Belarus Petitioners Fined Under Legislative Initiative Law

In Belarus, according to Forum 18 yesterday, three organizers of a mass petition calling for liberalization of the country's 2002 Law on Religion have been fined for violating the the 2003 Law on the Realisation of Legislative Initiatives by Citizens. That law requires groups launching a legislative initiative to register with the electoral commission before collecting signatures. The organizers claimed unsuccessfully that since they had not proposed an specific text for revision of the Religion Law, they were not organizing an initiative. Instead they were asking governmental bodies to amend the law. (See prior related posting.)

President Proclaims May As Jewish American Heritage Month

Yesterday President George W. Bush issued a Proclamation (full text) declaring May 2008 as Jewish American Heritage Month. The Proclamation says that the month creates an "opportunity to celebrate the history, culture, and faith of Jewish Americans and their contributions to our Nation."

Recent Scholarly Articles and Movies of Interest

From SSRN:

• David N. Wagner, Religion and State: An Ecclesiological Perspective, (April 26, 2008).


• Patrick McKinley Brennan, "What's the Matter with You Catholics?" Soundings in Catholic Social Thought: "Traditions in Turmoil" by Mary Ann Glendon, (Journal of Law, Philosophy and Culture, Vol. 2, No. 1, 2008).


• Anita L. Allen, Undressing Difference: The Hijab in the West, (U of Penn Law School, Public Law Research Paper No. 08-18, April 29, 2008).


• David Lawrence Clingingsmith, Asim Ijaz Khwaja, Asim & Michael Kremer, Estimating the Impact of the Hajj: Religion and Tolerance in Islam's Global Gathering, (HKS Working Paper No. RWP08-022, April 2008).


• David A. Simon, Register Trademarks and Keep the Faith: Trademarks, Religion, and Identity, (April 28, 2008).


• Nina J. Crimm, Muslim-Americans' Charitable Giving Dilemma: What About a Centralized Terror-Free Donor Advised Fund?, (Roger Williams Law Review Symposium Issue, Vol. 13 , 2008).

From ACS:

• Edward Correia, A Constitutional Framework for Addressing Religious Viewpoints in Public Classrooms, (April 21, 2008).

From SmartCILP:

• Kenneth A. Klukowski, In Whose Name We Pray: Fixing the Establishment Clause Train Wreck Involving Legislative Prayer, 6 Georgetown Journal of Law & Public Policy 219-282 (2008).


• Samuel J. Levine, Taking Ethical Obligations Seriously: A Look At American Codes of Professional Responsibility Through a Perspective of Jewish Law and Ethics, 57 Catholic University Law Review 165-202 (2007).


• Jana R. McCreary, This Is the Trap the Courts Built: Dealing With the Entanglement of Religion and the Origin of Life in American Public Schools, 37 Southwestern University Law Review 1-67 (2008).


• Peter Irons, Darwin, Dogma, and Definitions: A Reply to Professor McCreary, 37 Southwestern University Law Review 69-82 (2008).


• Jana R. McCreary, Focusing Too Much On the Forest Might Hide the Evolving Trees: A Response to Professor Irons, 37 Southwestern University Law Review 83-96 (2008).

New Movies:

• Constantine's Sword (2007), reviewed in New York Times.
• Expelled: No Intelligence Allowed (2007), reviewed in New York Times. [Updated]

Obama Denounces His Pastor As Religion Continues Importance In Campaign

Religion has played an unusually important role in the 2008 presidential primaries for many months. In the latest illustration of this, yesterday Barack Obama held a press conference (full transcript) denouncing remarks made at the National Press Club on Monday (transcript) by his long-time pastor Jeremiah Wright. Those remarks followed two other appearances by Wright-- a Friday evening interview on Bill Moyers Journal (transcript) and a speech at an NAACP dinner on Sunday night (transcript). Today's New York Times reports on Obama's public rejection of Wright. Obama said in part: "What became clear to me was that he was presenting a world view that ... contradicts who I am and what I stand for. And what I think particularly angered me was his suggestion somehow that my previous denunciation of his remarks were somehow political posturing."

