the needs of some 100 Somali Muslim students who enrolled after their charter school closed. Carver added Arabic to its curriculum and, more controversially, it gives students a 15-minute break each afternoon so Muslim students can pray. Other students can read or write during that time. Proponents say that this accommodation is needed because Islam, unlike many other religions, mandates a specific time for required prayers that conflicts with the school day. While some advocacy groups have criticized this move, the Pacific Justice Institute has written San Diego's Board of Education to request that the district's policy be expanded to allow Christians and Jews daily prayer time as well. The letter asks that the Board institute a Daily Prayer Time Policy that would set aside separate classrooms for each religion to use, and would allow clergy to lead students in those prayers. (PJI release).

State Can Apply Child Care Licensing To Bible School

In Tennessee Department of Human Services v. Priest Lake Community Baptist Church, (TN Ct. App., June 25, 2007), a Tennessee state appellate court upheld application of the state's child care licensing requirements to a weekday Bible school program operated by a Baptist church. The court found that the church lacked standing to challenge certain of the substantive requirements imposed by the regulations. The court limited the church to challenging whether a general requirement that it obtain a child care license violates its free exercise rights. The court upheld state regulators, finding that the licensing law was a neutral generally applicable regulation and did not target religious conduct for special treatment.

South Carolina House Upholds Veto Of Blue Law Repeal

The South Carolina House of Representatives last week, by a 38-63 vote, sustained Governor Mark Sanford's line item veto of a one-year repeal of Sunday closing laws that had been placed in the state's budget bill. The State last Friday reported on the House action. The bill would have permitted sales all day-- except for alcohol-- around the state. The governor said the measure deserved more extensive debate than it got buried in the budget bill. The veto means that in a number of counties in the state, many merchants will need to continue to be closed until 1:30 pm on Sundays. [Thanks to Dispatches From the Culture Wars for the lead.]

Pentacle To Go On Arlington Cemetery Headstone With Cross

In April, the Veterans Administration approved adding the Wiccan Pentacle to the approved list of symbols that may be placed on grave markers in national cemeteries. (See prior posting.) Taking advantage of that ruling, on July 4 at an interfaith memorial service, the Pentacle will be added to the Arlington Cemetery gravestone of Jan Deanna O'Rourke. BBS news reports that the double headstone marking O'Rourke's burial site, next to her veteran husband, will become the first in a veterans cemetery to carry both a cross (marking her husband's grave) and a Pentacle. O'Rourke was active in politics, business and the charitable world. She was also a Wiccan priestess, active in interfaith work.

More of June's Prisoner Free Exercise Cases

In Kaufman v. Karlen, 2007 U.S. Dist. LEXIS 45568 (WD WI, June 21, 2007), a Wisconsin federal district court rejected a prisoner's Establishment clause challenge to prison policy that prevented him from wearing an emblem signifying his atheist beliefs. Prison policy aimed at assuring that prisoners did not wear symbols of secular groups or gangs. The court also rejected plaintiff's free exercise and establishment clause challenges to delays by the prison library in shelving books on atheism that were donated to it. The court also rejected establishment clause and free speech challenges to prison policy that prohibited inmates from receiving free publications other than religious material, college promotional material and retail catalogs.

In Watts v. Department of Corrections, 2007 U.S. Dist. LEXIS 45812 (ED CA, June 15, 2007), a California federal district court awarded limited attorneys fees to counsel who was partially successful in a prisoner's challenge to prison grooming standards by negotiating a settlement that expunged the prisoner's disciplinary record regarding grooming violations.

In Key v. Keim, 2007 U.S. Dist. LEXIS 46101 (SD IL, June 26, 2007), a federal district court accepted a federal magistrate's recommendation that summary judgment be denied to a prison chaplain who was sued by a prisoner who was a member of the African Hebrew Israelite faith. The prisoner claimed that his free exercise rights were violated when he was denied kosher meals several times and was denied access to certain religious tapes.

Bar Exam Question Challenged On Free Exercise Grounds

A bar applicant has mounted an unusual Free Exercise challenge to the Massachusetts bar exam that he recently failed. This week's National Law Journal reports that Stephen Dunne has filed suit in a Massachusetts federal court claiming that he would have passed if bar examiners had ignored his failure to answer an essay question on gay marriage. He alleges that answering the question would have required him to "affirmatively accept, support and promote homosexual marriage and homosexual parenting" in violation of his religious beliefs. Dunne has also raised equal protection, due process and commerce clause challenges in the suit that he has filed pro se.

UPDATE: Here is the full text of the complaint in Dunne v. Massachusetts Board of Bar Examiners. [Thanks to Dispatches From the Culture Wars for posting it.]

City Officials Defiant Over Jesus Picture In Courthouse

Yesterday's New Orleans Times-Picayune reports that Slidell, Louisiana officials have rejected in strong terms a request by the ACLU that a picture of Jesus-- a reproduction of a Russian Orthodox icon-- hanging in the Slidell City Court lobby be removed. (See prior postings 1, 2.) Judge Jim Lamz said: "We respectfully disagree with the ACLU's opinion that this is a violation of the Constitution. The only opinion that counts in this type of case is the opinion of the federal judge to whom this will go if the ACLU sues." In a somewhat stronger statement, Slidell Mayor Ben Morris attacked the ACLU: "I fight daily with FEMA for the recovery of our city, and now we must fight with these tyrants, this American Taliban who seek to destroy our culture and our heritage."

UPDATE: The Times-Picayune reports that on Tuesday, the ACLU filed suit against the Slidell City Court challenging the constitutionality of displaying the icon reproduction in the courthouse lobby.

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.