Chief Justice Roberts Speaks To Rabbinical Group

U.S. Chief Justice John Roberts spoke before the Rabbinical Assembly, the organization of Conservative rabbis, as he received its Truth and Justice award last week in Washington. Saturday's Jerusalem Post reports that Roberts spoke of connections between Jewish tradition and the American legal structure. He said: "The friezes that surround the Supreme Court's courtroom provide a visible reminder that throughout history, progress in law, which is to say human progress, has been marked by a procession in which religion, morality and personal liberty have traveled together." Some rabbis in attendance were critical of Roberts views on certain issues, including women's reproductive health. The Conservative movement supports a woman's right to choose.

Recent Scholarly Articles of Interest

From SSRN:

• Daniel Augenstein, A European Culture of Religious Tolerance, (EUI LAW Working Paper No. 2008/4, Jan. 2008).


• Katherine B. Darmer & Robert M. Baird, Introduction to Morality, Justice and the Law, (MORALITY, JUSTICE AND THE LAW: THE CONTINUING DEBATE, Prometheus Books, 2007).


• Wojciech Sadurski, Rights and Moral Reasoning: An Unstated Assumption, (December 2007).


• Robert L. Tsai, Reconsidering Gobitis: Lessons in Presidential Leadership, (Feb. 2008).


• Candidus Dougherty, Heffron v. International Society for Krishna Consciousness, (Encyclopedia of the United States Supreme Court, 2008).


• Shelley Ross Saxer, Faith in Action: Religious Accessory Uses and Land Use Regulation, (Utah Law Review, Forthcoming).


• Nathan B. Oman, Preaching to the Court House and Judging in the Temple, (Feb. 11, 2008).


• George P. Smith, Of Panjandrums, Pooh Bahs, Parvenus, and Prophets: Law, Religion, and Medical Science, (CUA Columbus School of Law Legal Studies Research Paper No. 2008-11).


• Jared Rubin, Printing and Interest Restrictions in Islam & Christianity: An Economic Theory of Inhibitive Law Persistence and Divergence, (January 22, 2008).

From SmartCILP:

• Cindy Skach, From "Just" to "Just Decent"? Constitutional Transformations and the Reordering of the Twenty-First-Century Public Sphere, 67 Maryland Law Review 258-280 (2007).

The Journal of Church and State, Vol. 49, No. 4 (Autumn 2007) has recently been published.

Pope Benedict XVI Will Visit White House In April

Last Friday, the White House announced that Pope Benedict XVI will visit the White House on April 16 as part of his trip to the United States. Discussions between President Bush and the Pope are expected to cover issues of peace in the Middle East, inter-faith understanding, and religious liberty around the world.

Suit Challenges Church Zoning Rules of Illinois Village

The Alliance Defense fund has announced that it filed suit last Thursday against the Village of Hazel Crest, Illinois on behalf of the River of Life Kingdom Ministries challenging the village's zoning rules. The village requires churches to obtain special use permits to locate in residential districts, and requires a variation or text amendment for churches to locate in business districts. Various non-religious uses are permitted on less onerous zoning terms. The federal court complaint (full text) alleges that the discriminatory zoning rules violate the Religious Land Use and Institutionalized Persons Act as well as the First and 14th Amendments of the Constitution.

Washington Court Keeps Injunction Against Pharmacy Board Rules

Last November, a Washington federal district court granted a preliminary injunction against the enforcement of Washington state pharmacy rules requiring pharmacists to fill requests for Plan B emergency contraceptives even if doing so violates the pharmacists' religious beliefs. (See prior posting.) The AP and the Seattle Times report that last Friday the court refused a request by the state that it lift the preliminary injunction as to everyone except the plaintiffs in the lawsuit. The court also rejected the state's request to stay further proceedings in the case while the preliminary injunction is appealed. All of this means that enforcement of the state rules is still enjoined and the trial on the request for a permanent injucnction scheduled for October will go ahead.

Recent Prisoner Free Exercise Litigation

In Figel v. Overton, (6th Cir., Feb. 6, 2008), the U.S. 6th Circuit Court of Appeals agreed with a lower court that prison officials could not claim qualified immunity in a case arising after RLUIPA was enacted. Even though the Supreme Court had not yet ruled on its constitutionality, RLUIPA became clearly established law when it was signed. An erroneous 6th Circuit decision on the constitutionality of RLUIPA came after the conduct at issue in the case.

In Salaam v. McKee, 2008 U.S. Dist. LEXIS 9770 (WD MI, Feb. 11, 2008), a federal district court adopted a magistrate's report rejecting a complaint that prison authorities scheduled Muslim Jumu'ah services at a time that is inappropriate under Islamic law. The magistrate had concluded that the service schedule was motivated by a compelling governmental interest in separating prisoners of different security levels.

