Texas Lawsuit Challenges Water Quality Law Under RLUIPA

Today's Austin (TX) American-Statesman reports on an interesting suit filed last month in federal district court in Austin. Hope in the City, an Austin, Texas Christian church, is challenging the city's use of a law enacted to protect water quality in the Barton Springs watershed to prevent the church from paving over additional parts of its property for use as a parking lot. At issue is whether the city's water quality concerns underlying its "Save Our Springs" (SOS) ordinance are compelling enough to overcome a challenge under the federal Religious Land Use and Institutionalized Persons Act, and the Texas Religious Freedom Restoration Act. Also at issue is whether the parking lot development is protected under a "grandfather clause" in the SOS ordinance.

Recent Articles on Law and Religion

From SSRN:

• Emon, Anver M., The Limits of Constitutionalism in the Muslim World: History and Identity in Islamic Law , ( in Constitutional Design for Divided Societies, Forthcoming).

From SmartCILP:

• Martin H. Belsky, The Religion Clauses and the "Really New" Federalism, [abstract], 42 Tulsa Law Review 537-551 (2007).


• Charles W. Collier, Terrorism as an Intellectual Problem, 55 Buffalo Law Review 815-840 (2007).


• John T. Noonan, Jr., The Religion of the Justice: Does it Affect Constitutional Decision Making?, 42 Tulsa Law Review 761-770 (2007).


• Thomas A. Schweitzer, Book Review. (Reviewing Bruce Ledewitz, American Religious Democracy: Coming to Terms with the End of Secular Politics.) 23 Touro Law Review 561-574 (2007).


• Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro Law Review 539-560 (2007).


• Pope John Paul II and the Law, Part I. Articles by George Weigel, Robert John Araujo, S.J., Kevin L. Flannery, S.J. and Jane Adolphe. 5 Ave Maria Law Review 361-468 (2007).

Muslim Woman In Bangladesh Planning Conversion Burned By Unknown Attackers

Bos News Life reported yesterday that in Bangladesh, a 70-year old woman is in critical condition with burns over 70% of her body after unknown Muslim extremists set fire to her house to prevent her from being baptized in February as a Christian. On January 7, attackers set Rahima Beoa's bamboo and wood home afire. Beoa's daughter and son-in-law already converted from Islam to Christianity two years ago. Relatives and neighbors remain angry about those conversions.

Standards For Use of Religion By Political Candidates Proposed

Today's Newsday carries an editorial titled "God on the American Campaign Trail". It calls attention to a statement issued earlier this month (Jan. 15) by Faith in Public Life and a group of Catholic, Evangelical, and mainline Protestant leaders concerned about misuse of religion in this year's presidential primaries. Here are excerpts from the statement which is titled Keeping Faith: Principles to Protect Religion on the Campaign Trail:

Exclusionary religious rhetoric by candidates and constant scrutiny of the minutiae of their faiths undermine religion's valuable role in public life. It also runs contrary to the unique American commitment to both religious freedom and non-establishment of religion. History is replete with examples of religion compromised by its collusion with power, and the role of religion in the current campaign raises concern that it is once again being misused.

... Following Article VI of the U. S. Constitution and the First Amendment, we identify three basic principles.

*No person should be expected to leave their faith at the door when operating in the public square. But it is inappropriate to use religious or doctrinal differences to marginalize or disparage candidates.... No religious test may be applied to candidates for public office - not by the law, not by candidates, not by campaigns.

*Candidates for public office should welcome the contributions that religion brings to society. But ... candidates for public office are obliged, in their official capacity, to acknowledge that no faith can lay exclusive claim to the moral values that enrich our public life.

*... While it is appropriate for candidates to connect their faith to their policy positions, their positions on policy must respect all citizens regardless of religious belief.

Meanwhile today's Jerusalem Post reports that the Anti-Defamation League has called on Barack Obama's campaign to clarify fliers distribted to South Carolina voters declaring that Obama is a "committed Christian". Obama's campaign said the fliers were intended to counter false e-mail rumors that Obama was a Muslim. (See prior posting.) A copy of the flier is avaialable online from TPM.

USCIRF Calls For Release of Afghan Student Sentenced for Blasphemy

On Friday, the U.S. Commission on International Religious Freedom sent a letter to Secretary of State Condoleezza Rice urging the U.S. to press Afghanistan's President Hamid Karzai to release Sayed Parwez Kambakhsh. Kambakhsh is a 23 year old student and journalist who has been sentenced to death in Afghanistan for circulating material insulting to Islam. (USCIRF release.) As previously reported, Kambakhsh apparently distributed to other students an article he found on the Internet that commented on Quranic verses about women. USCIRF says the U.S. must encourage Afghanistan to protect freedom of thought, conscience, religion and belief. The agency's letter decried the way in which Afghanistan is enforcing the provision in its Constitution that provides: "no law can be contrary to the beliefs and provisions of the sacred religion of Islam."

