French Prime Minister Honors Anniversary of Jewish Consistories

The European Jewish Press today reports that this is the 200th anniversary of Napoleon's creation of Jewish consistories in France, set up by imperial decree to organize the life of the Jewish community in the empire. In a speech in Paris' main synagogue marking the bicentennial, French Prime Minister François Fillon emphasized the importance of "secularism" in protecting freedom of worship. He also said: "The patriotism of the Jewish community has never sagged. In spite of certain prejudices and humiliations from part of the French society in several circumstances, the love of France never became exhausted."

Pope Welcomed In Elaborate White House Ceremony

The New York Times reports on this morning's elaborate welcome on the South Lawn of the White House for Pope Benedict XVI. Some 13,500 guests watched as both President Bush and the Pope delivered remarks (full text). The President said in part:

Here in America you'll find a nation that welcomes the role of faith in the public square.... Here in America, you'll find a nation that is fully modern, yet guided by ancient and eternal truths.... Most of all, Holy Father, you will find in America people whose hearts are open to your message of hope.

The program included the singing of the Lord's Prayer by soprano Kathleen Battle. At yesterday's White House press briefing (full text), reporters raised the issue of religious elements in the planned welcome through this exchange:

Q :How does the White House balance the different elements for an arrival ceremony? Is it a secular head of state arrival? Is it, in part, religious overtones, with the singing of "The Lord's Prayer"?

[PRESS SECRETARY] PERINO: Well, this is a little bit different, in that the head of state is also the head of the Catholic Church that is visiting the White House. And so I think we've struck the right balance, and that it's perfectly appropriate for the White House to welcome the Pope and have one of the songs performed tomorrow by Kathleen Battle -- who we are very happy to have at the White House -- she'll be singing "The Lord's Prayer." And many people across America and across the world say that prayer in order to provide themselves comfort and confidence in getting their day started. And so we think it's perfectly appropriate.

10th Circuit Says RFRA Gives Defense, Not Immunity From Trial

In United States v. Quaintance, (10th Cir., April 15, 2008), defendants who were members of the Church of Cognizance, were indicted for possession of marijuana and related offenses. They raised a defense under the Religious Freedom Restoration Act. The trial court, after a hearing, refused to dismiss the indictment and refused to permit defendants to raise a RFRA defense at trial because they had not shown the existence of a sincerely held religious belief. Defendants attempted to appeal that order before they were actually tried, arguing that a First Amendment free exercise right is lost if not vindicated before trial. The Court of Appeals disagreed, holding that RFRA and RLUIPA are statutes that create defenses, not a right to avoid trial. It rejected the argument that this case is within the collateral order exception to the requirement that only final judgments can be appealed. (See prior related posting.) [Thanks to Carl Olsen for the lead.]

3rd Circuit Upholds Ban on Coach's Pre-Game Prayer

In Borden v. School District of the Township of East Brunswick, (3d Cir., April 15, 2008), the U.S. 3rd Circuit Court of Appeals reversed the district court and upheld the East Brunswick, New Jersey School District’s policy prohibiting faculty participation in student-initiated prayer. The lawsuit was filed by high school football coach Marcus Borden who wished join with his team in bowing his head during the team's pre-meal grace and taking a knee during a prayer in the locker-room by team members. The court held that the school policy was neither vague nor overboard, and its application to Borden did not violate his free speech rights. It went on to hold that the school district had a right to adopt the policy because it was concerned with Establishment Clause violations. It said:

when viewing the acts in light of Borden’s twenty-three years of prior prayer activities with the East Brunswick High School football team during which he organized, participated in, and even led prayer activities with his team, a reasonable observer would conclude that Borden was endorsing religion when he engaged in these acts.

In interesting dicta, the majority said: "We agree with Borden that bowing one’s head and taking a knee can be signs of respect. Thus, if a football coach, who had never engaged in prayer with his team, were to bow his head and take a knee while his team engaged in a moment of reflection or prayer, we would likely reach a different conclusion because the same history and context of endorsing religion would not be present." In a concurring opinion, Judge McKee disagreed with this dicta. Judge Barry also wrote a concurrence. Newsday reports on the decision.

Georgian Party Wants To Create Orthodoxy As Official Religion

In the western Asian nation of Georgia, the Christian Democratic Party is seeking to obtain 200,000 signatures on a petition to Parliament asking it to to amend the country's Constitution. The Messenger yesterday reported that the proposal is aimed at making Christian Orthodoxy the "official religion" of Georgia. The current Constitution merely recognizes the "special role" of the Orthodox Church in the history of the country.

