Recent Articles and Book of Interest

From SSRN:

• Mark Glouberman, Of Mice and Men: God and the Canadian Supreme Court, (Ratio Juris, Vol. 21, Issue 1, pp. 107-124, March 2008).


• Christopher J. Buccafusco, Spiritualism and Will(s) in the Age of Contract, (February 21, 2008).

From NELLCO:

• Marc O. DeGirolami, The Constitutional Paradox of Religious Learning, (Columbia Law School. Columbia Public Law & Legal Theory Working Papers, February 23, 2008).

From SmartCILP:

• Symposium: A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States. Opening remarks by Vincent Martin Bonventre; articles by Michael P. Moreland, Gary J. Simson, Luke Meier, Timothy A. Byrnes, Richard A. Hesse and Steven K. Green. 70 Albany Law Review 1399-1472 (2007).


• John M. Breen, The Air in the Balloon: Further Notes on Catholic and Jesuit Identity in Legal Education, 43 Gonzaga Law Review 41-75 (2007/08).


• Nathan A. Forrester Jr., Equal Billing: On Religion, Washington's Views Should Be Considered, Too. (Reviewing Tara Ross & Joseph C. Smith Jr., Under God: George Washington and the Question of Church and State.) 12 Texas Review of Law and Politics 207-221 (2007).


• Mark Strasser, Marriage, Free Exercise, and the Constitution, 26 Law & Inequality 59-108 (2008).


• Willett, Hon. Don R. An Inconvenient Truth: Conservatives Behaving Charitably. (Reviewing Arthur C. Brooks, Who Really Cares: The Surprising Truth About Compassionate Conservatism.) 12 Texas Review of Law & Politics 181-205 (2007).


• Symposium: The Religion Clauses in the 21st Century. Introduction by William P. Marshall, Vivian E. Hamilton and John E. Taylor; articles by Steven G. Gey, Douglas Laycock, Ira C. Lupu, Robert W. Tuttle, Steven K. Green, Kristi L. Bowman, John E. Taylor, Frederick Mark Gedicks, Roger Hendrix, Steven D. Smith, Daniel O. Conkle, Kent Greenawalt, Carl H. Esbeck, Angela C. Carmella, Laura S. Underkuffler, Naomi Cahn, June Carbone, Vivian E. Hamilton and Eduardo M. Penalver. 110 West Virginia Law Review i-vii, 1-544 (2007).

New Book:

• Martha Nussbaum, Liberty of Conscience, (Basic Books, Feb. 2008), reviewed in the New York Sun and the New York Times. [Updated & corrected].

Pope, New U.S. Ambassador, Exchange Greetings

Last Friday, according to Catholic News Service, Mary Ann Glendon, the new U.S. Ambassador to the Vatican presented her credentials to Pope Benedict XVI. In her remarks (full text), Ambassador Glendon said: "An essential element of strong friendship is ongoing conversation -- a dialogue -- based on mutual respect, understanding and trust. This is particularly true for people of faith. The United States, in its desire to be a partner in interfaith dialogue, is working to amplify the many voices speaking out against the misuse of religion to promote terrorist violence and to support the efforts of those who are striving for greater interfaith understanding."

The Pope, responding (full text) to Glendon's remarks, said in part: "The American people’s historic appreciation of the role of religion in shaping public discourse and in shedding light on the inherent moral dimension of social issues -- a role at times contested in the name of a straitened understanding of political life and public discourse -- is reflected in the efforts of so many of your fellow-citizens and government leaders to ensure legal protection for God’s gift of life from conception to natural death, and the safeguarding of the institution of marriage, acknowledged as a stable union between a man and a woman, and that of the family."

Do Too Many Churches Hurt Retailing?

Today's New York Times, in an article titled God's Row, explores the question of whether too many store front churches in an area injure commerce by limiting the seven-day-a-week street traffic that is important to retailers.

Injunction Denied In Land Use Dispute Over Church Social Service Facilities

In Calvert County, Maryland last week, a state Circuit court judge denied the county's request for a preliminary injunction to close down a church's counseling center and food pantry that have not obtained proper permits and site plans. Today's Washington Post reports on the decision. A suit is pending in federal court claiming that RLUIPA protects the church from having to close off its driveway as the county demands. (See prior posting.) Closing the driveway will force social service clients to go through the church to obtain assistance.

