US Says Foreign Sovereign Immunities Act Is OK Under Establishment Clause

Yesterday's Louisville Courrier-Journal reports that the U.S. State Department and Department of Justice have filed an amicus brief in the pending 6th Circuit appeal in O'Bryan v. Holy See, a class action priest abuse lawsuit. In January, a federal district court in Kentucky held that while the Vatican is a foreign government covered by the Foreign Sovereign Immunities Act ("FSIA"), the "tort exception" to the Act permits a claim to be filed against the Holy See based on clergy acting in the scope of their employment. [District Court opinion.] Plaintiffs claimed that clergy failed to warn parishioners that their children would be under the care of known or suspected pedophiles, and failed to report known or suspected abusers to state and local authorities. (See prior posting.)

The government's amicus brief defends the constitutionality of of FSIA against plaintiffs' claim that the immunity granted to the Vatican by the Act is inconsistent with the Establishment Clause because it grants special favors that benefits only the Catholic Church. The government responds that there is no evidence Congress intended to benefit Catholicism in enacting FSIA. At the time of its enactment, the United States had not yet recognized the Vatican. The government's brief also argues that under the Constitution, the President has the sole right to decide whether to recognize the Holy See as a foreign government.

Town Board Candidate Rejects Interfaith Group

While many political candidates are reaching out to religious voters, in Chili, New York, Democratic Town Board candidate Tim Lancaster is taking the opposite approach. In response to a request by the Interfaith Alliance that he sign the League of Women Voters Fair Campaign Pledge, Lancaster wrote that he does not want to associate himself with the faith-based social justice group. Today's Rochester Democrat & Chronicle reports that Lancaster, an atheist, rejected the request, saying that "the Interfaith Alliance is a silly group", that some of its members have al-Qaeda sympathies, and that he does not respect "something that is superstitious and based on mythology like religion". The Democratic Party has sent a letter of apology to the Alliance and to the League of Women Voters.

Catholic College Recognizes GLBT Student Group

While some Catholic colleges have been sued for discrimination for refusing to recognize gay and lesbian student groups, Sylvania, Ohio's Lourdes College has taken a different route. WTVG-TV reported yesterday that Lourdes has recognized Prism, a gay, lesbian, bisexual, transgender organization whose co-advisor is a nun. The group's goal is to acknowledge and promote awareness of the GLBT population on campus. Some alumni, however, accuse the College, which is sponsored by the sisters of St. Francis, of rejecting Catholic teachings in order to increase enrollments.

6th Circuit Rejects Postal Worker's Title VII Religious Accommodation Claim

In Tepper v. Potter, (6th Cir., Oct. 15, 2007), the U.S. 6th Circuit Court of Appeals rejected Title VII religious accommodation and religious discrimination claims brought by a letter carrier against the Chagrin Falls, Ohio branch of the United States Postal Service.

Letter carrier Martin Tepper is a Messianic Jew who observes Saturday as his Sabbath. While the post office initially accommodated him by giving him Saturdays off, in 2002 the accommodation was terminated due to staffing problems. The court held that requiring Tepper to take leave without pay, or use vacation time if he wished to take Saturdays off does not amount to discipline or discharge for his religious observance, nor does it amount to a materially adverse change in his conditions of employment. Rejecting Tepper’s differential treatment claim, the court held that giving other employees Sunday off was not so they could observe their Sabbath, but because few carriers are needed since few mail deliveries are scheduled for Sunday. The court said all employees are treated equally—all must work a 5-day week with a rotating day off. [Thanks to Alliance Alert for the lead.]

Alabama Gives Statewide Approval To Bible As Literature Textbook

Alabama has become the first state to adopt statewide a textbook for study of the Bible as literature in public schools, according to a press release yesterday by the Bible Literacy Project. The Bible and Its Influence can now be purchased with state funds by any Alabama school for use as the sole textbook in an elective Literature course. The book which is being used in 163 schools in 35 states has the support of experts in literature, religion and church-state law. (See prior posting.) However, the book still has its critics. (See prior posting.)