Some Are Critical of Proposed Turkish Constitutonal Changes

Saturday's Turkish Daily News reports on its interviews with academics and jurists opposed to the government's proposal to amend Turkey's constitution to reverse the country's ban on wearing of head scarves at universities. (See prior posting.) The government plans to add language guaranteeing freedom of dress so long as it does not violate general morals, as well as a clause guaranteeing equality in the provision and utilization of public services. Opponents predict dire results from the broad language being proposed.

Recent Prisoner Free Exercise Cases

In Henderson v. Virginia, 2008 U.S. Dist. LEXIS 5230 (WD VA, Jan. 23, 2008), a Virginia federal district court rejected an inmate's claim that his free exercise rights were violated when, in a disciplinary action, he was temporarily removed from the Common Fare diet and placed on a diet loaf. Plaintiff furnished no evidence that he has a sincere religious belief that requires that he maintain a kosher diet.

In Hernandez v. Schriro, 2008 U.S. Dist. LEXIS 4908 (D AZ, Jan. 22, 2008), an Arizona federal district court rejected claims by a Native American prisoner that his rights under RLUIPA were violated when he was unable to engage in pipe ceremonies and sweat lodges, possess red and blue headbands, wear his religious medicine bag outside his cell, obtain certain herbs, or work with a spiritual advisor after he was placed in a maximum custody unit.

Bratton v. Curry, 2008 U.S. Dist. LEXIS 4587 (ND CA, Jan. 9, 2008), involved a complaint by a Muslim prisoner that prison authorities refused to serve him Halal or kosher meals with meat and instead offered him only a vegetarian alternative. A California federal district court held that plaintiff had alleged viable Eighth Amendment, Equal Protection and RLUIPA claims, but not a free exercise violation.

In Marr v. Case, 2008 U.S. Dist. LEXIS 4427 (WD MI, Jan. 18, 2008), a Michigan federal district court accepted a magistrate's recommendations and dismissed an inmate's free exercise, eighth amendment, retaliation and ethnic intimidation claims. The court described the incident giving rise to the claims: "At a meal, Plaintiff ... requested a kosher eating utensil because the package of utensils he was given was desecrated.... Defendant ... allegedly replied ... 'I'm sick of this sh-t, dude.' ... Defendant [also] ... allegedly stated "get your tray and get the f-ck away from me, they should have exterminated all you bastards in the concentration camps." ... Plaintiff went to a table and waited for 20 minutes without receiving a utensil before leaving without eating."

In Baisden v. Arpaio, 2008 U.S. Dist. LEXIS 4377 (D AN, Jan. 8, 2008), an Arizona federal district court dismissed, with leave to amend, a prisoner's claim that during a portion of his confinement he was unable to attend church for several weeks because only the first 15 of 250 inmates to get in line were permitted to attend. However plaintiff failed to allege how defendant sheriff was personally involved in this alleged free exercise violation.

New Restrictions Reported On Tibetan Buddhist Monastaries

Radio Free Asia reported Friday that Chinese officials are imposing new restrictions on Buddhists in the Tibet Autonomous Region, at the same time they have recruited 140 Tibetan young people to perform traditional dances at the upcoming Beijing Olympics. The dancers are being trained to demonstrate that Tibetans are happy under Chinese rule. The new restrictions are particularly aimed at Buddhist monasteries, believed to be the main forces that are perpetuating a separate Tibetan identity. Novice monks are no longer allowed to replace monks who die, and monks are not allowed to conduct prayer sessions in temples. Tibetan government officials are banned from wearing traditional Tibetan dress and maintaining prayer rooms or altars in their homes. The Tibet Autonomous Region Political Consultative Committee is discussing plans to employ senior lamas to convince the people that the Dalai Lama is bent on dividing China.

9th Circuit Holds For Muslim Prisoner In Dietary Accommodation Case

In an unusually long opinion for a case of this type, the U.S. 9th Circuit Court of Appeals in Shakur v. Schriro, (9th Cir., Jan. 23, 2008), reversed the trial court and sent back for further factual development a Muslim prisoner's claim for dietary accommodations. Plaintiff wished to access kosher meat meals, instead of the prison's ovo-lacto vegetarian diet. The district court granted summary judgment to defendants focusing on the cost and administrative burden in accommodating plaintiff.

