Cert Denied In NY Case On Contraceptive Coverage For Faith-Based Groups

The U.S. Supreme Court today denied certiorari in Catholic Charities of the Diocese of Albany v. Dinallo, (Docket No. 06-1550) (Order list.) Yahoo News reports on the case in which New York's highest court upheld a provision in the state's Women's Health and Wellness Act that requires faith-based organizations to include contraceptive coverage for women in any prescription plan that they offer employees. (See prior posting.) Twenty-two other states have similar laws. [Thanks to Brad Pardee via Religionlaw for the lead.]

DC Fire Department Must Allow Beards Worn For Religious Reasons

In Potter v. District of Columbia, (D DC, Sept. 28, 2007), the federal district court for D.C. held that under the Religious Freedom Restoration Act, the D.C. fire department may not enforce requirements to be clean-shaven on firefighters and paramedics who wear beards for religious reasons. At the heart of the dispute in the case was the question of the extent to which facial hair interferes with the effective operation of face masks that firemen sometimes need to use for respiratory health and safety. The court concluded that most of the time, firefighters used a self-contained breathing apparatus (with an air tank), and that beards did not pose a problem for these. At issue was whether bearded firefighters could safely use air purifying respirators in which they breathed in outside air. The court held that in the rare case that this was required, a less restrictive mans of accommodating those who wear beards for religious reasons is to reassign them away from duties that require that sort of respiratory system. Friday's Washington Post reported on the case. (See prior related posting.)

McCain Says US Is Christian Nation; Skeptical of Muslim As President

On Saturday, Beliefnet posted a partial transcript of an interview with presidential hopeful John McCain that has drawn extensive media attention, including this article from the New York Times. Two portions of the interview are of particular interest. Asked whether he agreed the Constitution establishes the U.S. as a Christian nation, he replied:

I would probably have to say yes, that the Constitution established the United States of America as a Christian nation. But I say that in the broadest sense. The lady that holds her lamp beside the golden door doesn't say, "I only welcome Christians." We welcome the poor, the tired, the huddled masses. But when they come here they know that they are in a nation founded on Christian principles.

Asked about the possibility of a Muslim candidate for President, he said:

... I just have to say in all candor that since this nation was founded primarily on Christian principles.... personally, I prefer someone who I know who has a solid grounding in my faith. But that doesn't mean that I'm sure that someone who is Muslim would not make a good president. I don't say that we would rule out under any circumstances someone of a different faith....

After the interview, McCain called Beliefnet to clarify his response: "I would vote for a Muslim if he or she was the candidate best able to lead the country and defend our political values." Beliefnet will post a longer transcript of the interview today.

UPDATE: In New Hampshire on Sunday, McCain appeared to be having second thoughts about some of his Beliefnet statements. The AP quotes him: "... maybe I should have kept my comments to the fact that I'm a practicing Christian, I respect all religions and beliefs, and that I support the principles, the values of the Founding Fathers... rather than getting into ... a Talmudic discussion." [Thanks to Melissa Rogers for the lead.]

UPDATE 2: Beliefnet has now posted a longer version of its interview with McCain, as Jewish and Muslim groups criticize McCain's remarks. (ADL, AJCommittee, CAIR).

UAE Rules On Ramadan Work Week Apply To Non-Muslims Also

Labor law in the United Arab Emirates sets the working day during Ramadan at six hours. Employees must be paid time-and-a-half after that. (See UAE Labor Law, Art. 65.) According to yesterday's Khaleej Times, the Ministry of Labour has made it clear that this requirement applies to non-Muslim employees during Ramadan, as well as to Muslims. The clarification came after an Abu Dhabi-based company was requiring non-Muslims to work normal 8-hour days without overtime pay.

Recent Articles on Church-State, Law & Religion

From SSRN:

• Richard W. Garnett, Religion and Group Rights: Are Churches (Just) Like the Boy Scouts?, (St. John’s Journal of Legal Commentary, Vol. 22, Fall 2007).

From Bepress:

• Muslim World Journal of Human Rights, (Special Double Issue, Vol. 4, Issues 1 & 2), The Transnational Muslim World, Human Rights, and the Rights of Women and Sexual Minorities, (2007). [Full text of 11 articles, plus notes and review.]

