Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Wednesday, July 11, 2007
Anti-Discrimination Policy vs Student Religious Rights: Once More Unto the Breach
The Alliance Defense Fund and Christian Legal Society have filed a suit against the University of Florida because, according to a CLS Blog post, "University officials refuse to recognize [Brothers Under Christ/Beta Upsilon Chi] as a registered student organization because the fraternity limits membership to men, and refuses to allow the fraternity to go under the Greek system because it requires members to share the group's Christian beliefs."
Franchise Story 2: Forbes Discusses One Franchisor's Practices
. . . Is it legal? There are no federal laws that prohibit companies from asking
nosy questions about religion and marital status during interviews. Most companies don't because it can open them up to discrimination claims, says James Ryan, a spokesman for the Equal Employment Opportunity Commission. Chick-fil-A has more freedom to ask whatever it wants of franchisees because they are independent contractors and not necessarily subject to federal employment discrimination laws. (Employees, however, may sue under those laws.)
Franchise Story 1: 7th Circuit Allows Race-Based Discrimination-in-Franchising Case to Proceed
Elkhatib claims that Dunkin Donuts refused to allow him to renew his franchisee agreements or relocate when it learned that he was not selling Dunkin Donuts' breakfast sandwiches. The Court determined that Dunkin Donuts' citation of Elkatib's failure to carry the products was pretext, concluding "there is significant evidence that the carrying of breakfast sandwiches was not an issue of importance to Dunkin Donuts." Slip. Op. at 10.
What may be more interesting to the readers of Religion Clause is how the two courts dealt with (or not) the religious element of his claim. In granting Dunkin Donuts' motion for summary judgment, the trial court sua sponte construed Elkhatib’s claim to be one of religious discrimination rather than racial discrimination, based on the court’s determination that the restrictions on handling pork are associated with religion, not race:
Elkhatib alleges discrimination based on race. See Compl., ¶ 9 (“Plaintiff, as an Arab is forbidden from dealing, buying or selling pork products, because of his race's traditions and religious practices”). Elkhatib cites St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) for the proposition that Arabs may sue for racial discrimination under § 1981. In that case, plaintiff Al-Khazraji sued a university that denied him tenure on the alleged grounds of racial discrimination. The Supreme Court held that “[i]f Respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or religion, he will have made out a case under § 1981.” Id. at 613. Al-Khazraji based his claim solely on racial grounds. However, the court construes Elkhatib's claim to be one of religious discrimination rather than racial discrimination. The dietary restrictions Elkhatib points to are associated with religion rather than race. Islamic and Jewish law both prohibit the handling and consumption of pork. . . . Claims of religious discrimination are not cognizable under § 1981 and § 1982. Elkhatib v. Dunkin' Donuts, Inc. 2004 WL 2600119, *3 (N.D.Ill. 2004) (notes and religious citations removed). [Ed Note: Links Repaired].
Somewhat surprisingly, the Seventh Circuit accepted this characterization without comment (and without examining the district court's contention) and treated the claim as a race-based one.
Thanks to How Appealling for the lead.
Tuesday, July 10, 2007
Hudson Institute's Religious Freedom in the World 2007
Some of the statistics in the survey can be found here:
- Country Religious Freedom Scores Compared to Freedom House Rankings of Political Rights and Civil Liberties
- Grim & Finke Scores for Government Regulation of Religion (GRI), Government Favoritism of Religion (GFI), and Social Regulation of Religion (SRI)
Here is a National Review piece by Paul Marshall on the study he edited.
Thanks to Melissa Rogers for the lead.
InnerChange: Latest Developments
Yesterday's Des Moines Register (IA) has an editorial calling that decision into question, writing "If the state desires to institute 'values based' programs aimed at reforming convicted criminals, it must be sure they are not disguised as government-sponsored avenues for evangelization."
