California Supreme Court To Hear Episcopal Church Dispute

Last Thursday, the California Supreme Court voted unanimously to grant review in the Episcopal Church Cases. The lower court (see prior posting) held that it should give deference to the highest adjudicatory authorities of the Episcopal Church, instead of applying neutral property principles to decide whether three break-away congregations or the Episcopal Church USA own the property on which the local churches are located. Virtue Online last week reported extensively on the case.

New Articles, Books and DVD's of Interest

From SSRN:

• John Mikhail, The Free Exercise of Religion: An American Perspective, (chapter in Matthias Mahlmann and Hubert Rottleuthner, eds., Ein neur Kampf der Religionen? Staat, Recht und religiose Toleranz (2007)).


• Haider Ala Hamoudi, The Muezzin's Call and the Dow Jones Bell: On the Necessity of Realism in the Study of Islamic Law, (American Journal of Comparative Law, Vol. 56, No. 2, 2008).


• Margaret F. Brinig, Children's Beliefs and Family Law, (Notre Dame Law School Legal Studies Research Paper Series, Sept. 11, 2007, Forthcoming).


• Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, (Boston College Law Review, Forthcoming).


• Martha Minow, Tolerance in an Age of Terror, (Southern California Interdisciplinary Law Journal, Vol. 16, No. 3, 2007).

From SmartCILP:

• Roger W. Bowen, Exploring the Role of Religion, 53 Loyola Law Review 157-163 (2007).
  
• Catholicism and the Court: The Relevance of Faith Traditions to Jurisprudence. Keynote address by Hon. Diarmuid O'Scannlain; panel articles by Margaret O'Brien Steinfels, Michael J. Gerhardt, Sheldon Goldman, Edward A. Hartnett, Brian Z. Tamanaha, Sanford Levinson, Robert F. Cochran, Jr., Scott C. Idleman and Hon. Joan B. Gottschall. 4 University of St. Thomas Law Journal 157-341 (2006).

Vol. XXII, No.2 of the Journal of Law and Religion (2006-07) has recently been published.

Recent Books:

• Stephen Bates, God's Own Country: Tales from the Bible Belt, (Hodder & Stoughton, July 2007), reviewed by The Guardian.


• Mark Lilla, The Stillborn God: Religion, Politics and the Modern West, (Alfred A. Knopf, 2007), reviewed by the Wall Street Journal and the New York Times.

New DVD:

• Baptist Center for Ethics, Golden-Rule Politics: Reclaiming the Rightful Role of Faith in Politics, (2007), reviewed by The Tennessean.

Pennsylvania Weddings By Clergy Without Congregations Ruled Invalid

Earlier this month, a York County, Pennsylvania judge ruled that Pennsylvania law limits clergy who can perform weddings to those who have a "regularly established church or congregation." (23 Pa. Consol. Stats. 1503). Law.com reported last week on the decision that came in the case of a couple who broke up seven months after their wedding ceremony was performed by a Universal Life Church minister who was ordained online. Apparently the effect of the ruling was to eliminate the need for the couple to obtain a divorce. Philadelphia's NBC10 outlines the implications of the ruling on other couples.

Israeli Rabbinate Fears Conversion Efforts During Sukkot Festivities

In Israel, many celebrations and events are scheduled during the week-long Jewish holiday of Sukkot that begins this year on the evening of September 26. One of these is the annual parade in Jerusalem that attracts thousands of foreign tourists as well as Israelis. According to YNet News (Sept. 12), this year an official committee appointed by the Chief Rabbinate says that Jews should not participate in the parade, or in various Feast of Tabernacle activities planned by International Christian Embassy Jerusalem. The Rabbinate fears that the events will be used by Christian missionaries to attempt to convert Jews. The Jerusalem municipality however issued a statement saying that "participation (in the parade) is planned in advance and approved by the city, whose inspectors wouldn't allow a missionary group or any other political group to attend the parade." Christian Embassy also says that it is not a missionary organization.