California Court Finds No Free Exercise Right To Home School Children

In In re Rachel L., (CA Ct. App., Feb. 28, 2008), a California state appellate court rejected the claim by parents that they have a First Amendment right to home school their children because of their sincerely held religious beliefs "based on Biblical teachings and principles". The court held that assertions of this kind of general religious justification are conclusional and not factually specific. It added that "such sparse representations are too easily asserted by any parent who wishes to home school his or her child."

Proving Jewish Lineage To Israeli Rabbinate Can Create Problems

Today's New York Times Magazine carries an article on the problems faced by Israelis who need to prove to Israel's official Rabbinate that they are Jewish so that they can marry in Israel. The article profiles Rabbi Seth Farber who founded Itim, an organization to help. The article reports that Farber:

decided to "create a place where the representatives of Judaism" aren't government clerks. Itim distributes booklets that explain to Israelis how to arrange a circumcision, marriage or funeral. It helps secular couples find rabbis sensitive to their desires for their ceremonies. For the last five years, it has run a hot line for Israelis who face trouble in the rabbinic bureaucracy. Early on, Farber began receiving calls from people unable to prove they were Jews. Many were immigrants from the former Soviet Union, but some were Americans. Even a letter from an Orthodox rabbi didn't always help. The state rabbinate no longer trusts all Orthodox rabbis.

Canadian Judge Upholds Undercover Officer's Disguise As Religious Advisor

Canada's National Post yesterday carried a long article about a police sting operation in which an undercover agent disguised himself as a religious spiritual advisor in order to obtain an incriminating confession from a suspect. The article claims this is the first case of its kind in the Western world. At issue is a Brampton, Ontario police operation investigating a series of gang shootings in which an agent pretended to be an Obeah shaman, empowered with magic. The undercover agent obtained the confidence of the mother of one of the suspects, and at meetings with her and her son, he obtained confessions leading to charges against the son for being the getaway driver and giving a gun to the shooter in a murder.

In the defendant's trial in the Ontario Superior Court of Justice, Justice Terrence O'Connor agreed that Obeah is a religious belief system protected under the Canadian Charter of Rights and Freedoms. He also agreed that the undercover agent interfered with defendant Evol Robinson's religious practices. However he concluded that Robinson was not constrained or coerced in his religious practice because the interference was insubstantial. He was not prevented from worshiping or expressing himself spiritually. Further, O'Connor ruled, given the pressing concern about violent gun crimes, society's benefit from the sting operation outweighs the interference with religion.

Recent Prisoner Free Exercise Cases

In Pressley v. Beard, (3d Cir., Feb. 26, 2008), the U.S. 3rd Circuit Court of Appeals affirmed a district court decision rejecting plaintiff prisoner's claim that his free exercise rights were violated when prison officials confiscated his hard-bound Koran, prayer rug, and kufi.

In Scott v. Sisto, 2008 U.S. Dist. LEXIS 13349 (ED CA, Feb. 8, 2008), a California federal district court permitted a Muslim prisoner to proceed with free exercise and RLUIPA challenges to prison policy that limits him to a vegetarian diet and does not offer Halal food. Plaintiff alleges that under Islamic law, Muslims are not permitted to be vegetarians. Plaintiff's equal protection and due process claims were rejected.

In Strope v. Cummings, 2008 U.S. Dist. LEXIS 13682 (D KA, Feb. 22, 2008), a Kansas federal district court dismissed a claim by a prisoner that his Free Exercise rights and his rights under RLUIPA were violated when a prison guard interrupted him two or three times while he was kneeling and praying in his cell, asking him whether he was all right. The court noted that plaintiff may proceed on a number of other claims, including interference with religious call-out times and spoiled kosher food.

In Christiansen v. Walker, 2008 U.S. Dist. LEXIS 14147 (SD IL, Feb. 26, 2008), an Illinois federal district judge adopted a magistrate's recommendations that a default judgment be entered against one of the defendants charged with infringing plaintiff prisoner's free exercise of religion. Plaintiff claimed he was not served a vegetarian diet, was not given adequate time and space for prayer and was forced to attend Christian religious programs. The court ordered the magistrate judge to conduct a hearing on damages. (See prior related posting.)

