Recent Scholarly Articles of Interest

From SSRN:

• Caspar P.L. van Woensel, Symbols and the Law. BRAND, GOD, AND BAN: IMPROPER USE AND MONOPOLIZATION OF SIGNS WITH A HIGH SYMBOLIC VALUE, (Amstelveen, Netherlands: deLex, 2007 ).

From SmartCILP:

• Aaron Baker, Controlling Racial and Religious Profiling: Article 14 ECHR Protection v. U.S. Equal Protection Clause Prosecution, 13 Texas Wesleyan Law Review 285-309 (2007).


• Javaid Rehman, "War on Terror" and the Future of Muslim Minorities in the United Kingdom: Dilemmas of Multi-Culturalism in the Aftermath of the London Bombings, 29 Human Rights Quarterly 831-878 (2007).


• Jeffrey Omar Usman, Defining Religion: The Struggle to Define Religion Under the First Amendment and the Contributions and Insights of Other Disciplines of Study Including Theology, Psychology, Sociology, the Arts, and Anthropology, 83 Notre Dame Law Review 123-223 (2007).


• Symposium. The Future of Islamic Law Scholarship. Foreword by Hisham M. Ramadan; articles by Bernard K. Freamon, Nazeem MI Goolam, Sherman A. Jackson, Liaquat Ali Khan, Aminah Beverly McCloud and Hisham M. Ramadan. 2006 Michigan State Law Review 1399-1640.


• Symposium: Religion and Morality in the Public Square. Excerpts from keynote address by Noah Feldman; articles by Christopher J. Eberle, Kent Greenawalt, Leslie Griffin, Peter Steinfels, Richard W. Garnett and Bernadette Meyler. 22 St. John's Journal of Legal Commentary 417-558 (2007).

Alabama Court Rejects Defamation Claim On Church Autonomy Grounds

In Reynolds v. Wood, 2007 Ala. Civ. App. LEXIS 782 (AL Ct. Civ. App., Dec 21, 2007), an Alabama state appellate court overturned a $10,000 verdict that plaintiff had won at trial and dismissed a defamation claim brought by a church deacon against its pastor. The court said: "The statements at issue in this case were made by a pastor during a sermon and addressed the conformity of a deacon to the church's standards of faith and morality. Our courts may not decide the truth or falsity of such statements and, therefore, may not entertain claims pertaining to those issues. Furthermore, as a matter of policy, we have strong reservations about restricting the religious speech of a pastor from his pulpit.... Deacon Wood may seek recourse through the governing boards and disciplinary processes established by the church..." An AP report gives some background on the dispute between the parties over the operation of the church's benevolent fund.

Huckabee Discusses Concerns On Religion With Reporters

MSNBC carries an interesting account of Mike Huckabee's conversation with reporters on his campaign bus in Iowa on Friday. Responding to concerns that as President he would favor Christians, he said: "I don't think anybody's going to find that ... I'm some intolerant bigot when it comes to religion.... [I]n my view of faith, it's only faith if it's voluntary ... and to try to force faith on somebody would, to me, violate the heart and soul of it as to what it should be."

Asked whether he would continue the tradition he started as Arkansas governor to celebrate Christian Heritage Week and hang the 10 Commandments in his office, he replied: "[I] don't know why I wouldn't.... The Ten Commandments form the basis of most of our laws and therefore, you know if you look through them does anybody find anything there that would be all that objectionable? I don't think most people would if they actually read them."

Finally, in a lighter vein, Huckabee missed the humor in an exchnage with a reporter about Christmas eve plans. Huckabee said his family has a tradition of going out for Chinese food after Christmas eve services. Asked if this was to help him better relate to the Jewish community (where there is a similar custom), Huckabee-- apparently mystified-- replied "No, its Chinese food." [Thanks to Carpetbagger Report for the lead.]

