HHS Anti-Terrorism Grants to Non-Profits Went Mainly To Jewish Institutions

At the end of September, the U.S. Department of Homeland Security announced the award of 308 grants totalling $24 million to non-profit institutions to help potential terrorism targets harden their defenses, improve screening and train personnel in terrorism preparedness. Last Thursday Haaretz reported that 76% of the grants went to Jewish institutions. For example, the Chabad Israeli Center of Greater Washington received funds to purchase security cameras, anti-burglar lights, intercoms and concrete barriers to stop cars. According to the AP, other grantees included American Muslims for Emergency and Relief in Miami, the American Red Cross in Washington, D.C., St. Michael's Medical Center in Newark, N.J., and Harper-Hutzel Hospital in Detroit.

Recent Prisoner Free Exercise Cases

In Norwood v. Strada, (3d Cir., Sept. 25, 2007), the U.S. 3rd Circuit Court of Appeals affirmed a lower court's dismissal of a claim by a Muslim held in a federal prison that his religious freedom rights protected by RFRA were violated when he was denied a religiously acceptable Halal diet for 3 days during an emergency prison lock-down.

In Keith v. Hawk-Sawyer, 2007 U.S. Dist. LEXIS 72597 (SD IL, Sept. 28, 2007), an Illinois federal district court dismissed a prisoner's attempt to get the federal Bureau of Prisons to recognize the Christian Identity religion. It found no case or controversy as to some of the defendants, and held the case was moot as to others.

In Williams v. Miller, 2007 U.S. Dist. LEXIS 72552 (SD IL, Sept. 28, 2007), an Illinois federal district court held that whether a prisoner was sincere in his attempt to have his religious affiliation changed from Catholic to Jewish in prison records poses factual issues that cannot be decided in a motion for summary judgment. Only by getting his religious designation changed could plaintiff obtain kosher meals and Jewish religious texts and accessories.

In Jones v. Shabazz, 2007 U.S. Dist. LEXIS 72640 (SD TX, Sept. 28, 2007), a Texas federal district court rejected almost all of the many claims raised by a Nation of Islam prisoner who complained that Texas prison chaplains and administrative officials denied him and other NOI inmates access to religious videotapes, DVDs, books, newspapers, and prayer oil; that they refused to accommodate religious practices as to diet, charity and modesty, and the use of plaintiff's religious name; and that they discriminated against NOI inmates in hiring of chaplains and furnishing religious services. Only the prayer oil claim and a claim regarding a requirement that plaintiff stand nude after strip searches and showers survived immediate dismissal.

In Hunt v. Miller, 2007 U.S. Dist. LEXIS 73907 (ND IN, Sept. 28, 2007), an Indiana federal district court held that while "the Constitution allows jails ... to employ chaplains to provide religious services, ... the First Amendment's free exercise clause does not require small jails to hire chaplains or take other affirmative steps to assist prisoners in practicing their religion."

In Toler v. Leopold, 2007 U.S. Dist. LEXIS 73232 (ED MO, Oct. 1, 2007), a Missouri federal district court dismissed a RLUIPA claim against the Missouri Department of Corrections, finding that RLUIPA does not waive a state's 11th Amendment immunity from damage suits.

Malaysia Issues Religious Guidelines For Muslim Astronaut's Flight This Week

If all goes as planned, on Wednesday Russia will launch a Soyuz spacecraft which will fly to the International Space Station. On board will be Malaysia's first astronaut-- and only the second Muslim to fly in space. Sheikh Muszaphar Shukor will be accompanied by Russian cosmonaut Yury Malenchenko and American Peggy Whitson. (AFP). Muszaphar's flight has attracted particular attention because it will take place during Ramadan, and Muszaphar says he wants to carry out as many of his religious obligations as possible. So Malaysia's Islamic Development Department has come up with a book, titled Guidelines for Performing Islamic Rites at the International Space Station. (The Star.) An article published in Wired last month outlines some of the challenges faced in adapting earthbound rituals in space. For example, how does an astronaut face Mecca while praying? Many other challenges are also presented in adapting prayer rituals to outer space. The Guidelines (.doc file) set out various adaptations that an astronaut may follow. For example, prayer times are to be based on a 24-hour period and determined in accordance with the time zone at the port from which the launch takes place.

