High Schooler Sues To Challenge Art Project Limits

In Madison, Wisconsin, a Tomah High School senior (identified as A.P.) last Friday filed a federal lawsuit challenging a school policy that prohibits art class projects from depicting "violence, blood, sexual connotations, [or] religious beliefs." In an art class assignment involving drawing of a landscape, A.P. included a cross and the words "John 3:16 A sign of peace." Teacher Julie Millin, asked him to remove the Bible reference because other students were making remarks about it. When A.P. refused, she gave him a zero on the project, showing him the class policy. A.P. responded by tearing up the policy statement in front of the teacher. She ejected him from class and he later received two detentions for tearing up the policy. In a later incident, A.P.'s metals arts teacher rejected his idea to build a chain-mail cross because it was religious.

The complaint in A.P. v. Tomah Area School District, (WD WI, filed 3/28/2008), alleges that the school policy and its enforcement against A.P. violates A.P.'s First and 14th Amendment rights. It says that other artwork with religious themes are displayed throughout the school and argues that "per se censorship of religious speech in assignments does not represent a legitimate pedagogical interest." A release yesterday by the Alliance Defense Fund contains links to copies of A.P.' drawing and to drawings of demonic images created by other students in the class. Yesterday's Racine (WI) Journal Times reports on the case

German Court Says Muslim Student Must Have In-School Place For Prayer

Yesterday's Deutsche Welle reports that educators in Germany are hotly debating a March 10 decision by a Berlin administrative court which held that Diesterweg Upper School must provide a 14-year-old Muslim student with a place for his daily prayers. Relying on the protection of freedom of religion in Germany's Basic Law (Art. 4), the judge in expedited proceedings said that the prayers had to take place outside of class time, but space on school grounds needed to be made available. Judgments in expedited proceedings are temporary pending a full court hearing. No full hearing date has yet been scheduled. Educators opposed to the ruling say that it conflicts with German law that keep public institutions religiously neutral.

Death of Children After Prayer Alone Raises Homicide Prosecution Issues

Should parents who elect faith healing rather than traditional medical treatment for a child be criminally responsible if the child dies? That is the question posed in two recent cases. In Clackamas County, Oregon, parents Carl and Raylene Worthington have been indicted by a grand jury in the death of their 15-month old daughter last March. She suffered from bronchial pneumonia and a blood infection, both of which could have responded to antibiotics. Her parents, members of the Followers of Christ church, yesterday plead not guilty to charges of manslaughter and criminal mistreatment. Their religious beliefs prevented them from seeking out traditional medical care for their daughter. In 1999 Oregon changed its law, repealing the former religious exemptions from child abuse and homicide statutes. Yesterday's Oregonian and today's London Guardian report on the case.

Meanwhile Marathon County, Wisconsin, District Attorney Jill Falstad is deciding whether to file criminal charges against the parents of 11-year old Madeline Neumann who died from a diabetic reaction. Yesterday's Green Bay Press Gazette reports that her parents, Leilani and Dale Neumann, prayed for her recovery from a diabetic reaction rather than getting her medical help. Prosecution may be difficult because Wisconsin law specifically exempts from punishment parents who treat their children "through prayer alone in lieu of medical or surgical treatment." [Thanks to Rev. Jeanene Hammers for the lead to part of this posting.]

Facial Challenge By Christian High School To UC's Admissions Policy Rejected

Last week, a California federal district court handed down an initial decision in Association of Christian Schools International v. Stearns, (CD CA, March 28, 2008). In the case, Calvary Chapel Christian School, 5 of its students and an association of Christian schools challenged the admissions policy of the University of California on free speech, free exercise, establishment clause and equal protection grounds. Plaintiffs brought both facial and "as applied" challenges. At issue was UC's decision not to approve certain high school courses in science, social science and history offered by Christian schools. This precluded applicants for admission from using these to show their proficiency in various subject areas.