County Resolution Urges Public Recognition of God

According to an AP story today, last week the Knox County (TN) Commission passed, by a vote of 8-3, a resolution "urging all American citizens to proclaim to every level of government its responsibility to publicly recognize God as the foundation of our National Heritage." (Agenda Item R-07-12-917). In the past, similar resolutions have generated significant controversy. They generated less this time because in October a judge invalidated the appointment of eight of the Commissioners, who, he found, were appointed in violation of the state's Open Meetings Act.

Recent Prisoner Free Exercise Cases

In Scott v. California Supreme Court, 2007 U.S. Dist. LEXIS 93525 (ED CA, Dec. 20, 2007), a California federal Magistrate Judge rejected a prisoner's claim that his First amendment free exercise rights and his rights under RLUIPA were vioalted when the warden refused to permit him to change his name for religious reasons. The court said that it found no evidence demonstrating that plaintiff's practice of his religion was substantially burdened by the refusal.

In Harris v. Schriro, 2007 U.S. Dist. LEXIS 93350, (D AZ, Dec. 18, 2007), an Arizona federal district court dismissed as a defendant a dietitian employed by the company that provides kosher meals to Arizona prisons. The court held that plaintiff had not demonstrate a connection between the dietitian's conduct and alleged violations of plaintiff's First Amendment rights. Plaintiff claimed he was denied regular kosher meals. (See prior related posting.)

In Alston v. Department of Corrections, 2007 U.S. Dist. LEXIS 91964 (WD VA, Dec. 14, 2007), a Virginia federal district court rejected an inmate's claim that being served, on two occasions, his Common Fare meal with a dirty tray lid violated his free exercise rights under the First Amendment and RLUIPA.

In Sides v. Religious Accommodation Committee, 2007 U.S. Dist. LEXIS 73075 (MD PA, Oct. 1, 2007), a Pennsylvania federal district court accepted a magistrate's recommendation (2007 U.S. Dist. LEXIS 91832, Aug. 3, 2007) insofar as it concluded that an inmate does did not need certain racially inflammatory documents confiscated from him in order for him to prove that he is an adherent of "Creativity". The court said, however, that issues remain as to whether the confiscated documents are religious materials entitled to free exercise protection.

Excessive Christian Proselytizing In Military Charged

Yesterday's Baltimore Chronicle & Sentinel carries a lengthy opinion piece by Jason Leopold on the Military Ministry, a national organization that is a subsidiary of Campus Crusade for Christ. Relying in particular on information discovered by Mikey Weinstein of the Military Religious Freedom Foundation, Leopold reports that "Military Ministry's staff has successfully targeted US soldiers entering basic training at Lackland Air Force Base and Fort Sam Houston, with the approval of the Army base's top commanders." The piece quotes Military Ministry staff as saying they are working to send soldiers "out into the world as Government paid missionaries." The website of Fort Jackson's Military Ministry reportedly carried a photo of basic training battalion commander, Lt. Col. David Snodgrass, and battalion chaplain, Maj. Scott Bullock, in uniform with Military Ministry director Frank Bussey. Leopold also says that President Bush has recently nominated Brig. Gen. Cecil R. Richardson, deputy Air Force Chief of Chaplains, to replace the outgoing Air Force Chief of Chaplains. He points out that in 2005 the New York Times quoted Richardson as saying that the Air Force reserves the right "to evangelize the unchurched."

Nepal's Government Presses For Change In Traditions for Hindu Child-Goddess

The AP reported on Saturday that a nearly 400-year old religious tradition in Nepal is coming under challenge from government officials as well as others. Traditionally, a young girl around the age of 4 is chosen from the goldsmith caste to live as the incarnation of the Hindu deity Taleju. (Background). The chosen girl-- at least until recent changes-- has been largely isolated in a Katmandu palace, and is worshipped as a goddess, until she reaches puberty and is sent back to her family, unprepared to adjust to a normal life. Now however activists charge that this practice violates Nepalese law. The Supreme Court began an investigation, and the country's new democratic government refused to allow King Gyanendra to receive the goddess's annual blessing. Apparently the prime minister, rather than the king, is to receive the blessing. The king, however, went to the goddess without permission, a step that led the government to retaliate by reducing the number of royal bodyguards.