White House Proclamation Marks Rebbe's 106th Birthday

Yesterday in the Oval Office, joined by a number of Chabad-Lubavitch emissaries, President George W. Bush signed a proclamation declaring April 16, 2008 as Education and Sharing Day. As reported by Chabad.org News, the day is the 106th anniversary of the birth of Chabad's now deceased Rebbe, Rabbi Menachem Mendel Schneerson. Presidential Proclamations marking the day have been issued each year since 1978.

UPDATE: The full text of the 2008 Proclamation is now available from the White House website.

Dutch Court Rejects Religious Objections of Marriage Registrars

In the Netherlands, the Equal Treatment Commission (CGB) ruled yesterday that the country's Equal Treatment Act is not violated when a municipality insists that applicants for the position of marriage registrar be willing to conduct same-sex marriage ceremonies as well as heterosexual ceremonies. NIS News says that the new ruling rejects arguments that religious objections to performing such ceremonies should be recognized. The CGB is an advisory court.

Pope Greeted Upon Landing By President; Tomorrow's Schedule Announced

Pope Benedict XVI landed at Andrews Air Force Base today to begin his six-day visit to the United States. ABC News reports that in a rare honor, President and Mrs. Bush left the White House to greet the Pope at Andrews. This is the first official Papal visit to the U.S. since the U.S. established full diplomatic relations with the Vatican in 1984. The White House website carries a Q&A with Anita McBride, chief of staff to Laura Bush, on Pope's visit this week. The Pope's publicly announced itinerary for tomorrow-- which is also Benedict's 81st birthday--encompasses a 10:30 a.m. meeting with the President a the White House, a noon "Popemobile route" and a 5:30 meeting with the bishops of the United States at the Basilica of the National Shrine of the Immaculate Conception.

UPDATE: Last Friday, in anticipation of the Pope's visit, President George W. Bush granted a lengthy interview (full transcript) to EWTNews. In response to the question of why he was greeting the Pope at Andresw, Bush said: "Because he is a really important figure in a lot of ways. One, he speaks for millions. Two, he doesn't come as a politician; he comes as a man of faith. And, three, that I so subscribe to his notion that ... there's right and wrong in life, that moral relativism has a danger of undermining the capacity to have more hopeful and free societies, that I want to honor his convictions, as well." [Thanks to Alliance Alert for the lead.]

Mt. Soledad Cross Challenge Back In Court

After 19 years of litigation, the Mt. Soledad Cross in San Diego (CA) is still in court. Yesterday a California federal district court heard arguments in a case brought by the Jewish War Veterans. (See prior related posting.) Yesterday's San Diego Union-Tribune reports that now the litigation is against the U.S. Defense Department that took ownership of the memorial from the state of California in 2006. The issue seems to be whether Congress in enacting legislation to take title to the property was motivated by a desire to preserve a religious symbol, or instead more broadly to preserve a war memorial. Recently plaques and walls have been placed around the Cross to honor deceased veterans. Plaintiffs say these are merely tokens designed to fend off an Establishment Clause challenge.

Kentucky Judge Rejects Divorced Dad's Objection To Catholic School For Son

In La Grange, Kentucky yesterday, an atheist father lost his bid to prevent his divorced wife from sending their son to a Catholic high school in Louisville that the boy prefers. The Louisville Courier-Journal reports that Oldham County family court judge Tim Feeley implemented his decision that attending St. Xavier High School was best for 14-year old Michael Ryan by amending the parents' joint custody agreement to give Michael's mother "sole custody of Michael as it relates to educational decision-making." Michael's father had argued that the Kentucky Constitution protected his right to not be forced to send his child "to any school to which he may be conscientiously opposed." The court's custody maneuver prevents the court from having to order either parent to send or not send Michael to a particular school. (See prior related posting.)

British Vicar Will File Employment Rights Lawsuit

In the English village of Trumpington, Rev. Dr. Tom Ambrose, the vicar of St. Mary and St. Michael Church, says he will file a civil suit in the High Court and in an employment tribunal to challenge his firing by the Church of England. An article from yesterday's Cambridge News reports that Ambrose apparently angered his parishioners by his proposals to build a new bathroom in the church and through his use of Power Point slides in his sermons. He delivered personal attacks on members of the Parochial Church Council in his sermons, and, it was alleged, spat at, lied to and bullied members of his congregation. Ambrose says he hopes to be the first clergyman to successfully assert that British employment rights laws protect him from wrongful dismissal by the Church tribunal that was convened to hear his case.