Sweden May Ban Religious Doctrine in Parochial Schools' Secular Courses

According to yesterday's International Herald Tribune, Sweden's Education Minister Jan Bjorklund is drafting rules that would prohibit private religiously-affiliated schools from introducing religious elements into secular courses such as biology. The new rules, which will need Parliamentary approval in order to become effective, are designed to protect students from all forms of fundamentalism. They will also require private confessional schools to report their financial donations to authorities. The rules were drafted after a county adminnistrative court gave permission to the Exclusive Brethren Christian Fellowship to start a school. The group rejects the theory of evolution.

Cert. Denied In Prisoner Free Exercise Case

Among the cases in which the U.S. Supreme Court denied certiorari today was a prisoner free exercise case-- Washington v. Corrections Corporation of America, (Docket No. 07-5911). (Order List). The 10th Circuit in its Oct. 3, 2006 opinion rejected an Oklahoma prisoner's claims because he had not used prison grievance procedures to exhaust his administrative remedies, as required by the Prison Litigation Reform Act. According to the 10th Circuit, prisoner Marvin Washington claimed, among other things:

that as a "Black Hebrew Isralist [sic]" he was arbitrarily denied a Kosher diet and the use of prayer oils.... He contends that he was informed that only Islamists and Wiccans could receive prayer oils and that only Jews could be served a Kosher diet. Finally, [he] contends that the prison grocery's more than 300 percent markup of certain items violated his Eighth Amendment right to be free from cruel and unusual punishment, as well as the state and federal usury laws, and RICO.

Another Mt. Soledad Cross Decision-- Quashing of Subpoena Affirmed

In the ongoing challenge to Congressional legislation that transfered the Mt. Soledad Veterans' Memorial (with its Mt. Soledad Cross) to the federal government, last month a California federal magistrate judge quashed plaintiffs' attempt to depose Thomas More Law Center regional director Charles Li Mandri. Li Mandri gave advice to the principal sponsors of the federal law. (See prior posting.) Plaintiffs then filed objections to the magistrate's order. Last week a federal district judge rejected those objections.

In Trunk v. City of San Diego, 2007 U.S. Dist. LEXIS 75787 (SD CA, Oct. 11, 2007), the court held that nothing Li Mandri might say would likely lead to the discovery of relevant evidence on whether a reasonable observer would consider the legislation to have the effect of endorsing religion. A reasonable observer would not look to the views of advocacy groups, nor would an observer consider private information that had not been disclosed. The court also agreed with the magistrate's concerns about limits imposed by the Speech or Debate clause of the Constitution and about protecting non-party activists and political opponents from harassment.

Illinois Teacher Says He Will Challenge Moment of Silence Law

A Waukegan, (IL) teacher says he hopes to file a court challenge to Illinois' new law that requires him to begin each class with a moment of silence. Yesterday's Lake County (IL) News-Sun reported that the teacher, Brian Bown, unsuccessfully challenged a similar law passed by Georgia in 1994. (Bown v. Gwinnett County School Dist., (11th Cir. May 6, 1997)). There, Bown said, a church had encouraged school children to bring their Bibles to class and recite the Lord's Prayer during the moment of silence. His challenge to the Georgia law led to legislative investigations and personal harassment that affected his health.

Recent Article and Books of Interest

Recent Article from SSRN:

• [removed per request of author].

Recent and Forthcoming Books:

• Gary Wills, Head and Heart: American Christianities, (Penguin Press, October 4, 2007), reviewed by the Los Angeles Times.
  
• Bruce David Forbes, Christmas-- A Candid History (Univ. of Calif. Press, Oct. 2007).
  