The court denied plaintiffs' motion for summary judgment, rejecting their claims that UC rejects courses solely because they are taught from a religious viewpoint. The court granted defendant's motion for partial summary judgment on plaintiff's facial challenges. This leaves for trial the "as applied" challenges, including questions of the reasonableness of UC's decisions to denial approval for specific religious school courses. The University's press release describes the court's holding in its 49-page opinion as follows:

UC moved for partial summary judgment on the basis that that its review policies and the position statements are constitutional exercises of the University’s right to evaluate the qualifications of applicants for admission. The Court agreed, holding that the University has a legitimate interest in evaluating the adequacy of high school courses to prepare students for study at UC; that its process for doing so is reasonable; that the University’s academic standards are also reasonable and do not discriminate against religion; that the position statements are a reasonable application of those academic standards; and that the University accommodates religious school students in various ways.

(See prior related posting.) [Thanks to Ed Brayton for the lead via Religionlaw listserv.]

Court Says No Standing To Challenge State Funds For Faith-Based Agency

In Pedreira v. Kentucky Baptist Homes for Children, Inc., (WD KY, March 31, 2008), a Kentucky federal district court dismissed on standing grounds a lawsuit by Kentucky state taxpayers claiming that the state violated the Establishment Clause by providing funding to Kentucky Baptist Homes for Children (KBHC). The state pays KBHC to provide services to children placed in its care as wards of the state. Plaintiffs alleged that KBHC filled staff positions in accordance with religious tenets and sought to instill Christian values and teachings in youths in its programs. In dismissing the lawsuit, the court relied on two recent U.S. Supreme Court decision. It held that Daimler Chrysler Corp. v. Cuno requires the application of federal standing doctrines to state taxpayer lawsuits, including those brought under the Establishment Clause. It then held that because KBHC receives funds through contracts with state agencies rather than through legislative action, under Hein v. Freedom from Religion Foundation plaintiffs lack taxpayer standing. Yesterday's Louisville Courier-Journal reports on the case which was originally filed in 2000 and included religious discrimination claims against KBHC which were subsequently dismissed by the court.

Most of Church's RLUIPA and Constitutional Claims Will Go To Trial

Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County, Colorado, (D CO, March 31, 2008), involves a challenge to the denial of a church's application for a special use permit so it could expand its facilities. The church claimed that the denial violated the Religious Land Use and Institutionalized Persons Act as well as various provisions of the US. and Colorado constitutions. The court denied defendant's motion for summary judgment on most of plaintiff's 16 claims, finding that there are genuine issues of material fact that need to go to trial. However the court did rule for defendant on three matters. It dismissed plaintiff's facial Free Exercise challenge to the Boulder County Land Use Code, its retaliation claim and the portion of its RLUIPA claim that alleged unequal treatment with public schools that were exempt from county land use controls. The U.S. Justice Department had intervened in the case on behalf of plaintiff Rocky Mountain Christian Church. The Becket Fund which has assisted the church in its land use battle, issued a release praising yesterday's decision

Kentucky Court Permanently Enjoins 10 Commandments Display

In ACLU of Kentucky v. Grayson County, Kentucky, (WD KY, March 28, 2008), a Kentucky federal district court permanently enjoined a display of the Ten Commandments as part of a Foundations of American Law and Government Display in the Grayson County (KY) Courthouse. This follows up on a preliminary injunction issued in 2002, after which the County removed the 10 Commandments from the display, but re-hung on the wall the empty frame in which they had appeared. In granting the permanent injunction, the court first held that county residents who are users of the courthouse and taxpayers, as well as the ACLU, have standing. It then concluded that the display violates the Establishment Clause because the Grayson County Fiscal Court had a predominately religious purpose in approving the display and a reasonable person would conclude it had the effect of endorsing religion.

In a press release issued Sunday, the ACLU of Kentucky praised the decision saying it is not the business of government to endorse religious beliefs. Today's Louisville Courier-Journal, reporting on the decision, says that an appeal is planned. It quoted Rev. Chester Shartzer who originally requested that the county install the display. He complained that the court's decision was "not fair to the children" because it removed part of "our heritage" from the display.