Recent Prisoner Free Exercise Cases

In Gelford v. Frank, (7th Cir., March 12, 2008), the U.S. 7th Circuit Court of Appeals agreed with prison authorities that they could deny Wiccan plaintiffs the right to acquire tarot cards, runes, Ogham sticks, pendulums, scrying mirrors, and I Ching coins or sticks. the cour said there was no evidence that the requested religious items are significant enough to Wiccans that being denied access would impose a substantial burden on their religious exercise.

In Atomanczyk v. Quarterman, 2008 U.S. Dist. LEXIS 27842 (ND TX, April 3, 2008), a Texas federal district court rejected Free Exercise, RLUIPA and equal protection claims by an inmate who identified himself as a "Religious Consciencious Adherant." He complained that prison rules require him to shave his beard and cut his hair; and deny him eligibility for a "special religious transfer" based on his custody classification.

In Nolley v. County of Erie, 2008 U.S. Dist. LEXIS 27686 (WD NY, March 31, 2008), a New York federal district court rejected claims by plaintiff that her Free Exercise rights were violated while she was held as a pre-trial detainee. She claims that on six occassions, she was denied the opportunity to attend church services and bible study. the court held that plainitff's complaint failed to allege the elements of a First Amendment claim.

In Sharp v. Johnson, 2008 U.S. Dist. LEXIS 29360 (WD PA, April 7, 2008), in a lengthy opinion a Pennsylvania federal magistrate judge rejected on a variety of procedural and substantive grounds plaintiff's complaint that prison authorities refused to separately recognize and accommodate a break-away group of some 50 Sunni Muslim prisoners who claimed that their Ahlus Sunnati wal Jama'ah sect differed in beliefs and practices from the recognized Sunni group of Muslim prisoners.

In Hernandez v. Mera, 2008 U.S. Dist. LEXIS 29596 (SD FL, March 4, 2008), a Florida federal magistrate judge recommended rejection of plaintiff's complaint that administrative confinement inmates are prohibited from participating in any religious programs or church services. The court held that plaintiff failed to name any individual responsible for the claimed denials.

Chabad.org News reported on Sunday that Vermont has settled Bock v. Gold, a suit brought by a Jewish prisoner who had been denied kosher food and various items to celebrate the holidays of Passover, Hanukkah and Purim. Last November, a federal magistrate judge ruled that plaintiff's free exercise claim for punitive damages could move ahead. In the settlement, the state agreed to pay damages of $25,000, change its religious practice rules for prisons (see prior posting), and rely for Jewish prisoners on recommendations of the Aleph Institute.

ACLU Will Not Challenge Tax Incentives For Tennessee Bible Park

The ACLU of Tennessee has decided that, at least for now, it will not challenge the tax incentives provided by a Tennessee county for construction of Bible Park USA . Yesterday's Murfreesboro Daily News Journal reports that the decision was disclosed in a letter to individuals who complained to the ACLU that the tax incentives might violate the Establishment Clause. The Rutherford County Industrial Development Board passed a resolution allowing creation of an economic development zone for the park. This will save the park some $27.9 million in property taxes over the next 22 years. The park will also be able to borrow several million dollars through tax-increment financing to help pay for construction. The ACLU concluded, however, that the project is only getting tax incentives that are generally available to similar business ventures. No government funds will be directly used for religious activities or materials.

Cert. Denied In RLUIPA Zoning Case

Yesterday the U.S. Supreme court denied certiorari in Greater Bible Way Temple v. City of Jackson, MI, (Case No. 07-1080) (Order List). In the case (see prior posting), the Michigan Supreme Court rejected a RLUIPA challenge to a refusal to rezone church property. The Church had wanted to build an apartment project on the land located across the street from the Church building.

Massachusetts High Court Says Nudity to Support Christmas Can Be Prosecuted

In Commonwealth v. Ora, (MA Sup. Jud. Ct., April 10, 2008), the Massachusetts Supreme Judicial Court permitted a prosecution for "open and gross lewdness and lascivious behavior" to proceed, reversing a trial court's holding that the law that bans public nudity is facially unconstitutional. The Massachusetts high court said: "Our decisional law has narrowed the application of G. L. c. 272, § 16, so that it does not impermissibly prohibit protected expressive conduct. We have held that the statute cannot be constitutionally applied to public displays of lewdness and nudity unless they are imposed upon an unsuspecting or unwilling audience.... and that conviction under the statute requires the display of nudity to be intentional, done in a manner to produce alarm or shock, and actually producing alarm or shock." The charge was brought against Ria Ora for dancing nude in Harvard Square as part of a June 25 annual protest against the commercialization of Christmas. A video of the oral arguments in the case as well as the briefs are available from the court's website. Friday's Boston Herald reports on the decision. [Thanks to Legal Blog Watch for the lead.]