From University of Copenhagen Conference on Religion in the 21st Century:

• Santiago Cañamares Arribas, Religious Symbols in Spain: A Legal Perspective, (2007).

From SmartCILP:

• Stefan Braun, Second-Class Citizens: Jews, Freedom of Speech, and Intolerance on Canadian University Campuses, 12 Washington & Lee Journal of Civil Rights and Social Justice 1-50 (2006).


• James Adam Browning, Newdow v. United States Congress: Is there Any Room for God?, 34 Northern Kentucky Law Review 51-70 (2007).


• Adam S. Chodorow, Maaser Kesafim and the Development of Tax Law, 8 Florida Tax Review 153-208 (2007).


• Sarah Barringer Gordon, "Free" Religion and "Captive" Schools: Protestants, Catholics, and Education, 1945-1965, 56 DePaul Law Review 1177-1220 (2007).


• Edward C. Lyons, Reason's Freedom and the Dialectic of Ordered Liberty, 55 Clevland State Law Review 157-233 (2007).


• Frederick V. Perry, Shari'ah, Islamic Law and Arab Business Ethics, 22 Connecticut Journal of International Law 357-377 (2007).


• Nadine Strossen, Freedom and Fear Post-9/11: Are We Again Fearing Witches and Burning Women?, 31 Nova Law Review 279-314 (2007).


• Commentary: Law, Buddhism, and Social Change: A Conversation with the 14th Dalai Lama, September 20-21, 2006. Introduction by Rebecca R. French; articles by Rebecca R. French, Kenneth M. Ehrenberg, David M. Engel, R.A.L.H. Gunawardana, James L. Magavern, Kenneth Shockley, Vesna Wallace and Richard W. Whitecross; panelists: Timothy Brook, George Dreyfus, Kenneth Ehrenberg, David Engel, Rebecca French, Leslie Gunawardana, George Hezel, His Holiness the Dalai Lama, James Magavern, Elizabeth Mensch, Fernanda Pirie, Frank Reynolds, Lobsang Shastri, Kenneth Shockley, Winnifred Sullivan, Vesna Wallace and Richard Whitecross. 55 Buffalo Law Review 635-735 (2007).

Church Can Sue City for Damages, But Not Injunction, In Zoning Dispute

In Family Life Church v. City of Elgin, 2007 U.S. Dist. LEXIS 70545 (ND IL, Sept. 24, 2007), an Illinois federal district court permitted a church and a homeless person served by it to move ahead with some of their claims against the city of Elgin, Illinois, but dismissed other of their claims. Plaintiffs were permitted to move ahead with claims for damages growing out of Elgin's delay in granting the church a conditional use permit that resulted in the closure of a homeless shelter that had operated church property. However, since the church now had a conditional use permit, the court rejected plaintiffs' attempt under RLUIPA and state law to enjoin Elgin's use of its zoning code in the future to prevent the church from using its property for a homeless ministry.

Courts Face Childrens' Religious Claims Regarding Treatment of Fathers' Bodies

In two rather different recent case, courts have been faced with religious claims by children regarding the handling of their fathers' body after death. In Stone v. Allen, 2007 U.S. Dist. LEXIS 71893 (SD AL, Sept. 25, 2007), the daughter of death row inmate Thomas Arthur sought a preliminary injunction to prevent authorities from performing an autopsy on her father after his execution. She alleged that the autopsy violated her religious beliefs, and would interfere with her right to possess and dispose of her father's body. Her father was not a party to the lawsuit. The court held that a performance of an autopsy on plaintiff's father would not infringe plaintiff's First Amendment Free Exercise rights. In fact, Arthur has not yet been executed because Alabama Gov. Bob Riley at the last minute on Thursday issued a 45-day stay of execution so that the state can complete plans to change its lethal injection protocol. (Birmingham News.)

Meanwhile, in Franklin, Tennessee, a Williamson County Chancery Court Judge has issued a temporary injunction preventing the cremation of Howard Lee Rothenstein, who died Sept. 21. Today the court will hold a hearing on the dispute between Rothstein's wife who wants his remains created, and Rothstein's son who says that his father is Jewish and should be buried according to Jewish traditions. Friday's Tennessean says that court papers filed by the son object to his stepmother's plans for the body, saying "cremation is particularly disrespectful to this decedent since he ... had relatives whose bodies were burnt by the Nazis during the Holocaust."