Supreme Court Grants Review In "7 Aphorisms" Monument Case

The U.S. Supreme Court today granted certiorari in Pleasant Grove City v. Summum, (Case No. 07-665). (Order list.) In the case, the 10th Circuit Court of Appeals held that Summum was entitled to erect a "Seven Aphorisms of Summum" monument in a city park that already features a number of other displays, including a 10 Commandments monument donated by the Fraternal Order of Eagles. The 10th Circuit denied en banc review of the case by a 6-6 vote. (See prior posting.) AP reports that the main issue that the Supreme Court will decide is whether placing donated monuments in a government-owned park creates a public forum or whether the government retains authority to select which monuments to display. The petition for certiorari, explaining the issues presented more fully, is available online. A Reuters report also has background information. The court took no action on a cert petition in a companion case, Duchesne City v. Summum, (Case No. 07-690). That case poses more complicated factual issues. (See prior posting.) The petition for cert in that case suggests that the Court might hold the case pending disposition of the Pleasant Grove case.

UPDATE: Links to all the briefs relating to the cert petition are available at Scotus Blog. [Thanks to Marty Lederman via Religionlaw for the lead.]

Turkey's Constitutional Court Will Hear Case Charging AKP With Anti-Secularism

The AP reports that Turkey's Constitutional Court today voted unanimously to hear a case that has been filed against the ruling Justice and Development Party (AKP) accusing it of undermining the secular principles enshrined in Turkey's Constitution. (See prior posting.) Abdurrahman Yalcinkaya, the chief prosecutor of the High Court of Appeals, filed the lawsuit, asking the Constitutional Court to ban the AKP and bar 71 people, including Prime Minister Recep Tayyip Dedogan and President Abdullah Gul, from politics for five years. Even if the suit succeeds, Gul could remain president because the post is technically a non-political one. Reuters says that the European Union is concerned that Turkey's constitution permits submission to a court of these kinds of issues that are normally settled through elections. The case could eventually lead the European Commission to recommend suspending the accession negotiations with Turkey.

UPDATE: The New Anatolian on Tuesday published excerpts from the lengthy indictment filed against AKP.

Another Televangelist Responds To Sen. Grassley's Information Request

As previously reported, Iowa Sen. Charles Grassley whose Senate committee has oversight authority over administration of the tax laws, has asked six televangelists who preach the "prosperity gospel" for financial information. Today's Atlanta Journal Constitution reports that another of Grassley's targets, Bishop Eddie Long of New Birth Missionary Baptist Church in Lithonia, Georgia, has agreed to cooperate. Grassley has threatened to formally subpoena information from those who do not cooperate by today. Two churches still refuse to furnish any documents. Melissa Rogers continues to cover this story in detail on her blog.

Canadian City Seeks Injunction Against Preacher Who Feeds Homeless In Parks

A trial court in Calgary, Alberta today will hear the city's request for an injunction against Rev. Art Pawlowski whose Street Church Ministry feeds the homeless and preaches to them in local parks. The Calgary Sun reports that the city has previously ticketed Pawlowski 50 times for preaching to up to 500 homeless people in downtown Calgary's Triangle Park. However the court consistently refuses to rule in the cases charging offenses such as illegal use of an amplifier and disturbing the peace. Pawlowski asserts free speech and religious freedom defenses.

New Articles and Books of Interest

From SSRN:

• Raphael Cohen-Almagor, Hate in the Classroom: Free Expression, Holocaust Denial, and Liberal Education, (American Journal of Education, Vol. 114, No. 2, pp. 215-241, February 2008).


• Russell Powell, Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor, (March 20, 2008).


• Carl H. Esbeck, What the Hein Decision Can Tell Us about the Roberts Court and the Establishment Clause, (Mississippi Law Journal, Vol. 78, No. 2, Forthcoming).


• Nicholas A. Mirkay, Is it 'Charitable' to Discriminate?: The Necessary Transformation of Section 501(C)(3) into the Gold Standard for Charities, (Wisconsin Law Review, Vol. 2007, July 3, 2007).


• Nicholas A. Mirkay, Losing Our Religion: Reevaluating the 501(C)(3) Exemption of Religious Organizations that Discriminate, (Widener Law School Legal Studies, Research Paper No. 08-35, March 24, 2008).


