Zoning Issue Posed By "Theater Church"

An article in yesterday's Lancaster (PA) Sunday News raises an interesting religious land use issue posed by the apparently growing practice of churches renting out movie theaters for use for religious services on Sunday mornings. The zoning rules in Manheim Township, Pennsylvania permit theaters and other commercial uses in industrial zones, but not churches. Township zoning officials have issued a notice of violation to the owner of the Penn Cinema who rents out his theater each Sunday to the Crossings Church. Theater owner Penn Ketchum argues that renting out the theater for a church service does not change the character of the building. He argues: "While they're finishing up their service, we're literally opening our doors to the moviegoing public."... At no time do we cease to be a movie theater. We continue to be well within our parking ratios, as well as building capacity. The service still leaves literally 90 percent of the building unoccupied.... To me there's a big difference between a church and a church service."

Plans For London Mosque Draw Opposition

In a story from Britain, yesterday's International Herald Tribune focuses on the the opposition that has developed to plans to build a large mosque in London's East End. Originally it would have been the largest mosque in Europe at the gateway to the 2012 Olympics. Christian Peoples Alliance Party leader Alan Craig has started a campaign against the mosque, first focusing on its size, but then objecting to its sponsor, the Tablighi Jamaat, an evangelical Islamic group based in Pakistan whose teachings, authorities say, encourage terrorists. The original plans for the mosque envisioned a complex that would hold 70,000 worshipers, featuring wind turbines instead of minarets, as well as gardens, courtyards and restaurants. Those grand plans have now been dropped as a new architectural firm has been hired to design a smaller mosque, one that will accommodate 12,000. Planners are moving slowly, and say they will not break ground until after the 2012 Olympics. Also a London public relations firm has been hired and has created a website to deal with concerns about the planned mosque.

Egyptian Court Acquits Christians Charged With Defaming Islam

M&C reported yesterday that in Egypt, Christian activists Adel Fawzy Faltas and Peter Ezzat have been acquitted by a state security court of charges of threatening social peace by propagating anti-Islamic material. The charges stemmed from their distributing a book titled The Persecuted that focuses on the perceived persecution of Christian Copts. Earlier charges of converting a Muslim, Mohamed Ahmed Hegazy, to Christianity, were dropped for lack of evidence.

Recently Available Articles on Law and Religion

From SSRN:

• R. Randall Kelso, Custom and Tradition Versus Reason in Modern Secular and Religious Moral Reasoning and in Modern Constitutional Law, (August 2007).


• Christina T. Trotta, From God to Gab: Analyzing the First Amendment Rights of Religious Student Groups in an Age of Free Speech and Political Correctness, (February 16, 2007).


• Mary Jean Dolan, Government-Sponsored Chaplains and Crisis: Walking the Fine Line in Disaster Response and Daily Life, (Hastings Constitutional Law Quarterly, Vol. 35, No. 3, 2008).


• Alan Weinstein, Avoiding a RLUIPA Claim, (Cleveland-Marshall Legal Studies Paper No. 07-150, Oct. 24, 2007).

From Bepress:

• Patrick McKinley Brennan, Locating Authority in Law, and Avoiding the Authoritarianism of 'Textualism', (Villanova University School of Law Working Paper Series, No. 86, Oct. 2007. Forthcoming, Notre Dame Law Review.)

From SmartCILP:

• 13th Annual International Law and Religion Symposium. The 1981 U.N. Declaration on Religious Tolerance and Non-discrimination: Implementing Its Principles after Twenty-five Years, 2007 Brigham Young University Law Review 575-812 (2007). Articles by: Jose Maria Contreras Mazario, Carolyn Evans, Shavarsh Khachatryan, Christopher Marsh, Daniel P. Payne, Raul Gonzalez Schmal, Robert A. Seiple, Eiichiro Takahata, Khatuna Tsintsadze, Carlos Valderrama Adriansen and Ilhan Yildiz.