Freemasonry Is "Religion" Under RLUIPA, But Masonic Temple Loses RLUIPA Claim

In Scottish Rite Cathedral Association of Los Angeles v. City of Los Angeles, (CA Ct. App., Oct. 3, 2007), a California court of appeals rejected a RLUIPA challenge by the Los Angeles Scottish Rite Cathedral Association to the revocation of its certificate of occupancy for its Masonic Temple. The appellate court rejected the trial court's holding that Freemasonry is not a religion. The appellate court found "no principled way to distinguish the earnest pursuit of these [Masonic] principles ... from more widely acknowledged modes of religious exercise." However the court held that the Masonic Temple, which was now largely being rented out for commercial as well as non-profit events, was not protected under RLUIPA. It concluded: "a burden on a commercial enterprise used to fund a religious organization does not constitute a substantial burden on 'religious exercise' within the meaning of RLUIPA."

RFRA Precludes Applying ADEA To Forced Retirement of Clergy

A New York federal district court, deciding a case on remand from the 2nd Circuit, has held that the Religious Freedom Restoration Act precludes applying the Age Discrimination in Employment Act to forced retirement of United Methodist clergy at age 70. The 2nd Circuit Court of Appeals had held that RFRA, rather than the "ministerial exception" doctrine, governs in applying the ADEA. (See prior posting.) In Hankins v. New York Annual Conference of the United Methodist Church, 2007 U.S. Dist. LEXIS 73724 (ED NY, Sept. 28, 2007), the district court found "that application of the ADEA to Defendants would place a substantial burden on their right to chose their own clergy and that the government does not possess a compelling interest in prohibiting age discrimination in the employment thereof. Thus, even if the ministerial exception is not applicable in this manner, RFRA's strict scrutiny standard compels an identical result."

Fired Profs Sue Oral Roberts University Claiming Retaliation

Three former professors have filed a lawsuit alleging that they were wrongfully dismissed as faculty at Oral Roberts University after they reported the University's use of resources in a candidate's political race for mayor in Tulsa, Oklahoma. Political involvement would be inconsistent with the school's non-profit tax status. The professors also turned over to the Board of Regents a report charging that University President Richard Roberts had engaged in other improper use of University funds and personnel. CBN News reported yesterday:

Richard Roberts is accused of illegal involvement in a local political campaign and lavish spending at donors' expense, including numerous home remodeling projects, use of the university jet for his daughter's senior trip to the Bahamas, and a red Mercedes convertible and a Lexus SUV for his wife, Lindsay.

She is accused of dropping tens of thousands of dollars on clothes, awarding nonacademic scholarships to friends of her children and sending scores of text messages on university-issued cell phones to people described in the lawsuit as "underage males."

At a chapel service this week on the 5,300-student campus known for its 60-foot-tall bronze sculpture of praying hands, Roberts said God told him: "We live in a litigious society. Anyone can get mad and file a lawsuit against another person whether they have a legitimate case or not. This lawsuit ... is about intimidation, blackmail and extortion."

Oral Roberts' website describes the University as "a charismatic university, founded in the fires of evangelism and upon the unchanging precepts of the Bible." ORU's board of Regents is investigating the charges.

Street Preacher's Conviction For Trespass On School Grounds Upheld

In State v. Carr, (OR Ct. App., Oct. 3, 2007), the Oregon Court of Appeals affirmed the criminal trespass conviction of street preacher Michael John Carr who insisted on preaching to Hillsboro, Oregon middle school students as they arrived at school and disembarked from school their buses. Carr wore a sandwich board with religious content and told students that that he had free passes to heaven for them. The court rejected Carr's claim that his right to freedom of speech and free exercise of religion prevented the school's principal from restricting his speech, at least when he was on school grounds as opposed to the public sidewalk in front of the school.