The court held that the prisoner need not show that a central tenet of his faith was burdened in order to raise a viable First Amendment claim, so long as his religious belief is sincere. It said that "the district court impermissibly focused on whether 'consuming Halal meat is required of Muslims as a central tenet of Islam'." It failed to consider plaintiff's claim that the vegetarian diet gives him gastrointestinal discomfort that interferes with the purity and cleanliness needed for Muslim prayer. The court held that the present record did not permit it to determine whether the requested kosher diet places more than a de minimis burden on the prison system. It also concluded that summary judgment was inappropriate on plaintiff's RLUIPA claim because there is a factual dispute as to the extent of the burden on plaintiff's religious activities, the burden that would be created by accommodating his request, and whether less restrictive alternatives exist. Saturday's Sierra Vista (AZ) Herald reports on the decision.

Oregon High Court Rules In Custody Case Involving Religious Circumcision Dispute

Yesterday the Oregon Supreme Court decided a widely followed change-of-custody case which raises issues of parental rights and Jewish religious circumcision. In Boldt v. Boldt, (OR Sup. Ct., Jan. 25, 2008), the court was faced with an appeal by a now-divorced mother who is a member of the Russian Orthodox Church, seeking to prevent her former husband-- a convert to Judaism-- from having their 12-year old son circumcised. Among other claims, the father argued that "American Jews must be free to practice circumcision because it is and has been one of the most fundamental and sacred parts of the Jewish tradition." He contended that any order requiring an evidentiary hearing on the matter would usurp the role of the custodial parent and violate the First Amendment.

Instead of reaching a decision on custody, the court remanded the case, ordering the trial court to determine whether the child wants the circumcision, or objects to it-- an issue over which the parents disagree. The court said:

We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise....

However, ... at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing.... [F]orcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M.... Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody....

(See prior related posting.) Today's Oregonian has extensive coverage of the decision. [Thanks to Steve Sheinberg for the lead.]

9th Circuit Hears Arguments In Arizona Scholarship Tax Credit Challenge

Yesterday, the U.S. 9th Circuit Court of Appeals heard arguments in Winn v. Garriott, an Establishment Clause challenge to Arizona's scholarship tax credit program. The district court upheld the program which funds parents sending their children to a variety of private schools, over 70% of which are religious. A report in yesterday's Arizona Republic describes the operation of the program: "A taxpayer sends up to $1,000 to one of Arizona's 56 'school-tuition organizations,' designating the money for a particular school or student but not a dependent. The school-tuition organization passes along the gift to an affiliated private or religious school to help fund the student and can keep 10 percent for administrative expenses. At tax time, the taxpayer files for a dollar-for-dollar credit off state income taxes." A posting on Espresso Straight set out the views of those favoring the scholarship arrangement. An audio recording of yesterday's oral arguments is available online from the 9th Circuit. (See prior related posting.)

Florida School Board Changes Policy To End Higher Fees For Religious Club

A press release issued yesterday by Liberty Counsel reports that the Orange County, Florida School Board has agreed to change its policy that charged facility usage fees to the Good New Clubs, but permitted groups such as the Boy Scouts to use school facilities without charge. The School Board has now refunded past fees paid by the Good News Clubs and has created a new policy that specifically treats Good News Clubs and Scouts alike.

Appeal Filed In Texas Moment of Silence Case

Today's Dallas Morning News reports that an appeal to the 5th Circuit has been filed in Croft v. Perry, the Texas "moment of silence" case. In the case, the lower court rejected an Establishment Clause challenge to Texas' mandate that public schools give students a moment of silence each day during which they may reflect, pray or meditate. (See prior posting.)

5th Circuit Reinstates Muslim Doctor's Retaliation Claim Against VA

The U.S. 5th Circuit Court of Appeals this week reversed a Mississippi federal district court and held that a Muslim physician had raised genuine issues of fact in his retaliation claim against the Biloxi Veterans Affairs Medical Center. In Rikabi v. Nicholson, (5th Cir., Jan. 23, 2008), Dr. Khaled Rikabi alleged that the Center's chief of staff openly referred to Muslims as a threat to the United States after 9-11. The wife of the Center's Human Relations Manager said that she and her husband dislike Muslims and how Muslims live. Rikabi was dismissed from his position at the Center in March 2003, but he continued to provide infectious disease consultations at the Center. In June 2003, Rikabi made a verbal EEO complaint and three hourse later the Center's chief of staff instructed hospital staff to stop using Rikabi's services. Rikabi says this was retaliation. The chief of staff said the action was taken because of an onsite altercation between Rikabi and his wife three months earlier. Subsequently the chief of staff gave a different explanation for his actions. Today's Jackson (MS) Clarion-Ledger reports on the decision.

