Religion Clause

Tuesday, January 29, 2008

Austrian State Proposes Law To Restrict Building of Mosques

In the Austrian state of Carinthia, the government led by right-wing politician Jörg Haider has introduced a bill that would make it difficult to construct mosques or minarets. Spiegel Online reported yesterday that the proposed law would allow a special commission to block construction of any building that is "unusual" or which stands out because of its unusual architecture or height, if the building does not blend in with the neighborhood's existing architecture. Uwe Scheuch, the minister responsible for urban planning, insisted that the proposed law would not infringe on the constitutional right to freedom of religion. Anti-Muslim sentiment in Austria has been growing.

Good News Club Sues Virginia School Board Over Fees

In a release yesterday, Liberty Counsel announced that it had filed suit against the Williamsburg -James City County (Virginia) Public Schools challenging its policy of charging facility usage fees to the Good News Club. The club is a Christian after-school program operated by Child Evangelism Fellowship of Virginia. School board policy allows the superintendent to waive usage fees "in consideration of services rendered by public institutions or nonprofit organizations in direct support of public school students or staff." Fees are waived for the Boy Scouts and Girl Scouts. In defending against charges of discrimination, the school board pointed to the equal access provision of the No Child Left Behind Act (Sec. 9525) that specifically requires schools receiving federal funds to provide equal access to the Boy Scouts and other youth groups listed in Title 36 of US Code as patriotic societies. (See prior related posting.)

UN Official Finds Religious Liberty Issues In Israel and Palestinain Authority

Reuters reports that Asma Jahangir, the United Nations Human Rights Council Special Rapporteur on Freedom of Religion or Belief, concluded a week-long visit on Sunday to Israel and the Palestinian Authority. In a statement at the end of her visit, she criticized both Israel and the PA (consistently referred to by Jahangir as "the occupied Palestinian territory") for restrictions on religious freedom. A UN Press Release yesterday summarized the findings set issued by Jahangir, a Pakistani human rights activist. On Israel's part, the UN official criticized the effect of security measures on access to Christian and Muslim holy sites, Israel's preferential treatment of Orthodox Judaism, the inability of citizens with no official religion to marry in Israel, and pressures against religious proselytizing. On the Palestinian side, Jahangir criticized honor killings of women in the name of religion, a rising intolerance of Christians, pressure on Muslim women in Gaza to wear head coverings and suicide bombings by Islamic militants.

NPR Interview With Author of Book on Religon In White House

NPR has made available online a 34 minute segment from yesterday's Fresh Air consisting of an interview with Randall Balmer, author of the recently released book God in the White House. Balmer is also author of the Encyclopedia of Evangelicalism and editor-at-large of Christianity Today.

Monday, January 28, 2008

Presidential Candidates Preach At Churches Despite IRS Guidelines

Appearances by some of the presidential candidates yesterday, in advance of Florida's primary tomorrow and Super Tuesday's 24 primaries and caucuses, raise questions about the interpretation of IRS guidelines for Section 501(c)(3) non-profit organizations, such as churches. Revenue Ruling 2007-41 (June 18, 2007) contains the following example of impermissible activities:

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

An important issue remained undecided after the Oregon Supreme Court on Friday sent back to the trial court for further findings the dispute between divorced parents over whether their 12-year old son could receive a religious circumcision. As previously reported, in Boldt v. Boldt, the Oregon Supreme Court remanded the case for further findings on whether or not the boy wanted the procedure. The court's decision only tangentially addressed a critical issue-- to what extent do minor children have free exercise rights when their religious views conflict with those their parents wish them to hold?

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

Today's Washington Post reports on some of the religious concerns raised in Albrecht v. Treon, a case argued earlier this month before the Ohio Supreme Court. (Video of Jan. 23 argument.) A Jan. 20 Toledo Blade article has additional details on the case. Mark and Diane Albrecht discovered after their son's body had been buried that his brain which had been removed for examination in an autopsy had not been returned. This led to a federal class action against against the coroners and commissioners in 87 of Ohio's 88 counties. At issue is whether the Albrechts "were denied due process of law when the county 'took' parts of their son's body."

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

The New York Times reports that Gordon B. Hinckley, long-time leader of the Church of Jesus Christ of Latter Day Saints, died Sunday in Salt Lake City, Utah. The 97-year old Mormon leader served as president of the LDS Church for almost 13 years. Among his innovations were changes in the Church logo to make the words "Jesus Christ" larger than "Latter Day Saints", and making the Church's extensive genealogical records publicly available online. Today's Deseret Morning News reports on expressions of sympathy from Utah's members of Congress, from state officials and from other leaders in the state.

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.

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.

Sunday, January 27, 2008

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.

Saturday, January 26, 2008

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.]

Friday, January 25, 2008

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.