Muslim Clothing Traditions Continue To Be Controversial In Europe

Issues of Muslim dress continue to raise controversy in Europe. Muslim Weekly (Oct. 5) reported that Italy's Interior Minister Giuliano Amato recently rejected calls to ban the Muslim veil in public places. He says, that if a nun can wear her habit, a Muslim woman should have similar rights. However Amato is opposed to wearing of the burka.

Meanwhile, according to AFP yesterday, in Spain the temporary expulsion from school of a 9-year old Moroccan girl who insists on wearing a hijab (headscarf) to class has touched off a national debate on whether Muslim headscarves should be banned in public schools.

Recent Scholarly Articles of Interest

From SSRN:

• Robert W. McGee & Galina G. Preobragenskaya, The Ethics of Tax Evasion: An Empirical Study of Opinion in Kazakhstan, (October 2007).
  
• Hany Besada, Egypt's Constitutional Test: Averting the March Toward Islamic Fundamentalism, (CIGI Working Paper No. 28, August 2007).
  
• Edward J. Eberle, German Religious Freedoms: The Movement Toward Protection of Minorities, (Oregon Review of International Law, Forthcoming).
  
• Ian C. Bartrum, The Origins of Secular Public Education: The New York School Controversy, 1840-1842, (NYU Journal of Law & Liberty, Forthcoming).
  
• David A. Brennen, The Charitable Tax Exemption is About Much More than Efficiency, (2007).
  
• John Bernard Quigley, The International Court of Justice as a Forum for Genocide Cases, (Ohio State Public Law Working Paper No. 102, September 2007).

From SmartCILP and elsewhere:

• Russell Powell, Catharine MacKinnon May Not Be Enough: Legal Change and Religion in Catholic and Sunni Jurisprudence, 8 Georgetown Journal of Gender & Law 1-41 (2007).
  
• Roger Severino, "Or for Poorer?" How Same-Sex Marriage Threatens Religious Liberty, (Harvard Journal of Law & Public Policy, Vol. 30, pp. 939-82, 2007).

Louisiana's Unrestricted Funds To 2 Churches Violates Establishment Clause

In American Civil Liberties Union Foundation of Louisiana v. Blanco, (ED LA, Oct. 5, 2007), a Louisiana federal district court issued a preliminary injunction to prevent the state from disbursing funds that were appropriated in the state budget bill to two churches without any legislative indication of the purpose for which the funds were being granted. The court said: "The challenged appropriations in this case fall within the core proscription of the Establishment Clause." The court rejected the state's argument that the appropriations were saved from invalidity because an Executive Order issued by the Governor required recipients of earmarked funds to complete a cooperative endeavor agreement describing the public purpose for which the funds will be used. A release by the ACLU praised Judge Vance's decision. (See prior related posting.)

Indonesia's Constitutional Court Upholds Limits On Polygamy

According to Reuters, last Wednesday Indonesia's Constitutional Court upheld the an Indonesian law that limits polygamy to cases in which a first wife is childless, or terminally ill or unable to fulfill her sexual obligations and where that wife gives her consent. (See prior posting.) The court held that the law is consistent with both the country's Constitution and the tenets of Islam (that allows multiple marriages only if all wives are treated fairly).

State Court Refuses To Halt Vote On Pastor

In Nashville, Tennessee today, members of the large Two Rivers Baptist Church will vote during services whether to retain their senior pastor, the Rev. Jerry Sutton. A dissident faction in the church says that Sutton misspent church money on trips and for his daughter's wedding reception. The vote takes place after a Nashville state court judge refused to intervene to stop it, holding that a civil court cannot become involved in determining who should be a church's pastor. According to yesterday's Tennessean, Davidson County Chancellor Claudia Bonnyman agreed that under the state's non-profit corporation law, critics of the pastor were entitled to obtain a list of church members, but the judge refused to postpone the vote. Critics claim that Sutton is trying to obtain a favorable vote before they get access to church financial records in a pending lawsuit. The court also refused to order the church to stop removing Sutton's opponents from church committees.

