New Articles and Books of Interest

From SSRN:

• John M. Finnis, Endorsing Discrimination Between Faiths: A Case of Extreme Speech?, (Oxford Legal Studies Research Paper No. 09/2008, March 2008).


• Chad Flanders, The Possibility of a Secular First Amendment, (Quinnipiac Law Review, Vol. 26, 2008).

From SmartCILP:

• Maxine M. Harrington, The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs, 34 Florida State University Law Review 779-833 (2007).


• Panel: Feminist Legal Theory: Dialogue Across Philosophical and Faith Traditions. Participation by Marie A. Failinger, Susan J. Stabile and Eva Feder Kittay. 4 University of St. Thomas Law Journal 405-488 (2007).


• Symposium. Liberty Under Law: 400 Years of Freedom. Addresses by Leroy Rountree Hassell, Sr., Ellis Sandoz and Harold J. Berman; articles by Richard F. Duncan and Ellis Sandoz. 20 Regent University Law Review 1-100 (2007-2008).

New Books:

• Steven Goldberg, Bleached Faith: The Tragic Cost When Religion is Forced Into the Public Square, (Stanford University Press, 2008).


• Randall Balmer, God in the White House: A History, (Harper-Collins, Jan. 2008). Reviewed by Catholic News Service.


• Allan Lichtman, White Protestant Nation: The Rise of the American Conservative Movement , (Atlantic, 2008).


• Benazir Bhutto, Reconciliation: Islam, Democracy and the West, (Harper Collins, Feb. 2008), reviewed in The Age.


• Deal W. Hudson, Onward, Christian Soldiers: The Growing Political Power of Catholics and Evangelicals in the United States , (Simon & Schuster, March 2008).

Sikhs Like New Vermont Prison Guidelines

The current issue of India New England discusses the satisfaction of the Sikh community with the new religious guidelines issued by the Vermont Department of Corrections. Directive 380.01, which became effective February 4, contains a lengthy section on religious head coverings, explicitly mentioning the turban along with a number of others. Sikhism is one of the religions specifically listed on the inmate religious preference designation form. (See prior related posting.)

Oregon Coffee House Settles Church-State Dispute With Post Office

In Clackamas County, Oregon, a cafe, the Unlimited Coffee Co., has found itself in the middle of a church-state dispute with the United States Post Office. Saturday's Oregonian reports that the cafe-- whose premises are used by Road 2 Damascus Church for services on Sunday when the cafe is closed-- also houses a contract postal unit. The postal facility is not open on Sundays either. However, someone called officials to complain that the postal unit was in a building that also featured a sign for the church under the cafe's sign. The Post Office's initial response was that the church signage needed to be removed to avoid church-state problems. However after being accused by the cafe owner of religious persecution, the Post Office backed down. Apparently officials in Washington, DC, responsible for initial reaction were not given accurate information about the situation.

Recent Prisoner Free Exercise Cases

In Pratt v. Correction Corporation of America, (8th Cir., March 3,2008), the U.S. 8th Circuit Court of Appeals upheld a lower court's dismissal of a complaint by an inmate seeking meals that contain Halal meat. The court held that claims for injunctive and declaratory relief are now moot, and that plaintiff failed to show that prison officials placed a "substantial bureden" on his ability to practice his religion.

In Barnes v. Pierce, 2008 U.S. Dist. LEXIS 17389 (SD TX, March 5, 2008), a Texas federal district court rejected First Amendment, RLUIPA and equal protection challenges to prison rules that limited medium custody inmates to attending one religious service per week. Muslim prisoners complained that they were unable to attend Wednesday Taleem services.

In Hudson v. Dennehy, 2008 U.S. Dist. LEXIS 16672 (D MA, March 5, 2008), a Massachusetts federal district court issued a declaratory judgment finding that denyining Nation of Islam prisoners regular Halal meals and denying them closed circuit access to religious services while in the prison's Special Management Unit violates their rights under RLUIPA.