Belgians Bring Fraud Charges Against Church of Scientology

Yesterday's St. Petersburg (FL) Times reports that Belgian prosecutors, after ten years of investigation, are bringing criminal charges against the Church of Scientology in Belgium and 12 of its members, along with the Church's European Office for Public Affairs and Human Rights. Officials say that the Church's Belgium operations constitute a "criminal organization" that has used fraud and extortion to obtain money from its members. Defendants are also charged with practicing medicine without a license and violating privacy laws. Scientology spokesman Fabio Amicarelli said: "In 2007, the position of the (Belgian) prosecutor is really out of date."

Court Refuses Summary Judgment In Religious Leafleting Case

Frantz v. Gress, (ED PA, Oct. 25, 2007), involved a claim by plaintiff that he was impeded by police officers in his attempts to hand out religious pamphlets on a public sidewalk in Philadelphia. Plaintiff argued this was an unconstitutional content-based restriction on his speech. The court refused to grant plaintiff's motion for summary judgment, however, holding that issues of material fact remain regarding the reasons officers did not allow plaintiff to continue distributing his pamphlets in the manner he wished. The court also, though, rejected defendants' claims of qualified immunity.

Minnesota High Court Reverses Clergy Sexual Conduct Conviction In Split Decision

In a fragmented decision handed down by the Minnesota Supreme Court last week, Catholic priest John Joseph Bussmann's conviction under the state's clergy sexual conduct statute was reversed and remanded for a new trial. At issue was the priest's relationships with two adult female parishioners who he was counselling on religious and marital issues. In State of Minnesota v. Bussmann, (MN Sup. Ct., Nov. 1, 2007), the court described its ultimate holding as follows:

The clergy sexual conduct statute makes it a crime for a member of the clergy to engage in sexual penetration with a person who is seeking or receiving “religious or spiritual advice, aid, or comfort in private.” Bussmann argues that the clergy sexual conduct statute is unconstitutional because it is void for vagueness and it violates the Establishment Clause of the United States and Minnesota Constitutions. Because we (1) conclude that the clergy sexual conduct statute is not void for vagueness; (2) are equally divided on whether the statute facially violates the Establishment Clause; but (3) conclude that Bussmann’s conviction, based on the admission of extensive evidence concerning religious doctrine and church policies and practices, violated the Establishment Clause, we affirm the court of appeals’ decision on the first two issues, reverse the court of appeals’ decision on the third issue, and remand for a new trial.

The judges who concluded that the statute was facially inconsistent with the Establishment Clause argued that its provisions: "are not secular and neutral, but instead incorporate religious doctrine, as reflected in the legislative determinations that the clergy member is always in a position of power over an advisee, that any sexual penetration with an advisee is always causally related to the religious and spiritual advice given by the clergy member to an advisee, and that an advisee always lacks capacity to effectively consent to that sexual penetration."

3rd Circuit Overturns Religious Tax Protesters' Convictions

Friday's Philadelphia Inquirer reports on last week's decision by the U.S. 3rd Circuit court of Appeals reversing the convictions on most of the tax evasion charges that had been brought against three members of the pacifist Reformed Israel of Yaweh religious sect. Defendants, it was claimed, failed to pay some $300,000 in employment taxes for themselves and other employees who were members of their sect because they objected to the use of tax proceeds to support war.

In United States v. McKee, (3d Cir., Oct. 29, 2007), the court upheld the defendants' conviction for conspiracy to defraud the United States, but reversed their convictions for employment tax evasion on the ground that the jury instructions constructively amended the indictment. The court, though, did not order an acquittal on these charges, finding that there was sufficient evidence to convict on the amended charges. Finally the court ordered acquittal of one of the defendants on charges of failure to file individual income tax returns because the evidence was insufficient to establish guilt beyond a reasonable doubt.

Peter Goldberger who represented two of the defendants criticized the appellate court for failing to reach the religious freedom issues involved, saying "It's a threat to every established pacifist religion that has had kind of an unwritten understanding with the IRS." One of the defendants has by now already completed her sentence, and two others have been moved to halfway houses and home confinement. However all three had been ordered by the trial court to file delinquent tax forms and pay back taxes as a condition of their release from prison, something to which they still object. They did pay the fines and penalties imposed on them, and technically they are now due a refund because of the reversal of many of their convictions. [Thanks to Jack E. Shattuck for the lead.]