UPDATE: Town Hall reports that members of Two Rivers Baptist Church voted 1101- 286 in favor of Jerry Sutton's remaining as the church's pastor.

UN Holds Conference On Interfaith Understanding

On Oct. 4, the United Nations General Assembly convened the first-ever High-Level Dialogue on interfaith and intercultural understanding. GA/10360 and GA/10632 report on the statements and remarks made by dozens of participants from various nations at the 2-day meeting. General Assembly President Srgjan Kerim emphasized the United Nations "crucial role" in fostering respect for other's religions and beliefs, but, he said, "we should also recognize that a crime committed in the name of religion is the greatest crime against religion; and that religion should not be used as a pretext for war". He urged governments to adopt educational curricula that instill the values of peace and tolerance.

Bishop Say Giuliani and Other Pro-Choice Candidates Should Be Denied Communion

Last Wednesday, the St. Louis Post-Dispatch reported that St. Louis Archbishop Raymond L. Burke said Catholic priests are obligated to refuse communion to Catholic politicians whose positions on abortion contradict Church teachings. Consistent with that position, Burke indicated that he would deny communion to Republican Presidential hopeful Rudy Giuliani. Archbishop Burke, who took similar position in 2004 regarding Democratic Presidential candidate John Kerry, has elaborated on his position in an article titled The Discipline Regarding the Denial of Holy Communion to Those Obstinately Persevering in Manifest Grave Sin, published in a recent issue of Periodica de re Canonica. Burke's article seems to urge the U.S. Bishop's Conference to adopt a uniform national position on the matter, instead of leaving the issue to individual bishops as the Conference did in 2004. (LifeNews, Oct. 4.)

Kansas Supreme Court To Consider Judicial Trigger In Funeral Picketing Law

Last March, following the lead of 32 other states, the Kansas legislature enacted a law (SB 244) banning funeral protests. The laws are aimed at the offensive anti-gay picketing of veterans' funerals by a Topeka-based church. (See prior posting.) Unlike other states, however, the Kansas law contains a "judicial trigger". It does not take effect until the state Supreme Court or a federal court rules that it is constitutional. In May the Kansas Attorney General filed suit in the Kansas Supreme Court to obtain a ruling on the law's constitutionality. Earlier this week, the Kansas Supreme court scheduled a hearing in the case, but only on whether the judicial trigger itself is constitutional, and if it is not, on whether it can be severed from the remainder of the statute. (Order in State ex rel. Morrison, Attorney General v. Kathleen Sebelius, Governor, (KS Sup. Ct., t. 3, 2007). The AP reported on the Court's action in the case.

White House Hosts Iftaar Dinner To Mark Ramadan

Last Thursday evening, the White House hosted some 90 guests at its 7th annual Iftaar Dinner to celebrate the Muslim holy month of Ramadan. (Yahoo News.) In his remarks (full text) in the State Dining Room, President Bush said: "Today, our world is at war with violent extremists who seek to tear the fabric of our society.... We say to them, you don't represent Muslims, you do not represent Islam -- and you will not succeed." Lt. Cmdr. Abuhena Saifulislam, the second Muslim chaplain commissioned in the Navy, gave the blessing before dinner. (American Forces Press Service.) The White House announced that among the invited guests were American Muslim women who had made contributions in science, education, civil society, the arts and culture. Prior to the dinner, the White House website hosted an online interactive forum with Shirin Tahir-Kheli, Special Assistant to the President and National Security Council Senior Director for Democracy, Human Rights and International Operations, answering questions submitted by members of the public regarding the dinner. [Thanks to Melissa Rogers for the lead.]