Reward Offered For Assassination of Artist Who Drew Offensive Muhammad Cartoon

CBS News reported on Saturday that al Qaeda in Iraq leader Abu Omar al-Baghdadi has offered a $100,000 reward for the assassination of artist Lars Vilks, whose drawing of Muhammad's head on a dog was published in a Swedish newspaper last month. (See prior posting.) Al-Baghdadi said the reward would be increased to $150,000 if Vilks was "slaughtered like a lamb". He also offered a $50,000 reward for the killing of the editor of Nerikes Allehanda, the paper that printed Vilks' drawing. Al-Baghdadi also threatened strikes on Swedish companies if the "crusader state of Sweden" did not apologize. Swedish Prime Minister Fredrik Reinfeldt has already invited 22 ambassadors who represent Muslim countries in Sweden to a meeting to discuss their concerns.

Recent Prisoner Free Exercise Cases-- District, Circuit and State Decisions

In Kay v. Bemis, (10th Cir., Sept. 11, 2007), the U.S. 10th Circuit Court of Appeals reversed a Utah district court's dismissal of a prisoner's complaint that he had been denied tarot cards, incense, and religious books. It found several errors in the trial court's approach, including its insistence that the use of tarot cards and other items be "necessary" to the practice of the prisoner's Wicca religion. The appellate court said that it is enough that the prisoner sincerely believed in use of the requested items.

In Travillion v. Coffee, (3d Cir., Sept. 12, 2007), the U.S. 3rd Circuit Court of Appeals rejected Establishment Clause and Equal Protection challenges to actions of the food service contractor for the Allegheny County (PA) jail. During the 2004 Lenten season, it served vegetarian meals to all inmates, regardless of their religious affiliation.

In Williams v. Thurmer, 2007 U.S. Dist. LEXIS 65628 (ED WI, Aug. 27, 2007), a Wisconsin federal district court held that plaintiff stated a claim under the Free Exercise clause and RLUIPA when he alleged that prison officials prevented him from obtaining the Quran and other religious material and from cleaning himself prior to praying. He also adequately stated an Equal Protection claim, alleging that Christian inmates could possess Bibles while he was not permitted to possess a copy of the Quran.

In Messere v. Dennehy, 2007 U.S. Dist. LEXIS 65529, (Aug. 8, 2007), magistrate's report adopted, 2007 U.S. Dist. LEXIS 65442 (D MA, Aug. 30, 2007), a Massachusetts federal district court denied defendant's motion to dismiss a suit brought against her by a prisoner who was denied transfer to a lower security prison because he refused to attend religious-based AA/ NA programs.

In McGowan v. Cantrell, 2007 U.S. Dist. LEXIS 64534 (ED TN, Aug. 30, 2007), as part of a case asserting a series of claims, a prisoner alleged that his Free Exercise rights were violated when prison authorities took his Bibles, Bible Dictionary, and Bible Concordance away from him for one day. The court concluded that plaintiff had not demonstrated that he was denied a reasonable opportunity to practice his religion.

In Williams v. Fleming, 2007 U.S. Dist. LEXIS 67738 (WD VA, Sept. 13, 2007), plaintiff complained that prison authorities improperly interfered with his religiously motivated attempt to fast for 40 days. The court held that there are valid penological interests for prohibiting an inmate from fasting for that period of time. It also rejected his claims that officials retaliated against him because of his exercise of his religious beliefs.

In Andersen v. Griffin, (CA 4th Dist. Ct. App., Sept. 13, 2007), a California appellate court rejected a claim by an inmate held in protective custody that the Establishment Clause was violated by a correctional program coordinator who frequently tuned the television set watched by inmates to a religious channel that promoted a single religion. Plaintiff asserted that this amounted to promoting a specific religion to the inmate population.

Another Interesting Installment In the Mt. Soledad Cross Litigation

Last week, yet another court decision in the litigation over the Mt. Soledad, California cross and memorial was handed down. In April, a California federal district judge held that plaintiffs challenging the constitutionality of the legislation authorizing the United States to acquire the Mount Soledad Veterans Memorial could not depose Congressman Duncan Hunter about his motivation in supporting the legislation. In reaching this conclusion, the court relied heavily on the Constitution's "speech or debate" clause. (See prior posting.) So plaintiffs then tried a different route. They sought to depose Charles Li Mandri, who is West Coast Regional Director of the Thomas More Law Center. Li Mandri was an advisor to Rep. Hunter on issues related to the Mt. Soledad cross, even though he was not on Hunter's staff.