Fire Company's Role In Transporting Virgin Mary Statue Criticized

Americans United for Separation of Church and State has written the Jackson Mills, New Jersey Fire Company complaining of its role in transporting a 9-foot tall statue of the Virgin Mary between area churches. AU says that the fire department's activities create an "unmistakable message" of governmental endorsement of religion, particularly of the Catholic faith. (Text of Sept. 26 Letter). The tour of the statue around New York, in commemoration of the anniversary of 9-11, is sponsored by the Ohio-based Our Lady of America Center. According to the AU Release:

In New York, the firefighters, dressed in their official uniforms, carried the statue into the Church of St. Peter and helped install it near the altar. In Howell, the firefighters transported the statue to St. Veronica’s Roman Catholic Church and used a fire truck, with lights flashing and sirens blaring, as part of a processional that culminated in the parking lot of the church.

The motorcade also included fire trucks from nearby Jackson Township and police vehicles. The firefighters then joined members of the Knights of Columbus in carrying the statue into the church, and the event concluded with a special mass.

Rastafarian High Schooler Disciplined For Violating Dress Code

In the small town of Leakey, Texas, high school student Ben Daley—a former Baptist who became a Rastafarian—is in conflict with his high school that insists he cut his hair in order to comply with the school’s dress code. Daley—who says his religious beliefs require long hair-- is being isolated from the rest of his classmates in an alternative program until he complies with the school’s demand. Internet Broadcasting reports that school superintendent Fred McNeil says he needs support from the school board before he can grant Daly an exception from the dress code for religious reasons. The Leakey Star reports that Daley and his father spoke before the school board earlier this month, asserting Ben’s constitutional rights. Board president Jerry W. Bates says no ruling will be made by the board until next month’s meeting. Meanwhile Ben was prohibited from participating in this month’s Homecoming activities. Ben’s father, John Daley, has contacted a San Antonio TV station and the ACLU for assistance.

Hawaii Supreme Court Rejects Free Exercise Defense In Marijuana Case

In State v. Sunderland, (HI Sup. Ct., Sept. 21, 2007), the Hawaii Supreme Court held that the First Amendment's Free Exercise clause is not a viable defense to a prosecution under state law for illegal possession of marijuana. The court also found that defendant Joseph Sunderland failed to preserve for appeal his argument that use of marijuana for religious purposes in his own home is protected by his right to privacy. Three justices dissented on this point, but, after reaching the merits of the privacy argument, only one of those three concluded that Sunderland's defense should prevail. (Text of dissents 1, 2, 3).

KY County Removes 10 Commandments Display After Adverse Court Decision

The AP reports that last Wednesday, Garrard County, Kentucky officials took down a Ten Commandments display from the walls of the Fiscal Court. The action follows the decision earlier this month in American Civil Liberties Union of Kentucky v. Garrard County, Kentucky, 2007 U.S. Dist. LEXIS 70711 (ED KY, Sept. 5, 2007) in which a federal court suggested that the display of the 10 Commandments along with other historical documents violates the Establishment Clause. It found "sufficient evidence of the county's improper religious purpose in the extended history and evolution of the ... display" to deny defendant's motion for summary judgment. Summarizing the issue in the case, the court asked: "If a county gets it wrong in displaying the Ten Commandments, what does it then take to get it 'right' such that it passes constitutional muster?" (See prior related posting.)

Facial Challenge Rejected To School's Limits On Handouts

A Texas federal district court has rejected a facial challenge to the policy of the Katy (TX) Independent School District that restricts student distribution of non-school materials on school premises. In Pounds v. Katy Independent School District, 2007 U.S. Dist. LEXIS 70505 (SD TX, Sept. 24, 2007), plaintiffs claimed that teachers and the principal at Pattison Elementary School prevented children from distributing literature with a Christian message at school. The court upheld the school’s policy that requires advance approval, subject to specific content-neutral and viewpoint-neutral guidelines, for children to distribute more than ten copies of non-school material. Plaintiffs’ "as applied" challenge to the school regulations remains to be litigated