Recently Available Prisoner Free Exercise Cases

In Graham v. Mahmood, 2008 U.S. Dist. LEXIS 33954 (SDNY, April 23, 2008), a New York federal district court dismissed claims under the First and 14th Amendments and RLUIPA brought by an inmate who was a follower of the Nation of Islam. Plaintiff alleged that NOI was disfavored in comparison to Sunni Muslims in access to prison meeting and office space. He also alleged retaliation for pursuing related grievances.

In Shilling v. Crawford, 2008 U.S. Dist. LEXIS 33567 (D NV, March 12, 2008), a Nevada federal district court held that defendants were entitled to qualified immunity in a suit by an inmate who claimed that his rights under RLUIPA were violated when his request for a kosher diet was accommodated only by offering to transfer him to a higher security facility at which such meals were available.

Rose v. Masiey, 2008 U.S. Dist. LEXIS 33499 (SDNY, Feb. 19, 2008), is one of over a dozen suits filed by Muslim inmates challenging the handling of food and related items at Rikers Island prison facility, and the failure to identify non-Halal food at the prison commissary. The court denied most of defendants' motions to dismiss, except that claims against certain of the corrections officers named as defendants were dismissed on the ground of qualified immunity.

Malik v. Ozmint, 2008 U.S. Dist. LEXIS 33904 (D SC, Feb. 13, 2008), involved a RLUIPA challenge to a South Carolina prison policy that prevented plaintiff from wearing his kufi outside of his cell. A federal magistrate judge recommended that the claim be dismissed without prejudice on exhaustion grounds, but that on the merits prison authorities had not justified the restriction. The court rejected plaintiff's claims that his right to fast during Ramadan was infringed by untimely meal deliveries.

Convicted Murderer Waives Appeals Partly for Religious Reasons

In Hill v. State of South Carolina, (SC Sup. Ct., April 28, 2008), the South Carolina Supreme Court upheld the right of convicted murderer David Hill to waive his right to further review and have his death sentence carried out. In explaining his decision to forgo further appeals, Hill discussed his father's health and his own, but also said: "part of my religious beliefs are that if you kill somebody, you shed somebody else’s blood, that your blood has to be shed or you have to die in order to be forgiven for that..." Today's Myrtle Beach Sun News reports on the decision.

British Catholic Adoption Agency Becomes Secular To Avoid Gay Adoption Mandate

In Britain, the Bishop of Nottingham announced yesterday that the Catholic Children's Society adoption agency will become a secular agency by merging with the adoption agency of the Anglican Diocese of Southwell and Nottingham. Total Catholic.com reported that the decision was taken because the agency could not, consistent with Catholic teachings, comply with Britain's Equality Act (Sexual Orientation) Regulations 2007 that would have required the Catholic agency to sometimes place children for adoption with same-sex couples. Catholic agencies are required to come into compliance by the end of 2008. (See prior related posting.)

7th Circuit Upholds RLUIPA Claim; Concurrence Criticizes RLUIPA

Last week, the U.S. Seventh Circuit Court of Appeals ruled in favor of a former prisoner in a RLUIPA case that is most interesting for the concurring opinion it generated. In Koger v. Bryan, (7th Cir., April 24, 2008), the court held that a former prisoner's claim based on the denial of his request for a vegetarian diet substantially burdened the prisoner's religious exercise. In particular the court found inappropriate the prison's requirement that the religious practice be required by the inmate's religion and that this be verified by a member of the clergy.

Judge Evans concurred, but included in his opinion an interesting attack on RLUIPA:

Clearly, without RLUIPA, this case would have been dead in the water when it was filed because declining Koger’s request for a nonmeat diet would not have violated the United States Constitution....

Because Mr. Koger is out of prison... his request for injunctive relief is moot. And because he was in prison when the case arose, he must proceed under the Prisoner Litigation Reform Act, which takes compensatory and punitive damages off the table as he suffered no “physical injury” but only, at best, a “mental or emotional injury.” And that limits his recovery to nominal damages.

So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L.Oldham, who by the way has done an outstanding job, will get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean towards saying “yes.”

