Israeli Zionist Rabbis Threaten Split Over Sabbatical Farming Rules

In Israel, disagreements among Orthodox rabbis on whether to recognize a legal loophole that permits Jewish farmers to continue to grow crops on their land during the current Sabbatical year threatens to split the official Chief Rabbinate. Yesterday's Jerusalem Post reports that Tzohar, a group of religious Zionist rabbis, has rebelled against the strict interpretation adopted by the Chief Rabbinate and has announced it will set up an alternative supervisory organization to certify foods grown in Israel by Jewish farmers who have technically "sold" their fields to non-Jews for the Sabbatical year. Many authorities recognize this as a way to get around the religious requirement that Jewish fields in Israel must lie fallow for the year. Recognizing the loophole-- known as heter mechira-- is necessary to prevent many farmers from financial ruin. However, Rabbi Moshe Rauchverger, a member of the Chief Rabbinate's governing council, said that Tzohar's move threatened to break the Chief Rabbinate's monopoly on furnishing religious services. He said, "If Tzohar starts providing kosher supervision, what is to stop Reform and Conservative from doing the same?" (See prior related posting.)

Sheriff Violates Establishment Clause By Inviting Christian Speakers

Yesterday in Milwaukee Deputy Sheriffs Association v. Clarke, (ED WI, Sept. 25, 2007), a Wisconsin federal district court held that Milwaukee County Sheriff David A. Clarke Jr. violated the Establishment Clause when he invited the Fellowship of Christian Centurions to make presentations at the Department's leadership conference and at Department "roll calls" at the beginning of each work shift. Two deputies, a Catholic and a Muslim, who were made uncomfortable by the presentations objected and eventually filed suit seeking damages and an injunction. Federal judge Lynn Adelman wrote:

defendants invited representatives of a Christian organization to present a proselytizing Christian message to deputies at meetings held at the workplace during working hours, which deputies were required to attend, and conveyed a message of endorsement of the presentations. The effect of defendants’ actions was to promote religion and to do so coercively.

A hearing has been set for November to discuss remedies. Yesterday's Milwaukee Journal Sentinel reports on the case.

Hillary Clinton Emphasizing Liberal Religious Tradition In Her Campaign

An article in yesterday's Washington Post explores Hillary Clinton's use of religion in her campaign for the presidential nomination. It points out that Clinton's outreach to religious voters that have been alienated from the Democratic party combines moralism with her social liberalism. It comments: "In a nation obsessed by the influence of religious conservatives, it is easy to forget that liberal Protestants were once the dominant cultural influence in America."

Today Is "See You at the Pole" Event At Schools

CBN News reports that this morning around the country school students are taking part in before-school prayer at the annual See You at the Pole event. Held on the the fourth Wednesday of every September, organizers describe SYATP as "a student-initiated, student organized, and student-led event. That means this is all about students meeting at their school flagpole to pray—for their school, friends teachers, government, and their nation." The National Network of Youth Ministries coordinates the event. (SYATP website). Last year about 2 million students at over 50,000 schools participated.

Former FLDS Leader Jeffs Convicted Of Being Rape Accomplice

A Washington County, Utah state court jury today convicted Warren Jeffs, former head of the polygamist Fundamentalist Church of Latter Day Saints, of being an accomplice to the rape of a 14 year old girl who was pressured by Jeffs to enter into a marriage with her 19-year old cousin. The New York Times reports that "the verdict ... was a vindication of the prosecution’s argument — which some experts had thought might be hard to accept — that orchestrating a marriage of a young girl under duress made Mr. Jeffs culpable even though he was not present when the rape occurred." Prosecutors argued that Jeffs knew that the marriage would lead to non-consensual sexual relationships.

The Los Angeles Times last week filled out the details: "Jeffs pressured the girl into marriage, then refused to free her when she complained that her husband was touching her in ways she did not like." Jeffs' attorney, Walter F. Bugden Jr., had argued: "The state can say Warren Steed Jeffs is on trial, but it's his . . . church, his religious beliefs that is on trial here, dressed up as a crime called rape." He argued that the state should have charged Jeffs only with officiating at an unlawful marriage.

