Happy New Year To Religion Clause Readers

Dear Religion Clause Readers,

Happy New Year! As 2008 begins, I want to thank all my long-time readers for your continued interest and welcome the many new readers who have joined us this year. Your comments, e-mails, links and leads on news stories are all appreciated. In 2007, Religion Clause was recognized by the ABA as one of the top 100 legal blogs and Justia ranks it 11th in all-time popularity among Blawgs. Sometime in the next 24 hours, the Religion Clause site meter (which measures visitors since the blog was initiated) will turn to 225,000. I hope you will continue to rely on Religion Clause for unbiased reporting on news of church-state and religious liberty developments and for links to primary source documents.

Best wishes for 2008.

Howard M. Friedman

Malaysia Reverses Decision and Issues Permit To Christian Paper Using "Allah"

BBC News reported on Sunday that the Malaysian government has reversed its earlier decision and has agreed to issue a license to a Christian newspaper that uses the word Allah to refer to God. Earlier, the Internal Security Ministry had refused to renew the permit of the Catholic newspaper, the Weekly Herald, for 2008 unless it stopped translating "God" as "Allah" in the Malay language version of the paper. The Ministry said that "Allah" could only be used to refer to the Muslim God. (See prior posting.)

UPDATE: Adding to the confusion, the AP reports that Malaysia's minister for Islamic affairs said on Thursday that the government still takes the position that the word "Allah" can only be used to refer to the Muslim God. The paper has filed a lawsuit to obtain approval for its use of the term in quoting from the Malay language Bible.

Bibliography of Law and Religion Articles, Books and Blogs

The December 2007 Newsletter of the Association of American Law Schools Section on Law and Religion contains an extensive bibliography of books, articles and blogs on law and religion published in the last year. I have posted the bibliography at this link.

New Articles and Books of Interest

Recently Published Articles:

• The January/February 2008 issue of Liberty Online: A Magazine of Religious Freedom has been issued online.

From SmartCILP:

• The Journal of Catholic Legal Studies, Vol. 46, No. 2 has been issued. It includes: symposium articles by Susan Stabile and Piero Tozzi on "When Conscience Clashes with State Law & Policy: Catholic Institutions" as well as: Sr. Melanie DiPietro & Alison Sulentic, SSM Health Care: The Integration of Catholic Social Thought Values in a Modern Health Care System; Gregory A. Kalscheur, Catholics in Public Life: Judges, Legislators, and Voters; Robert E. Rodes, Jr., On Lawyers and Moral Discernment; Rebecca Van Uitert, Undocumented Immigrants in the United States: A Discussion of Catholic Social Thought and "Mormon Social Thought" Principles.

New Books:

• Susan Pace Hamill, As Certain as Death, (Carolina Academic Press, 2007), reviewed by the New York Times.
• Noah Feldman, The Fall and Rise of the Islamic State, (Princeton University Press, March 23, 2008). Discussed in a Harvard Law Today interview.
• Michael Lienesch, In the Beginning: Fundamentalism, the Scopes Trial,and the Making of the Antievolution Movement, (University of North Carolina Press, 2007), reviewed at H-Net. [Thanks to First Amendment Law Prof Blog.]

Impact of Bibles On Jurors In Imposing Death Sentence At Issue In 5th Circuit

Yesterday's Houston Chronicle carries a story about a November decision by the U.S. 5th Circuit Court of Appeals in Oliver v. Quarterman, (5th Cir., Nov. 16, 2007). In it the court ordered briefing and oral argument scheduled on whether jurors' consultation of the Bible during the sentencing phase of a murder trial raises a presumption of prejudice, and, if so, whether the state has rebutted that presumption.

Winston Cochran, Oliver's lawyer, says that at issue is whether jurors, in imposing the death sentence on Oliver, were prejudiced by Numbers 35:16 that reads: "But if he struck him down with an iron object, so that he died, he is a murderer; the murderer shall surely be put to death" Cochran explained: "This poor old farmer, he got shot and when he was lying outside on the ground, he was struck with the barrel of a gun. So he was literally struck with an iron rod. You could say God and Moses anticipated this exact thing if you take a literal view of it. And that's got a lot of potential for mischief." Attorney Sue Korioth, who handled an earlier appeal in the case, said there was no implication that jurors voted based on Scripture. She said: "Several [jurors]... carried Bibles in and out like my daughter carries her 'Seventeen' magazine. It was just their reading material."