In Paulino v. Department of Corrections, 2008 U.S. Dist. LEXIS 16551 (ED CA, March 4, 2008), a California federal magistrate judge rejected a Rastafarian prisoner's free exercise claim. Prison regulations called for plaintiff's hair to be cut. He agreed so long as the cut hair could be sent home. However subsequently officials refused to send the hair to his home because under prison regulations it was not personal property and posed a potential health hazard.

In Furnace v. Arceo, 2008 U.S. Dist. LEXIS 16172 (ND CA, March 3, 2008), a California federal district court rejected free exercise and equal protection claims by a follower of the Shetaut Neter faith who sought a raw food diet. The court found the religion merely teaches that practitions may need to transition to such a diet over time. It also found that prison authorities had legitimate penological objectives in denying the diet.

Afghan Protests Continue Over European Assaults On Symbols of Islam

In Afghanistan on Saturday and Sunday, peaceful demonstrations were staged to protest the reprinting in Denmark last month of a cartoon of the Prophet Muhammad wearing a bomb-shaped turban. (See prior posting.) They were also protesting the planned release of a video critical of the Koran by right-wing Dutch parliamentarian Geert Wilders. (See prior posting.) On Saturday thousands attended a rally at a sports stadium in Herat. (CNN). On Sunday, thousands of students chanted slogans and burned Danish and Dutch flags in Jalalabad. (AP).

Is St. Patrick's Day A Secular Holiday?

Is St. Patrick's Day a secular celebration of Irish heritage, or is it a religious holiday? This year that question is raised because-- for the first time since 1940-- St. Patrick's Day (March 17) falls during Holy Week, the seven days before Easter. An AP story on Friday reported that Catholic liturgical rules preclude a Mass in honor of St. Patrick during Holy Week, so Masses are moved to March 14. The question, however, is whether traditional parades and other celebrations should also be moved. They are in a few cities such as Savannah, Philadelphia and Milwaukee. However the parade is still scheduled during Holy Week in cities such as New York, Boston and Columbus, Ohio. Indeed in New York, Cardinal Edward Egan will review the parade from the steps of St. Patrick’s Cathedral after saying Mass for Holy Week.

Mississippi Court Dismisses Suit Against Diocese By Church That Was Not Rebuilt

According to WLOX TV on Friday, a Pass Christian, Mississippi, a state trial judge has dismissed a suit brought by members of St. Paul's Catholic Church against the Diocese of Biloxi. The suit challenged the consolidation of St. Paul's into another parish and sought an accounting of the funds that were contributed to St. Paul’s Parish after Hurricane Katrina. Members wanted St. Paul's rebuilt on its former beachfront location. (See prior posting.) The court apparently relied on church-state concerns as the basis for the dismissal. Plaintiffs' attorney said he would appeal.

Texas Suit Challenging Graduation Prayer Vote Is Settled

Americans United for Separation of Church and State announced Friday that a settlement has been reached in a federal lawsuit against the Round Rock, Texas Independent School District. The suit challenged the school's practice of allowing a yearly vote by seniors on whether there should be prayer at their graduations. (See prior posting.) Under the settlement (full text of court order), the school district agrees not to hold student votes on prayer at graduation unless courts in the future approve such practices.

Canadian Archbishop Says Deny Communion To Pro-Choice Politicians

In Canada, Ottawa's Catholic Archbishop Terrence Prendergast says that any Catholic politician who supports access to abortion, and who cannot be persuaded to change his or her position, should not publicly receive communion. Saturday's Ottawa Citizen reports that Prendergast set out his position in response to an audience member at a question and answer session. Rosemary Ganley, coordinator of Catholics for a Free Choice Canada, said the Archbishop's position is wrong in canon law and improper in Canada where church and state are separate.

Indian River (DE) School District Faces New Charges-- Now By Muslim Family

The Indian River, Delaware School District which has just settled a long-running lawsuit brought by two Jewish families over religion in the schools (see prior posting) is now facing charges that a teacher made anti-Muslim statements in class. Saturday's Salsbury (MD) Daily Times reports that a Muslim family has accused a fifth-grade Lord Baltimore Elementary School teacher of telling her class that Barack Obama is a Muslim, that he does not swear on the Bible or recite the Pledge of Allegiance, and that he "believes in different things and is scary". The allegations come in a letter from two sisters, who say that they have experienced other anti-Muslim prejudice in the school system as well. School Board president Charles Bireley said that an inquiry into the matter is under way.