Police Officer Has Partial Win In Attempt To Wear Cross Lapel Pin On his Uniform

Risk v. Burgettstown Borough, 2007 U.S. Dist. LEXIS 70048 (WD PA, Sept. 21, 2007) involved religious discrimination and retaliatory discharge claims by a part-time Pennsylvania police officer who was ordered to stop wearing a small cross lapel pin on his uniform. A Pennsylvania federal district court dismissed plaintiff's First amendment speech and religion claims, but permitted plaintiff to move ahead with employment discrimination claims under Title VII of the 1964 Civil Rights Act and the PHRA, Pennsylvania's comparable anti-discrimination law.

In Compromise, Israel Appoints 19 New Rabbinic Court Judges

YNet News reports that after four years of political maneuvering and litigation, 19 new judges have been appointed by the Justice Department to Israel's religious court. The appointees were chosen by a special committee set up by Justice Minister Daniel Friedmann. A compromise has gotten 5 of the 19 new judges to come from the national religious sector, instead of all appointees being strictly Orthodox. Seven of the 15 Orthodox appointees are Sephardic Jews. Women's groups were still unhappy with the appointments, saying they merely solidify the hold of the Orthodox community which advocates patriarchal rules regarding divorce. (See prior related posting.) Haaretz also reports on the appointments.

Plaintiff Suing Military Is Being Harassed

The Navy Times today reports that Spc. Jeremy Hall who recently filed a lawsuit against the military claiming he was threatened by an Army major for holding a meeting of non-Christians and atheists in Iraq now says that he is personally being harassed. E-mails from Hall to Mikey Weinstein, founder of the Military Religious Freedom Foundation, say that Hall has been threatened on blogs with being killed by friendly fire for filing the lawsuit. Meanwhile, Lt. Col. James Hutton, a spokesman for the U.S.-led multinational force in Iraq, said that the Major alleged to have been involved in the incident leading to Hall's lawsuit-- Paul Welbourne-- cannot be located by the Army.

UPDATE: Truthout reports that Military Religious Freedom Foundation researchers have identified the Major at the center of Hall's lawsuit. His correct name is Freddy J. Welborn. He was found through his MySpace page. The complaint in the lawsuit will be amended and refiled to reflect the correct name.

Connecticut City Will Lend Textbooks To Non-Public Schools

On Monday, Manchester, Connecticut's Board of Education voted 7-2 to spend $50,000 on a program to lend textbooks to non-public schools. Today's Journal Inquirer reports that the issue has been discussed for more than a year. Only books currently in use in public schools will be available for loan, although state law permits a broader list to be made available. Board member Steven "Moose" Edwards said that nonpublic schools already receive over $700,000 per year in assistance for transportation, food services and social workers.

School's Decision To Exclude Religious Music From Graduation Upheld

Last week in Nurre v. Whitehead, 2007 U.S. Dist. LEXIS 70049 (WD WA, Sept. 20, 2007), a Washington federal district court rejected a complaint by a student member of a high school wind ensemble that his constitutional rights were violated when school officials rejected the Ensemble's decision to play Franz Biebl's instrumental arrangement of "Ave Maria" at the 2006 Jackson High School graduation ceremony in Everett, Washington. Officials decided that all religious music should be kept out of graduation. The court rejected plaintiff's First Amendment speech claim, as well as her Establishment Clause and Equal Protection claims. The court held that the Ensemble's performance of "Ave Maria" at graduation would have borne the imprimatur of the school, and the state therefore had an interest in preventing possible Establishment Clause problems that would arise if the musical piece had been permitted.

UPDATE: Here is the full opinion in a non-proprietary database, thanks to Alliance Alert. And here is a recording of Biebl's version of the hymn via YouTube.

California Church Keeps Exempt Status; Questions IRS Conclusions

All Saints Episcopal Church in Pasadena, California earlier this month received a letter from the Internal Revenue Service informing it that its non-profit status would be continued. The letter (full text) said, however, that a 2004 sermon constituted improper interference in a Presidential campaign. The letter said that this appears to be a one-time occurrence and that the Church now has policies in place to prevent future problems. According to Episcopal News Service yesterday, parish leadership has asked the Treasury Inspector General for Tax Administration to furnish an explanation of why the sermon was found to be a problem and also to look into allegations that IRS officials may have breached the Church's privacy rights in conversations with high Justice Department officials. The Church is concerned that the IRS exam may have been triggered by partisan political considerations. (See prior related posting.)