In Trunk v. City of San Diego, 2007 U.S. Dist. LEXIS 67766 (SD CA, Sept. 13, 2007), the California federal district court quashed the subpoena and issued a protective order to LiMandri. It held that questioning LiMandri would intrude into matters protected by the "speech or debate" clause and would "produce a harmful chilling effect on the right of federal legislators to gather information and consult with paid or non-paid advisors with regard to prospective legislative activities and decisions."

A second ground for quashing the subpoena is perhaps the most interesting. The court said that the Lemon test for determining whether there has been an Establishment Clause violation looks at whether an informed objective observer would perceive that the government has endorsed religion by its challenged action. However, "Mr. LiMandri does not fit the mold of an objective observer. Any testimony Mr. LiMandri may therefore have regarding his observations of the memorial are unhelpful and irrelevant to the Lemon test's effect prong." Finally the court relied on the attorney-client privilege as well as a basis for its conclusion that LiMandri should not be forced to testify.

D.C. Church's Meeting Held Invalid, Negating Vote To Oust Pastor

A District of Columbia Superior Court judge last week ruled that a contested meeting of members of the Shiloh Baptist Church was invalidly called because the notice required by the Church's Constitution was not given. Yesterday's Washington Post reports that at the meeting, held in August in the Church's parking lot, 138 Church members voted to fire the Church's pastor, Rev. Wallace Charles Smith. While Smith won this round, more litigation is pending against Rev. Smith and his supporters. A suit charging breach of contract, fraud and breach of fiduciary duty has been filed in the battle between Church factions. Smith's detractors say he has taken an outside job and has wasted millions of dollars by failing to make needed repairs to the Church's building. Numerous lawyers, as well as public relations firms, are now part of this high profile dispute.

D.C. Circuit Hears Arguements on Application of RFRA to Guantanamo

On Friday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Rasul v. Gates, a case in which four British nationals who were formerly held as detainees at Guantanamo Bay have sued alleging that they were repeatedly harassed as they tried to practice their religion while in custody. The district court held that the Religious Freedom Restoration Act applies to non-resident aliens at Guantanamo. (See prior posting.) On appeal the government argues that RFRA does not apply to aliens outside the U.S. Today's Baltimore Sun reports on the oral arguments at which Judge A. Raymond Randolph asked whether affirming the district court's holding would mean that prisoners abused at Abu Ghraib to also sue. Plaintiffs' counsel Eric Lewis answered, "One place at a time, your honor."

Religious Schools In Britain Are Focus of Government Policies

Friday's Jewish Chronicle reports that the head of Britain's Charity Commission, Dame Suzi Leather, has indicated that she will give a narrow interpretation to a provision in Britain's Charities Act 2006. Under the new law, private religious schools will be required to show that their educational activities provide a "public benefit" in order to maintain their advantageous tax status. Leather said that "public benefit" will require that activities extend beyond “a narrow, exclusive group” and that they benefit those on low incomes. The Chronicle says that the "narrow group" test may threaten 45 ultra-Orthodox Jewish schools that only admit children who come from rigidly observant Jewish families.

Meanwhile, Britain's Department for Children, Schools and Families last week released a document titled Faith in the System. The document, a joint statement with Christian, Hindu, Jewish, Muslim and Sikh supporters of faith schools, seeks to increase understanding of the role of publicly-funded schools with a religious character.

7th Circuit Rejects Free Exercise Challenge To O'Hare Airport Expansion

Last week, the U.S. 7th Circuit Court of Appeals upheld an Illinois district court’s denial of a preliminary injunction in one of the numerous lawsuits that have been filed to prevent expansion of Chicago’s O’Hare Airport. At issue in this case are challenges to Chicago’s plans to take by eminent domain a cemetery belonging to St. John’s United Church of Christ. In St. John’s United Church of Christ v. City of Chicago, (7th Cir., Sept. 13, 2007), the court, in a 2-1 decision, rejected religious freedom and other claims growing out of the Church's belief that remains buried in the cemetery must not be disturbed until Jesus raises them on the day of Resurrection.