In Winford v. Frank, 2008 U.S. Dist. LEXIS 9907 (ED WI, Feb. 8, 2008), a court rejected free exercise claims by a prisoner who was a Satanist and who was denied access to several requested Satanic religious books. The court found that plaintiff had not shown he was unable to practice Satanism without these publications, and that there were legitimate safety and security reasons for denying him the books.

In Jebril v. Joslin, 2008 U.S. Dist. LEXIS 10611 (SD TX, Feb. 12, 2008), a Texas federal district court rejected a prisoner's claim that his right to practice his Muslim faith was infringed by authorities' labeling him a terrorist and subjecting him to increased scrutiny. Plaintiff, however, was permitted to move ahead with his claim that requiring that all inmates wear their pants uncuffed infringed his free exercise of religion. The court also permitted him to move ahead with his claim that he was harassed in retaliation for practicing his faith.

Van Wyhe v. Reisch, 2008 U.S. Dist. LEXIS 10779 (D SD, Feb. 13, 2008), involved a claim by a prisoner that he was denied his rights under the 1st Amendment and RLUIPA when he was taken off a kosher diet for 30 days as a sanction for consuming non-kosher food. A South Dakota federal district court granted summary judgment to defendants on several claims, but permitted plaintiff to move ahead with his claim against some of the defendants under RLUIPA. It held however that plaintiff would be limited to recovering nominal monetary damages.

In Carmony v. County of Sacramento, 2008 U.S. Dist. LEXIS 11137, February 13, 2008, Decided, (ED CA, Feb. 14, 2008), a California federal magistrate judge rejected an inmate's complaint that his free exercise rights were violated when he was not permitted to attend Bible study classes. The court concluded that plaintiff's religious beliefs were not sincerely held. He testified that he wished to attend to relieve his boredom. Also he was in court at most times when the classes were held.

In Beasley v. Kontek, 2008 U.S. Dist. LEXIS 10747, (ND OH, Jan. 8, 2008), an Ohio federal district court denied a motion for appointment of counsel and a motion to extend time to file an appellate brief by a prisoner who became an Orthodox Jew while in prison and wanted to wear a beard and sidelocks. In an earlier decision in the case, 2007 U.S. Dist. LEXIS 96302 (ND OH, Nov. 5, 2007), the court had already held that plaintiff's claim for injunctive relief was moot because of a change in the prison's grooming policy and that plaintiff had failed to exhaust his administrative remedies. (Also see prior related posting.)

Meanwhile, Saturday's New York Times reports on a pending religious freedom lawsuit brought by a Hasidic rabbi serving a sentence for fraud at a federal penitentiary in Otisville, NY. Plaintiff wants the Bureau of Prisons to change its policy on where inmates can pray. He argues that his cell, which contains a toilet, is an unclean place under Jewish law for him to pray. He says that Muslims and Buddhists have similar beliefs. Federal prisoners are not permitted to pray in common spaces, and prison chapels are usually not open enough hours to accommodate prisoners who need to pray several times each day. Prison chaplain authorities say that prayers are banned from common areas because they could be threatening to other prisoners, or could make them feel uncomfortable.

Catholic College Faces Legal Challenges To Its Health Insurance Limits

Catholic Online yesterday reported on the legal battle being waged against Charlotte, North Carolina's Belmont Abbey College after it got its health insurance carrier to drop coverage for voluntary sterilization, abortion, and contraception. The Catholic college explained to faculty and staff that the coverage runs contrary to Catholic teaching. However eight faculty members filed a complaint with the Equal Employment Opportunity Commission charging the school with religious and gender-based discrimination. The college has hired legal counsel to reply to the complaint. The National Women's Law Center has threatened litigation on behalf of the faculty members. In addition, one faculty member complained to the state's Department of Insurance. However it ruled that the school qualified for the religious employer exemption in state insurance law that otherwise requires coverage for contraceptive drugs. (NC GS 58-3-178). The faculty member has asked the National Women's Law Center to appeal the ruling.

Times Focuses On Movement of Egypt's Youth Toward Islam

Today's New York Times carries a front-page article titled "Dreams Stifled, Egypt's Young Turn To Islamic Fervor". The first in a series of articles examining the lives of youth in the Muslim world, reporter Michael Slackman says the economic pressures that force young people to put off marriage lead to increasing frustration. Without the independence, sexual activity and societal respect that comes from marriage, young people are increasingly turning to religion, and pulling their parents and their governments with them. Islam is becoming the defining identity for these young people. The Times makes available an Arabic translation of the article and has created a special blog devoted to a discussion of the series of articles.