A Flood of New Scholarly Publications In Law and Religion

From SSRN:

• Ali L. Khan, Advocacy Under Islam and Common Law, (August 2007).
  
• John Witte, Go Ye, Therefore, and Make Disciples of All Nations': Proselytism in the New World Order, (2007).


• John Witte, Rights, Resistance, and Revolution: The Protestant Foundations of Rights and Revolution, (2007).


• Edward A. Hartnett, Catholic Judges and Cooperation in Sin, (University of St. Thomas Law Journal, Vol. 4, No. 2, 2006).


• Charles J. Reid, Children and the Right to Life in the Canon Law and the Magisterium of the Catholic Church: 1878 to the Present, BEST LOVE OF THE CHILD, Timothy Jackson, (ed.), 2008.


• Charles J. Reid, The Rights of Children in Medieval Canon Law, (U. of St. Thomas Legal Studies Research Paper No. 07-34, 2007).


• Marie Ashe, Beyond Nomos and Narrative: Unconverted Antinomianism in the Work of Susan Howe, (Yale Journal of Law & Feminism, Vol. 18, No. 1, 2006).


• Peter Radan, From Dayton to Dover: The Legacy of the Scopes Trial, (Macquarie Law Working Paper No. 2007-6, September, 2007).

From SmartCILP:

• Mark Strasser, Establishing the Pledge: On Coercion, Endorsement, and the Marsh Wild Card, 40 Indiana Law Review 529-583 (2007).


• Stephen E. Young & Alison Shea, Separating State From Church: A Research Guide to the Law of the Vatican City State, 99 Law Library Journal 589-610 (2007).


• Program on Law and State Government Fellowship Symposium: From the State House to the Schoolhouse: Religious Expression in the Public Sphere. Introduction by Cynthia A. Baker; articles by Kevin C. McDowell and Luke Meier. 40 Indiana Law Review 491-528 (2007).

New book:

• Alan Dershowitz, Blasphemy: How the Religious Right Is Hijacking Our Declaration of Independence, (John Wiley and Sons, June 2007), reviewed in the Jewish Standard.

Indianapolis Airport Foot Washing Sink Creates Religious Controversy

In Indianapolis, Indiana, International Airport officials are proposing to install a foot-washing sink that would be used primarily by Muslims before prayer. Yesterday The Indy Channel reported that Rev. Jerry Hillenburg of Indianapolis' Hope Baptist Church has raised a biblical and constitutional challenge to the proposal. He argues that the proposal involves use of tax funds to promote one religion. Airport officials say the issue is one of safety and health. Over 100 Muslim taxi drivers currently use a traditional sink at the airport, creating problems by leaving the floor wet.

Russian Schools Increasingly Teaching Religion

Yesterday's New York Times reports on the increasing introduction of religion into the curriculum of schools in Russia. Recently 10 prominent Russian scientists wrote President Vladimir Putin protesting the "growing clericalization" of Russian society. Proponents, however, say that children need to know about Russian Orthodoxy in order to appreciate Russia's arts, literature, heritage and history.

Recent Prisoner Free Exercise Cases

Randolph v. City of New York Department of Corrections, 2007 U.S. Dist. LEXIS 68104 (SDNY, Sept. 7, 2007), involves claims regarding the availability of Halal food for prisoners at New York's Rikers Island correctional facility. A federal magistrate judge recommended dismissal of a claim that the prison commissary violated plaintiff's free exercise rights by selling products containing pork without identify those contents to prisoners. However he recommended that plaintiff be allowed to proceed with claims for an injunction and declaratory relief regarding the prison's alleged practice of failing to follow proper practices in serving Halal meals, such as washing Halal and non-Halal trays together.

