Paper Profiles Bush's Orthodox Jewish Attorney General Nominee

Today's Jerusalem Post points out that President George Bush's nominee for U.S. Attorney General, Michael Mukasey, is an Orthodox Jew. If confirmed, Mukasey would be only the second Jewish Attorney General in U.S. history.

Turkey's Prime Minister Wants To Permit Headscarves To Be Worn At Universities

BBC News reports that Turkish Prime Minister Recep Tayyip Erdogan has said, in a Financial Times interview, that he wants to lift Turkey's ban on Muslim women wearing headscarves at state universities. President Abdullah Gul supported Erdogan, saying: "It is much better for [women who are covered] to go to university than to stay home and be isolated from social life." In Turkey, the headscarf has become a symbol of a perceived threat to the country's secular foundations, and was a major issue in the Parliamentary election of Gul as President earlier this year. Military and judicial leaders oppose any changes that would erode Turkey's official secularist rules.

Mukasey Decided Few Religion Cases As Judge

A Lexis search indicates that Michael Mukasey, President Bush's nominee for Attorney General, decided only few cases involving free exercise claims during his 18-year tenure as a federal district judge in New York. The major decision he wrote was in United States v. Rahman, 1994 U.S. Dist. LEXIS 10151 (SDNY, 1994), in which defendant, charged with conspiracy to commit urban terrorism, raised First Amendment objections. Mukasey wrote: "it is the rare offense, particularly the rare conspiracy or aiding and abetting offense, that is committed entirely in pantomime. However, that speech -- even speech that includes reference to religion -- may play a part in the commission of a crime does not insulate such crime from prosecution."

In three cases, Mukasey denied prisoner free exercise claims: Robinson v. Scully, 1990 U.S. Dist. LEXIS 3632 (SDNY, 1990) (removal of prisoner's kufi during search); Prins v. Coughlin, 1995 U.S. Dist. LEXIS 8673 (SDNY, 1995) (Jewish prisoner protests lack of hot kosher food); Salahuddin v. Mead, 2000 U.S. Dist. LEXIS 3932 (SDNY, 2000) (Muslim prisoner denied access to chaplain during prison work program hours).

Candidates' Religious Views Continue As An Issue Among Christian Conservatives

A "Value Voters" debate among Republican presidential candidates, sponsored by several conservative Christian groups, was held yesterday in Ft. Lauderdale, Forida. However, the major Republican contenders did not participate, according to the Florida Sun-Sentinel. Seven of the second-tier candidates did take part: Mike Huckabee, Tom Tancredo, Ron Paul, Sam Brownback, Duncan Hunter, Alan Keyes and businessman John Cox. Among the information that came out at the debate was when several of the candidates first accepted Jesus as their personal savior. WorldNet Daily also reports on the debate.

Meanwhile, the Florence (AL) Times Daily says that Fred Thompson's performance on the campaign trail is causing concern among conservative Christian voters. Thompson has said that he does not belong to a church in his home community in Virginia and does not attend church regularly. He says he attends services when he visits his mother in Tennessee. He also has declared that he will not talk about religion in his campaign.

Pope Comments On Church-State Relations

Catholic World News yesterday reported on remarks made by Pope Benedict XVI as he accepted the credentials of Ireland's new ambassador to the Vatican:

Speaking about the broad question of Church-state relations in a democratic society, Pope Benedict said that the faith "serves all of society by shedding light on the foundation of morality and ethics, and by purifying reason, ensuring that it remains open to the consideration of ultimate truths and draws upon wisdom." In making that contribution, he said, the Church does not threaten the proper authority of the state, but "keeps public debate rational, honest and accountable."

Zenit reprints additional portions of his remarks.

South Korea To Permit Alternative Service For Conscientious Objectors

South Korea's Defense Ministry has announced that for the first time it will permit religious conscientious objectors to perform alternative service. Today's Korea Herald says the government will introduce the option of serving in special care hospitals instead of the army by 2009. Veterans groups say they will oppose the plan, arguing that it will undermine compulsory military service and promote inequality.

California City To Consider Return of Creche To Public Property

The Sonoma (CA) News reports that at this week's City Council meeting, freshman Council member August Sebastiani will propose that the city bring back a creche display to the city's Sonoma Plaza this Christmas season. The Sonoma Valley Ministerial Association previously moved the display to a local church in order to avoid controversy, but Sebastiani says that a poll shows 72% of the people want it returned to public property. City attorney Tom Curry says that in order to meet constitutional requirements, the city must either include the creche as part of a broader holiday display along with secular symbols and religious symbols from various traditions, or permit a private group to set up the creche under a policy that allows anyone to set up a display on a first-come first-served basis regardless of the display's content.

No Religious Discrimination In Denial Based On Religious Arguments

In Boston v. Dawn Unknown, 2007 U.S. Dist. LEXIS 67939 (ED MO, Sept. 13, 2007), a Missouri federal district judge held that St. Louis Fitness Club employees did not engage in religious discrimination when they failed to renew plaintiff's membership in the Club because he had engaged in heated debates about religion with the club's staff.

Creationism Group Using Copyright Law To Silence Critics On YouTube

Although the reports coming in the last few days are sketchy, apparently a group that promotes Creationism as factual science is using the Digital Millennium Copyright Act to silence its critics that post videos on YouTube. The DMCA provides a safe harbor to online service providers who take down content promptly after being notified that it infringes a copyright. (Background). Apparently, unsupportable DMCA notices of infringement are being filed by Creation Science Evangelism against any YouTube video that criticizes its founder, Kent Hovind. (Panda's Thumb, Slashdot). In order to get the videos restored, under the DMCA their producers need to file a counter-notification with YouTube. However, apparently YouTube is closing the accounts of individuals who have DMCA notices filed against them before they get a chance to file their objections. (RichardDawkins.net).

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.)