Huckabee Talks About His Religious Beliefs on Meet the Press

Tim Russert's interview with Republican presidential hopeful Mike Huckabee yesterday on Meet the Press (full transcript) included several exchanges about Huckabee's religious beliefs. Here are some excerpts:

MR. RUSSERT: You went to the late Jerry Falwell's Liberty University, and were asked about your political success, and you said, "There's only one explanation for it. It's not a human one," suggesting divine intervention.... And then, and then this comment. "I hope we answer the alarm clock and take this nation back for Christ."

GOV. HUCKABEE: Which was, by the way, ... [a] 1998 speech ... [t]o the Southern Baptist Convention. So it was a speech made to a Christian gathering, and, and certainly that would be appropriate to be said to a gathering of Southern Baptists.

MR. RUSSERT: But where does this leave non-Christians?

GOV. HUCKABEE: Oh, it leaves them right in the middle of America. I think the Judeo-Christian background of this country is one that respects people not only of faith, but it respects people who don't have faith. The, the key issue of real faith is that it never can be forced on someone. And never would I want to use the government institutions to impose mine or anybody else's faith or to restrict. I think the First Amendment, Tim, is explicitly clear. Government should be restricted, not faith, government. And government's restriction is on two fronts: one, it's not to prefer one faith over another; and the second, it's not to prohibit the practice of somebody's religion, period.

MR. RUSSERT: So you'd have no problem appointing atheists to your Cabinet?

GOV. HUCKABEE: No, I wouldn't have any problem at all appointing atheists. I probably had some working for me as governor.... And if people want to know how I would blend these issues, the best way to look at it is how I served as a governor. I didn't ever propose a bill that we would remove the capitol dome of Arkansas and replace it with a steeple. You know, we didn't do tent revivals on the grounds of the capitol. But my faith is important to me.... It drives my views on everything from the environment to poverty to disease to hunger. Issues, frankly, I think the Republicans need to take a greater leadership role in. And as a Republican, but as a Christian, I would want to make sure that we're speaking out on some of these issues....

MR. RUSSERT: ... [T]his is what you wrote in your book, "Kids Who Kill," in 1998: "It is now difficult to keep track of the vast array of publicly endorsed and institutionally supported aberrations--from homosexuality and pedophilia to sadomasochism and necrophilia." Why would you link homosexuality with sadomasochism, pedophilia and necrophilia?

GOV. HUCKABEE: Well, what I was pointing out is all of these are deviations from what has been the traditional concept of sexual behavior and men and women having children, raising those children in the context of a, of a traditional marriage and family. And, again, taken out of the larger context of that book, speaking about how so many of our social institutions have been broken down.

MR. RUSSERT: But do you think homosexuality is equivalent to pedophilia...

GOV. HUCKABEE: Oh, of course not.... Tim, understand, when a Christian speaks of sin, a Christian says all of us are sinners.... The perfection of God is seen in a marriage in which one man, one woman live together as a couple committed to each other as life partners.... Tim, I've been asked more about my faith than any person running for president. I'm OK with that. I hope I've answered these questions very candidly and very honestly. I think it's important for us to talk about it. But the most important thing is to find out, does our faith influence our public policy and how? I've never tried to rewrite science textbooks. I've never tried to come out with some way of imposing a doctrinaire Christian perspective in a way that is really against the Constitution. I've never done that.

MR. RUSSERT: But you said you would ban all abortions.

GOV. HUCKABEE: Well, that's not just because I'm a Christian, that's because I'm an American. Our founding fathers said that we're all created equal. I think every person has intrinsic worth and value...

MR. RUSSERT: But many Americans believe that that would be ... you imposing your faith belief...

GOV. HUCKABEE: But, no. It's not a faith belief. It's deeper than that. It's a human belief. It goes to the heart of who we are as a civilization....

MR. RUSSERT: Some Americans believe that life does not begin at conception...

