President Issues Hanukkah Message

The Jewish holiday of Hanukkah began last night. On Monday, the White House issued the President's 2007 Hanukkah Message. Saying that "Hanukkah commemorates a victory for freedom and the courage and faith that made it possible," the President continued: "We pray that those who still live in the darkness of tyranny will someday see the light of freedom...."

AU Asks IRS To Investigate Endorsement of Huckabee By Falwell

Americans United for Separation of Church and State announced yesterday that it has asked the Internal Revenue Service to investigate an endorsement of Republican presidential candidate Mike Huckabee by Liberty University Chancellor Jerry Falwell Jr. AU says that an e-mail Liberty News Alert violated the limitations imposed on tax exempt non-profit organizations. After inviting Huckabee to speak at a Liberty University convocation, Falwell used University resources to send out the alert which said in part: "I was so impressed with the Governor’s sincerity and his positions on the issues that are important to conservative Christians that I personally endorsed Governor Huckabee before he left Lynchburg."

British Court Finds Opera Was Not Blasphemous

In Britain, two High Court judges ruled that Jerry Springer The Opera did not violate Britain's blasphemy laws. The Plymouth Herald today reports on the decision in the suit brought by the group Christian Voice. The court upheld a lower court's refusal to issue a summons against the director-general of BBC2 who permitted the opera to be shown in 2005. The High Court concluded that the play "as a whole was not and could not reasonably be regarded as aimed at, or an attack on, Christianity or what Christians held sacred." (See prior related posting.)

Preliminary Injunction Permits Menorah Lighting To Proceed

In Poughkeepsie, New York last night, a Chabad group lit a large menorah to mark the beginning of Hanukkah. Today's Poughkeepsie Journal reports that the menorah was at the same street corner where it has been placed for the last 15 years. In order to avoid church-state concerns, city officials wanted the menorah moved to a nearby municipal location where it would join holiday symbols of other religious groups. However, Rabbi Yacov Borenstein went to court and obtained a preliminary injunction ordering city workers to set up the menorah at its traditional location. Apparently the state trial court's decision was based on the city's failure to advise Chabad of the proposed move until after thousands of invitations had been sent out for the lighting at its traditional spot. The judge's decision did not deal with the broader constitutional issues. Those will be the subject of a hearing in January and will determine the menorah's location for future years. (AP).

9th Circuit Hears Arguments In Pledge and Motto Cases

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments in two cases brought by Sacramento attorney and doctor Michael Newdow--one challenging the inclusion of the phrase "under God" in the Pledge of Allegiance and the other challenging the use of the motto "In God we Trust" on coins and currency. (See prior related posting.) The AP reports that in the pledge case, Terence Cassidy, a lawyer for the school district, argued that reciting the pledge is merely a "patriotic exercise". Newdow, urging equal respect for atheists, responded that the anger people demonstrate when it is proposed that the phrase be removed demonstrates its religious significance. Becket Fund president Kevin "Seamus" Hasson, arguing on behalf of school children supporting recitation of the Pledge, argued that "under God" has been used in American history to protect "God-given rights" that are not subject to government infringement. (Becket Fund release.) In the motto case, Justice Department lawyer Lowell Sturgill Jr. argued that "In God We Trust" is just a patriotic or ceremonial message. (See prior related posting.)

8th Circuit Finds State Funding of Faith-Based Prison Program Unconstitutional

Yesterday in Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc., (8th Cir., Dec. 3, 2007), the U.S. 8th Circuit Court of Appeals held that a faith-based inmate rehabilitation program operated in an Iowa prison by InnerChange violates the Establishment Clause. The 3-judge panel included retired U.S. Supreme Court Justice Sandra Day O'Connor.

Even though inmate entry into the InnerChange program was voluntary and state funds were used only to pay for non-religious aspects of the program, the court held that direct payments to InnerChange for the years 2002-04 funded religious indoctrination in violation of the Establishment Clause of the U.S. and Iowa constitutions. It also found an Establishment Clause problem because participation in InnerChange was available only to inmates professing Christian beliefs. In 2005-07, funding changed from cost reimbursement to a per diem payment. The court held that this did not convert the program into one of permissible indirect aid. The court also rejected defendant's reliance on Turner v. Safley, a Supreme Court case which in the court's view applies to free exercise, but not to establishment clause, challenges in prison settings.

