Court Holds That "Choose Life" Is Not Religious Speech

Children First Foundation v. Martinez, 2007 U.S. Dist. LEXIS 94944 (ND NY, Dec. 27, 2007) is a challenge to New York state's refusal to approve special picture license plates that include the slogan "Choose Life". In this phase of the litigation, a New York federal district court refused to permit the Deputy Commissioner of the Department of Motor Vehicles to amend her answer to raise an Establishment Clause defense, finding that religious speech was not involved. The court reasoned:

It may very well be true that those who participate in the abortion debate on the pro-life side are members of religious organizations whose religious beliefs form the basis for their views. However, that does not transform the pro-life stance into one that is religious in nature, nor does it transform the phrase, "Choose Life" into religious speech. Nothing in constitutional jurisprudence supports the conclusion that political speech which is derived from one's ethical or religious beliefs or background transforms it into religious speech. Many religious persons and organizations may be opposed to capital punishment, or perhaps in favor of gun control. Those political issues are not therefore automatically transformed into religious issues simply by virtue of the religious beliefs of their supporters. The same is true for the abortion debate.

New York Court Says Chabad Headquarters May Eject Messianists

JTA and the New York Jewish Week both report on a decision handed down Dec. 27 by a New York trial court in a battle over control of the headquarters of the Chabad Lubavitch movement-- 770 Eastern Parkway in New York's Crown Heights section of Brooklyn. At issue is a dispute within Chabad over whether the Hasidic movement’s grand rebbe, Menachem Mendel Schneerson, who died in 1994, may be referred to publicly as the Messiah. (See prior posting.) The court, in giving the owners of the headquarters building-- Agudas Chasedei Chabad and Merkos L’Inyonei Chinuch -- the right to eject from the building a congregation located in its basement, the court gave a victory to those who reject the messianist faction of the Chabad movement. Edward Rudofsky, the attorney representing the messianist faction (organized as Congregation Lubavitch Inc.) said they would appeal the decision. He said: "this is an argument over control over religious congregation and it did not belong in secular court..." The Jewish Week article carries an extensive description of the messianist atmosphere that currently dominates the synagogue.

Polish Catholic Church Opposes Government Funding of IVF Procedures

Poland's Health Minister says that she will include funding for in vitro fertilization procedures in the ministry's budget for 2008, despite strong opposition from Catholic Church leaders. Yesterday's Catholic World News reported that the Polish Catholic hierarchy has published an open letter opposing the funding. Health Minister Ewa Kopacz says, however, that infertility is a social problem that needs to be addressed.

Palestinian Hajj Pilgrims Return Home After Dispute On Crossing Into Gaza

Yesterday, more than 2000 Palestinian pilgrims returning from the hajj crossed into the Gaza strip after being delayed for five days in Egypt in a dispute over their return route. The International Herald Tribune reports that the Egyptian government, after discussions with Israel, had demanded that the pilgrims return to Gaza via an Israeli border crossing so that Israel could determine whether senior Hamas leaders who were among the pilgrims were bringing back large sums of money to support Hamas in Gaza. The pilgrims insisted on entering Gaza directly from Egypt through the border crossing at Rafah. Eventually Egypt gave in to the pilgrims' demand. Earlier yesterday the Palestinian Centre for Human Rights issued a statement arguing that the delay in permitting the pilgrims to return to Gaza violated international law. The Jerusalem Post earlier this week, however, said that Hamas operatives were suspected of having up to tens of millions of dollars that they were intending to smuggle into Gaza.

Tunisia Will Not Implement Decision On Hijab-- Sees Scarf As Politcial Symbol

Bloomberg News yesterday reported that Tunisia's government is not generally implementing an October court ruling that held unconstitutional the government's ban on Muslim women wearing headscarves in state buildings and schools. (See prior posting.) Apparently the ban has been lifted only for the teacher who was the successful plaintiff in the case. Secular governments in the Middle East view the hijab as an Islamist political symbol, and not as religious obligation. Mohammed Fantar, professor of Islamic history at Manar University in Tunis, says that the hijab is "an import by way of satellite television. It's a menace for all.''

Reversed 1970 Adoption Decision Is Circulating In Blogosphere As Current

The blogosphere is full of reports (example) on a Time Magazine article about a New Jersey couple that were found by a state trial court to be unfit to adopt a child because they did not believe in a Supreme Being. References to the article have been so widely circulated that it shows up as the number 1 most read on Time Magazine's website tonight. The only problem is that that article is from 1970 and the trial judge's decision was reversed by the New Jersey Supreme Court in 1971 (In re the Adoption of "E"). (The 1970 Time article indicates that the appeal is pending.) Many postings treat the article as current news, and the "most popular" listing by Time-- which is apparently generated without human intervention --adds to the misinformation. [Thanks to Scott Mange for the lead.]

Pew Forum Gives Background Information As Presidential Selection Process Begins

As tomorrow's Iowa Caucus formally ushers in the Presidential selection season, the Pew Forum on Religion and Public Life continues to furnish extensive news and background information of interest. Its Religion and Politics 2008 page links to extensive material about the views of each candidate on issues of concern to religious voters as well as to news on the impact of religion in the 2008 election cycle.

Churches Increasingly Hit With Property Tax For Unrelated Property

Today's Wall Street Journal reports that local governments are increasingly levying property taxes on churches, as religious organizations increasingly acquire property which they rent out or use for non-religious purposes. Examples range from a visitors center and gift shop built by a Newport, Rhode Island synagogue, to shopping center space rented out to stores and restaurants by a Rockford, Illinois church that owns the mall and uses part of it for worship services. Churches say that proceeds from properties are funneled back for religious uses. Generally, though, laws exempt property only if the property itself is used for religious or charitable purposes. Texas Tech law professor James Vaughn says: "When you have a taxing authority trying to decide what's your ministry and what's not, I see a problem here."

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.