French President Calls For Greater Role For Religion In Public Life

French President Nicolas Sarkozy, in a visit to the Vatican on Thursday, caused consternation among some in France by encouraging a greater role for religion in giving meaning to public life. Reuters reported on the trip during which Sarkozy received the title of Honorary Canon at the Lateran Basilica, an honor given to the head of France since Henry IV. (Zenit). Zenit published quotes from two of Sarkozy's speeches. At the Basilica, he said: "Secularism should not be a denial of the past. It does not have the power to sever France from its Christian roots." In meeting with Pope Benedict XVI on Thursday, Sarkozy said: "I am calling for a positive laicism, that is to say, a secularism that watches over freedom of thought, of belief and unbelief, does not consider religion as a danger, but as an asset."

Church and State Responses To Same-Sex Couples Continue To Evolve

As the debate over recognizing same-sex couples continues, both church groups and governmental bodies are responding in varied way. The AP today reports that in some liberal churches around the country-- such as some United Church of Christ congregations -- ministers have begun performing only religious marriage ceremonies. They refuse to act as agents of the state to sign civil marriage licenses so long as state law rejects same-sex marriage. Rev. Mark Wade, pastor of a Unitarian Universalist Church in Asheville, N.C., said that the move emphasizes the separation of church and state: "We tell couples to go to the magistrate. I felt I couldn't serve an unjust law." At the same time, in Massachusetts where same-sex marriage is recognized, some conservative pastors refuse to perform the civil portion of marriage ceremonies so that they are not pressured to officiate for same-sex couples.

Meanwhile, Toledo, Ohio yesterday became the largest city in the state to create a domestic partnership registry. Today's Toledo Blade reports that on its first day of operation, eight couples registered with the city as domestic partners. The city ordinance creates the registry for both same-sex and opposite-sex domestic partners. Toledo Mayor Carty Finkbeiner who signed the ordinance last month says that he is a "strong Christian believer" who does not advocate alternative lifestyles, but who does believe in minority rights and diversity. One of those who registered yesterday, Carol Bresnahan, vice provost at the University of Toledo, said that bigotry in the name of religious belief accounts for those who oppose the law. When the ordinance was passed last month, the Ohio's Gay People's Chronicle reported that there are 152 similar registries nationwide.

Nativity Displays Continue In The News As Christmas Approaches

As Christmas day draws near, disputes over governmentally sponsored nativity displays continue to erupt. One in the small town of Exmore,Virginia was the focus of a Washington Post article on Friday that discusses more generally the phenomenon of complaints about holiday displays. According to the Post: “Three national legal groups are involved in the dispute there. They disagree over whether a Christmas tree-shaped ornament the town placed on a nearby telephone pole proves -- or disproves -- that the Nativity scene is just part of a broader, generally secular display.” A bit more background on the Exmore display is in Saturday’s Salisbury (MD) Daily Times.

Friday’s Manitowoc, Wisconsin News discusses the objections to the nativity scene on the local court house lawn raised by the Freedom from Religion Foundation. County Board Chairman Jim Brey’s reaction was: “It's unfortunate that just a few people can choose to be offended out of the blue and disrupt and insult the good people in our community who care very much about the holiday and the meaning for the holiday.” In response to arguments that the display is a town tradition, Rich Bouril, the resident who originally complained about the display, said: “Slavery was a tradition once.”

Finally, in Britain, 18-year old Christopher Geisler will spend both Christmas and New Years in jail after he stole the figures of Jesus and Mary from a nativity scene in front of Worcester’s Guildhall. Geisler, who was already on bail for two assault charges, apparently had been drinking and said he stole the statues “for a laugh”. This is the third year in a row that the nativity scene has been vandalized. According to today's Worcester News, Geisler’s father was upset that he would not be home for Christmas.

One RLUIPA Suit Filed; Another In the Offing

In San Diego, California, the Pacific Beach United Methodist Church has filed a RLUIPA lawsuit after San Diego's Neighborhood Code Enforcement Office threatened to cite the congregation for its use of its building to feed the homeless. Friday’s San Diego Union-Tribune reports that every Wednesday night for 14 years the church has served dinner and offered medical care for homeless men, women and children. The lawsuit alleges that the threatened zoning enforcement action prevents church members “from practicing the fundamental tenets of their Christian religion on their church's property.”