Florida Chambers Pass Competing Bills On Teaching of Evolution

In February, Florida's State Board of Education adopted science teaching standards calling specifically for the teaching of evolution. (See prior posting.) Yesterday's St. Petersburg Times reports that attempts by the state legislature to respond to these standards may fail because the House and Senate have passed competing bills. Yesterday the House voted 71-43 to approve HB 1483 that calls for public schools to add to their curriculum a "scientific critical analysis" of the theory of evolution. However the Senate has already passed SB 2692, the Evolution Academic Freedom Act, providing more extensive protections to teachers who present scientific views critical of evolution in the classroom and to students who hold religious views opposing evolution. (See prior related posting.) Sen. Ronda Storms, sponsor of the Senate bill, says her chamber will not pass the House version.

Malaysia Agency Rejects Prime Minister's Proposal On Conversions

In Malaysia, the government's Islamic Development Department must approve any administrative rule changes relating to Islam. Today's International Herald Tribune reports that the Department has rejected a proposal by the Prime Minister that would have required non-Muslims converting to Islam to notify their families in writing ahead of time. (See prior posting.) The proposed rule was intended to deal with the growing number of disputes over burial rights that have arisen when family members do not know of a supposed conversion. However the Islamic Development Department's director-general, Wan Mohamad Sheikh Abdul Aziz, said it should be "left to the discretion of the person who wishes to embrace Islam to determine how and when it is appropriate to inform family members. ... The existing laws for conversion to Islam and related matters are sufficient." Parliament could still pass the Prime Minister's proposal over the Department's objections.

Supreme Court Upholds Indiana Voter ID Law, But Majority Question Burden on Religious Objectors

Today in Crawford v. Marion County Election Board, (S.Ct., April 28, 2008), the U.S. Supreme Court by a vote of 6-3 upheld Indiana's voter identification law against a facial constitutional attack. Much of the challenge to the law focused on the burdens the law imposes on eligible voters who do not have a valid voter ID, including those with religious objections to being photographed. (See prior related posting.) Justice Stevens' opinion announcing the judgment of the court, which was joined by the Chief Justice and Justice Kennedy, held that for most voters the burden of obtaining the free state voter ID card is not substantial, and while there may be a few voters for whom the burden is not justified, that does not entitle plaintiffs to have the law struck down on its face. Two dissenting opinion disagreed and found the burdens less justified. However, a close reading of the opinions indicate that a majority of the justices believe that the voter identification law imposes an impermissible burden on voters who have religious objections to being photographed.

Under Indiana's law, even though religious objectors may obtain state drivers licenses without a photo on them, these do not suffice for voting purposes. Those voters must cast a provisional ballot in every election, and then each time travel to the circuit court clerk's office within ten days and execute an affidavit. Justice Stevens, writing for three justices, said (at fn. 19):

Presumably most voters casting provisional ballots will be able to obtain photo identifications before the next election. It is, however, difficult to understand why the State should require voters with a faith-based objection to being photographed to cast provisional ballots subject to later verification in every election when the BMV is able to issue these citizens special licenses that enable them to drive without any photo identification.

Justice Souter, writing in dissent for himself and Justice Ginsberg, said:

regardless of the interest the State may have in adopting a photo identification requirement as a general matter, that interest in no way necessitates the particular burdens the Voter ID Law imposes on poor people and religious objectors. Individuals unable to get photo identification are forced to travel to the county seat every time they wish to exercise the franchise, and they have to get there within 10 days of the election.... Nothing about the State's interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places.

Justice Breyer's dissent also found the burden on those lacking the required ID to be disproportionate, though his opinion focuses primarily on the burden imposed on indigents. On the other hand, Justice Scalia writing for himself, Justice Thomas and Justice Alito saw no problem in treating the ID requirement as merely a neutral law of general applicability for which the state is not required to create a religious exemption. The New York Times reports further on the decision. [Thanks to Blog from the Capital for the lead.]