Clinton and Obama Participate In Compassion Forum

Democratic presidential candidates Hillary Clinton and Barack Obama each answered extensive questions last night at the "Compassion Forum" held at Messiah College in Grantham, Pa. In separate segments of the Forum, broadcast live on CNN, each candidate was asked about personal religious beliefs and about a wide range of issues of interest to religious voters. Questions were posed by the moderators and by religious leaders in the audience. Republican presumptive nominee, Sen. John McCain, declined to participate in the Forum. CNN and the New York Times both report on the Forum. Real Clear Politics has posted the full transcript of the Clinton and Obama interviews.

Hawaii Court Permits Suit By Church Members To Proceed

In Baldonado v. Way of Salvation Church , (HI Inter. Ct. App., April 10, 2008), an Hawaii appellate court refused to apply the ecclesiastical abstention doctrine to a lawsuit by members of a congregational church. It held that civil courts can apply Hawaii's non-profit corporation law to claims of misuse of church assets and improper expulsion of plaintiffs as members. The controversy did not involve courts in the determination of church law or doctrine.

Recent Articles and Books of Interest

From SSRN:

• Rashida Manjoo, The Recognition of Muslim Personal Laws in South Africa: Implications of Women's Human Rights, (July 2007).


• Alexander Benard, The Advantage to Islam of Mosque-State Separation: What the American Founders Can Teach, (Policy Review, Vol. 8, No. 2, Spring 2008).


• Ilan Benshalom, The Dual Subsidy Theory of Charitable Deductions, (Indiana Law Journal, Vol. 84, April 7, 2007).


• Nantiya Ruan, The Justices Find Religion: Why the Supreme Court Ought to Expand Religious Accommodation Rights, (U. Denver Legal Studies Research Paper No. 08-11, April 7, 2008).


• William S. Brewbaker, Theory, Identity, Vocation: Three Models of Christian Legal Scholarship, (March 2008).


• Simon Critchley, The Catechism of the Citizen: Politics, Law and Religion in, after, with and Against Rousseau, (Law and Humanities, Vol. 1, No. 1, April 7, 2007).

From NELLCO:

• Ashlie Warnick, Accommodating Discrimination, (Yale Law School. Yale Law School Faculty Scholarship Series. Paper 17, April 1, 2008).

Recent Books:

• Abdullahi Ahmed An-Na‘im, Islam and the Secular State: Negotiating the Future of Shari`a, (Harvard University Press, March 2008).


• Michael Leo Owens, God and Government in the Ghetto: The Politics of Church-State Collaboration in Black America, (Univ. of Chicago Press, Fall 2007).


• Steven M.Tipton, Public Pulpits: Methodists and Mainline Churches in the Moral Argument of Public Life, (Univ. of Chicago Press, Fall 2007).


• John Witte, Jr., The Reformation of Rights-- Law, Religion and Human Rights in Early Modern Calvinism, (Cambridge Univ. Press, Feb. 2008).


• Thomas C. Berg, The Free Exercise of Religion Clause, (Prometheus Books, 2007). (Abstract from SSRN).

California City Will Vote to Change Motto To "In God We Trust"

While California held its presidential primary in February, it will have a primary election for other offices on June 3. (Background). Voters in the city of Porterville will vote on whether to change the city's official motto from "100 Years of the Good Life" to "In God We Trust". KFSN News reported last week that the city has already designed a new city flag displaying the motto. The new flag is on display in City Hall chambers. Residents appear split on the ballot proposal. [Thanks to Scott Mange for the lead.]

Wisconsin Village To Sell Religious Display To Private Group

Holmen, Wisconsin's Village Board seems to have found an response to a citizen's church-state complaint. A display of a cross and a star has been on Star Hill since 1960 when the city and the Lions Club shared the cost of construction. Five years ago the village bought Star Hill land, including the display, for a water reservoir. (See prior posting.) At its May meeting, the Village Board will vote on selling the part of the property housing the display at its $100 appraised value to the Lions Club in hope of ridding the village of the church-state conflict. Yesterday's Holmen Courrier says that after the sale, the site will be fenced to designate which land is privately owned. It is not clear whether the city will continue to pay the cost of electricity to light the cross during Lent each year.