Meanwhile in Litchfield, Connecticut, a RLUIPA suit may be in the offing now that the Historic District Commission has denied an application by a Chabad-Lubavitch Orthodox Jewish congregation to restore and add onto a Victorian house on the edge of the district for use as a synagogue and living quarters for the rabbi. The Commission says it would welcome a proposal to build a much smaller building, but Chabad says that there are already Episcopalian, Methodist and Roman Catholic churches in the same neighborhood that are larger than the proposed new synagogue. The Hartford Courant reported on Friday that this proposal to build the town’s first synagogue has been controversial from its inception, with the Commission chairwoman, who is herself Jewish, called anti-Semitic by by Chabad after she objected to the proposed star of David and the use of Jerusalem stone in the renovated building.

Majority Upholds Witness' Religious Objection to Raising Hand To Be Sworn In

In a 2-1 decision, the Michigan Court of Appeals has upheld the right of a plaintiff in a lawsuit to refuse for religious reasons to raise her right hand when being sworn in at a deposition and at a subsequent hearing. In Donkers v. Kovach, (MI Ct. App., Dec. 18, 2007), the majority opinion held that while raising one's right hand is required by Michigan statue when an oath is administered, the statute does not require the same conduct when, as here, a witness is administered an affirmation instead of an oath. Judge Markey dissenting argued that the statutory provision permitting an affirmation still requires raising of the right hand. He went on to hold that this requirement violates neither the First Amendment's religion clauses nor parallel provisions in the Michigan constitution. She concluded that the requirement is secular in origin and fosters a secular purpose, and that it is a neutral law of general application. Because plaintiff voluntarily chose to bring suit in a Michigan court, she must, Judge Markey ruled, "abide by Michigan's laws and court rules."

Malay Officials Say Christian Paper Must Change Its Translation of "God"

Under Malaysian law, newspaper publishers must obtain annual government permits in order to publish. Today's International Herald Tribune reports that publishers of a Catholic weekly newspaper, The Herald, have been informed that they will not have their permit renewed unless they stop translating "God" as "Allah" in the Malay language version of their paper. Officials say "Allah" may only be used to refer to the Muslim God and may not be used more generically. Instead, according to officials, the paper should use the more term "Tuhan" when referring to God in a Christian context. Internal Security Ministry official Che Din Yusoff says that there are also three other Malay words that may not be used by other religions: "solat" (prayers), "kaabah" (the place of Muslim worship in Mecca) and "baitula" (the house of Allah). However Herald editor Rev. Lawrence Andrew says: "We follow the Bible. The Malay-language Bible uses Allah for God and Tuhan for Lord. In our prayers and in church during Malay mass, we use the word Allah."

UPDATE: The AP reported on Dec. 27 that the Sabah Evangelical Church of Borneo has sued challenging the government's position after it seized children's educational material being brought into the country. Government officials said the Christian books' use of "Allah," could raise confusion and controversy among Muslims.

Denial of Visa To Muslim Scholar Upheld By Court

Yesterday in American Academy of Religion v. Chertoff, (SDNY, Dec. 20, 2007), a New York federal district court upheld the U.S. government's denial of a visa to Tariq Ramadan, a prominent Muslim scholar who had originally been offered a tenured position at the University of Notre Dame, and who later wished to attend other academic events in the United States. The court found that the government had articulated a facially legitimate and bona fide reason to exclude Ramadan. He had contributed funds to an organization which he knew, or should have known, provided funds to Hamas, a Designated Foreign Terrorist Organization. The court refused to pass on the constitutionality of a separate provision of the Patriot Act that excludes from the U.S. any alien who "endorses or espouses terrorist activity". The ACLU issued a release criticizing the decision. It said: "The ACLU continues to believe that Ramadan, a leading European academic whose work addresses Muslim identity and the role of Islam in democratic societies, remains banned due to his political viewpoints."