• Sana Haroon, Frontier of Faith-- Islam in the Indo-Afghan Borderland, (Columbia Univ. Press, Jan. 2008).
• Bruce Lincoln, Religion, Empire, and Torture: The Case of Achaemenian Persia, with a Postscript on Abu Ghraib, (Univ. of Chicago Press, Spring 2007).
• Abbas Amanat & Frank Griffel (eds.), Shari'a-- Islamic Law in the Contemporary Context , (Stanford Univ. Press, 2007).

Struggling Catholic Schools Considering Charter School Status

In Denver, Colorado, a small Catholic dual-language school that is struggling financially is considering converting to become a public charter school. Yesterday's Denver Post reports that Escuela de Guadalupe is part of a possible national trend, as eight Catholic schools in Washington, D.C. also debate possible conversion to charter status. In order to convert, the school must drop all of its religious instruction. However Barry Lynn, executive director of Americans United for Separation of Church and State, said: "Frequently the 'recreated' schools look suspiciously like the pre-recreated schools.... They say they're re-created but in fact it's the same school with the same curriculum and teachers." In an ABC News story last week, the Interim Principal of one of the D.C. Catholic schools that is moving to convert to charter status is quoted: "We can still teach the kids and love the kids in a Christ-like way without having to talk about Christ."

European Baptists Protest Conviction of Pastor In Azerbaijan

Ekklesia reports today that Baptists around Europe are renewing their efforts to obtain the release of Baptist Pastor Zaur Balaev who was sentenced to two years in prison by a court in Azerbaijan. Earlier this month, an appeals court rejected Balaev's appeal of his sentence. Forum 18 reported that the conviction stems from a raid by police last May on an "illegal religious service" by Balaev's unregistered congregation. Over the years, authorities have repeatedly refused applications for registration by the congregation in Aliabad in far north-west Azerbaijan. Police say that when they raided the service, Balaev attacked them. Balaev was charged under Article 315, Part 1 of the Criminal Code, which prohibits the application or threat of violence to a state representative carrying out official duties. Balaev now plans to appeal to Azerbaijan's Supreme Court, and will take his case to the European Court of Human rights if necessary.

Arkansas School Still Runs Released-Time Program For Religious Instruction

Around the country, some public schools still have "released time" programs in which students, with their parent's permission, go off-premises for a portion of the day for religious studies. Today's Arkansas Democrat Gazette carries a lengthy description of the 70-year old overtly Christian released time program for grades K through 3 in Gravette, Arkansas. Once a week, volunteers escort the 95% of the children who participate down a 100-foot long sidewalk to Gravette’s Storytime Bible Studies building. The building is on a 50-foot wide piece of private property between the town's elementary and upper elementary schools. For 30 minutes, the children hear Bible stories and sing religious songs. The students who do not participate remain in class where teachers either go on with lesson plans or work individually with them. Until 1989, Gravette offered the Bible Studies program in the school building. However a federal district court, in a decision that was affirmed without opinion by the 8th Circuit, found that practice to be unconstitutional. Doe v. Human, 725 F. Supp. 1503 (WD AR, 1989) [LEXIS link], affd. 923 F.2d 857 (8th Cir., 1990).

New York's Syrian Jews Enforce Strict Edict Against Intermarriage

Do religious institutions retain any power to enforce rules over their members in an open society like that in the United States when civil courts clearly will not act as enforcers? Today's New York Times Magazine carries a long article on how the economically thriving 75,000-member Syrian Jewish community in Brooklyn has been successful in carrying out a rabbinic Edict issued over 70 years ago. The unusual Edict bars the community's Syrian Jews not only from marrying non-Jews, but also from marrying converts to Judaism. The few who ignore the ban are effectively ostracized by the community, including their own families.