Right Wing Dutch Politician Plans Anti-Quran Film; Government Is Concerned

In the Netherlands, right-wing Freedom Party leader Geert Wilders has provoked controversy by announcing that he is producing a 10-minute film about the Quran that will portray the Muslim scriptures as a "fascist book" that incites violence and that promotes intolerance of women and homosexuals. Some reports say that Wilders rips or burns the Quran on camera in the film. The AP reported yesterday that Wilders has not yet found a broadcaster willing to air the still-unfinished film. He says he will post it on the Internet if he can find no other outlet for it. Wilder's party holds nine of the 150 seats in Netherlands' Parliament. The Independent today says that the Dutch government is preoccupied with concern about the fallout that might result from the film. Prime Minister, Jan Peter Balkenende, issued a statement saying in part: "The government is preparing for the possible repercussions that the broadcast of the film could have, internationally as well as domestically." Imams are being encouraged to preach calm at services today, while cities have been put on alert. An article in yesterday's American Muslim analyzed possible reactions to the film.

Religious Discrimination Claim Rejected In Firing of Community Services Director

In Evans v. State of Washington, (WA Ct. App., Jan 23, 2008), a Washington state Court of Appeals rejected employment discrimination and retaliation claims brought by a regional Community Services Division director who claimed her dismissal from her position by the state violated Washington's law prohibiting religious discrimination in employment. Plaintiff Linda Evans was a pastor who headed a church ministry that ran a housing program for low-income teen parents and their children. Evans was variously accused of using her management position to coerce employees into participating in her church, coercing subordinate personnel into giving preferential treatment to her church members, using state computers and telephones to promote her church, praying with employees and allowing employees to address her as "pastor" during working hours. She was dismissed on the grounds that new leadership was needed in her office. The court found that Evans failed to prove either disparate treatment or retaliation, nor did she show that the Department of Social and Health Services' asserted reasons for its actions were a pretext for discrimination.

9th Circuit Defines "Religious Exercise" In RLUIPA

On Tuesday, in Greene v. Solano County Jail, (9th Cir., Jan. 22, 2008), the U.S. 9th Circuit Court of Appeals decided an important interpretive question under the Religious Land Use and Institutionalized Persons Act. In the case, a former maximum security prisoner challenged a California jail's policy of prohibiting maximum security prisoners from participating in group religious worship. RLUIPA prohibits imposing a substantial burden on a prisoner's "religious exercise", absent a compelling interest and narrowly tailored means. The Court of Appeals held that "religious exercise" means a particular practice within a religion-- here attending group services-- and not merely the general practice of one's religion. So a substantial burden on that practice is enough to create a RLUIPA problem. The court remanded the case for the trial court to determine whether the total ban on group religious worship is the least restrictive means of maintaining jail security. Today's San Francisco Chronicle reports on the decision.

"Peer Reviewed" Creationism Journal Launched

Nature News yesterday reported that Answers in Genesis, the group that last year opened a Creation Museum in Petersburg, Kentucky, has now launched a new online scholarly journal, Answers Research Journal. The journal's website describes it as "a professional, peer-reviewed technical journal for the publication of interdisciplinary scientific and other relevant research from the perspective of the recent Creation and the global Flood within a biblical framework." The journal's editor-in-chief, Australian geologist Andrew Snelling, says that "papers ... will be reviewed ... through a large network of well-qualified creationist researchers, scientists, and theologians who are the best thinkers in their fields of creationist research." Volume 1, Issue 1, is already available.

Parents Say Vermont Teacher Pushes Christianity In Classroom

The ACLU of Vermont has complained to school officials about Irasburg (VT) seventh grade teacher Wally Rogers who they say has gone too far in promoting his personal religious beliefs in his public school class. A report today from the Vermont Press Bureau says that Rogers gave a student a flier titled titled "Why Jesus Is Better Than Santa Claus." In the fall the 10 commandments were posted in Rogers classroom. His accelerated reading program list contains a number of Christian-themed books and Christian books were on his classroom bookshelf. His web page on the school's website included links to Christian web pages. A letter from the ACLU led school officials to remove some of the books and web links, and the school superintendent has sent a memo to faculty and staff on separation of church and state. However several parents remain concerned.

Korean Buddhists Complain About Polling Places In Churches

In South Korea, Buddhists and other groups are complaining that a disproportionately large number of voting stations have been located in Protestant churches. Today's Korea Times says that in last December's presidential elections, 1160 of the 13,178 polling places were in religious institutions. 91% of the religious buildings used were Protestant churches. Only 0.3% were Buddhist. Election officials say the locations met the voting law requirements for transportation, safety and handicap accessibility.