Defendants have also filed two F.R.A.P. 28(j) letters providing supplemental authorities to the court. One relates to rates of recidivism for inmates in the program. The second discusses the Supreme Court's decisions in Hein v Freedom from Religion Foundation, 551 U.S. ____ (2007) (June 25, 2007) and University of Notre Dame v Laskowski, No. 06-582 (US June 29, 2007) (cert. granted, judgment vacated and remanded in light of Hein). Both of these cases are discussed here.
Defendants argue that the district court relied heavily on Laskowski, and "[t]hus the anomalous legal basis for allowing private, taxpayer plaintiffs to compel restitution to the government is gone, and the decision below granting that remedy should be reversed." Plaintiffs argue in reply that unlike the case in Hein, "InnerChange was funded for the last four years with appropriations by the Iowa Legislature specifically for the program." Plaintiffs also argue that "The restitution question is an issue of remedy, not standing. Hein does not impact the logic of prior cases that treated restitution as an available remedy...."
Asylum Seeker Has Right to Profess Faith in Public
The administrative law judges reviewing the decision accepted her argument that a 2004 European Union directive requires the granting of asylum to those who face persecution for practicing their religion in public. Moreover, the court doubted that she could return to the secret practice of her religion after living openly in Germany.
Article 10 of that directive holds that:
1. Member States shall take the following elements into account when assessing the reasons for persecution: (a) . . . . (b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief . . .
$1 Damages to Cobb County Prayer Plaintiffs
The court has issued its decision on relief owed the plaintiffs. As said, the Court had previously upheld the Board of Commissioners' process for selecting speakers which involved inviting clergy from a master list compiled using the Yellow Pages. The Planning Commission also used the Yellow Pages, but its set of Yellow Pages "contained cross-out markings through the contact information of Islamic, Jehovah’s Witness, Jewish, and Latter Day Saint churches. Leaders of those faiths were categorically excluded from the pool of invitees in 2003 and 2004." Pelphrey v. Cobb County, No. 1:05-cv-2075, slip op. at 4 (ND Ga. July 7, 2007).
The court concluded that the Plaintiffs were entitled to a declaration that the 2003-2004 practice was unconstitutional, that they are entitled to compensatory damages of $1, and that they are not entitled to injunctive relief. Id. at 21-22. The court concluded that no injunctive relief was appropriate because, given that the practice had stopped in 2005, "an injunction would not operate to redress the unconstitutional conduct." Id. at 21. It concluded that nominal damages were appropriate where, as here, a plaintiff established the violation of an “absolute”constitutional right—such as the right to be free from a state establishment of religion—but cannot prove actual injury. Id at 17 - 18.
A story detailing this award can be found here in the Daily Report (Fulton County, GA).
Preacher's Failure to Follow Campus Rules Not Sufficient for Trespass
The Court determined that under NY Law, the People were required to demonstrate that the particular order to exclude Davis had a legitimate basis and that, considering the nature and use of the subject property, its enforcement did not unlawfully inhibit or circumscribe the defendant from engaging in constitutionally or statutorily protected conduct. After establishing that that the campus was "open to the public," the Court ruled the People had not met their burden:
[t]he Court finds that the People offered insufficient evidence to demonstrate that the . . . order to the defendant to leave the SCCC campus had a legitimate purpose, rationally related to the power to maintain order on the campus, or that its enforcement did not violate an independent right of the defendant.Therefore, the Court finds this defendant not guilty of the charge of Trespass . . .
Thanks to ADF for the lead.
Monday, July 09, 2007
Slidell: Complaint and Motion for Preliminary Injunction
11. The lobby contains two paintings. One is a painting of the founding judge of the City Court of Slidell and is accompanied by wording to that effect. The other, placed on a separate wall, is a religious icon of the Eastern Orthodox sect of Christianity. It shows an image of Jesus Christ presenting the New Testament. The icon is positioned above the large gold wording, "TO KNOW PEACE, OBEY THESE LAWS." The display in question is the Eastern Orthodox religious icon combined with the wording below it.