In Travillion v. Leon, 2007 U.S. App. LEXIS 22203 (3rd Cir., Sept. 14, 2007), the U.S. 3rd Circuit Court of Appeals held that a Protestant plaintiff's Establishment Clause and Equal Protection rights were not violated when a state jail served all prisoners vegetarian meals during Lent, even though their religious beliefs did not require them to abstain from meat.

In Portune v. Ornoski, 2007 U.S. Dist. LEXIS 68534 (ND CA, Sept. 6, 2007), a California federal district court permitted a prisoner to proceed with a habeas corpus action alleging in part that his right to the free exercise of religion was infringed when his parole was denied because he refused to attend a religious-based Narcotics Anonymous program.

In Saif'ullah v. Sisto, 2007 U.S. Dist. LEXIS 68703 (ED CA, Sept. 5, 2007), a California federal district court permitted to proceed with their First Amendment and RLUIPA claims that they were offered only a vegetarian diet instead of a diet that included Halal meat. However the court found that they failed to state a claim when they alleged that they were prevented from offering their evening prayers in the prison's day room, and instead had to pray individually in their prison dorms.

In Dupree v. Laster, 2007 U.S. Dist. LEXIS 69288 (SD IL, Sept. 19, 2007), a federal district court adopted a Magistrate Judge's Report and Recommendation, rejecting prison officials' arguments that their actions dealing with Plaintiff's behavior during religious services while incarcerated were legitimate, and that RLUIPA does not authorize individual capacity claims for monetary damages

In Jackson v. Epps, 2007 U.S. Dist. LEXIS 69017 (ND MS, Sept. 18, 2007), a Mississippi federal district court dismissed a prisoner's complaint that he was not permitted to attend Muslim religious services, finding that plaintiff had not filled out the required prison form to designate his religion as Islam.

Wisconsin Modifies Murder Remembrance Day Program To Avoid Church-State Issue

September 25 is the first National Day of Remembrance for Murder Victims, sponsored by the National Center for Victims of Crime and the National Organization of Parents of Murdered Children. (Kansas City Star Crime Scene blog.) Ceremonies are being planned around the country. In Wisconsin, the program planned by the state's Department of Justice was modified to eliminate a hymn and a closing prayer, after objections from the Freedom From Religion Foundation.

Of concern to FFRF were the lyrics to This Too Shall Pass which arguably suggest that the murders being commemorated were "part of a deity's plan". FFRF argued that: "Grieving and vulnerable families should not be proselytized by state government or be told how or what they are expected to believe," nor should the state "be selecting which minister, which denomination or which religion should confer blessings...." The Capital Times reported yesterday that Department of Justice spokesman Kevin St. John said: "Rather than create the unintentional appearance that the state was endorsing religion or a particular creed, the department amended the program to exclude those parts."

Two Courts Reject Free Exercise Defenses To Liability For Clergy Sexual Abuse

Two recent cases have rejected First Amendment defenses by religious organizations to claims against them growing our of clergy sexual abuse charges. In Mary Doe SD v. Salvation Army, 2007 U.S. Dist. LEXIS 69728 (ED MO, Sept. 20, 2007), plaintiff sued the Salvation Army for sexual abuse by one of its Captains who sexually abused her when she was a teenage volunteer camp counsellor at a Salvation Army summer day camp. The Salvation Army raised First Amendment defenses to claims that it negligently failed to protect plaintiff and to breach of fiduciary duty claims. A Missouri federal district court rejected these, saying: "Certainly ... Defendant does not contend that protecting children from a child abuser, investigating child abusers, or supervising employees violate any doctrine or practice of the Salvation Army." The court also rejected Establishment Clause defenses.

In Young v. Gelineau, (RI Super., Sept. 20, 2007), a Rhode Island trial court rejected Free Exercise defenses raised by the Catholic hierarchy to claims against it growing out of plaintiff's sexual molestation by a priest. Christopher Young claimed that the Church is liable for permitting Priest John Petrocelli to have contact with him and other minors after the Church knew that Petrocelli was a child molester. The court rejected the Church's First Amendment defenses, holding that the court's inquiry into the claims "will merely constitute the application of a neutral law and will not impose upon or significantly restrict the Hierarchy Defendants’ religious beliefs or practices." The court went on to reject the argument that since hiring, retention and supervision of a priest is based on Canon law, the suit should be dismissed under the Church Autonomy doctrine.