Fellowship of Christian Athletes Sues Middle School After Field Trip Denial

Louisiana's Calcasieu Parish School Board has a policy permitting student clubs to apply for approval to take field trips with transportation provided on school buses. Last week, a Lake Charles (LA) middle school student who is chaplain of the school's Fellowship of Christian Athletes (FCA) filed suit in federal court challenging the school's denial of an application for FCA to use a school bus for a field trip to a "Just for Jesus" event. The complaint (full text) alleges that the denial violates the federal Equal Access Act as well as the First and 14th Amendments. Plaintiff's Memorandum in support of its application for a temporary restraining order argues that the denial of CFA's application was both content-based and viewpoint-based discrimination. Alliance Defense Fund issued a press release on the case last Thursday.

Indian State Implements Anti-Conversion Law

Saturday's Times of India reports that the Indian state of Gujarat has finally issued rules implementing its Freedom of Religion Act, 2003. The rules have been published in the Gujarat Government Gazette and came into effect on April 1. Clergy seeking to convert a person from another religion must first obtain permission from the district magistrate by filing a form setting out detailed personal information on the convert, including whether the person is a minor or a member of a Scheduled Caste. The form also calls for listing of the convert's marital status, occupation and monthly income. The convert must apply for permission 30 days in advance, setting out the time, place and reason for the conversion and length of affiliation with his or her present religion. Then within 10 days after conversion, the convert must furnish the name of the priest who performed the ceremony and the names of others who participated in it. Forced conversion is punishable by 3 years in jail.

Meanwhile, according to Zee News, near Mumbai on Sunday some 1,793 individuals underwent reconversion to Hinduism as part of a campaign by Narendra Maharaj who says he has reconverted over 42,000 people mainly in the tribal areas of Maharashtra, Gujarat and Maharashtra.

9th Circuit Says School Can Require Relgious Clubs Be Open To All

In Truth v. Kent School District, (9th Cir., April 25, 2008), the U.S. 9th Circuit Court of Appeals held that a Washington state school district did not violate either the federal Equal Access Act nor the First Amendment when it applied its non-discrimination policy to "Truth", a Bible study club seeking recognition as a student group. The school said the group must remove from its charter a requirement that limits membership to those who sign a fundamentalist Christian statement of faith. However the court remanded the case for a determination of whether Truth's rights were violated when it, unlike some other groups, was denied an exemption from the school district's non-discrimination policy. Truth alleged that at least two non-religious groups received exemptions from requirements of the school's non-discrimination policy that prohibits limiting membership on the basis of gender. Reuters reports on the court's decision.

Florida Commission Approves Constitutional Proposal For School Vouchers

After some apparently complicated bargaining, the Florida Taxation and Budget Commission on Friday reversed an earlier vote and agreed to place on Florida's November ballot a proposed state constitutional amendment that is designed to overrule a state supreme court decision striking down school vouchers. The proposal would amend Art. IX, Sec. 1 of the Constitution by adding that the state's duty to provide for the education of its children shall be "fulfilled at a minimum and not exclusively" by creating a uniform system of free public schools. Saturday's Miami Herald reported that, in order to make the proposal more attractive to voters, the ballot issue will also require schools to spend at least 65% of their budgets on classroom expenses.

Earlier this month, the voucher amendment fell one vote short of the 17 needed for its approval. However on Friday, 19 members of the Commission voted in favor of it, apparently in exchange for the Commission's also approving a proposed amendment that would lower property taxes by 25% and replace the lost revenue with other sources including an increased sales tax. Altogether, the Commission has approved seven constitutional amendments for the November ballot, including one that would repeal the state's "Blaine Amendment" ban on public financial aid to religious institutions. (See prior posting.)

Japanese Man Charged For Dumping Buddhist Altar Beside Expressway

In the Japanese city of Komaki, Aichi, a man has been charged by police with violating the city's Waste Disposal Management Law after he dumped a Buddhist altar on the side of the Meishin Expressway. Mainichi Daily News reported on Saturday that the man received the altar as a gift from a friend who encouraged him to become more religious. However the altar was too large to fit into the man's new apartment.