12. The display is prominently displayed in the center of the wall directly above the teller window of the City Court of Slidell.
14. Prior to June of2007, in order to participate fully as citizens, to conduct business, or to fulfill certain legal obligations, Plaintiffs, John Doe and members of the American Civil Liberties Union of Louisiana, separately entered the City Court of Slidell, saw the display, and were offended by it as a whole and in its several parts. In order to participate fully as citizens, conduct business, or fulfill certain legal obligations, Plaintiffs will be obligated to return to the courthouse in the future.17. On information and belief, Defendants installed the display, which had never
before been displayed on public property, before the courthouse opened in 1997 and have maintained it at taxpayer expense since that time.
Thanks to the First Amendment Center for the lead to the online documents.
The Legacy of Zelman v Harris-Simmons
From Cleveland Heights to Akron, the population shift from older neighborhoods could lead to the closing, merger or consolidation of about one-sixth of the schools in the eight-county Cleveland Catholic Diocese. But Catholic schools in Cleveland proper have a guardian angel: Ohio taxpayers, who provided more than $16 million in tuition vouchers for more than 5,500 city children to attend parochial schools this past school year.
The paper also notes that the program enjoys bi-partisan support. Voucher opponents claims that the program drains resources from other public school activities.
The Legacy of Rosenberger v. University of Virginia
More than a decade later, some public universities still have policies that appear to run counter to the spirit and letter of [Rosenberger]. In fact, a review of more than a dozen student handbooks across the country reveals a confusing and contradictory mishmash. Some policies explicitly welcome religious groups to apply for student-activity funds and inveigh against any "viewpoint discrimination." Others prohibit religious groups from receiving any money. Still others are so vague that it's unclear who is and is not eligible for support.
As a consequence, there is litigation involving schools that are allegedly engaging in viewpoint discrimination. See for example a prior posting (here) discussing a case in which the University of Wisconsin settled a lawsuit filed against it by UW Roman Catholic Foundation challenging UW's refusal to recognize the Foundation as a student organization.
More interesting may be the article's effort to describe what lies ahead. The article quotes Steven K. Green, a professor of law at Willamette Universiy (and former Americans United policy director) as saying that the next wave of post-Rosenberger litigation relates to schools citing their anti-discrimination policies and refusing to fund religious groups that deny gays and lesbians the right to join or be officers. The article mentions Christian Legal Society v Southern Illinois University at Carbondale as one example of this kind of litigation (see prior postings here and here). In that case, CLS sued after the University revoked CLS’s status as a recognized student group because it violated the University’s non-discrimination policy by not allowing non-Christians, gays and lesbians to be voting members. The University settled with CLS and, among other things, reinstated CLS. Another similar case, not mentioned in the article, is Christian Legal Society of University of California, Hastings College of the Law v. Kane, which is still pending (see prior postings here and here).
Howard Friedman, your regular host on this site, provided this detailed Analysis of The Christian Legal Society Cases back in May, 2005.
Thanks to ADF for the lead.
Sunday, July 08, 2007
European Court of Human Rights: No to Norway's Mandatory Religious Ed
The facts, as set out by the Court:
The present case concerns complaints lodged by non-Christian parents. It relates, firstly, to a complaint under Article 9 of the Convention and Article 2 of Protocol No. 1, about refusals by the domestic authorities to grant their children full exemption from a compulsory subject in Christianity, Religion and Philosophy (the “KRL-subject” – see paragraph 16 below) taught during the ten-year compulsory schooling in Norway. Secondly, it concerns their complaint about discrimination contrary to Article 14 of the Convention taken in conjunction with the aforementioned provisions and Article 8 of the Convention. (Para 3 of the opinion).
[N]otwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1. Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2 of Protocol No. 1. (Para 102 of the opinion).