Kentucky Governor Asks Court To Clarify 10 Commandments Ban

As the gubernatorial election approaches in Kentucky, Gov. Ernie Fletcher's administration last Monday filed a petition in federal district court asking it to clarify the scope of an earlier injunction prohibiting the state from placing a 10 Commandments monument on statehouse grounds. (See prior posting.) According to WYMT News as well as a press release from the Governor, the new lawsuit was filed after a recent donation to the statehouse by a private citizen of the "Foundations of American Law and Government Display", a display that includes documents like the Mayflower Compact and the Bill of Rights along with the Ten Commandments. The governor's race between Republican Fletcher and Democrat Steve Beshear (the state's Attorney General from 1980-84) has included attacks on Beshear for a 1981 opinion [LEXIS link to OAG 81-12] he wrote advising public schools that a then-recent U.S. Supreme Court ruling meant that public schools must remove copies of the Ten Commandments already hanging in classrooms. A spokesperson for Gov. Fletcher said that the recent court filing had nothing to do with the upcoming election.

UPDATE: On Monday, a day before the gubernatorial election, a Kentucky federal district court ruled that the earlier orders enjoining the placing of a large 10 Commandments Monument outside the Kentucky Capitol did not apply to the Foundations of American Law display. However the court did not rule on the constitutionality of the Foundations display. Within hours the Foundations display was put up in the Capitol Rotunda and Gov. Fletcher issued an executive order calling for it to remain until a later court ruling is issued. (Louisville Courrier-Journal, Nov. 6.) Meanwhile, AP reported on Wednesday that former state AG Steve Beshear defeated Fletcher in the gubernatorial race. In the campaign, Beshear touted his religious upbringing and ran TV ads with him in front of a church.

Court Enjoins Georgia City's Parade and Demonstration Ordinance

In Baumann v. City of Cumming, Georgia, (ND GA, Nov. 2, 2007), a Georgia federal district court issued a preliminary injunction barring the city of Cumming, Georgia from enforcing its parade and demonstration ordinance. The challenge to the ordinance was filed by Fredric Baumann who was arrested for handing out Christian gospel tracts on the sidewalk in front of the Cumming Fairgrounds without a permit. (See prior posting.) Baumann argued that the ordinance violates his First Amendment rights and is unconstitutionally vague. The City did not dispute these assertions, but only argued that Baumann lacked standing to seek an injunction. Finding that plaintiff has standing, the court continued: "Because the city’s ordinance applies to groups as small as four, effectively forbids spontaneous speech, and purports to regulate speech in all public areas, the court concludes that plaintiff will likely prove that the ordinance burdens substantially more speech than is necessary to further the city’s legitimate and important interests in public safety and the orderly flow of traffic." An Alliance Defense Fund release praised the court's decision.

Finland Charges Sex Discrimination In Dispute Over Female Clergy

In the past few days, both Christianity Today and WorldNet Daily have reported on the prosecution in Finland of a clergyman for gender discrimination after he refused to work together at a worship service with a female pastor. Ari Norro is a preacher affiliated with the Lutheran Evangelical Association in Finland (LEAF). LEAF is part of the country's state church, the Evangelical Lutheran Church of Finland. However LEAF believes the Bible prohibits women from serving as pastors. Last March, when Norro showed up as a guest preacher at a church in southern Finland, he discovered that Petra Pohjanraito was also scheduled to help distribute communion at the service. Norro said he was leaving because he could not co-officiate with a female pastor, but instead Ms. Pohjanraito decided to leave so Norro could speak. Subsequently the head of the Hyvinkää Church Council asked police to investigate, and a prosecution for gender discrimination followed. Norro's trial is scheduled to begin Nov. 16. Norro argues that his prosecution on account of religious beliefs is inconsistent with protections in Finland's constitution.