The court however reversed the district court's order that InnerChange repay funds it received from the state for periods before the trial court found the program unconstitutional. The court also emphasized that the district court injunction it was affirming applied to InnerChange only so long as it received government funding for operating the Iowa program.

Both sides have claimed victory in the Court of Appeals. Americans United issued a release praising the ruling, saying it is a major setback for the White House's faith-based initiative. Meanwhile, InnerChange issued its own release, saying that since InnerChange now operates in Iowa without state funding, the 8th Circuit's ruling effectively permits it to continue and reverses the trial court's order for it to repay $1.5 million it previously received in state funds.Yesterday's Des Moines Register covers the decision. (See prior related postings.)

Talk Show Host Sues Muslim Group For Copyright Infringement

Conservative radio talk-show host Michael Savage yesterday filed a copyright infringement suit against the Council on American-Islamic Relations (CAIR). AP reports that the suit, filed in federal court in San Francisco, challenges the use of audio excerpts from one of Savage's radio shows on CAIR's website. Portions of a Savage monologue were pieced together. They include Savage calling the Qur'an a "book of hate." The excerpts were used in a campaign to get advertisers to withdraw from sponsorship of Savage's show. Savage says that, in context, he was talking about Iranian president Mahmoud Ahmadinejad's radical form of Islam, and not about the religion more generally.

Cert. Denied In Removal of Cross From LA County Seal

Yesterday the U.S. Supreme Court denied certiorari in Vasquez v. Los Angeles County, (Docket No. 07-427) (Order List). In the case, the 9th Circuit rejected an Establishment Clause challenge to a change made to the seal of Los Angeles County. The county removed a small cross from the seal and replaced it with a picture of a historic mission. (See prior posting.) Today's Los Angeles Times reports on the Supreme Court's order in a story that carries illustrations of the old and new seal. County Supervisor Mike Antonovich says he still hopes to find enough votes on the Board of Supervisors to bring back the old seal.

Israeli Rabbinic Court Decision Increases Tension Over Civil-Religious Jurisdiction

Last week, according to Friday's Jerusalem Post, a decision by Israel's High Rabbinic Court created new tension over the respective jurisdiction of civil and religious tribunals. A divorce case in Israel can be filed in either a civil or religious court if the case also involves financial issues, and the court in which the matter is first filed has jurisdiction. In the case decided last week, the wife filed in civil court 15 minutes before her husband filed in a rabbinic court. The High Rabbinic Court ruled that the few minutes were irrelevant, and that when filings are essentially simultaneous, rabbinic courts have jurisdiction because of their special role as the prime arbiter in divorce cases. In recent years, Israel's Supreme Court has cut down the jurisdiction of rabbinic courts, holding that once the divorce proceeding is over, rabbinic courts cannot adjudicate financial issues that arise between the parties later. (See prior posting.) In last week's decision, the High Rabbinic Court ruled, however, that as to monetary issues that are part of a divorce proceeding, religious courts have primary jurisdiction. It said that civil courts have only secondary or residual jurisdiction. [Thanks to Joel Katz of the lead.]

Preliminary Injunction Protects Preacher From Disturbing-the-Peace Arrests

In Netherland v. City of Zachary, Louisiana, (MD LA, Nov. 30, 2007), a Louisiana federal district court issued a preliminary injunction against the enforcement of a city's disturbing-the- peace ordinance. The suit was brought by John Netherland, a Christian who found faith while battling alcoholism. Netherland was threatened with arrest by police for preaching loudly at local bar patrons from a public area next to the bar's parking lot. The court held that in their application of the ordinance, which bans offensive and annoying words, police were imposing a content-based restriction on speech in a traditional public forum. The court concluded that the ordinance is vague and overbroad, and infringes Netherland's right to free speech and free exercise of religion. Bar patrons' interest in being let alone did not justify the restriction on Netherland's speech. Alliance Defense Fund yesterday issued a release supporting the court's decision. (See prior related posting.)