There was a dissent, which argued:
In our opinion, a review of the case requires a twofold approach, namely, in the light of the requirements of modern Norwegian society and with its history as an important background. On the one hand, the increasing number of Norwegian citizens with different ethnicities and religious beliefs calls for inclusive measures, with a common education in religions and ethics in schools. On the other hand, when devising the curriculum, one cannot overlook the many centuries of Norwegian history. Christianity has a very long tradition in Norway, both as a religion and a school subject (see paragraphs 9 and 10 of the judgment). This aspect must be reflected in the curriculum, which must at the same time be inclusive and broad.
[Thanks to Christianity Today for the lead.]
Malaysia: Muslim to Hindu Conversion Blocked by Islamic Court; Woman Detained
Revathi claims she was subject to "intimidation and mental torture" while in the center. She claims she was placed in solitary confinement, forced to wear a headscarf, pray as a Muslim, and was served beef (which Hindus may not eat). AP reports that Islamic officials also seized the couple's 18-month-old daughter in March and placed her in Revathi's Muslim mother's care. According to the BBC, a lawyer representing the Malacca Islamic Religion Council rejected her allegations and said officials believe that she can still be persuaded to embrace Islam.
In a widely publicized case, in May a woman, Lina Joy, lost a battle in Malaysia's highest court to have the word "Islam" removed from her identity card. She had sought to convert from Islam to Christianity.
Previous posts relating to Lina Joy and Malaysia's treatment of converts can be found here.
Saturday, July 07, 2007
Members of Congress Call on Bishops to Work to End War in Iraq
Guest editor's note: I couldn't find a Republican (or other) response or critique of the letter to the USCCB. If any reader knows of one, please post a link in the comments section.
American Baptist Churches and Cooperative Baptist Fellowship Hold Historic Worship Service
The American Baptist Churches' also presented its first Religious Freedom Award to the Baptist Joint Committee for Religious Liberty.
Lead from Blog From the Capital.
Friday, July 06, 2007
ADF Sues City of Zachary, LA Over Prohibited Preaching
According to ADF, on the evening of Nov. 18, John Todd Netherland stood outside on public property to speak about his Christian faith about 75-100 feet from the entrance of a local bar. Even though he was allegedly standing on public property, a police officer told Netherland he could not preach there and instructed him to move closer to the street. The officer then allegedly warned Netherland that if he stepped back to the place he’d been standing, he’d be arrested and sent to jail. Despite agreeing to comply, the Plaintiff claims that the officer told him that if he continued to preach, even in the new location, he would arrest him for “disturbing the peace.” Netherland claims that he then ceased speaking because of the threat of arrest.
New Faith-Based Initiative in Granite State
Developments in Odessa, TX Bible Case
Times (UK) Attacks Regent University Law School/Justice Department Relationship
Thursday, July 05, 2007
Defendant's Religious Beliefs Fair Game in Employment Case
Defendant argued that his individual associational privacy rights under the First and Fourteenth Amendments and his individual beliefs and freedom of exercise of religion under the religion clauses of the US and NY Constitutions are absolute, and that no compelling state interest exists so as to compel him to divulge those beliefs. Disagreeing, the judge concluded:
Without ruling whether any answer given would be admissible at trial, the judge has required the defendant to answer the following questions:It is the duty of every Court to guard jealously the great right and privilege of free exercise and enjoyment of religious profession and worship without discrimination or preference, with all the power that the Court possesses, but no person should be permitted to use that right as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination proscribed in New York State law.
“State whether defendant [] believes that ‘homosexuality is a sin against God.'"
“State whether defendant [] believes that ‘gays and lesbians are doomed to eternal damnation."
“State whether defendant [] regards homosexuals as ‘repulsive.'”
The case is Fairchild v. Riva Jewelry Mfg., Inc., No. 101169/2006, 2007 NY Slip Op 31857 (June 28, 2007).
Leonard Link also has an analysis of this case.