UN General Assembly Passes Resolution Against Defamation of Religions

Jurist reports that on Tuesday, the United Nations General Assembly adopted a resolution on Combating Defamation of Religions. The resolution, introduced by Pakistan on behalf of countries that are members of the Organization of the Islamic Conference, was passed by a vote of 108 to 51, with 25 abstentions. (UN Press Release). The United States, Canada and a number of Western European nations voted against the lengthy resolution which provides in part that the General Assembly:

8. Deplores the use of the print, audio-visual and electronic media, including the Internet, and any other means to incite acts of violence, xenophobia or related intolerance and discrimination against Islam or any other religion, as well as targeting of religious symbols;

9. Stresses the need to effectively combat defamation of all religions, Islam and Muslims in particular;

10. Emphasizes that everyone has the right to freedom of expression, which should be exercised with responsibility and may therefore be subject to limitations as provided by law and necessary for ... respect for religions and beliefs....

Czech Government and Churches Reach Agreement On Nationalized Properties

In the Czech Republic, a landmark agreement has been reached between a government committee and representatives of 17 religious orders. The Prague Post reported on Wednesday that the agreement deals with Church claims for property that was nationalized by the government after the Communist takeover of Czechoslovakia in 1948. Under the agreement, religious orders and congregations will actually receive back their property-- about 558,000 acres (one-third of the property that was nationalized). Churches and religious groups will receive compensation of $4.6 billion for the remainder of the property, which will then be able to be developed for other uses. Reportedly the compensation will be paid out over a period of 60 to 70 years. The proposed agreement still must be approved by Parliament and signed by President Vaclav Klaus. This seems likely to happen, and the arrangement could go into effect as early as January 2009.

White House Website Answers Questions On Presidential Holiday Decorations

On the White House website, yesterday's Ask the White House featured responses by Amy Allman, Director of the Visitors Office, to questions about White House holiday decorations. Readers learned that there are 33 Christmas trees in the White House this year, that Benjamin Harrison was the first President to place Christmas decorations in the White House, and that 300 pounds of white chocolate was used to make the Gingerbread House that is currently on display.

EEOC Accuses Restaurant Chain of Religious Discrimination Against Muslim

The U.S. Equal Employment Opportunity Commission has filed a religious discrimination claim for back pay and damges against the Atlanta-based Folks Southern Kitchen Restaurants. CBS46 reports that the restaurant refused to hire a Muslim woman, Soumaya Khalifa, for a cashier's position because Khalifa wears a Muslim head scarf. The restaurant claimed that wearing the hijab violates its dress code. The EEOC says that the restaurant should have made reasonable accommodation for Khalifa's religious beliefs.

Trinidad Court of Appeal Rejects Challenge To Trinity Cross Award

In Trinidad & Tobago yesterday, the Court of Appeal affirmed a constitutional ruling handed down last year by a High Court judge (see prior posting). The Court of Appeal held that while the country's Trinity Cross award may be discriminatory against non-Christians, it was issued under letters patent that predate the current Constitution. Under Section 6 of the Constitution, pre-existing laws are not subject to attack for violating the Constitution's Declaration of Rights and Freedoms. Today's Trinidad & Tobago Express says the Court of Appeal ruled that "while the power to confer honours is an executive one, it has the force of law that allows it to qualify as existing law under the provisions of the Constitution." Officials, however, have already decided to change the design of the country's top honor. (See prior posting.)

Staff of Christian Groups Having Difficlty Extending Visas In Israel

In Israel, evangelical Christian groups are having difficulties obtaining long-term visas for their permanent staff to remain in the country, according to reports by the Jerusalem Post and CBN News. Under Israeli law, a special recommendation from the Interior Ministry is required in order for foreign workers to extend their 5-year visas. Extensive turnover in staffing at the Interior Ministry has apparently complicated the problem. While many of the Christian groups have been honored for their work by the Knesset and the Tourism Ministry, Interior officials are not necessarily familiar with the organizations.