Bureau of Prison Chapel Library Lists Published; Project Is Widely Criticized

The New York Times reported yesterday that the federal Bureau of Prisons is under pressure from all sides to change its policy of restricting the books that can be in prison chapel libraries. (See prior postings 1, 2, 3, 4.) The Republican Study Committee, a caucus of conservative House of Representatives members, wrote Bureau’s director Harley G. Lappin on Wednesday, saying, "We must ensure that in America the federal government is not the undue arbiter of what may or may not be read by our citizens." (Full text of letter.) However the Bureau of Prisons said it is not reconsidering its decision that stemmed from a 2004 Justice Department Inspector General's report warning that radical books that incite violence and hate may be on chapel library shelves.

Interestingly, along with this article, the Times has posted the list of acceptable books for each of 19 different religious groups that the Bureau of Prisons has placed on its Standardized Chapel Library Project lists. The Bureau took this approach after initial attempts to review every book in chapel libraries became unmanageable. Examination of the book lists is fascinating. The lists contain many audio-visual items as well as books. For some religious groups, the number of permitted items is well over 300, while other lists are much shorter. A list for "Other Religions" for example, contains only two books-- both on Christian Science. The Yoruba list has 76 items, while Messianic (i.e. Messianic Judaism) gets 60. The Catholic and Protestant lists are among the longest. The Jewish list is somewhat shorter with 134 items. Separate lists are furnished for Islam and Nation of Islam.

The Bureau told representatives of Christian and Jewish prison chaplains that a book could be restored to the chapel library if a prisoner requested it and a chaplain reviewed the book and sent a certification to the Bureau in Washington for review. Rabbi Aaron Lipskar, executive director of the Aleph Institute, said it is unrealistic to expect chaplains to have time to review books in this way. [Thanks to Melissa Rogers for the lead.]

Court Says Halloween Decorations Are Secular Symbols

Rivera-Alicea v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905 (D PR, Sept. 20, 2007), involves claims by a secretary in Puerto Rico's Department of Justice that she was retaliated against for complaining that "pagan" office Halloween decorations offended her Pentecostal Christian religious beliefs. In rejecting plaintiff's Establishment Clause claim, the Puerto Rico federal district court held:

Halloween decorations, like valentines, Easter bunnies, and egg hunts are all secular displays and activities that neither convey religious messages nor constitute religious symbols. Halloween lost its religious and superstitious overtones long ago. It has become instead a commercial holiday enjoyed by communities in its many forms of entertainment.

The court also rejected plaintiff's Free Exercise claim and her claim under various provisions of Puerto Rican law. However the court permitted plaintiff to move ahead with her claim of retaliation under Title VII of the 1964 Civil Rights Act based on her allegations that various actions were taken against her because she filed a complaint with the EEOC over the Halloween decorations.

3rd Circuit Rejects Free Exercise Challenge To Giving Minor "Morning After" Pill

On Friday, the U.S. Third Circuit Court of Appeals rejected free exercise and parental rights claims against the City of Philadelphia's Health Department in a suit alleging that a health center acted unconstitutionally when it furnished a 16-year old girl emergency contraception without first notifying her parents or encouraging her to consult with them. In Anspach v. City of Philadelphia, (3d Cir., Sept. 21, 2007), the court rejected both parental rights and First Amendment claims. The suit, brought by both the parents and the girl, argued that the health center misled Melissa Anspach when a staffer told her that the morning-after pill would prevent her from getting pregnant, without informing her that it could prevent the implantation of a fertilized egg. Melissa's religious beliefs saw this as abortion.

The court rejected Melissa's free exercise claim, finding that she was not coerced by the government into taking the pills and that she does not allege she ever informed the clinic staff about her religious beliefs. It also rejected a free exercise claim by Melissa's parents, holding that the Constitution does not require the government to ensure that children abide by their parents' religious beliefs. Much of the court's 47-page opinion focuses on-- and rejects-- substantive due process claims that parental rights were infringed. The Baltimore Sun's news blog reported on the case on Friday.