GOV. HUCKABEE: Well, scientifically I think that's almost ... a point that you couldn't argue. How, how could you say that life doesn't begin at conception... biologically?

MR. RUSSERT: Do you respect that view?

GOV. HUCKABEE: I respect it as a view, but I don't think it has biological credibility....

MR. RUSSERT: October you told me you're going to win Iowa caucuses. Are you?...

GOV. HUCKABEE: Well, Thursday night I'll let you know. But let me tell you this, we're being outspent 20-to-1 here. If we do, you're going to have a political story like you've never had coming out of Iowa on Friday morning.

MR. RUSSERT: Would it be a miracle?...

GOV. HUCKABEE: I'm on record. Yes, it would.

Meanwhile last Friday, CNS News published a lengthy interview with Huckabee on his views about education and school choice.

Liberal New Hampshire Voters Also Concerned About Religion

Today's Concord Monitor reports that religious values are an important concern for many liberal voters in New Hampshire's upcoming primary. It says that some "liberal voters ... are trying hard this election to wrest the title of 'value voters' away from the religious right.... [M]any are using biblical values to promote traditionally liberal policies, such as greater attention to the environment, poverty and social justice ... [,and] opposition to the Iraq war."

Saudi Monitoring of Mosques Leads To Imam's Removal and More

Today's Arab News reports on an incident growing out of Saudi Arabia's monitoring of the performance of imams in the country's mosques. The Ministry of Islamic Affairs has 270 employees who monitor imams and khateebs (preachers), as well as 203 technical teams that check out the architectural aspects of mosques. An imam was removed from his position for delivering anti-Western sermons. The imam then sent death threats by cell phone to Ministry of Islamic Affairs official Sheikh Abdullah Al-Hammad. At his trial, the imam confessed and was sentenced to seven months in prison and 150 lashes. Now an appeal of the conviction will be heard by Saudi Arabia's Cassation Court. Meanwhile, Al-Hammad has filed a lawsuit against the imam in a Saudi religious court.

Iowa LDS Churches Will Not Comment On Caucuses From Pulpit Today

Despite, or perhaps because of, Mitt Romney's candidacy, the 22,000 Mormons attending church in Iowa this Sunday will not hear pleas to attend a caucus or support a particular candidate. Today's Salt Lake Tribune reports that historically, before elections but not before caucuses, LDS churches have read a statement from the pulpit asserting the LDS's political neutrality, but encouraging members to be active voters. In contrast, many evangelical ministers are likely to urge their congregants to vote in caucuses, a move that is likely to help Republican candidate Mike Huckabee. Quin Monson, the assistant director of Brigham Young University's Center for the Study of Elections and Democracy, says: "Clearly, if the church wanted to mobilize its members to get in, it could, but the backlash could be worse than the positive effect it could [have] on Romney."

Child Custody Shift OK'd For Failure To Follow Religious Upbinging Agreement

In Herschfus v. Herschfus, (MI Ct. App., Dec. 27, 2007), a Michigan appellate court upheld a lower court's modification of a custody award. The court gave sole legal and physical custody of a divorced couple's child, Jacob, to the father, based in significant part on the mother's failure to comply with the agreement entered at the time of the divorce to raise Jacob in the Orthodox Jewish religion. It rejected the mother's First Amendment challenge, finding that "the trial court’s ruling was constitutionally appropriate because it was based on Jacob’s needs and not on a value judgment regarding the parties' practice of religion."

Recent Prisoner Free Excercise Cases

In Kelly v. McMillin, 2007 U.S. Dist. LEXIS 94575 (SD MS, Nov. 19, 2007), a Mississippi federal magistrate judge dismissed as frivolous free exercise and equal protection claims brought by a prisoner challenging his treatment as a pre-trial detainee. Plaintiff alleged he had been denied the opportunity to participate in Ramadan because he was not fed according to his dietary specifications, and he was not supplied with a Quran even though Christian prisoners were supplied with Bibles.