Naval Academy's Dipping of Flag In Religious Services Questioned

Saturday's New York Times reports on a new religious controversy at the U.S. Naval Academy. For 40 years at the Academy's widely-attended 11 a.m. Protestant service, the color guard has dipped the U.S. and the Academy flags before the altar cross. One congregant describes the practice as showing "that our country is one nation under God and the nation-state is not the highest authority in the world." Last October, the Academy's superintendent, Vice Adm. Jeffrey L. Fowler, raised questions about the practice and chaplains suspended it. However, after complaints by congregants and alumni, the flag dipping has been reinstituted, and Adm. Fowler has stopped attending the service. The practice is not carried out anywhere else in the Navy, and the National Flag Foundation's Flag Code says the flag "should not be dipped for any person or thing." [Thanks to Scott Mange for the lead.]

Suit Challenges Room Use Rules In Ohio Library

On Friday, the Alliance Defense Fund announced that it had filed a federal lawsuit against the trustees of the Upper Arlington (Ohio) Library challenging the Library's refusal to permit its meeting rooms to be used for a program sponsored by a non-profit group, Citizens For Community Values, Inc. (CFCV). Library rules permit meeting rooms to be used for cultural activities, and for discussion of public questions and social issues. However, rooms may not be used for commercial, religious or political meetings. Committees affiliated with a church are allowed to use the rooms, but not for religious services. CFCV wanted to use the room for a program titled "Politics in the Pulpit". The Library ruled that since a portion of the program involved prayer and religious song, it was not permitted under the Library rules. The complaint (full text) alleges that the Library's refusal violates the free speech, free exercise, due process and equal protection clauses of the U.S. constitution as well as the free exercise clause of Ohio's constitution.

Appropriation to Religious College Held To Violate Kentucky's Blaine Amendment

A Franklin, Kentucky Circuit Court judge yesterday ruled that the state legislature acted unconstitutionally when it appropriated $10 million for a pharmacy school building at University of the Cumberlands, a private Southern Baptist university. Judge Roger Crittenden ruled that the appropriation violated a Blaine Amendment provision in the state's constitution. Sec. 189 of the Kentucky constitution prohibits public funds from being appropriated to aid any sectarian school. The decision did not reach the question of whether the University also acted unconstitutionally in expelling a student who stated on his website that he is gay. Yesterday's Lexington Herald-Leader and the AP reported on the decision. (See prior related posting.)

Secret Service Tells Sikhs No Kirpans In Meeting With Pope

Representatives of the World Sikh Council will not join a group of interfaith leaders who will meet with Pope Benedict XVI during his U.S. visit in April. Yesterday's Contra Costa (CA) Times reports that the U.S. Secret Service demands that Sikhs remove their kirpans (ceremonial daggers) before the meeting. Kavneet Singh, managing director of United Sikhs, said: "We would all agree that the safety of the pope is paramount, but individuals of any faith shouldn't have to check their faith at the door." Secret Service spokesman Ed Donovan countered: "We're trying to be flexible. We understand it's a sanctified object, but it's still a weapon."

Arkansas Supreme Court Upholds Judicial Supervision of Buddhist Temple Election

Yesterday in Viravonga v. Wat Buddha Samakitham, (AK Sup. Ct., March 6, 2008), the Arkansas Supreme Court upheld a Circuit Court's order growing out of its supervision of a disputed election for the Board of Directors of a Buddhist Temple. Among other things, the Circuit Court determined a list of eligible voters and concluded that the Buddhist temple was non-denominational and not affiliated with the Dhammayut denomination. Affirming, the Supreme Court said:

in determining that an election was required under the 1989 bylaws and in supervising that election when the temple members proved incapable of conducting it on their own, the circuit court and its special master did not delve into matters that were essentially religious in nature, but rather applied neutral principles of law concerning election procedures.