In Low v. Stanton, 2008 U.S. Dist. LEXIS 14491 (ED CA, Feb. 26, 2008), plaintiff complained that while he was a pre-trial detainee, jail officials refused to furnish him a copy of the Quran in Arabic, offering him instead only an English translation. The jail furnishes Arabic versions (that are more expensive) only to inmates who are fluent in Arabic. In this decision, a California federal magistrate judge recommended granting summary judgment to defendants on plaintiff's Establishment Clause and equal protection claims, but permitting plaintiff to proceed on his Free Exercise and RLUIPA claims.

In Walls v. Schriro, 2008 U.S. Dist. LEXIS 14539 (D AZ, Feb. 26, 2008), a Hare Krishna prisoner alleged that his rights under the First Amendment and RLUIPA were being violated when he was denied a proper religious diet, a religious hairstyle, religious services and visitations. An Arizona federal district court granted defendants' motion for summary judgment on the claim regarding religious visits and services. It also held that defendants had qualified immunity from damage claims under RLUIPA as to plaintiff's other allegations. However the court permitted plaintiff to move ahead with his other claims.

In Whitfield v. Lawrence Correctional Center, 2008 U.S. Dist. LEXIS 14945 (SD IL, Feb. 27, 2008), an "African Hebrew Israelite" prisoner claimed he was denied religious services and programs and adequate meals that comply with his religious beliefs. He also argued that African Hebrew Israelites receive an insufficient share of religious programming funds. Finally he alleges he was forced to receive a "T.B. shot" while he was observing the Sabbath. An Illinois federal district court permitted plaintiff to move ahead with ten of his 13 claims.

In Oakes v. Green, 2008 U.S. Dist. LEXIS 15106 (ED KY, Feb. 27, 2008), a Kentucky federal district court rejected an inmate's First Amendment and RLUIPA challenges to prison grooming regulations.

ACLU Sues Louisiana School Board Challenging ADF's Model Prayer Policy

The ACLU of Louisiana announced yesterday that for the seventh time it has filed a lawsuit against Tangipahoa Parish School Board and its members, this time challenging the Board's policy on opening school board meetings with prayer. The federal court complaint (full text) challenges under the Establishment Clause the Board's policy which invites clergy in local congregations, on a first-come first-served basis, to lead an opening prayer before the formal opening of the Board meeting. An ACLU challenge to the Board's earlier prayer policy was dismissed by the 5th Circuit Court of Appeals on standing grounds because there was no evidence in the record that plaintiffs ever attended a school board meeting where a prayer was recited. (See prior posting.) Plaintiff in the new case is a taxpayer, voter, father of two children enrolled in the local schools, and attends board meetings.

The AP yesterday reporting on the lawsuit said that the complaint "describes three board meetings at which ministers from different Christian denominations made Christian prayers. It also says [plaintiff's] wife asked ... if she could give an invocation, but was told that was reserved for ministers of congregations or police or fire department chaplains — and that being "nondenominational" would also bar her...."

This suit may have more than local significance as the policy being challenged is a Model Prayer Policy that the Alliance Defense Fund has recommended to school boards and city councils around the country. (ADF release.)

Columnist Urges Stronger Obama Reaction To Claims He Is Muslim

Naomi Klein, writing in today's Guardian, criticizes Barack Obama for an insufficient response to campaign tactics that suggest he is a Muslim. In an op-ed titled It's No Slur To Be Called a Muslim, she says:

What is disturbing about the campaign's response is that it leaves unchallenged the disgraceful and racist premise behind the entire "Muslim smear": that being Muslim is de facto a source of shame.... Substitute another faith or ethnicity, and you'd expect a very different response....

As the most visible target of this rising racism, Obama has the power to be more than its victim. He can use the attacks to begin the very process of global repair that is the most seductive promise of his campaign. The next time he's asked about his alleged Muslimness, Obama can respond not just by clarifying the facts but by turning the tables. He can state that while a liaison with a pharmaceutical lobbyist may be worthy of scandalised exposure, being a Muslim is not.