Quebec Schools Will Begin Mandatory Ethics and Religious Culture Courses

Saturday's National Post outlines objections that have been raised in the Canadian province of Quebec to a new mandate by the province's Education Department as part of the move to secularize Quebec's schools. Starting next fall, both public schools and private religious schools (most of which receive some government funding) must offer a new course in Ethics and Religious Culture covering Christianity, Judaism, aboriginal spirituality, Islam, Hinduism and Buddhism. In public schools, the new course will replace courses in Protestant, Catholic or non-religious moral education that students now choose. Private Catholic schools are concerned that the new course, required beginning in grade 1, will leave less time for Catholic religious instruction. Orthodox Jewish schools are likely to object to a requirement that they teach about all world religions. Barry Levy, professor of religion at McGill University, says: "What's going to happen in these contexts is it's going to be totally shallow, totally meaningless. The only message is going to be [that] they are all of equal value. And the people who are genuinely committed can't buy that argument." (See prior related posting.)

Optional Flag-Folding Ceremonies Are Now Back In Military Funerals

Recently the National Cemetery Administration responded to complaints about religious references in the traditional flag-folding ceremony used at many military funerals and banned the ceremony. (See prior posting.) Negative reaction to that decision has been swift, and last Tuesday the Department of Veteran's Affairs issued a clarification:

A family may request the recitation of words to accompany the meaningful presentation of the American flag as we honor the dedication and sacrifice of their loved ones.... Volunteer honor guards are authorized to read the so-called "13-fold" flag recitation or any comparable script. Survivors of the deceased need to provide material and request it be read by the volunteer honor guards... Volunteer honor guards will accept requests for recitations that reflect any or no religious traditions, on an equal basis.

In a speech to the American Legion on Thursday (full text), Vice President Dick Cheney referred to the clarification:

As most of you know, our nation has 125 national cemeteries operated by the VA. Burials conducted in those cemeteries should honor the wishes of the families, including those that relate to religious observances. And despite the confusing order that recently came out of the federal bureaucracy, I want you to know that honor guards at military funerals will give the 13-fold recitation at any service where the family requests it.

Today's Christian Post reports that conservative Christian groups such as the American Center for Law and Justice are still unhappy because the policy now permits only volunteer honor guards, and not officials such as military chaplains, to read the recitation. Also families will no longer receive the flyer informing them of optional flag-folding ceremony. However a posting today on the ACLJ's website says it is pleased with the resolution of the matter as announced by Vice-President Cheney.

New Challenge To "Under God" In Pledge Filed By Newdow As Attorney

In 2004, the U.S. Supreme Court held that atheist Michael Newdow, as a non-custodial parent, lacked standing to bring a case that challenged the inclusion of the phrase "under God" in the Pledge of Allegiance recited each day in his daughter's school. Now, hoping to avoid standing issues, Newdow (who is a lawyer) has filed a suit in New Hampshire federal district court on behalf of a couple identified only as "Jan and Pat Doe," an atheist and an agnostic with three children in the Hanover, NH schools. Today's Nashua Telegraph reports that under New Hampshire law students can stand silently or remain seated instead of participating in the Pledge in school. However the suit claims that coercive peer pressure still exists. The complaint asserts that "by endorsing the religious notion that God exists, the now-religious Pledge creates a societal environment where prejudice against atheists -- and, thus, against Plaintiffs here -- is perpetuated." Plaintiffs do not object to required recitation of the pledge without the "under God" reference in it.

Court Stays Injunction Pending Appeal of Religious Displays In Postal Outlet

A Connecticut federal district court earlier this year issued an injunction requiring a contract postal unit to remove religious displays, prayer cards, advertisements, donation solicitations, and telecommunication videos that proselytize on behalf of the Full Gospel Interdenominational Church. (See prior postings 1, 2). Now in Cooper v. United States Postal Service, 2007 U.S. Dist. LEXIS 80877 (D CT, Nov. 1, 2007) the court has issued a stay of the injunction while defendant's appeal of the case is pending.