The Pine Bluff (AK) Commercial yesterday reported on the decision. (See prior related posting.)

Canadian Court Rejects Cycle Helmet Exemption For Turban-Wearing Sikhs

In a widely publicized Canadian case, an Ontario court judge yesterday refused to grant a Sikh man a religious exemption from the requirement that motorcyclists wear helmets. Baljinder Badesha's religious beliefs prevent him from wearing anything over his turban. (See prior posting.) The court ruled, however, that cycling without a helmet creates a significant extra safety risk, in turn imposing added health care costs on the province's publicly funded health care system. It also pointed to the devastating impact on spouses and children when a cyclist is killed in a crash. Reports on the court's decision were carried by yesterday's Globe & Mail, Canadian Press, National Post, and Inside Toronto.

Florida Supreme Court Hears Arguments In Jews For Jesus False Lights Case

Yesterday the Florida Supreme Court heard oral arguments in Jews for Jesus, Inc. v. Rapp. A state appellate court had certified to the Supreme Court the question of whether Florida recognizes a claim for false light invasion of privacy, and, if it does, whether it would follow the Restatement (Second) of Torts in defining the elements of the claim. (See prior posting.) Edith Rapp, a traditional Jew, claimed that Jews for Jesus falsely portrayed her in an online newsletter as a convert to the group's beliefs, causing her emotional distress and harming her reputation among her religious Jewish friends. The Ft. Myers News-Press reporting on the arguments said: "questioning by most of the justices indicated great skepticism about allowing newspapers or broadcasters to be sued over a story that is factually accurate and not deliberately constructed to hurt anyone." The briefs, pleadings and orders in the case are available online. A video of the full oral argument is also available from the Supreme Court's website. (Windows Media Player; Real Player). A press release by Liberty Counsel previewing the oral arguments gives additional background on the case.

Group Asks IRS To Probe Endorsement of Texas Congressional Candidate

Americans United for Separation of Church and State announced yesterday that it has asked the IRS to look into an endorsement of Texas Congressional candidate Shelley Sekula-Gibbs by Steve Riggle, pastor of Grace Community Church, a Houston mega-church. AU's March 6 letter to the IRS notes that Riggle's mailing nowhere says he is speaking as a private citizen in making his endorsement. Riggle said that one of the reasons he is endorsing Sekula-Gibbs is because she will co-sponsor legislation to remove limits on on-profits involvement in political campaigns. KHOU News yesterday reported on the AU's letter.

Afghan Clerics Want Ban On Indian TV Soap Operas

ANI reported yesterday that in Afghanistan, the Islamic Council of Scholars is demanding that the government ban popular Indian soap operas being shown on Afghan TV channels (dubbed in the local Dari language). They argue that the shows encourage idol worship, even though Hindu images are pixelated and worship scenes have been cut. Apparently all activities come to a halt around the country at 8:30 p.m. as everyone watches Kyunki Saas Bhi Kabhi Bahu Thi (Because a Mother-in-law was once a Daughter-in-law Too). This has led to a dramatic decline in attendance at evening Namaz prayers. Afghanistan's Minister for Information and Culture has threatened to prosecute TV channel operators if they continue with soap operas deemed offensive to public morality.

California Hospital Issues Veiled Apology To Transgender Patient

Catholic News Agency reported on Tuesday that a Daly City, California Catholic hospital which is being sued for refusing to allow gender reassignment surgery has issued a "veiled apology" to the patient. (See prior related posting.) While still claiming that Catholic teaching prohibits it from accommodating the breast augmentation surgery sought by Charlene Hastings, last week the hospital issued a written statement saying: "We regret any confusion that may have come from this situation. We want this patient and her physician to know that they are welcome at Seton Medical Center." Hastings has already decided to have surgery elsewhere, and her lawsuit for damages will continue. California law allows religiously-affiliated hospitals to refuse to perform abortions, but has no anti-discrimination exemption for refusing transgender procedures.