Tensions In Europe Over Muslim Presence Examined

The Organization for Security and Co-operation in Europe (OSCE) is sponsoring a conference in Cordoba, Spain on Intolerance and Discrimination Against Muslims. SwissInfo today interviewed Switzerland's Deputy State Secretary of Foreign Affairs, Anton Thalmann, who spoke at the conference. Thalmann said that religious intolerance affects fundamental Swiss values. Meanwhile today's Guardian reports on growing tensions in Switzerland and elsewhere in Europe over the construction of mosques, minarets and Islamic culture centers, as some Europeans attempt to keep their cities culturally Christian.

Applicability of NY Human Rights Laws To Students Being Challenged

The Ithaca City School District is challenging the applicability of New York's Human Rights Law to public school students. The Ithaca Journal reports on impassioned testimony at yesterday's school board meeting. Parents, students and community members are asking the board to drop its challenge that is pending in an appeal of a case in which the district is charged with failing to protect a student from racial harassment. The Human Rights Law prohibits religious discrimination, as well as discrimination on the basis of race, gender, sexual orientation, disability, genetic characteristics, or military or marital status. The school district is arguing that the law's coverage does not extend to public school students. It claims that the public hearing procedures in discrimination cases heard by the New York Division of Human Rights forces schools to violate federal student privacy laws in order to mount a defense. Civil rights groups are planning to ask the New York legislature to amend the law to make it clear that it does apply to public school students.

Group Claims Sex Ed Curriculum Will Lead To Religious Discrimination

Conservative groups are raising a new kind of religious objection to Montgomery County, Maryland's sexual education curriculum. A group called Citizens for Responsible Curriculum argues that the new curriculum will lead to intolerance against those who oppose homosexuality on religious grounds. Today's Examiner reports that Maryland Circuit Court Judge William Rowan III yesterday refused to enjoin the schools from implementing the curriculum while challenges to it are pending. An appeal of the Maryland State Board of Education's approval of the curriculum will be heard by the court in January.

Conscientious Objector's Trial Delayed As Amnesty International Expresses Concern

Army First Lieutenant Ehren Watada's court martial on charges that he refused to deploy with his unit to Iraq in June 2006 was scheduled to begin yesterday. However, a federal judge in Washington state ordered the Army to delay the trial. Honolulu's KNHL reports that Watada's lawyer says the court martial would amount to double jeopardy because an earlier court martial ended in a mistrial. Watada is a conscientious objector-- not to all wars, but to the war in Iraq. Because he does not object to all wars, U.S. law would not grant him CO status. Last week Amensty International expressed serious concern over Watada's fate. It said: "The right to refuse to perform military service for reasons of conscience, thought or religion is protected under international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified."

Michigan Town Will Vote On Creche Display

The Nov. 6 ballot in Berkley, Michigan will include a proposed Charter Amendment that would require the city to display a Nativity scene on city hall property every year from the Monday following Thanksgiving until January 6. (See prior related posting.) The ballot measure calls for the display to also include gift packages, colored lights, a "Seasons Greetings" sign, and a Santa Claus figure. Last year, after the ACLU raised objections to the city's traditional creche display, city council ultimately decided to turn it over to local churches to display on a rotating basis. (See prior posting.) This led to the formation of Berkley Citizens Vote YES to Christmas Holiday that is backing the ballot measure. Today's Berkley Daily Tribune reports that Berkley Mayor Marilyn Stephen and a majority of City Council members have signed a letter opposing the ballot proposal.

California Councilman Insists On Arguing Against Church-State Separation

Today's San Diego Union-Tribune reports on efforts of El Cajon (CA) City Council member Bob McClellan to use Council meetings to argue for more religion in government. Last month, McClellan, an evangelical Christian, began placing an item on Council's agenda labelled "Bob's Constitutional Moments". He used the time to quote from historical documents to argue that the nation's founders did not favor separation of church and state. Last week, however, City Attorney Morgan Foley sent a memo to council recommending that the agenda item be dropped in order to avoid embroiling the city in protracted and expensive church-state litigation. So at last night's meeting, McClellan instead spoke at the end of the public comment period of the meeting. However he ignored the city attorney's recommendation that he "be required to leave his seat on the dais and stand at the podium in order to send the clear message that his comments express opinions of his own and not necessarily those of the entire City Council, or the City of El Cajon."

