Guest Blogger Steve Sheinberg To Host Religion Clause For The Next Week

For approximately the next week, Religion Clause will be edited by guest blogger Steven Sheinberg, instead of by me. Steve Sheinberg is Associate Director, Legal Affairs at the Anti-Defamation League (http://www.adl.org/). Steve works on the full range of ADL's religious freedom advocacy. Please join me in welcoming Steve. --- HMF

2nd Circuit Vacates Injunction Permitting Renting Of School Buildings For Church Services

In a fragmented decision in Bronx Household of Faith v. Board of Education of the City of New York, a 3-judge panel of the U.S. 2nd Circuit Court of Appeals vacated a district judge's permanent injunction barring enforcement of a school policy on rental of space in public school buildings to outside groups on evenings and weekends. (See prior posting.) The New York City schools, concerned about having schools identified with any particular religious group, had prohibited rental of school space to religious groups for worship services. In 2002, the 2nd Circuit had affirmed a preliminary injunction invalidating that policy. (See prior posting.) But now, on appeal of the grant of a permanent injunction in the case, a different 3-judge panel of the court reached a different result. Here is how the court described its fragmented holding:

Judge Calabresi would hold that this dispute is ripe for adjudication and would vacate the injunction because he concludes that Revised SOP §5.11, while a restriction on the content of speech permitted on school property, is viewpoint-neutral. Judge Walker agrees that the dispute is ripe for adjudication but would affirm the injunction because he concludes that Revised SOP § 5.11 is viewpoint-discriminatory. Judge Leval expresses no opinion on the merits, but votes to vacate the injunction because he concludes that the dispute is not ripe for adjudication.
Our disparate views of this case leave us without a rationale to which a majority of the court agrees. While two judges who disagree on the merits believe the dispute is ripe for adjudication, the court cannot decide the merits of the case without the vote of the third judge, who disagrees as to ripeness. Judge Leval agrees that the dispute over Revised SOP §5.11 would indisputably become ripe if the City were to deny Bronx Household permission to use school facilities in reliance on the terms of that rule.
... The City is free to adopt Revised SOP § 5.11 (if it has not already done so), and then require that Bronx Household apply to use school buildings pursuant to that rule. In the event Bronx Household does so, and the City denies the application, Bronx Household may seek review of that denial in the district court on an expedited basis.

Today's New York Sun reports on the case. [Thanks to How Appealing for the lead.]

Itinerant Preacher Loses Bid To Preach On Murray State Campus

In Gilles v. Miller, (WD KY, June 27, 2007), a Kentucky federal district court ruled against traveling evangelist James G. Gilles who was challenging the policy of Murray State University that required him to have sponsorship from a University organization or department in order to proselytize on campus. The court held that the University's policy did not violate Gilles' speech rights because it is a viewpoint-neutral and reasonable policy applicable to a designated public forum. The court also rejected vagueness and equal protection challenges to the policy. Yesterday's Louisville Courier-Journal reported on the decision.

Australia May Pay Racecourse To Host Mass By Pope

In Sydney, Australia, Pope Benedict XVI will conduct a Mass on World Youth Day, July 20, that is expected to draw up to 600,000 worshippers. Today's Herald Sun reports that some question has been raised about proposals to compensate the Australian Jockey Club for up to $50 million in losses that it would suffer if its Randwick racecourse is used for the Mass instead of for racing events. Part of the payment would come from taxpayer funds.

Egyptian High Court Will Review Converts' Right To Change ID Card Designation

Yesterday's International Herald Tribune reports that Egypt's Supreme Administrative court has accepted jurisdiction in an appeal by 45 Coptic Christians who converted to Islam (some as children) and now want to return to Christianity. A lower administrative court ruled against the request to change their national identity card designations back to indicate that they are Christians. Sharia law treats conversion out of Islam as apostasy. However, Egypt generally permits Copts to convert into Islam-- and many do in order to obtain a divorce that is not available from Coptic authorities.

Fargo Reverses Decision-- Will Keep 10 Commandments On City Mall

Reversing an earlier decision, the Fargo, North Dakota City Council yesterday agreed that a 10 Commandments monument would remain on City Hall mall. Today's Fargo Forum reports that Commissioner Tim Mahoney reversed his earlier vote in favor of moving the monument. This all happened as members accepted a petition with over 5,000 signatures seeking to place an initiated ordinance on the ballot that would prohibit the city from moving any monument or marker that has been on city property for over 40 years. Council then received and filed a request by the Red River Free Thinkers who want to erect a companion monument that would contain a quote saying that America is not founded on the Christian religion. That proposal had previously been rejected, but one member of council said she voted against it only because she thought that the 10 Commandments would be moved off the mall. (See prior related posting.)

Tajikistan's Religion Law Draft Raises Concerns

According to a report yesterday by Forum 18, religious minorities in Tajikistan are deeply concerned about the latest draft of a proposed Religion Law. They say that the law will limit the number of mosques, and will make it nearly impossible for non-Muslim religious communities to obtain legal recognition. Recently a letter objecting to the high threshold numbers for recognition, signed by representatives of 22 religious minorities, was sent to the President and Parliament

"Day of Truth" Lawsuit Settled As School Enacts New Speech Policy

Yesterday, the Alliance Defense fund announced the settlement of a suit it had filed against a New Jersey High School in order to assure that the head of the school's Christian Club could hand out fliers and cards, and have an ad about the Day of Truth read over the school's loudspeaker. The event is a Christian response to "Days of Silence", an event designed to combat harassment of gays, lesbians, bisexuals and transsexuals. (See prior posting.) The Notice of Voluntary Dismissal in Aufiero v. Northern Highlands Regional High School Board of Education was filed after the school permitted the Day of Truth activities to proceed and also enacted a new student speech policy protecting student rights to speak on issues of current interest.

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.