U.S. House Calls for Religious Accommodation By Mock Trial Group

Last Tuesday, the U.S. House of Representatives passed H. Res. 25, a resolution calling on the Board of Directors of the National High School Mock Trial Championship to accommodate students of all religious faiths. At issue is whether the normal Friday-Saturday schedule for the competition will be modified to permit the team from Torah Academy of Bergen County of Teaneck, New Jersey to participate without violating the Jewish Sabbath. Accommodation was made for them in the 2005 competition, but organizers voted to refuse accommodations in the future. This led the North Carolina Academy of Trial Lawyers to withdraw from participation in protest. The House resolution says "the decision of the Board of Directors … to refuse any future accommodations for students who observe their Sabbath on Friday and/or Saturday adversely and wrongly impacts observant Jewish, Muslim, and Seventh-Day Adventist students … [and] is inconsistent with the spirit of freedom of religion or equal protection."

City Street Fair Program Drawing Offends Christians

Christian groups are complaining about the drawing on the cover of the official program guide for San Francisco’s September 30th Folsom Street Fair, according to CNS News. The festival is funded in part by the city’s Grants for the Arts program. The controversial cover features a poster apparently based on Leonardo Da Vinci's painting of "The Last Supper". In this version, however, Jesus and his apostles are replaced with leather-clad men and women. On the supper table are bondage sex toys. House Speaker Nancy Pelosi, in whose district the festival will be held, said that the drawing was protected by the First Amendment and that she did not believe that Christianity had been harmed by the drawing.

Faith-Based Groups Get Increasing Share of Substance Abuse Voucher Funds

The Roundtable on Religion & Social Welfare Policy reported last week on the increasing participation by religious organizations in offering substance abuse treatment funded by federal government vouchers. A recent report by the Department of Health & Human Services reveals that in the Access to Recovery voucher program, 31% of clinical treatment services and 22% of recovery support services have been furnished by faith-based organizations. According to The Roundtable, critics have complained that many of the faith-based programs funded by ATR do not meet state licensing requirements, and are permitted to use religiously-based materials in treatment programs. [Thanks to Blog from the Capital for the lead.]

Senate Passes Hate Crimes Expansion Over Objections of Christian Groups

The U.S. Senate on Thursday passed the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007, adding it as an amendment to the 2008 National Defense Authorization Act. The Senate invoked cloture on the amendment by a vote of 60-39, and then passed the amendment by voice vote. The House has already passed the much-debated hate crimes bill as a stand-alone piece of legislation. Friday’s Washington Post described the bill: "the definition of a hate crime would expand to include gender, sexual orientation, gender identity and disability. Local law enforcement officials would be allowed to apply for federal grants to solve such crimes, and federal agents would be given broader authority to assist state and local police. More stringent federal sentencing guidelines would also be instituted."

Conservative Christian groups strongly criticized the Senate’s action. Tony Perkins, president of the Family Research Council, said: "preserving equal justice under the law is more important than scoring points with advocates of homosexual behavior. All violent crimes are hate crimes, and every victim is equally important…. Congress should represent all Americans, not give special protections for some." (Christian Post). In the past, some Christian groups have argued that the bill interferes with their right to preach against homosexual behavior. At a press briefing following the Senate’s action, White House press secretary Dana Perino reiterated the White House’s opposition to the hate crimes bill, but stopped short of repeating previous promises by the President to veto the bill. (See prior posting.)

Court Will Decide Part of Buddhist Temple's Claim Against Parent Body

Jodo Shu Betsuin, a Buddhist Temple, was expelled from the Jodo Shu Buddhist sect by the umbrella organization that oversees the sect in North America. The expulsion resulted from an ongoing dispute over who would be the religious leaders of the Temple. After the expulsion, the umbrella organization prohibited the Temple from using its former property. The Temple sued for damages, claiming it was wrongfully evicted, seeking return of furnishings, religious objects and computers in the Temple, and seeking an order dissolving its oral partnership with the umbrella group. In Jodo Shu Betsuin v. Jodoshu North American Buddhist Missions, (Ct App. CA, Sept. 25, 2007), a California Court of Appeals permitted plaintiff to move to trial on two of its three claims.

The court held that adjudicating the eviction claim would unconstitutionally involve the court in determining an ecclesiastical issue—whether the disaffiliation pronouncement was properly reached: "The expulsion resulted from a dispute involving religious leadership. The religious leaders in question had been appointed by Jodo Shu leaders in Japan. The disaffiliation decision was confirmed at the highest levels of the hierarchical religious organization in Japan. The disaffiliation decision necessarily barred plaintiff from use of the temple property…." However the court held that the claims for conversion and partnership dissolution could probably be adjudicated without considering the propriety of the umbrella group’s disaffiliation order. Those claims, it held, created issues that should to go to trial.