School Delays Student's Religious Valentines

In Wisconsin's Kettle Moraine School District, staff members at Wales Elementary School attracted the attention of local radio talk shows and blogs when they took valentines with religious messages from a student to see if they complied with the school's policy against distributing materials that "seek to market, solicit money, recruit, indoctrinate or convert." Yesterday's Milwaukee Journal-Sentinel reports that school officials decided the valentines were permissible because, whiile they endorsed religion, they were private speech. Superintendent Patricia Deklotz said she was sorry that the 5th grader's distribution of cards to her classmates was delayed. The school's current policy was adopted in 2001 after another incident involving religious valentines led to the filing of a federal lawsuit.

NIU Shooter Researched Paper On Religion In Early US Prisons

The Chicago Tribune reported on Saturday that Steve Kazmierczak, the Northern Illinois University gunman who killed 5 students, wounded 16 others and then shot himself, had been honored with a dean's award for his sociology research. (Also see New York Times). He is reported to have written a paper with his advisor Prof. Emeritus Jim Thomas on the role of religion in the formation of early prisons in the United States. The paper may be one delivered by Thomas at the 2006 American Society of Criminology meeting titled "The Roots of Faith-Based Prison Programming: A Revisionist View." The paper is listed on Thomas' website.

Tradtionalist Catholic High School Refuses Female Basketball Referee

The Kansas State High School Activities Association is looking into dropping St. Mary's Academy from the list of schoools that are approved to compete against association members. The AP reported on Wednesday that the move comes after the Academy refused for religious reasons to permit a female referee to officate at a boy's basketball game. The school is operated by the Society of St. Pius X and follows the Traditionalist Catholic teachings of its excommunicated former leader, the late Archbishop Marcel Lefebvre. Explaining its views further in its own press release, the Academy said: "Sports for boys are seen as training for the battlefield of life where the boys will need to fight at times through great difficulties. As such, it is more appropriate that it be men who train and direct the boys in these sports programs for only men can teach the boys to be men, just as only women can truly teach girls to be women."

Sarkozy Criticized By Secularists For Revisions In Holocaust Curriculum

According to Saturday's New York Times, French President Nicholas Sarkozy has created a new controversy by revising the way in which French school children will learn about the Holocaust. He wants every French 5th grader to learn and identify with the life story of one of the 11,000 French Jewish children killed by the Nazis. Sarkozy added to the consternation of French secularists who are already upset with his frequent references to God and religion by describing his new Holocaust curriculum in religious terms. (See prior posting.) He called Nazi beliefs in racial superiority "radically incompatible with Judeo-Christian monotheism." Some historians argue that Sarkozy's approach distracts attention from the Vichy government’s collaboration with the Nazis, and that it could also create resentment among ethnic Arabs and Africans whose history is not getting the same treatment.

UPDATE: The AP reported on Monday that France's Education Minister Xavier Darcos suggests softening the potential traumatizing effect on children of Sarkozy's plan by having an entire school class collectively honor an individual Holocaust victim. Darcos will meet with teachers and historians to decide how to best implement Sarkozy's plan.

Obama Campaign Hosts Jewish Fundraiser Last Week In DC

The Forward earlier this week carried a story about a different sort of harnessing of religion by the Barak Obama campaign. Last Saturday, before the Potomac primaries, Jewish backers of Obama hosted a Saturday night fundraiser in a bistro near Washington, DC's DuPont Circle. Walls were covered with Obama posters on which his capaign slogan, "Yes We Can", was translated into Hebrew. The evening began with a Havdalah service to mark the end of the Sabbath. Speakers referred in Jewish religious terms to Obama's concern about social justice issues.

Texas Court Rejects Establishment Clause Challenge To Ban On Murder of Fetus

In Flores v. State of Texas, (TX Ct. Crim. App., Feb. 13, 2008), the Texas Court of Criminal Appeals rejected an Establishment Clause challenge to the Texas law that defines the killing of an unborn fetus as capital murder. Judges Cochran and Johnson filed a concurring opinion. Texas Penal Code Sec. 1.07(a)(26) defines an "individual" as "including an unborn child at every stage of gestation from fertilization until birth." Sec. 19.03(a)(8) defines capital murder as including the murder of an "inidvidual" under six years of age. Sec. 19.06 excludes from the ban medical abortions or conduct by the mother.

Defendant Gerardo Flores was convicted of murdering his girlfriend's twin fetuses. He argued that the statute criminalizing the murder of a fetus has a religious purpose. The court, however, held that: "Mere consistency between a statute and religious tenets ... does not render a statute unconstitutional.... While some may indeed view a fetus as a human being out of religious convictions, others may reach the same conclusion through secular reasoning or moral intuition unconnected to religion. Moreover, even those who do not view the fetus itself as a person may still want to protect fetal life simply because it represents potential human life."