Episcopal Church Sues For Property of Break-Away California Diocese

The flood of lawsuits by the Episcopal Church against break-away congregations continues. Last week, the Episcopal Diocese of San Joaquin, California and The Episcopal Church filed suit (press release) to reclaim control of the property of congregations within the Diocese after most of them voted to follow John-David Schofield, the former bishop of the Diocese, in affiliating with the more conservative House of Bishops of the Southern Cone. On Friday, Episcopal News Service reported that the lawsuit was filed after Bishop Jerry Lamb was affirmed as provisional bishop of San Joaquin to replace Schofield by a March 29 special convention of the diocese. The complaint in the case (full text), filed in a California state court, seeks an order confirming that Lamb is the incumbent bishop of the Diocese and an order requiring Schofield to turn all Diocese property over to Lamb.

FLDS Mothers Unsuccessful So Far In Seeking Return of Children

Interesting legal developments continue to transpire in the case of 462 children taken into custody by the state of Texas after authorities raided the FLDS ranch in Eldorado, Texas earlier this month. (Timeline of events.) Several of them were reported Saturday by Austin's KeyeTV News. In an order issued Friday in a case captioned In re: Sarah Steed, et. al., (TX Ct. App., April 25, 2008), a state appellate court in Austin rejected an emergency motion filed by mothers of the children seeking a stay of an April 22 order issued by the trial court. The mothers were seeking to prevent the children from being placed in facilities throughout the state while their petition for a writ of mandamus is being heard. The appellate court said that, on its face, the trial court's order appears to meet statutory requirements for the placement of the children. A full hearing will be needed to determine if there was an abuse of discretion by the trial court. An expedited hearing on that is scheduled for Tuesday morning.

Meanwhile, Texas Rangers continue to investigate charges that the original call to authorities that led to the raid was not authentic. (See prior posting.) An arrest warrant (full text) has been issued for a Colorado Springs, CO woman, Rozita Swinton, who has a history of making false reports of abuse.

Meanwhile an AP story published Friday says that the breadth of the custody order issued in Texas raises constitutional issues. Jessica Dixon, director of SMU Law School's Child Advocacy Center described the order as an unprecedented "class-action child removal". Of particular concern is whether there was justification for removing the 130 children under five years of age, and the over two-dozen teenage boys, none of whom apparently had been the victims of abuse. Also apparently not all residents of the Ranch practiced polygamy. A Child Protective Services spokesman said that the state has no way to protect the young children from possible future abuse if they remain at the Ranch.

Birminghm, AL Mayor Holds Sackcloth and Ashes Prayer Rally to Fight Crime

In Birmingham, Alabama on Friday night, more than 1000 people gathered at Mayor Larry Langford's "sackcloth and ashes" prayer rally called to fight the worsening homicide rate in the city. The AP and the Birmingham News reported on the rally that featured prayers for forgiveness and sermons calling for the city to repent. Langford purchased 2000 burlap bags that were handed out at the event. He said the rally, held at the city-owned Boutwell Auditorium, was inspired by the Book of Jonah (see Chap. 3). This is the third prayer rally Langford has called to deal with crime in Birmingham. The Alabama ACLU is looking at the church-state issues involved.

UPDATE: Here is the full text of the mayor's Proclamation declaring the day for prayer in sackcloth and ashes. [Thanks to Dispatches From the Culture Wars for the lead.]

Florida Court Rejects Religious Defense To Unlicensed Midwifery Charges

In McGlade v. State of Florida, (FL Ct. App., April 25, 2008), a Florida state appellate court rejected a claim by two defendants accused of practicing midwifery without a license that the jury should have been instructed on their free exercise of religion defense. The court held that while defendants showed that their involvement in home births was substantially motivated by their religious beliefs, they presented no evidence that the midwifery license law substantially burdened the exercise of their religion. However, defendants' convictions were reversed and the case remanded for a new trial because of other errors in the jury instructions given at trial. Saturday's Sarasota (FL) Herald Tribune reporting on the case says that defendants Linda and Tanya McGlade have been out of prison during the appeal-- on order of the Court of Appeal (full text of order) after the trial judge refused to permit them to post bond. (See prior related posting.)

Meanwhile Saturday's Houston Chronicle features a story about a Pennsylvania midwife who is appealing a cease and desist order issued against her by the Pennsylvania State Board of Medicine. Diane Goslin served many in Pennsylvania's Amish community. She is a certified professional midwife, but not a nurse-midwife as required by Pennsylvania law. (See prior related posting.)