Court Rejects Ministerial Exception Defense Raised By Catholic School

In Coulee Catholic Schools v. Labor and Industry Review Commission, (WI Ct. App., April 17, 2008), a Wisconsin state court of appeals held that the "ministerial exception" does not preclude a first-grade teacher at a Catholic elementary school from bringing an age discrimination case. While the First Amendment precludes adjudication of claims under the Wisconsin Fair Employment Act if an employee's duties are ministerial, here teacher Wendy Ostlund’s duties were not primarily religious. The fact that a teacher is to model and support particular religious values is not enough to make her duties ministerial. Today's LaCrosse Tribune reports on the decision.

Pastors Council Files IRS Charges Against Americans United

The Houston (TX) Area Pastor Council has decided to turn the tables on a group that has complained to the IRS about churches becoming involved in partisan politics. A release issued Monday by the Liberty Legal Institute says a complaint has been filed with the IRS against Americans United. It charges AU, a non-profit organization, with improperly attempting to influence elections by filing and publicizing frivolous IRS complaints against pastors. It says this is an attempt to chill the speech of clergy. The complaint was particularly triggered by AU's charges against Houston pastor Steve Riggle over his endorsement of a Texas Congressional candidate. (See prior posting.) [Thanks to Blog from the Capital for the lead.]

Hearing On Custody of FLDS Children Is Chaotic

A hearing-- generally described in an AP report as "chaotic"-- began today in San Angelo, Texas on the fate of the 415 children being held in temporary custody by the Texas Department of Family and Protective Services after last week's raid on an FLDS ranch where they lived. (See prior posting.) Today's San Angelo Standard-Times has a fascinating minute-by-minute log of events at the hearing. The 350 lawyers representing the children removed from the YFZ Ranch-- as well as representing some parents-- were divided between the court house and an auditorium in City Hall. However the video feed to the City Hall location was grainy and the audio was difficult to hear. When prosecutors attempted to introduce the medical records of two girls into evidence, logistics became unmanageable as lawyers scrambled to see the documents and register objections. State District Judge Barbara Walther called a 40 minute recess so attorneys could decide whether to object en masse or individually.

The AP says that a major issue in the case will be whether the entire YFZ Ranch is the "home" of each child, or only individual house in which the child lives. Apparently Texas law provides for removal of children if sexual abuse is occurring in a "home" and a parent does not stop it

House Passes Religious Worker Visa Extension Act

On Tuesday, the U.S. House of Representatives passed and sent to the Senate H.R. 5570, the Religious Worker Visa Extension Act of 2008. The bill extends until January 1, 2010 the eligibility of certain religious workers for visas, but also requires the Department of Homeland Security by the end of this year to issue final regulations to eliminate or reduce fraud by applicants for religious worker visas. Proposed rules were already published in the Federal Register in April, but have been the subject of concern by some religious groups. (See prior posting.) The full text of the proposed rules and the public comments that have been submitted on them is available online.

Claims Against Permit Requirement For Feeding Homeless In Park Move Ahead

In First Vagabonds Church of God v. City of Orlando, 2008 U.S. Dist. LEXIS 30842 (MD FL, March 31, 2008), plaintiffs claim that the City of Orlando (FL) violated their religious exercise, expression and assembly rights by enacting an ordinance requiring them to obtain a permit to conduct any "large group feeding" in the city's Greater Downtown Park District. Any group is limited to two permits per year. The court rejected defendants' motion for summary judgment, holding that there were sufficient issues of fact to go to trial on claims under the Florida Religious Freedom Restoration Act and First Amendment. The court dismissed equal protection and due process challenges.

Court Awards Nominal Damages and Attorneys Fees In Religious Display Case

In Doe v. Parish of St. Tammany, (ED LA, April 16, 2008), a Louisiana federal district court awarded nominal damages and attorneys' fees to plaintiff in a case challenging the display of a picture of Jesus in the foyer of the Slidell, Louisiana City Court. After a lawsuit was filed, the city broadened the display to include depictions of various lawgivers throughout history. Last year, after that change, the court refused to issue a preliminary injunction. (See prior posting.) This written opinion confirms that "the expanded display presently in the City Court lobby does not suggest to the reasonable observer that its message is of a religious nature." However, the court reiterated, the original display did violate the Establishment Clause. The AP yesterday reported on the decision.

Religion Clause Blog-- 3 Years Old Today!

Today is the third birthday of Religion Clause. Since "blog years" are even longer than "dog years," Religion Clause has at least reached puberty, if not adulthood. "It takes a village" to sustain a blog. So I want to thank my loyal community of readers for your nourishment and encouragement.

Last year at this time, I invited readers to suggest changes they would like to see. The overwhelming response was that I should not make significant changes. So I continue with the original 3-part "formula"-- (1) a clear focus on church-state and religious freedom issues in the U.S. and abroad; (2) extensive links to primary source documents; and (3) a commitment to objective, non-ideological reporting.