European Human Rights Court Says Turkey's School Curriculum Violates ECHR

Yesterday in Case of Hasan & Eylem Zengin v. Turkey, (ECHR, Oct. 9, 2007), the European Court of Human Rights held that compulsory courses on religious culture and ethics in Turkish primary and secondary schools are taught in a way that violates the European Convention on Human Rights. Protocol No. 1, Art. 2 of the ECHR provides:

In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The suit was brought by Hasan Zengin and his daughter Eylem, members of the Alevi faith, after Turkish authorities refused to exempt Eylem from the required religion and culture classes. Today's Zaman traces the background of the case. The ECHR held that the courses do not meet the criteria of objectivity and pluralism, and fail to respect the philosophical convictions of Hasan Zengin. The Court also observed that the exemption procedure does not provide sufficient protection to parents who believe the course is likely to create a conflict of allegiance in their children between the school and their own values.

UPDATE: On Thursday, Turkey's ruling Justice and Development Party agreed to implement the court's ruling by allowing students to opt out of existing courses on religion that emphasize Islam. However, those who do will be required to take "universal religious knowledge" courses in which all religions are covered equally. (Today's Zaman.)

Ohio House Speaker Ends Advance Submission of Invocations

Last May, the Clerk of the Ohio House of Representatives sent a memo to all House members urging respect for the then-House policy on invocations by guest ministers. Prayers were to be non-denominational, non-sectarian and non-proselytizing, and were to be submitted 72 hours in advance. (See prior posting.) Now an Alliance Defense Fund release reports that Ohio House Speaker Jon Husted has changed that policy. Husted sent a memo last month to the House Clerk stating: "Throughout the past few months I reflected and prayed upon an issue of great importance ... the issue is that of protecting prayer. After thoughtful deliberation, including the consideration of hiring a House chaplain, I have determined that our current guest minister program is working quite well.... [W]hile the Ohio House ... is under my leadership, we will not censor the content of prayers given prior to a House session. Please implement this policy immediately."

Suit Challenges Denial of High School Credit For Religious Community Service

Liberty Counsel announced yesterday that it has filed suit against the Long Beach (CA) Unified School District, challenging its Community Service Learning requirement rules as discriminatory. All district high school students must complete at least 40 hours of community service in order to graduate. The lawsuit was filed on behalf of 15-year old Chris Rand who was denied credit for 80 hours of work with children he performed at the Long Beach Alliance Church. The lawsuit claims that no credit will be granted for service to religious communities. However, the current Student Service Learning Manual grants credit for religiously sponsored social service activities. It denies credit for teaching about religion, helping with religious services (including babysitting) recruiting members, or providing merely office or maintenance work. The Long Beach Press-Telegram quotes a school district spokesman who said that work at churches counts as long as it is not designed "to enhance a religion". That restriction, he said, results from church-state separation concerns.

Quebec Advisory Council Urges Ban On Religious Symbols Worn By Civil Servants

In Canada, Quebec's Council on the Status of Women is urging the province to ban public employees from wearing visible religious symbols on the job, according to today's National Post. The 20-member government advisory board says it is attempting to protect the religious neutrality of government institutions. The proposed ban would apply to "ostentatious" religious symbols, such as large Christian crosses, Sikh turbans and Jewish yarmulkes. Particularly at issue, however, are the hijab (headscarf) and niqab (full face veil) worn by some Muslim women. Focusing on school teachers, the Council said : "The niqab sends a message of the submission of a woman, which should not be conveyed to young children as part of a secular education, which is required to promote equality between men and women." In 1995, according to today's National Post, the Council urged schools to permit students to wear the hijab. The new recommendation that would apply to teachers and other public servants is similar to a ban enforced in France.

Gated Community Bars Religious Statues In Garden Areas

Yesterday's Newsday reports that a homeowners' association board in a gated community in Medford, New York has created controversy by banning religious statues, bird feeders and birdbaths from all common areas, including gardens outside individual condominiums. This has forced Gloria Gamarano to remove a statue of the Virgin Mary from her garden. Another resident was told to remove from her garden a decorative statute of St. Francis of Assisi that contained a small birdbath. The Catholic League for Religious and Civil Rights has criticized the rule as discriminatory against people of faith. Arlene Crandall, president of the homeowners' board, says the goal was to eliminate from commons areas statues that appeal only to one segment of the community's population.

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).