Gay Pride Protesters Convicted of Disorderly Conduct

A City Judge in Elmira, New York has rejected First Amendment defenses and found four anti-gay demonstrators guilty of disorderly conduct. Each was fined $95 and assessed $100 in court costs. Today's Elmira Star-Gazette reports that the charges grew out of protests at a Gay Pride Festival. The four--wearing red T-shirts with the slogans "Liberated from Sin" and "By the Blood of Jesus"-- were arrested after laying down on the lawn in front of a stage. In his closing argument, Assistant District Attorney Robert Siglin argued that the case is not about religious freedom, but about public order.

EEOC Sues Nursing Home On Behalf of Sikh Woman Ordered To Remove Kirpan

The Sacramento Bee reports that last Thursday the Equal Employment Opportunity Commission filed a federal lawsuit against a Sacramento nursing home for refusing to accommodate the religious beliefs of a Sikh employee. The nursing home, owned by ManorCare Health Services, insisted that Baljit Kaur Bhandal remove her kirpan while at work, or lose her job. Bhandal wears the sheathed ceremonial knife under her clothing.

Canadian Court Refuses To Order Breakaway Churches To Host Loyalists

In February, eleven Canadian Anglican parishes voted to separate from the Anglican Church of Canada and join together instead in the Anglican Network in Canada. The breakaway congregations object to the ACC's liberalizing positions on issues such as homosexuality. The Anglican Journal today reports on the first court decision flowing from the split. In Hamilton, Ontario, the question of who owns the property of three breakaway parishes is pending before a Superior Court judge. (CBC News.) Last Sunday, these breakaway congregations voluntarily permitted clergy representing the "loyalist" faction to hold their own services in the church building for their followers. However, when the loyalists invited supporters from surrounding parishes to attend the services, the breakaway congregations cried foul and refused to extend the arrangement for the next two weeks until the court rules on the property issue. The loyalists asked the court to order the arrangement extended, but Justice James Ramsay refused to do so.

Wife of Russia's Likely Next President Presses Religious Ties

In the U.S. presidential elections, the religious views of the candidates have often assumed importance. In Russia, according to Sunday's London Telegraph, the religious views of the leading presidential candidate's wife are important. Svetlana Medvedev, wife of Dmitry Medvedev who is likely to be elected to succeed Vladimir Putinin the country's elections on Sunday, is credited with drawing her husband into the Orthodox Church. The Church has endorsed Medvedev's candidacy. Svetlana Medvedev currently is the head of a Church board that is pushing to reintroduce religion into Russian schools.

California College Says Quaker Teacher May Not Sign Amended Loyalty Oath

California requires teachers to sign an oath swearing or affirming that they will support and defend the federal and state constitutions against all enemies, foreign and domestic. The San Francisco Chronicle reported on Friday that California State University East Bay has fired a graduate student who was employed part-time to teach remedial math because she would not sign the oath without modifying it to reflect her pacifist Quaker views. Citing a 1968 California appellate decision, Smith v. County Engineer, the University took the position that graduate student Marianne Kearney-Brown could not amend the oath. The University said she could sign it, and then place a separate note in her personnel file explaining her views. Kearney-Brown, however, declined that option. [Thanks to Joel Sogol via Religionlaw for the lead.]

High School Suspends Students For Wearing Crucifxes; Seen As Gang Symbol

The AP reported on Friday that an Albany, Oregon high school suspended two teenagers for refusing to remove crucifixes that they say were gifts from their mothers. Apparently high schools in this part of Oregon have been dealing with crucifixes and rosaries as gang symbols. South Albany High School principal Chris Equinoa says he has authority to ask a student to remove an item that may indicate gang membership, even if it is also a religious symbol. Equinoa said that he would only do this based on other information as well.

