Jews For Jesus Challenges Leafleting Restrictions

In the second round of its challenges to the Town of Oyster Bay, New York (see prior posting), Jews for Jesus has filed suit in federal court challenging the town's ordinance that prohibited the distribution of literature in public parks. Yesterday's New York Law Journal reports, however, that shortly after the suit was filed, the town changed its rules so that printed material can now be distributed if a group first obtains a permit from Town officials. Leaflets can be distributed only from a table at a fixed location, and no more than four leafleters may be present. Susan Pearlman, associate executive director of Jews for Jesus, said that the group would still move ahead with its lawsuit. [Thanks to Steven H. Sholk for the lead.]

Recent Articles On Church-State Issues

From SSRN:
Leslie C. Griffin, Conscience and Emergency Contraception, Houston Journal of Health Law and Policy, Vol. 6, No. 299, 2006.

From Asian Journal of Comparative Law, (Vol. 2, Issue 1, 2007):
Andrew Harding, Buddhism, Human Rights and Constitutional Reform in Thailand.

Mohamed Azam Mohamed Adil, Law of Apostasy and Freedom of Religion in Malaysia.

From SmartCILP:
Dana E. Blackman, Refusal to Dispense Emergency Contraception in Washington State: An Act of Conscience or Unlawful Sex Discrimination?, 14 Michigan Journal of Gender & Law 59-97 (2007).

Kristin B. Gerdy, The Irresistible Force Meets the Immovable Object: When Antidiscrimination Standards and Religious Belief Collide in ABA-Accredited Law Schools, 85 Oregon Law Review 943-991 (2006).

Michele Estrin Gilman, Fighting Poverty With Faith: Reflections on Ten Years of Charitable Choice, 10 Journal of Gender Race & Justice 395-438 (2007).

Symposium: The Jurisprudential Legacy of John Paul II. 45 Journal of Catholic Legal Studies 221-669 (2006).

Dean Sanderford, The Sixth Amendment, Rules 606(b), and the Intrusion into Jury Deliberations of Religious Principles of Decision, 74 Tennessee Law Review 167-197 (2007).

Church Gets TRO Against Bidet Ad On Billboards At Its Building

On Monday, according to the Associated Press, a New York state trial court issued a temporary restraining order prohibiting a billboard ad company from placing a planned ad for a bidet company on two Times Square billboards. Rev. Neil Rhodes, pastor of the interdenominational Times Square Church , filed the lawsuit objecting to the bare buttocks with smiley faces that were to be in the ads that were scheduled to go up on billboards on two sides of the building that houses Rev. Rhodes' church. He said that the ads would interfere with the church's religious activities, which include a Bible school and day care center. The judge, who said that the motion poses novel and significant issues, required the church to post a $90,000 bond to cover damages and costs for the defendant if the church ultimately lost its lawsuit.

Kentucky County Will Issue Revenue Bonds To Finance Church Addition

Boone County, Kentucky's Fiscal Court has agreed to issue up to $2.8 million in industrial revenue bonds to finance a 5,000 square foot addition to the Vineyard Christian Church in Burlington, Kentucky. The addition will be used for Sunday school classes as well as for community groups such as Alcoholics Anonymous. The Kentucky Post reports that yesterday's decision by the County was defended by County Judge-Executive Gary Moore who said that the issuance of the bonds does not breach the required separation of church and state. He cited both federal court decisions and a 1993 Kentucky Attorney General's opinion.

NY Rabbinical College Sues For Permission to Build

The Brooklyn-based Congregational Rabbinical College of Tartikov has filed suit in federal district court in New York challenging Pomona, New York officials' refusal to permit the group to build a Rabbinical College on 30 acres of the Congregation's 100 acre property. The proposed college would include places of worship, educational facilities, religious courts, libraries and student housing. The complaint (full text) in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, NY, alleges violations of RLUIPA and of the federal Fair Housing Act, as well as violations of various state and federal constitutional provisions. The complaint alleges that "The Village of Pomona has engaged in a targeted and deliberate decades long effort to prevent various Jewish individuals and institutions from developing the subject property and other nearby properties, while permitting other development within the Village." The Associated Press today reports on the lawsuit. (See prior related posting.)

IRS Issues New Rev. Proc. On Sec. 501 Determinations

The Internal Revenue Service has issued Revenue Procedure 2007-52 (effective July 23, 2007), 2007 IRB LEXIS 591, setting out the procedures to be used by non-profit organizations, including churches and other religious groups, in applying for tax-exempt status under Section 501 of the Internal Revenue Code. The Rev. Proc. updates a similar set of rules issued in 1990. Among the changes in this Rev. Proc. is the centralization of determinations on exempt organization applications in the IRS's Cincinnati office

Military Conscientious Objector Rules Are Depublished

Largely unnoticed until now, in May the Department of Defense reissued Instruction 1300.06 setting out DoD policy on conscientious objectors and the procedures for processing discharge requests based on conscientious objection. Then last month the Department of Defense removed from the Code of Federal Regulations the previous version of Defense Department rules on conscientious objectors (32 CFR Part 75). This makes the current CO rules unpublished regulations. The June 19 Federal Register, 72 FR 33677 (June 19, 2007), says that this step has been taken because: "The document on which this part was based has been revised and is limited only to DoD personnel management matters, affects only DoD military personnel, and has no impact on the public." [Thanks to Scott Idleman via Religionlaw listserv for the lead.]