• Sue Irion, The [Un]Constitutionality of the NLRA's Religious Accommodation Provision, (Gonzaga Law Review, Vol. 44, No. 2, 2008).


• Dayna Bowen Matthew, Race, Religion, and Informed Consent -- Lessons from Social Science, (Journal of Law, Medicine and Ethics, Vol. 36, No. 1, 2008).


• David L. Gregory, Not the Bishops' Finest Hour: Economic Justice, with Cerberus Unchained?, (St. John's Legal Studies Research Paper No. 08-0119, March 2008).

From SmartCILP:

• David K. DeWolf, Book Review (Reviewing Stephen Mansfield, Ten Tortured Words: How the Founding Fathers Tried to Protect Religion in America.and What's Happened Since), 85 Denver University Law Review 443-461 (2007).


• Randy Lee, A Rose By Any Other Word Would Smell As Sweet", But Would It Still Be Treasured: The Mislabeling and Misunderstanding of Parents and Grandparents in American Policy, 15 Elder Law Journal 607-631 (2007).


• Mark Strasser, Preaching, Fundraising and the Constitution: On Proselytizing and the First Amendment, 85 Denver University Law Review 405-441 (2007).

Recent Books:

• David Gushee, The Future of Faith in American Politics: the Public Witness of the Evangelical Center, (Baylor University Press, 2008).


• Eleanor Abdella Doumato & Gregory Starrett (eds.), Teaching Islam: Textbooks and Religion in the Middle East, (Viva Books New Delhi, 2008), reviewed in Pakistan Daily Times.


• Noah Feldman, The Fall and Rise of the Islamic State, (Princeton University Press, 2008), reviewed in Middle East Online.
• George Weigel, Against the Grain, (Crossroad Publishing Co., 2008).

Paper Publishes Interview With Geert Wilders

Der Spiegel today carries an interview with right wing Dutch politician Geert Wilders whose video attacking the Quran has provoked widespread negative reaction. (See prior posting.) He says: "For me, Islam is a vision of a society that defines all forms of interpersonal behavior -- from inheritance to criminal law. This ideology endangers our values. I hate it, I don't hate Muslims."

Two Cases Say Muslim Inmates Are Entitled To Halal Meals

Two recent cases have broken new ground by granting Muslim prison inmates the right to receive Halal meals, rather than relegating them to receiving only the prison's vegetarian diet. In Hudson v. Dennehy, (D MA, March 5, 2008), a Massachusetts federal district court held that refusal by the Massachusetts Department of Corrections to provide a daily Halal menu to Muslim inmates violates RLUIPA. It found that the alternative vegetarian diet is not an adequate substitute. It also held that Muslim prisoners in the Special Management Unit must be permitted access to Jum'ah services through closed-circuit television. However the court upheld the DOC's policy of banning prayer rugs and instead furnishing Muslim inmates with prayer towels. Friday's Boston Business Journal reported on the decision, saying that it "marked the first time a U.S. court decided that Muslim inmates have a right to daily Halal meals and prayer services."

A week later in Perez v. Westchester County Department of Corrections, (SDNY, March 12, 2008), a New York federal district judge approved a settlement (full text) under which any Muslim inmate may now request and must receive Halal meals containing meat as frequently as Jewish prisoners receive kosher meat meals (currently 4 times per week). Friday's New York Law Journal reported on the case. Quoting one of the pro bono lawyers who filed the lawsuit, it reports that the settlement represents a "significant departure from current case law with respect to Muslim inmates' equal protection rights to receive Halal meals containing Halal meat, as opposed to a vegetarian diet, which up until this case was arguably the constitutionally reasonable alternative meal plan."

Three Indicted on Misdemeanor Charges For Taking Turban From Head of Sikh Man

In Yoncalla, Oregon last week, a state grand jury indicted three men accused of taking a turban off the head of a Sikh truck driver. The grand jury concluded that the defendants should be charged with third-degree theft and misdemeanor harassment. The AP reports, however, that the grand jury refused to indict defendants on the felony charge of intimidation. That crime requires that an assault be committed due to the perception of a person's race, color, religion, national origin or sexual orientation. Assault victim Ranjit Singh was also distressed that the value of his turban became relevant to the appropriate theft charge. Oregon statutes (ORS Sec. 164.043) define theft in the third degree as involving property with a value under $50. Singh says his turban is priceless.