In Mann v. Wilkinson, 2007 U.S. Dist. LEXIS 94002 (SD OH, Dec. 21, 2007), an Ohio federal district court rejected a prisoner's claim that he should be permitted to attend separate Christian Identity worship services, but permitted plaintiff to move ahead with his challenge under RLUIPA to a total ban on his possession of a Christian Identity pamphlet.

In Azizi Oba Sefu v. Smith, 2007 U.S. Dist. LEXIS 93959 (ED MO, Dec. 20, 2007), a Missouri federal district court permitted an inmate to proceed with his claim that his religious practices should be accommodated. Plaintiff alleged that he is a "charter member" of the Monotheistic Sanctuary of Abraham.

Christian High Schooler Opposing "Day of Silence" Wins Partial Victory

Zamecnik v. Indian Prairie School District, 2007 U.S. Dist. LEXIS 94411 (ND IL, Dec. 21, 2007), involves a challenge by Christian high school student to an Illinois' high school's prohibition on his wearing a T-shirt containing derogatory negative statements about homosexuals. He wished to wear a shirt with the slogan "Be Happy, Not Gay". The court held that "school officials may prohibit a public high school student from displaying negative statements about a category of persons, including homosexuals, that are inconsistent with the school's educational goal of promoting tolerance." However, the court held that the student did have a right to wear a T-shirt carrying the positive slogan "Be Happy, Be Straight". Denying him the right to do so while permitting those with opposing views to wear T-shirts saying "Be Who You Are" supporting gay rights during a student group's "Day of Silence" would amount to viewpoint discrimination.

Falun Gong Encounters Resistance To City Resolutions Condemning China

Yesterday's Whittier (CA) Daily News reports on the difficulties encountered by Falun Gong representatives in the United States who are attempting to get various California cities to pass resolutions condemning China's persecution of Falun Gong. Covina City Council voted down a proposed resolution after opponents quoted passages from Falun Gong's founder disapproving of interracial marriage and reproduction. Spokesman John Li however argues that references to racial separation refers only to "celestial beings".

Top Ten 2007 Developments In Church-State and Free Exercise of Religion

Here are my nominations for the 2007 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. A link to one of the postings on each development is also provided. I invite your comments, either concurring or dissenting, on my choices.

1. Religious views of candidates becomes major issue in race for Republican presidential nomination.
2. Supreme Court narrows standing in Establishment Clause cases: Hein v. Freedom From Religion Foundation.
3. Eighth Circuit strikes down state financing of faith-based prison rehabilitation program-- Americans United for Separation of Church and State v. Prison Fellowship Ministries.
4. Suits over property ownership of break-away churches mushroom, particularly as increasing number of Episcopal congregations opt for more conservative affiliations.
5. Christian beliefs on homosexuality lead to opposition to extension of federal Hate Crimes law.
6. Anti-funeral picketing laws directed at Westboro Baptist Church become subject of litigation in several states.
7. Sectarian prayer in Indiana legislature sparks litigation; 7th Circuit panel finds no taxpayer standing in case.
8. State pharmacy boards challenged over rules requiring dispensing of "morning after" pill.
9. Muslim foot basins in university and airport rest rooms provoke controversy.
10. Florida Hebrew language/Jewish culture publicly-financed charter school approved over protests.

For comparison, here are links to my top 10 picks for 2006 and 2005. You may also find it interesting to compare my choices with the 2007 top story picks by the Religion Newswriters as well as Time Magazine's picks for the Top 10 Religion Stories of 2007.

PA Supreme Court Rejects Establishment Clause Challenge To Eminent Domain [Corrected]

The Pennsylvania Supreme Court on Thursday rejected an Establishment Clause challenge to Philadelphia's use of eminent domain to permit redevelopment of blighted property by a coalition of Catholic groups wishing to build a non-denominational, faith-based, not tuition based school for children of the neighborhood. In In re A Condemnation Proceeding In Rem by the Redevelopment Authority of the City of Philadelphia, (PA Sup Ct., Dec. 27, 2007), the court found that the city's conduct passed the Lemon test under the Establishment Clause. The court said, in part:

While ... an effect of this taking is to advance a religious organization’s mission to provide faith-based educational services, this is clearly not the principal or primary effect. The principal or primary effect ... is to eliminate blight in this long-suffering neighborhood. One secondary effect is the provision of quality nondenominational educational opportunities to low-income urban families in their own neighborhood... Another secondary effect could potentially be the advancement of religion; however, as far as we can tell from the record, all potential developers were treated in the same manner...