Judge Asks For Briefs On Use of Religion In Picking Jurors

Today's New York Sun reports that a New York federal district judge has asked lawyers to submit briefs on the propriety, in an upcoming criminal trial, of either side disqualifying jurors because of their "obvious" Jewish or Arab names. Lobbyists Steven Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, are charged with passing on classified information to journalists and Israeli officials. The U.S. Supreme Court has clearly prohibited excluding jurors on the basis of race or gender, but has not clarified whether this applies to religion as well. In another twist, defense attorneys are particularly interested in questioning potential jurors about their religion, ethnicity and political party affiliation, possibly in order to retain Jewish and evangelical Christian jurors-- individuals who are likely to be pro-Israel. Harvard law professor Alan Dershowitz argues that retaining, as opposed to striking, jurors on this basis is not a problem.

Heated Controversy Over Portrait of Militant Sikh Leader Erupts In India

In the Indian state of Punjab, Punjab Pradesh Congress Committee president Rajinder kaur Bhattal has demanded removal of a controversial portrait of a Sikh militant leader being installed in the Sikh museum of the Golden Temple in the holy city of Amristar. (Punjab News, 12/3). Today's Punjab News reports that the controversy involves a portrait of Sant Jarnail Singh Bhindrenwala who headed the Damdami Taksal in 1983-84, a period in which the group spearheaded terrorist attacks. In Operation Blue Star in June 1984, then Prime Minister Indra Gandhi sent the Army to flush out militants hiding the Golden Temple. Hundreds died in the resulting operation. Baba Harnam Singh Dhuma, current head Damdami Taksal, said the criticism of the installation of the portrait amounts to interference in the internal affairs of Sikhs and, if continued, would disturb the peaceful situation in Punjab.

Church Property Disputes Looming In Pennsylvania

Yesterday's Pittsburgh Post-Gazette carries an excellent background article on the legal issues that will be faced by state courts as several Episcopal and Presbyterian congregations in western Pennsylvania threaten to break away from their parent bodies. The resulting disputes over ownership of church property likely will be decided using neutral principles of property law. The controlling decision in Pennsylvania is In re: Church of St. James the Less, (PA Sup. Ct., Dec. 29, 2005) [majority opinion, concurring opinion]. It indicates that many of the cases may turn on the validity and interpretation of trust clauses in church documents.

Holiday Display Disputes Appear Muted This Year

With three weeks to go, so far this year the "Christmas wars" over municipal holiday displays seem somewhat muted. In Ft. Collins, Colorado, City Council voted 6-1 to permit colored lights and Christmas trees and wreaths on the exterior of city buildings and other city property, but only secular displays and messages inside buildings. It rejected a proposal by a broad-based task force that only white lights, bare garlands and secular symbols such as snowflakes be hung on city property beginning next year. (Tacoma, WA News Tribune, 12/1). On Saturday in Ft. Collins, about 200 people gathered to support Sheriff Jim Alderden who wants to keep religious symbols. Yesterday's Loveland (CO) Reprter-Herald says that the event focused on decorating a 10-foot tall planted Christmas tree. A small Nativity scene and a Menorah were also put on display, all paid for by donated funds. Sheriff Alderen commented: "A sheriff puts up a Christmas tree. Why is that a national news story?"

Meanwhile in Cranston, Rhode Island, backing away from past high profile controversies over religious symbols, new mayor Michael T. Napolitano has opted to merely put up 50,000 white lights and a Christmas tree in the foyer of City Hall. In past years, the City Hall display-- which led to litigation-- included a life-sized nativity scene, a menorah, an inflatable snowman, and 15 flamingos in Santa Claus hats representing the "Church of the Flamingos". (ACLU Release, 2003). (See prior related posting.) Local ACLU director, Steven Brown, said that Napolitano "is doing more to respect religion than the politicians who try to turn Christmas into a political issue."

Sudan's President Pardons British Teacher Convicted of Insulting Islam

Sudan's president Omar al-Bashir has granted a pardon to British teacher Gillian Gibbons who had been sentenced to 15 days in jail for insulting Islam. (See prior posting.) Today's Times of London reports that Gibbons could be on a plane to Britain within a day, after serving 4 days of her sentence. The release came after lengthy talks between al-Bashir and two Muslim members of Britain's House of Lords, Lord Nazir Ahmed and Baroness Sayeeda Warsi. (AFP). The teacher had been serving her sentence in a bungalow in the suburbs of Khartoum usually reserved for high-ranking opposition leaders who are under arrest. Her lawyers had feared she would be held at the overcrowded Omdurman Women’s Prison.