Dissenting in part, Judge Mosk said: "If the lease is such that the plaintiff could not be evicted for doctrinal disputes or issues, then a court could determine that there was a wrongful eviction without addressing internal religious matters on the disaffiliation. Thus far, defendants' defense is not justification for the eviction, but rather that there was no valid lease."

Bureau of Prisons Backs Off Prison Chapel Library Project

Under pressure from religious and civil liberties groups, as well as from the American Library Association, last Wednesday the U.S. Bureau of prisons announced that it would abandon its attempt to create lists of acceptable books on religious topics for prison chapel libraries. The New York Times reported that in an e-mail, the Bureau announced that it would: "begin immediately to return to chapel libraries materials that were removed in June 2007, with the exception of any publications that have been found to be inappropriate, such as material that could be radicalizing or incite violence. The review of all materials in chapel libraries will be completed by the end of January 2008." (See prior related posting.) [Thanks to Melissa Rogers for the lead.]

Prof Fired For Remarks About Bible Story and Reaction to Student Debate

An adjunct professor at Southwestern Community College in Red Oak, Iowa claims he was terminated last Thursday because of remarks he made about the Bible in class two days earlier. According to the AP, Steve Bitterman says he was fired because he told students that the Biblical story of Adam and Eve is a fairy tale and should not be interpreted literally. However students say they complained as much about his brash style. One student left class crying after Bitterman, in the heat of the debate on the Bible, told her to "pop a Prozac." That student, Kristen Fry, said: "I talked to a lawyer and was told that what he was doing was illegal. He was not allowed to be derogatory toward me for being a Christian. I told my adviser I would sue if I had to." [Thanks to Matthew Caplan for the lead.]

More Prisoner Cases-- Diets, Runestones and Prejudicial Trial Statements

In Nelson v. Miller, 2007 U.S. Dist. LEXIS 69578 (SD IL, Sept. 20, 2007), a federal Magistrate Judge refused to dismiss a suit brought by a prisoner claiming that the prison chaplain would not allow him to receive a vegan diet for religious reasons, even though other prisoners could do so. Plaintiff is a Roman Catholic who also follows the Rule of St. Benedict which forbids eating the flesh of any four-legged animal.

In Keen v. Noble, 2007 U.S. Dist. LEXIS 69629 (ED CA, Sept. 20, 2007), a California federal district court refused to dismiss a federal prisoner's complaint that his free exercise rights were violated when prison authorities refused to provide him with runestones for his Asatru religious practices. However the court agreed with a Magistrate's recommendation to dismiss on qualified immunity grounds plaintiff's complaint that he was denied a hof. The court also held that RFRA does not authorize the award of monetary damages.

In Shabazz v. Martin, 2007 U.S. Dist. LEXIS 70342 (ED MI, Sept. 24, 2007), a Michigan federal district court denied plaintiff prisoner a new trial. Plaintiff had claimed that his defense counsel had made prejudicial comments during trial when, in questioning a witness, he referred to Plaintiff and other leaders of the Nation of Islam as "clerics" and "imams". The court rejected plaintiff's argument that this gave the jury a false impression that his religion was connected with the Sunni or Shiite doctrines in the Middle East.

In Henderson v. Virginia, 2007 U.S. Dist. LEXIS 70207 (WD VA, Sept. 21, 2007),a Virginia federal district court rejected a prisoner's claim that he was denied participation in the Ramadan fast as retaliation for "a verbal altercation" he had with prison officers. The court found that plaintiff did not show intentional conduct by defendants, did not show a retaliatory motive, and that in fact he was able to fast by saving food from his other meals.

In Conyers v. Abitz, 2007 U.S. Dist. LEXIS 70322 (ED WI, Sept. 21, 2007), a Muslim inmate was refused participation in the program that gave late meals during Ramadan because he missed the sign-up deadline. the court held that genuine issues of fact exist as to whether the deadline applied to this inmate, whether he had adequate notice of the deadline and whether the prison had a sufficient penological justification to impose the deadline.