The Court found that no free exercise violation occurred when the Illinois legislature amended the state’s Religious Freedom Restoration Act to exclude from its provisions Chicago’s actions in relocating cemeteries or graves as part of carrying out the O’Hare expansion. The amendment was found both to be a neutral law of general applicability and to meet the strict scrutiny test. The Court also rejected challenges under the Equal Protection Clause and RLUIPA.

Judge Ripple, dissented, saying:

I believe that the amendments to the Illinois Religious Freedom Restoration Act … made in the O’Hare Modernization Act … violate the Free Exercise Clause, and, for that reason, must be subject to strict scrutiny. I further believe that there remain factual questions regarding whether the City of Chicago … has shown that the proposed modernization and expansion plan of O’Hare Airport is narrowly tailored to meet the compelling interest the City claims. These factual issues render dismissal inappropriate at this stage in the litigation.

Chicago Business and the Wayne (IL) Republican both report on the decision. (Also see prior posting.)

State Department's 2007 Report On International Religious Freedom Released

On Saturday, the State Department released its 2007 Report on International Religious Freedom (full text). Ambassador John V. Hanford III answered reporters' questions on the Report. He pointed out that the Department will not release its list of “countries of particular concern” until later this year.

In answer to a question about religious freedom in Iraq, Hanford said:

what we're dealing with in Iraq is really a security situation that makes it difficult for religious practice to occur in a normal way. The constitution of the new Iraqi Government actually provides rather robust guarantees, and this is something we're very pleased to see because it's a very good constitution for that region of the world. But religious minorities are vulnerable, sometimes due to their small numbers and lack of organization. For the most part, people are getting caught in the crossfire. In the case of these minorities, though, there have been cases where it's clear that certain groups have been targeted.

The real problem that we're dealing with is that with the sectarian violence, not necessarily focused upon religious practice, that at the same time religious practice winds up being affected.

Ohio Supreme Court Asked To Rule On Religious Evidence In Support Proceeding

Spero News reports on a petition for writs of prohibition and mandamus filed with the Ohio Supreme Court of Sept. 12 by Marie Macfarlane, a family law activist who has conducted a campaign against no-fault divorce. The petition in Macfarlane v. Tanner (full text) challenges a ruling made by a Cuyahoga County magistrate in a child support proceeding brought against Macfarlane by her former husband who was awarded custody of their four children. Magistrate James Tanner refused to permit Macfarlane introduce evidence that she and her husband agreed to follow the teachings of the Catholic Church in their relation to each other, including the belief that women should not be required to work outside the home. Tanner’s ruling said: “This court is constitutionally forbidden from evaluating the religious convictions of either party…. For this court's decision to be motivated by a conviction that either party's religious belief is in the best interest of the children would implicate the First Amendment of the United States Constitution and the Religious Freedom Provision of the Ohio Constitution.”

Cert. Filed In Faith-Based "Teen Ranch" Case

SCOTUS blog reports that a petition for certiorari (full text) has been filed with the U.S. Supreme Court in Teen Ranch v. Udow, (cert. filed 9/13/2007). In the case, the U.S.6th Circuit Court of Appeals upheld Michigan's decision to cut off placement of abused, neglected and delinquent children with Teen Ranch, finding its program coerces religious participation by the youths by failing to give them a true private choice to opt out of religious activities.

Hebrew Curriculum Finally OK'd For Florida Charter School

Hollywood, Florida’s Broward School Board finally approved the Hebrew language curriculum of the Ben Gamla charter school, according to the Sept. 12 Miami Herald. Church-state issues have dogged the school’s attempt to become the first Hebrew-English dual language charter school in the nation. (See prior posting.) After raising questions about the school’s curriculum, the Board hired a consultant, religious studies professor Nathan Katz. Now Katz has reported back that “this new proposed curriculum is thoroughly within the acceptable boundaries for public education and in no way constitutes advocating or promoting religion.”