[Corrected:] Justice Baer dissented arguing that the action amounted to direct aid to a religious institution in violation of the Establishment Clause. Today's Philadelphia Inquirer reports on the decision.

Judgment Against Holy Land Foundation and Others Reversed By 7th Circuit

In Boim v. Holy Land Foundation for Relief and Development, (7th Cir., Dec. 28, 2007), the U.S. 7th Circuit Court of Appeals reversed a lower court's award of $156 million in damages against four defendants, including the Holy Land Foundation (a large Muslim humanitarian relief organization) which allegedly contributed funds to Hamas. The suit was brought under 18 USC 2333-- a statute that permits recovery of treble damages by victims of international terrorism. The suit was filed by the parents and estate of David Boim who was murdered on the West Bank outside of Jerusalem by gunmen apparently connected with Hamas. The court remanded the case saying that plaintiffs need to prove a causal connection between defendants' conduct and the murder:

Permitting liability to be imposed on a defendant based solely on proof that the death of David Boim was a foreseeable result of the defendant’s conduct, without proof that the conduct actually was a cause of the death, would give section 2333 a far broader sweep than traditional tort principles would allow. The actual use to which the funds ... was put would be irrelevant. This would transform the doctrine of proximate causation from a principle that limits tort liability into one that expands liability, essentially rendering a defendant who intended to aid Hamas’s terrorist activities strictly liable for all foreseeable injuries even if that defendant’s aid actually did nothing to enable the terrorism and the injuries it inflicted....

Today's Springfield (IL) State Journal-Register reported on the decision.

Returning Military Chaplains Have No Reemployment Protection

An article that will appear in Sunday’s St. Louis Post Dispatch chronicles the re-employment problems faced by Reserve and National Guard military chaplains who are called up for duty in Iraq or Afghanistan and then return home. A 1979 Supreme Court case, concerned about governmental interference in affairs of religious organizations, has been seen as holding that chaplains are excluded from coverage under the Uniformed Services Employment and Reemployment Rights Act, 38 USC Sec. 4301 et. seq. (Background). The Lutheran Church- Missouri Synod has begun a program, Operation Barnabas, that works with chaplains, their families and their congregations before, during and after their deployment.

New Jersey Governor Signs Bills Protecting Religious Exercise

On Dec. 20, New Jersey's Governor Jon Corzine signed two bills designed to protect religious exercise in the state. A 3513 requires that exams for various state licenses be offered a second time on an alternative date when the scheduled exam conflicts with an applicant's religious observances. A3517 provides that patients or their family members can postpone signing admission papers when entering a health care facility if their date of admission is a day on which their religious beliefs preclude them from doing signing. The Jewish Standard reports that this will allow observant Jews admitted to a hospital on Saturday to wait until after sundown to sign required paperwork. The bills are part of a 7-bill package sponsored by Assemblyman Gary Schaer and Sen. Loretta Weinberg. (See prior related posting.)

Historic Church Gets State Grant For Repairs

The Pennsylvania Department of Conservation and Natural Resources through its Community Conservation Partnerships Program has awarded a $10,000 matching grant to the historic Methodist Episcopal Church of Burlington, PA for repairing wall and ceiling plaster. Yesterday's Towanda (PA) Daily & Sunday Review reports that church-- which is on the National Register of Historic Places-- is open to the public and does not have an active congregation. However members meet once a year in the building for a service. Apparently no one has raised church-state concerns regarding the grant.

Today Is 350th Anniversary of Flushing Remonstrance

An op-ed in today's New York Times reminds us that today is the 350th anniversary of the Flushing Remonstrance-- a document (full text) seen as the first on this continent calling for religious liberty. The Remonstrance was signed by 30 citizens of New Amsterdam who objected to an edict issued by New Amsterdam's director general Peter Stuyvesant banning Quakers in the Dutch colony. [Thanks to Steven Sheinberg for the lead.]