South African High Court Upholds Hindu-Indian Student's Right to Wear Nose Stud

The Constitutional Court of South Africa yesterday, in KZN MEC of Education v Pillay, (SA Const. Ct., Oct. 5, 2007) held that the Durban Girl’s High School had illegally discriminated against an Indian/ Hindu student by refusing to permit her to wear a nose stud to school. The majority held that the school’s prohibition on wearing jewelry had the potential for indirect discrimination because it permitted some students to express their religious and cultural identity, while denying that right to others. (Court’s Media Summary of decision.) Interpreting South Africa’s Equality Act of 2000, the majority held that generally schools must grant exemptions from dress code requirements for sincerely held religious and cultural practices. However this is not so where the exemption would pose a real possibility of disruption or where a religious or cultural practice is insignificant. Also private schools may have more leeway than public ones in enforcing dress requirements. SABC News reported on the decision. (See prior related posting.)

3rd Circuit Hears Arguments On High School Coach Joining Players In Prayer

On Wednesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Borden v. School District of East Brunswick in which a New Jersey high school is appealing a district court’s ruling that football coach Marcus Borden can participate in student-initiated non-sectarian pre-game prayers offered by football team players. (See prior postings, 1, 2, and full transcript of district court's ruling from the bench.). The AP reports that at oral argument, Judge Theodore A. McKee voiced concern over the rights of players and cheerleaders who did not wish to join in prayer, while Judge Maryanne Trump Barry questioned how the school could enforce a ban on Borden’s bowing his head while his team members prayed. She asked “Are you going to walk around with a ruler?” and “What if he has his head bowed but he says he's not praying?" An article in the Legal Intelligencer reviews the arguments made in the briefs for each side and in the three amicus briefs that were filed. [Thanks to Jack Shattuck for the lead.]

European Parliament Passes Resolution Opposing Teaching of Creationism

On Oct. 4, the Parliamentary Assembly of the Council of Europe approved, by a vote of 48-25 (with 3 abstentions), a Resolution (full text) urging its members “to firmly oppose the teaching of creationism as a scientific discipline on an equal footing with the theory of evolution and in general resist presentation of creationist ideas in any discipline other than religion”. It likewise urges members “to promote the teaching of evolution as a fundamental scientific theory in the school curriculum.” The National Center for Science Education reports on the resolution and links to the Council’s Explanatory Memorandum on it.

In laying the foundation for its recommendations, the Resolution states, in part:

The war on the theory of evolution and on its proponents most often originates in forms of religious extremism which are closely allied to extreme right-wing political movements…. [S]ome advocates of strict creationism are out to replace democracy by theocracy… All leading representatives of the main monotheistic religions have adopted a much more moderate attitude…. The teaching of all phenomena concerning evolution as a fundamental scientific theory is therefore crucial to the future of our societies and our democracies. For that reason it must occupy a central position in the curriculum, and especially in the science syllabus, as long as, like any other theory, it is able to stand up to thorough scientific scrutiny.

Editorial Examines Tensions Between Free Exercise and Church-State Separation

This week’s Forward carries a fascinating editorial on the relationship between religious freedom and church-state separation. Focusing on the Jewish holiday of Simchat Torah, celebrated this past Thursday evening and Friday, the editorial reflects the tensions inherent in reconciling the two religion clauses of the First Amendment. It points out that most Jews in America see separation of church and state as a bedrock principle that assures them full and equal status as citizens. Yet despite insistence that the public square be religiously neutral, in many U.S. cities on Simchat Torah synagogues sponsor celebrations on the public streets, dancing and singing while holding Torah scrolls—a practice developed in the Soviet Union in the 1960’s to protest Communist repression.

The editorial recognizes the contradiction inherent in this, and comment that “the lines are never that clear or simple”. It concludes by saying that in the battle to maintain separation of church and state—which must continue to be fought-- Jewish liberals should not demonize conservatives who are trying to bring religion back to the public square, because “the Bible that conservatives seek to post on courthouse walls is the same one the we danced with on our blocked-off streets and avenues this week.” The full editorial is definitely worth reading.