I am pleased that Religion Clause readership continues on an upward trend. This month-- with the Pope's visit to the U.S. and the much-publicized FLDS raid-- readership has increased significantly. If you are one of the new visitors to Religion Clause, I invite you to stick with us on an ongoing basis.

This year, the number of "Comments" posted by readers on Religion Clause has also increased significantly. A small group of readers have sometimes engaged in lengthy debates. I have generally not exercised any editorial prerogative to screen these. I am interested in reactions from other readers as to whether you find these debates useful and interesting.

So thanks again, especially to those of you who read this blog regularly. A special note of appreciation goes to those who send me "leads" on developments. I always read them and often use them. I hope all my readers will recommend the blog to others who may be interested in its coverage. And please e-mail me any comments or suggestions you may have.

Pope Expresses Concern to Bishops Over Proper Catholic Input On Public Policy

Yesterday afternoon, Pope Benedict XVI spoke to about 300 U.S. bishops gathered at the Basilica of the National Shrine of the Immaculate Conception in Washington. While much of the coverage, such as this CNS story, focused on the Pope's remarks on the priest sexual abuse scandals, the full transcript also reveals interesting comments on religion an public life in the United States. The Pope appeared particularly concerned about Catholic laity who take public policy positions uninformed by the true teachings of the Church. In his prepared remarks, Benedict said:

As preachers of the Gospel and leaders of the Catholic community, you are also called to participate in the exchange of ideas in the public square, helping to shape cultural attitudes. In a context where free speech is valued, and where vigorous and honest debate is encouraged, yours is a respected voice that has much to offer.... By ensuring that the Gospel is clearly heard ... you help to spread the message of Christian hope throughout the world.

... In the United States, as elsewhere, there is much current and proposed legislation that gives cause for concern ... and the Catholic community ... needs to offer a clear and united witness on such matters. Even more important, though, is the gradual opening of the minds and hearts of the wider community to moral truth.... Crucial in this regard is the role of the lay faithful to act as a "leaven" in society. Yet it cannot be assumed that all Catholic citizens think in harmony with the Church's teaching on today's key ethical questions. Once again, it falls to you to ensure that the moral formation provided at every level of ecclesial life reflects the authentic teaching of the Gospel of life.

In response to a question about "the challenge of increasing secularism in public life and relativism in intellectual life", the Pope was able to express his concerns at greater length. He said:

It strikes me as significant that here in America, unlike many places in Europe, the secular mentality has not been intrinsically opposed to religion. Within the context of the separation of Church and State, American society has always been marked by a fundamental respect for religion and its public role, and, if polls are to be believed, the American people are deeply religious. But it is not enough to count on this traditional religiosity and go about business as usual, even as its foundations are being slowly undermined....

.... Perhaps America's brand of secularism poses a particular problem: it allows for professing belief in God, and respects the public role of religion and the Churches, but at the same time it can subtly reduce religious belief to a lowest common denominator. Faith becomes a passive acceptance that certain things "out there" are true, but without practical relevance for everyday life. The result is a growing separation of faith from life.... This is aggravated by an individualistic and eclectic approach to faith and religion: ... each person believes he or she has a right to pick and choose, maintaining external social bonds but without an integral, interior conversion to the law of Christ. Consequently ... Christians are easily tempted to conform themselves to the spirit of this age.... We have seen this emerge in an acute way in the scandal given by Catholics who promote an alleged right to abortion.

On a deeper level, secularism challenges the Church to reaffirm and to pursue more actively her mission in and to the world.... In a word, the Gospel has to be preached and taught as an integral way of life, offering an attractive and true answer, intellectually and practically, to real human problems....

... I believe that the Church in America, at this point in her history, is faced with the challenge of recapturing the Catholic vision of reality and presenting it, in an engaging and imaginative way, to a society which markets any number of recipes for human fulfillment. I think in particular of our need to speak to the hearts of young people, who, despite their constant exposure to messages contrary to the Gospel, continue to thirst for authenticity, goodness and truth....

Ohio School Teacher Refuses To Remove Bible From Student View

In Mt. Vernon, Ohio, Mt. Vernon Middle School teacher John Freshwater is battling school officials who last week told him to remove the Ten Commandments from the door to his classroom and remove the Bible on his desk from the view of students. Yesterday's Columbus Dispatch reports that Freshwater, who is known for teaching his students about intelligent design, complied with the directive to remove the Ten Commandments, but refused to move his Bible. Instead he issued a defiant press release. Yesterday, nearly 100 people gathered on Public Square in Mt. Vernon in a show of support for Freshwater. (Mount Vernon News). The school district has merely said that it is required "under the First Amendment of the United States Constitution to protect against the establishment of religion in the schools."

UPDATE: An article in Wednesday's Mount Vernon News gives some context to the dispute with Freshwater. The Mt. Vernon Board of Education this week turned down a proposed policy that called for inclusion in science classes of information critical of evolutionary theories. The proposal by school board member Dr. Margie Bennett revived an "objective origins science policy" that was turned down at a previous meeting and that had been proposed by none other than teacher John Freshwater.

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.