Conference Honors Roy Moore

Jews on First this week has a lengthy account of the God & Country Patriotic Celebration & Conference held in Bowie, Maryland on July 1- 3. Sponsored by a number of right wing Christian groups, the Conference's concluding day honored former Alabama Supreme Court Chief Justice Roy Moore. In his remarks, Moore called for "the sovereignty of God in this country", while conference leader Michael A. Peroutka referred to the Confederate flag that was flying (along with those of Alabama and Maryland) as "the American flag".

Anti-Discrimination Policy vs Student Religious Rights: Once More Unto the Breach

Another lawsuit alleging a conflict between a school's anti-discrimination policy and the restricted religious membership of a proposed University club has been filed. See prior posting here and here.

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

Forbes has published a story called "The Cult of Chick-fil-A," found here (free registration required) and at Westlaw (2007 WLNR 12995596). The article attempts to characterize Chick-fil-A's relationship with its franchisees, noting that Chick-fil-A allegedly "screen[s] prospective operators for their loyalty, wholesome values and willingness to buy into Chick-fil-A's . . . Christian credo." The article then discusses potential legal issues relating to such

screening:

. . . 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

A panel of the Seventh Circuit has unanimously ruled that an Arab and Muslim franchisee who refused to serve pork products in his store could proceed with his 42 U.S.C. §§ 1981 & 1982 claims against Dunkin Donuts. The case is Elkhatib v Dunkin Donuts, No. 04-4190 (7th Cir July 10, 2007).

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].

On appeal, neither party argued this point. Slip. Op. at 3. Apparently, the Defendant only pressed its contention that that the district court properly held in the alternative that Elkhatib had failed to meet his burden in demonstrating racial discrimination. Id. And Plaintiff, of course, rested on its position that Elkhatib was subject to racial discrimination.

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.

Hudson Institute's Religious Freedom in the World 2007

On Monday, July 9, the Hudson Institute’s Center for Religious Freedom released the initial findings for its forthcoming book Religious Freedom in the World 2007 (Rowman and Littlefield). According to Hudson, this survey describes and analyzes over 100 countries and territories, especially those where religious freedom is most violated.

Some of the statistics in the survey can be found here:

1. Country Religious Freedom Scores Compared to Freedom House Rankings of Political Rights and Civil Liberties


2. 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

On July 1, 2007, this blog reported (here) that 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.

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

According to the Middle East Times (Egypt), a German court ruled that an asylum seeker from Iran who had converted to Christianity may not be deported. Germany had originally denied the asylum seeker's request on the grounds that she had been able to secretly practice her religion in Iran. The asylum seeker claimed that her faith required public professions and attendance at worship services.

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

In September, 2006, a Georgia federal district judge upheld the practice of the Cobb County (GA) Board of Commissioners and its Planning Commission to open their sessions with prayer, but determined that the Planning Commission's selection procedure for identifying clergy to deliver that prayer was defective. That case, Pelphrey v. Cobb County, 448 F. Supp. 2d 1357, 1374 (N.D. Ga. 2006), was reported on here and here.

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

A Schenectady (NY) City Court has acquitted Greg Davis of criminal trespass after Davis was arrested and tried for entering Schenectady County Community College's campus to preach. The court concluded that Davis' failure to follow the campus' rules for speaking on campus and defiance of an administrator's order to leave were not sufficient to support the trespass charge. The Decision and Order can be found here.

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 . . .

The case is People of the State of New York v. Davis, # 06-77707 (Schenectady City Ct. 6/27/07) .

Thanks to ADF for the lead.

Slidell: Complaint and Motion for Preliminary Injunction

Copies of the complaint and motion for a preliminary injunction in Doe v Parish of St. Tammany are now available online. This is a case in which plaintiffs object to an icon which contains a portrait of Jesus that is posted in the lobby of a Slidell, Louisiana courthouse. The complaint alleges, in part:

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.

See prior postings on this case 1, 2, 3.

Thanks to the First Amendment Center for the lead to the online documents.

The Legacy of Zelman v Harris-Simmons

Five years ago (6/27/2002), the U.S. Supreme Court handed down Zelman v Harris-Simmons which held that Ohio's Cleveland-based voucher program was constitutional. Sunday's Plain Dealer (Cleveland, OH) has this assessment of the program:

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

A Chronicle of Higher Education story discusses the confusion that remains after the 1995 Supreme Court decision in Rosenberger v. Rector and Visitors of the 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.

European Court of Human Rights: No to Norway's Mandatory Religious Ed

The European Court of Human Rights has ruled against Norway's mandatory elementary school religion classes. The case was Folgerø and Others v. Norway (Application no. 15472/02) (June 29, 2007). The judgment of the Court in can be found here.

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).

Article 2 of Protocol 1 can be found here. The Court concluded:

[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).

Having disposed of the Article 2 claim, the Court did not reach the Article 14 claim (Para 105).

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.

An article on the case can be found at the Norway Post.

[Thanks to Christianity Today for the lead.]