Missouri Constitutional Amendment On Religion Debated

Yesterday, the Missouri House of Representatives debated HJR 55, a proposed amendment to the state constitution that would add 300 words spelling out free exercise and establishment clause rights more explicitly. Prime Buzz yesterday reported on the debate. The sponsor of the proposal, Rep. Mike McGhee, said the amendment-- which would go to the voters in November-- would clarify the law by emphasizing the rights of citizens and school children to pray in public. Democrats argued that the proposal was merely an attempt to get more conservatives to the polls in November and urged instead that it be placed on the August primary ballot. That alternative was defeated 85-65 in a party-line vote. Then Rep. Jonas Hughes, a Kansas City Democrat, proposed an amendment stating that the right to acknowledge God in public includes "the Saints or the Virgin Mary." That was defeated 111-38. Further action by the House on the proposed constitutional amendment is expected next Monday.

Third Circuit Hears Arguments In Suit By Anti-Gay Protesters

On Monday, the U.S. Third Circuit Court of Appeals heard oral arguments in Startzell v. City of Philadelphia, a civil rights suit brought by members of Repent America (a Christian evangelical group) against Philly Pride, the organizers of OutFest. OutFest is a festival designed to celebrate participants' homosexuality. Plaintiffs claim that Philly Pride conspired with the city of Philadelphia and its police department to prevent them from speaking and carrying signs opposing homosexuality. (See prior posting.) Reporting on the oral arguments, Lancaster Online today says defendants argued that holders of a street festival permit should be able to exclude participants in the same way that parade organizers can.

Texas Archbishop Objects To Catholic College's Invite To Clinton

Democratic Presidential hopeful Hillary Clinton spoke to several thousand supporters last night at St. Mary's University in San Antonio, Texas, (CBS News) despite objections from San Antonio Archbishop Jose Gomez. (AP Feb. 13). Gomez released a statement (full text) on Tuesday saying that he was neither advised nor consulted before the Catholic university scheduled Clinton. His statement continued:

It is clear that the records of Senator Clinton and some of the other candidates for president on important life issues are not consistent with the teaching of the Catholic Church....

The Catholic bishops of the United States, in their 2004 document "Catholics in Political Life", affirmed that when dealing with political candidates and public office holders, "The Catholic community and Catholic institutions should not honor those who act in defiance of our fundamental moral principles. They should not be given awards, honors or platforms which would suggest support for their actions."

New Jersey Bill Requiring Alternative SAT Testing Dates Advances

Yesterday, the New Jersey Senate Education Committee unanimously approved S. 1023, a bill to require that alternative testing arrangements be made available for students who are unable for religious reasons to take the SAT, LSAT, MCAT and similar college and professional school admissions tests on the regularly scheduled date. The bill requires that the alternative test be equivalent to the original. Politics NJ quotes the bill's sponsor, Sen. Loretta Weinberg, who said: "In the past, there have been reports of the exams administered on the alternate dates being significantly harder than those given on the regularly scheduled dates." The bill now goes to the full Senate for approval.

"In God We Trust" License Plates Proposed In 4 States

Bills authorizing specialty license plates carrying the motto "In God We Trust" have advanced recently in four state legislatures. Earier this week, the Kentucky House Transportation Committee (Lexington Herald Leader), an Illinois House committee (The Southern), and an Oklahoma state Senate committee (AP) approved bills calling for the plates. Last week, the Kansas House Transportation Committee scheduled hearings on a similar bill. (KSNT News).

UPDATE: In Kentucky, two different groups are contending for the revenues from "In God We Trust" specialty plates. Saturday's Lexington Herald-Leader reports that Reclaim Our Culture Kentuckiana (ROCK)-- a non-profit that raises awareness of harm from pornography and the sex trade-- applied to the state Transportation Cabinet in November for creation of the specialty plates. However, six weeks later Rep. Jim Gooch filed House Bill 207 to create the same plate, with money to go to help homeless and needy veterans.

Suits Seek To Validate Pennsylvania Marriages By Clergy Without Churches

The American Civil Liberties Union of Pennsylvania announced yesterday that it has filed separate lawsuits on behalf of three couples challenging a recent ruling by a York County judge who held invalid marriages performed in Pennsylvania by clergy who do not have a regularly established church or congregation. (See prior posting.) The lawsuits argue that the York County decision misinterpreted 23 Pa. Consol. Stat § 1503(a)(6), "which requires only that a religious officiant be clergy 'of any regularly established church or congregation,' not that the officiant both represent an established 'place of worship' and serve a particular congregation." The lawsuits ask three separate courts to declare that the petitioning couples' marriages are valid. Two of the couples were married by ministers of the Universal Life Church and one couple was married by a Roman Catholilc Jesuit priest who, at the time, was clerking for a federal judge. The ACLU's announcement gives links to the full text of the complaints in each lawsuit. Yesterday's Philadelphia Intelligencer gives additional background on the couples involved in the litigation.