Memphis Churches Charged With Improper Endorsement of Candidates

Americans United for Separation of Church and State has filed a complaint with the Internal Revenue Service claiming that three churches in Memphis, TN endorsed candidates in the city's Oct. 4 mayoral race. Federal tax law prohibits non-profits from making partisan endorsements. (IRS fact sheet.) Today's Memphis Commercial Appeal reports that at Oak Grove Missionary Baptist Church, Greater Community Temple Church of God in Christ and Trinity Church and Christian Center, the pastors specifically expressed support for one or the other mayoral candidates after the candidate appeared at Sunday services. In the race, incumbent Mayor Willie Herenton won a fifth term over challenger Carol Chumney.

Pakistan's Red Mosque Attracts Crowds After Court-Ordered Reopening

Today's Washington Post reports that "huge numbers of newcomers have been attracted to prayer at the Red Mosque" in Islamabad, Pakistan, now that it has been reopened. The radical mosque (see prior posting), known in Urdu as "Lal Masjid", was closed after a government troops raided it in July. On Oct. 2, Pakistan's Supreme Court ordered the mosque reopened. (IRNA). The Post reports that again worshippers at the mosque are calling for a Taliban style government in Pakistan, as they vow to repaint the mosque its traditional red. The government had painted it yellow after it took over in July.

Paper Profiles Faith-Based Prison Programs

USA Today this week end looks in-depth at faith-based prison facilities. While concluding that it is unclear whether the programs reduce recidivism, the article reports positively on the impact they have on individual prisoners who, for the first time, feel they are being treated with respect:

[E]vidence is strong that violence and trouble-making drop sharply in these programs, and they often are the only vibrant rehabilitation option at a time when taxpayer-funded alternatives have been cut back.

Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project, has qualms about whether the faith-based programs are fair to non-Christian inmates but hesitates to criticize them because they fill a void. Two decades of tough-on-crime policies have sharply reduced the number of rehabilitative prison programs, she said, and volunteer-driven religious initiatives offer states a low-cost way to meet some of the demand.

A federal district court decision in Iowa finding state support for InnerChange's faith-based prison program unconstitutional is now on appeal. (See prior posting.)

Boston Area Chabad Congregation Gets Controversial Zoning Approval

Today's Boston Globe reports that the Board of Aldermen in Newton Highlands (MA) have given in to a Chabad Orthodox Jewish congregation and voted to permit them to build a new synagogue building on property the congregation owns, even though the facility will have 60 fewer parking spaces than zoning rules require. Beth Menachem Chabad argued that since their members generally walk to services on Saturday, the added parking spaces are not needed. Opponents say that inevitably the building will be used for other events that require parking. The battle over municipal approval of the building has included charges by Beth Menachem members that officials who opposed the building plans were anti-Semitic.

Abuses In Federal Employee Religious Comp Time Reported

Federal law (5 USC Sec. 5550a) provides that a federal employee “whose personal religious beliefs require the abstention from work during certain periods of time, may elect to engage in overtime work for time lost for meeting those religious requirements.” An investigative article in yesterday’s Washington Post documents numerous abuses of these religious comp time provisions. Some federal employees have used the comp time for vacations instead of religious observances, while others have received large amounts when they retired to pay them for accrued religious comp time. The Post reports that the Bush administration has publicized the availability of religious comp time in various ways, and has told federal workers that they can be paid for unused religious comp time when they leave federal employment. [Thanks to Steven Jamar via Religionlaw for the lead.]

President, New York City, Mark Eid al-Fitr

Eid al-Fitr, the holiday marking the end of Ramadan, began this weekend for Muslims around the world. (Voice of America.) On Thursday, the White House released a message from the President sending greetings to Muslims in the United States and around the world who are celebrating the festival. (Full text.) President Bush said in part: “Our Nation is proud to be a land of many beliefs, and our society is enriched by our Muslim citizens.” For the first time, New York’s Empire State building will be lit up in green—the symbol of a happy occasion in Islam—to mark the holiday. This will be done annually, just as the building is also lit for the celebrations of Christmas and Hanukkah. (Voice of America).