Presidential Greetings On Beginning of Ramadan

The Muslim holy month of Ramadan began Sept. 12. On that day, the White House released a Presidential Statement sending greetings to Muslims in the U.S. and around the world who are observing the month of fasting and prayer. The statement said in part: “America is a land of many faiths, and our society is enriched by our Muslim citizens. May the holy days of Ramadan remind us all to seek a culture of compassion and serve others in charity.”

Ohio Inspector General Reports On Governor's Faith-Based Office

In March, Ohio's new Democratic Governor Ted Strickland asked the state's Inspector General to investigate the administration of the Governor's Office of Faith Based and Community Initiatives (GOFBCI), and particularly its contract with We Care America (WCA) to administer grants. (See prior posting.) The Inspector General's Report was released on Sept. 12. It found no evidence that the selection of WCA was the result of any political pressure or improper influence. However it did conclude that GOFBCI should have done a better job of monitoring WCA's activities and of reviewing the invoices WCA submitted. An audit disclosed overcharges and improperly documented costs. Melissa Rogers blog has covered this story closely and has more on the release of the report.

India's Archeological Agency Creates Religious Stir In Supreme Court Affidavit

An affidavit filed last Wednesday by the Archaeological Survey of India (ASI) in a case pending before India’s Supreme Court has stirred up a religious controversy, according to reports by the Canadian Press, Reuters and the Times of India. At issue is a challenge to the government’s plans to dredge a shipping canal between India and Sri Lanka in order to reduce sailing time between India’s coasts by 30 hours. However, the channel goes through limestone shoals known as Adam’s Bridge or Ram’s Bridge that Hindus believe were built by the God King Rama.

Defending the project in the court challenge against it, ASI’s affidavit said that the shoals were the result of "several millennia of wave action and sedimentation" and "the issue cannot be viewed solely relying on the contents of mythological text." It added that there is no historical evidence to prove the "existence of the characters or occurrence of events" in Ramayana (the epic tale of Rama). Quickly, a leader of the Hindu BJP party charged that the language in the affidavit was "an insult to millions of Hindus all over the world."

By Saturday the government had agreed to withdraw the controversial parts of the ASI affidavit. Culture Minister Ambika Soni suspended two officials over the matter and offered her own resignation. Meanwhile BJP leader L.K. Advani said the affidavit amounts to blasphemy that is punishable under Sec. 295 of the Indian Penal Code as a defilement that insults the Hindu religion.

"Equal Access" For High School Groups Under Federal Law Interpreted

In ALIVE v. Farmington Public Schools, 2007 U.S. Dist. LEXIS 65326 (ED MI, Sept. 5, 2007), a Michigan federal district judge granted a permanent injunction to a Christian student group in a case that interprets what is meant by “equal access” under the federal Equal Access Act and under Michigan's similar law. The court found that ALIVE is entitled to all the privileges granted by Farmington High School to any other student group, including meeting under the same terms and conditions as other noncurriculum-related groups; advertising its meetings over the public address system, internal TV network and on bulletin boards; listings on the school’s website and in its yearbook; and use of photocopying machines. LifeSiteNews reported on the case on Sept. 12.

Survey Shows Some Surprising Views on Religion and the Constitution

A survey released today by the First Amendment Center shows some surprising views held by Americans on First Amendment religious issues. (Press release; full survey results). 65% either mildly agree or strongly agree that the nation's Founders intended the United States to be a Christian nation. 55% mildly agree or strongly agree that the Constitution establishes a Christian nation. Only 56% 56% believe that the freedom to worship as one chooses extends to all religious groups, regardless of how extreme. 50% mildly or strongly agree that a public school teacher should be able to use the Bible as a factual text in a history or social studies class. Only 56% believe that freedom of worship applies to all religious groups, regardless of how extreme their beliefs are, while 28% say freedom of worship was never meant to apply to religious groups that a majority of the people consider extreme or on the fringe.