Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Tuesday, January 29, 2008
NPR Interview With Author of Book on Religon In White House
Monday, January 28, 2008
Presidential Candidates Preach At Churches Despite IRS Guidelines
Situation 9. Minister F is the minister of Church O, a section 501(c)(3) organization. The Sunday before the November election, Minister F invites Senate Candidate X to preach to her congregation during worship services. During his remarks, Candidate X states, “I am asking not only for your votes, but for your enthusiasm and dedication, for your willingness to go the extra mile to get a very large turnout on Tuesday.” Minister F invites no other candidate to address her congregation during the Senatorial campaign. Because these activities take place during official church services, they are attributed to Church O. By selectively providing church facilities to allow Candidate X to speak in support of his campaign, Church O’s actions constitute political campaign intervention.
Does this IRS guideline cover speeches from the pulpit if a candidate does not explicitly ask for voters' support?
WMAZ-TV News reports that Sen. Barack Obama spoke for more than 30 minutes yesterday to an overflow crowd at Macon, Georgia's Harvest Cathedral. As part of his remarks, he said: "I believe that our values should be expressed not just through our churches and our synagogues, but through our government."The Commercial Appeal reports that Sen. Hillary Clinton spoke at morning services at Monumental Baptist Church in Memphis, Tennessee. During her remarks, she emphasized her support for universal health care, universal pre-kindergarten and an end to the Iraq war.
Former Governor and Baptist minister Mike Huckabee's Sunday morning church attendance seems to have been orchestrated more carefully with IRS guidance in mind. WFOL Fox35 reports that Huckabee attended services at Orlando, Florida's First Baptist Church. The church had invited all candidates to attend. Huckabee did not speak, but did have a brief exchange of reminiscences with Senior Pastor David Uth. Uth also said: "I have made a commitment that our church will not endorse a candidate. Our only purpose is to pray over each candidate and ask for God's wisdom for them. We will not treat any candidate any differently than another." However, Huckabee was scheduled to speak on Sunday evening at services at Pensacola, Florida's East Brent Baptist Church. The Huckabee Campaign notes that this talk is closed to the press.
Press reports do not indicate whether or not other candidates were also invited by the churches at which Obama, Clinton and Huckabee spoke.
Commentary: Oregon Circumcision Decision Avoids Issue of Child's Independent Free Exercise Rights
In the 1972 U.S. Supreme Court case of Wisconsin v. Yoder, Justice Douglas dissenting in part raised this precise question. There Amish parents were being prosecuted for refusing to send their children to high school on the grounds that high school attendance conflicted with Amish beliefs. Douglas argued: "If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents' notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child's rights to permit such an imposition without canvassing his views."
In Boldt, the child's father argued that the 12-year old's views were irrelevant. He, and several Jewish organizations as amici, argued that the 12-year old should have no more say in the decision than should an infant who is circumcised. In one of her arguments, the mother who opposed the circumcision (along with amicus Doctors Opposing Circumcision) also suggested that the boy should have no say in the matter, so that even if he wanted the procedure he should not be circumcised because of the medical risk involved. The court fudged the issue, holding that the boy's views are important, but only because forcing him against his will to have the procedure would impact his relationship with his father to the point that a change of custody might be in order.
In both speech and religion cases, courts have often vindicated rights of mature children, but in most cases parents supported their child's First Amendment claims. When there is disagreement between parents and child, the issue is more complex. An example of this is an abortion decision made by a mature minor over the religious objections of her parents. In this situation, the Supreme Court has upheld parental involvement, but not parental veto. Another example is a parent's attempt to remove his or her minor child from a religious cult. Courts appear willing to give parents full authority to do this for minors, though not for adult children. See Scott v. Ross, (9th Cir., 1998).
An excellent Harvard Law Review Note, Children as Believers, Minors' Free Exercise Rights and the Psychology of Religious Development, 115 Harv. L. Rev. 2205 (2002) [LEXIS link], further explores the issue of minors' religious rights.
Ohio Supreme Court Case Questions Family's Right To Body Parts of Deceased
The federal trial court certified to the Ohio Supreme Court the question of whether Ohio law grants a right to next-of-kin to a decedent's body parts that have been removed in an autopsy. It noted that a subsequently enacted Ohio law guarantees return of body parts, but only when the autopsy is contrary to the deceased person's religious beliefs. Albrecht v. Treon, 2007 U.S. Dist. LEXIS 18613 (SD OH, March 17, 2007). The Washington Post calls attention to one controversial line in the brief of the medical examiners filed with the Ohio Supreme Court: "The real family interest is in the 'soul' of the deceased, if it continues in an afterlife, or in the memory of the 'soul', rather than to the dead carcass."
Mormon Church President Dies; Officials Send Condolences
Texas Lawsuit Challenges Water Quality Law Under RLUIPA
Recent Articles on Law and Religion
- Emon, Anver M., The Limits of Constitutionalism in the Muslim World: History and Identity in Islamic Law , ( in Constitutional Design for Divided Societies, Forthcoming).
- 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
Sunday, January 27, 2008
Standards For Use of Religion By Political Candidates Proposed
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.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.
USCIRF Calls For Release of Afghan Student Sentenced for Blasphemy
Some Are Critical of Proposed Turkish Constitutonal Changes
Recent Prisoner Free Exercise Cases
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
Saturday, January 26, 2008
9th Circuit Holds For Muslim Prisoner In Dietary Accommodation Case
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
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:
(See prior related posting.) Today's Oregonian has extensive coverage of the decision. [Thanks to Steve Sheinberg for the lead.]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....