7th Circuit Upholds Dismissal of FLSA Claim On Basis of Ministerial Exception

In Schleicher v. Salvation Army, (7th Cir., Feb. 28, 2008), the U.S. 7th Circuit Court of Appeals, in an opinion by Judge Posner, applied the "ministerial exception" doctrine to dismiss a suit brought under the Fair Labor Standards Act by two ordained Salvation Army ministers. Plaintiffs, who administered one of the Salvation Army's Adult Rehabilitation Centers, were provided basic needs allowances less than the FLSA's prescribed minimum wage. While the FLSA applies to religious organizations when they engage in ordinary commercial activities, the court held that here clergy were engaged in ecclesiastical administration of a church. They were not merely commercial employees of thrift shops which were a part of the Rehabilitation Center program. The court held that plaintiffs' claim should be dismissed not for lack of jurisdiction (as the lower court had held), but because defendants were entitled to summary judgment on the merits. [Thanks to How Appealing for the lead.]

[Corrected & Revised]-- Kosovo's Orthodox Albanian Minority Says Draft Constitution Infringes Their Religious Rights

Ethnic Albanians are the majority in newly-independent Kosovo. Most of them are Muslim. About 3% are Roman Catholic. Some 5% to 6% of Kosovars are Serbs, and they are generally members of the Serbian Orthodox Church. (Background.) However, apparently there are a small number of Albanians in Kosovo who are (or wish to be) members of the Orthodox Church of Albania. An analysis published Thursday by the New Kosova Report argues that the recently released Draft Constitution of the Republic of Kosovo denies freedom of religion and belief to Kosovo's Albanian Orthodox minority.

While Article 58 provides that "the Republic of Kosovo shall promote the preservation of the cultural and religious heritage of all communities," the report argues that "any Albanian wishing to worship as Orthodox will be forced to define themself as Serb." It reaches this conclusion because Article 143 of the Draft Constitution provides: "The Constitution of the Republic of Kosovo shall be interpreted in compliance with the Comprehensive Proposal for Kosovo Status Settlement, dated 26 March 2007. If there are contradictions between the provisions of this Constitution and the provisions of the status settlement, the latter shall prevail." The referenced Comprehensive Proposal (full text), also known as the Ahtisaari Plan, defines the Orthodox Church in Kosovo as the Serbian Orthodox Church. (Annex V).

Colorado Catholic Conference Does Not Support Personhood Amendment

This November, Colorado voters will cast ballots on a proposed Human Life Amendment to the Colorado Constitution. (Background.) Yesterday's Denver Post reported that the state's Catholic Conference believes that Colorado For Equal Rights, the sponsor of the Amendment, has misrepresented the views of the state's Catholic bishops regarding the Amendment. In a statement issued yesterday, the Catholic Conference said: "No broad-based coalition of Catholic leaders has voiced support for Colorado’s Personhood Amendment. We commend the goal of this effort to end abortion. Individual Catholics may certainly choose to work for its passage. At the same time, we recognize that other people committed to the sanctity of life have raised serious questions about this specific amendment’s timing and content. We encourage any and all efforts to eliminate or reduce attacks on the unborn, but we do not believe that this year’s Colorado Personhood Amendment is the best means to pursue this issue at this time." An article in last December's Chicago Tribune outlines the concerns of many anti-abortion strategists about the approach of granting personhood to embryos.

The proposed amendment would define "person" for purposes of Art. II, Secs. 3, 6 and 25 of the state Constitution (inalienable rights, equality of justice and due process clauses) as "including any human being from the moment of fertilization". If passed, it would presumably create substantial hurdles to in vitro fertilization practices in which some of the fertilized eggs are not implanted, as well as to some methods of contraception. This Amendment's protection of access to the courts once eggs are fertilized apparently creates the possibility of lawsuits brought on behalf of a fetus prior to birth.

Arkansas Supreme Court Hears Arguments In Buddhist Temple Election Dispute

The Arkansas Supreme Court on Thursday heard oral arguments in a case challenging an election of board members at a Buddhist Temple in Fort Smith (AK). The Northwest Arkansas Morning News reports on the appeal of a state circuit court's decision ordering an election and deciding who was a voting member of Wat Buddha Samakitham. James Dunn, attorney for the defendants, argued that it was unconsitutional for the trial court to decide who is a member of a religious organization. Brian Meadors, attorney for the plaintiffs, countered that the trial court did not become involved in ecclesiastical matters. He said the court merely interpreted the Temple's bylaw provision defining requirements for membership.