Ireland's Drunk-Driving Proposals Create Problem For Catholic Churches

BBC News reported yesterday that Catholic priests in Ireland are facing an unusual problem as authorities--concerned about drunk driving-- are considering reducing the allowable blood alcohol limit for drivers to zero. The shortage of priests in Ireland means that some priests are required to recite two or three masses, at different locations, on the same day. Drinking consecrated wine is part of the ceremony. Priests who do so and then drive to their next mass would be violating the zero-alcohol requirement. Well-known Irish priest Father Brian D'Arcy says that the Vatican has ruled out using non-alcoholic wine at mass.

National Park Service Sued Over Mt. Rushmore Speech Permit Rules

Last Friday, the Alliance Defense Fund announced that it had filed suit against the National Park Service and others in federal court in the District of Columbia challenging rules governing public expression and distribution of printed matter at the Mt. Rushmore National Monument in South Dakota. The complaint (full text) alleges that Michael Boardley's free speech, free exercise, due process and equal protection rights were violated when he was informed that he would be required to obtain a permit in order to continue to hand out gospel tracts in a free speech zone in the Mt.Rushmore visitor complex. Boardley asked for a permit but never received one. The case is Boardley v. United States Department of Interior, (D DC, filed 11/2/07).

British Appeals Panel Rejects Religious Discrimination Claim of Magistrate

Last Wednesday in McClintock v. Department of Constitutional Affairs, (EAT, Oct. 31, 2007), the British Employment Appeals Tribunal (EAT) upheld a decision rendered last March by Sheffield's Employment Tribunal rejecting a discrimination claim by Andrew McClintock, a Justice of the Peace. (See prior posting.) McClintock, who sat on the court's Family Panel, asked to be excused from hearing cases that might raise the issue of placing children for adoption with same-sex couples. When his request was refused, he argued this amounted to discrimination against him on the basis of his Christian religious beliefs, or on the basis of his philosophical beliefs, in violation of the Employment Equality (Religion or Belief) Regulations 2003.

The Appellate Tribunal said that the denial of McClintock's request did not amount to direct discrimination because he did not make clear to the Department of Constitutional Affairs (DCA) that he had any religious or philosophical objections to adoptions by same-sex couples, only that it was an unacceptable social experiment. That also led to the rejection of McClintock's indirect discrimination claim that others holding religious or philosophical objections to gay adoption would be disadvantaged by the DCA ruling. Finally the EAT concluded that magistrates must apply the law of the land as their oath requires, and cannot opt out of cases on moral grounds.
Inspire Magazine reports on the EAT's decision.

DoJ Says RFRA May Trump Anti-Bias Rules For Faith-Based Grantees

Carl Esbeck reports in The Hill that the Department of Justice has ruled that the Christian organization, World Vision, may retain a $1.5 million grant to fight juvenile crime in Northern Virginia, even though the organization employs religious criteria in hiring of employees. The grant was awarded under the Juvenile Justice and Delinquency Prevention Act, which is subject to provisions of the Safe Streets Act that ban religious discrimination in use of the grant funds. In a more general policy statement (full text) recently posted on its website, the Justice Department says that the Religious Freedom Restoration Act can override these anti-discrimination provisions. In order to qualify for RFRA protection, a faith-based organization must certify that it "is a religious organization that sincerely believes that providing the services in question is an expression of its religious beliefs; that employing individuals of particular religious belief is important to its religious exercise; and that having to abandon its religious hiring practice in order to receive the federal funding would substantially burden its religious exercise." [Thanks to Michael Lieberman for the lead on the Esbeck op-ed.]

More Legal Charges Pending Against Westboro Anti-Gay Funeral Picketer

Tuesday's multi-million dollar judgment against the anti-gay leaders of Westboro Baptist Church who make a practice of picketing veterans' funerals has been hailed by losing defendant Shirley Phelps-Roper. AP reports that she delightedly said: "Our message has exploded all over the world... It's given us a huge megaphone."

However, Phelps-Roper's legal battles are not over. She is to appear in a Sarpy County (NE) Court on Monday on charges of flag mutilation, negligent child abuse, contributing to the delinquency of a minor and disturbing the peace, all growing out of a funeral protest in Bellevue, Nebraska at which Phelps-Roper allowed her 10-year-old son to stand on an American flag as part of the protest.