Court Discusses Free Exercise Rights of Civilly Commited Sex Offender

In a non-precedential decision, Marsh v. Liberty Behavioral Health Care, 2008 U.S. Dist. LEXIS 24347 (MD FL, March 27, 2008), a Florida federal district court decided several issues relating to the free exercise rights of an offender who was civilly confined under Florida's Involuntary Civil Commitment of Sexually Violent Predators' Treatment and Care Act. It held that an individual civilly confined under the act is not considered a "prisoner" for purposes of the Prison Litigation Reform Act. Thus the fact that previously, as a prisoner, plaintiff had filed 35 federal court actions did not limit his ability to bring this lawsuit.

Finding, however, that "a person who is civilly committed is in a position analogous to a criminally confined prisoner," the court applied the tests of Turner v. Safley to plaintiff's claim that his free exercise rights were violated when he was disciplined for practicing his "spiritual forms of Nisei GoJu-Ryu Karate." The Court concluded that it "need not make a determination whether martial arts is an essential component to Plaintiff's spiritual beliefs because the challenged FCCC policy is reasonably related to a legitimate security interest." The court however said that plaintiff could refile claims alleging that other actions of the Florida Civil Commitment Center staff interfered with his practice of Zen Buddhist meditation, but must articulate how this substantially burdens his ability to practice his faith.

New Jersey Governor To Sign Two Religious Accommodation Bills

Friday's New Jersey Jewish Standard reports that Gov. Jon Corzine will sign two religious protection bills into law next month in a ceremony at a Passaic synagogue. One is S. 1023, finally passed on March 13. It 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 second bill, mandates that employers provide alternatives to employees who have religious obligations on scheduled workdays. The second bill, passed in January and already signed by the governor in a private ceremony, is AB 3451. It requires employers to reasonably accommodate employees' who want time off to observe their Sabbath or religious holidays. These bills are part of a 7-bill package to protect religious liberty that have been introduced by Assemblyman Gary Schaer and Sen. Loretta Weinberg. (See prior posting.) Four of the seven have now been passed. Meanwhile Assemblyman Schaer is preparing a new package of religious accommodation bills for introduction into the legislature.

West Virginia County Decides Against Easter Cross After Legal Advice

Friday's Cumberland (MD) Times-News reported that, despite approval by the County Commission, no 7-foot tall cross was put up on the lawn of the Mineral County (WV) Courthouse over Easter weekend. Two days after Commission approval for the display that was to be sponsored by the Keyser Presbyterian Church, Americans United for Separation of Church and State filed a complaint on behalf of a county resident. County commissioners then contacted Chris Winberg, an attorney with the American Center for Law and Justice, who advised that "the proposed display could not be successfully defended in a court action." This led Commission President Janice LaRue to cancel permission, fearing the cost of legal fees that the county would have to pay in any legal challenge. [Corrected].

Moderate Imam Faces Deportation Over Residency Application Omission

The International Herald Tribune reports that a moderate New Jersey Islamic leader is facing deportation because he failed to disclose on his 1999 application for permanent residency an in abstentia conviction by an Israeli military court of which he had no knowledge. The Israelis charged him with aiding Hamas militants. He says he merely assisted some Palestinian students, unaware of their political affiliations. Imam Muhammad Qatanani of Passaic's Islamic Center has been one of the country's most active Muslim leaders, openly reaching out to other religious groups and law enforcement authorities. An immigration judge will hear his case in May.

Police Officer Wins Damages In Religious Discrimination Case

A former part-time police officer who claimed he was fired because of his religious beliefs was awarded $100,000 in damages by a federal court jury in Pittsburgh, Pennsylvania. WTOV9 News today reported that Terryn Risk, who was employed by the Burgettstown (PA) Police Department, says his dismissal came primarily because he insisted on wearing a small cross on his police uniform and because he did not wish to work early Sunday morning hours that conflicted with church services.