Romney To Deliver Speech On His Religious Beliefs and the Presidency

The New York Times reports that on Thursday Republican presidential candidate Mitt Romney will deliver a major speech addressing questions about his Mormon religious beliefs. Scheduled for the George H.W. Bush Presidential Library in College Station, Texas, the address will be titled "Faith In America". His campaign says that Romney will "share his views on religious liberty, the grand tradition religious tolerance has played in the progress of our nation and how the governor's own faith would inform his presidency if he were elected." At ABC News, Jake Tapper writes a long analyisis of Romney's plans in a piece titled Will 'Pulling a JFK' Be Enough for Romney?

Op-Ed Explores School Board's Rule On Sacred Music In Choir Concerts

An always-difficult subject under the Establishment Clause is the extent to which school choir concerts may contain sacred music. An interesting op-ed in yesterday's Livingston (MI) Daily Press & Argus explores the Howell (MI) Public Schools' attempt to deal with the issue. Last year, the Howell Public Schools Board faced extensive criticism when it imposed on a visiting German choir its policy that concerts should contain no more than 30% sacred music. (See prior posting.) So this year the Board raised the allowable amount of religious music to 50%. The paper asks how this is to be computed:

Is it the number of songs, sacred versus secular? Or time — would one six-minute secular song be worth two three-minute sacred songs? Or, since the musical notes themselves are neither sacred nor secular, is it just the lyrics? Do we have to count lines within each song?

Equally unclear is exactly to whom the policy would apply. School board members seem to think the policy would not apply to outside groups that rent a room in a Howell school building for an event. Administrators seem to think it would....

[The Constitution] says public schools can't promote one religion over another.... [W]hy can't the Howell school board come up with a policy that says that, and goes no further so that it avoids creating needless controversies where there really is no controversy?

Private Enforcers of Islamic Law Appear In Cairo

Yesterday's Pittsburgh Post-Gazette reports that in Egypt, self-appointed morality squads are becoming common on streets, at workplaces, in subways and at the airport in Cairo. Unlike the official policers of Islamic law in Saudi Arabia and Iran, in Egypt the policing effort is undertaken by private individuals, encouraged by television preachers and Saudi-inspired religious instruction in mosques. The most common targets are women who do not have their hair covered. But men who are dating, who are not observing prayer times, or who permit their wives or sisters to wear revealing clothes have also been lectured.

Recent Publications on Law, Religion and Society

From SSRN:

• Shraddha Veeranna Chigateri, Glory to the Cow: Cultural Difference and Social Justice in the Food Hierarchy in India, (South Asia, Vol. 31, No. 1, April 2008).
  

From SmartCILP and elsewhere:

• Alex Geisinger & Ivan E. Bodensteiner, An Expressive Jurisprudence of the Establishment Clause, 112 Penn State Law Review 77-136 (2007).
• Antony Barone Kolenc, "Mr. Scalia's Neighborhood": A Home for Minority Religions?, 81 St. John's Law Review 819-880 (2007).
• Douglas G. Smith, "Equal Access"?: Faith Center Church Evangelistic Ministries v. Glover and the Use of Public Facilities for Religious Worship, 8 Engage 142-144 (Oct. 2007).

New Book:

• Robin Judd, Contested Rituals: Circumcision, Kosher Butchering and Jewish Political Life in Germany, 1843-1933, (Cornell University Press, August 2007), reviewed in The Forward.

NJ Mosque Developers Lose Attempt To Add Count To Complaint

In a challenge to Wayne Township, New Jersey's attempted exercise of eminent domain, a federal court refused to permit developers of a mosque to add an additional count to their complaint. The Township is attempting to take the mosque's property as part of an Open Space Plan. (See prior posting.) In Albanian Associated Fund & Imam Arun Polozani v. Township of Wayne, 2007 U.S. Dist. LEXIS 87666 (D NJ, Nov. 29, 2007), the court rejected an amendment alleging that the planning board's decision was arbitrary and capricious. The court held that insofar as the claim is brought under state law, it should be decided in state court. Insofar as it is based on federal substantive due process grounds, the complaint does not give sufficient notice of the basis of the claim. The court however did grant plaintiffs' motion to supplement their complaint in connection with eight other counts.