Indian Tribe Faction Asserts Religious Rights To Support Land Takeover

In Wisconsin, a Lac Du Flambeau tribal court is being asked to grant a restraining order and an injunction to prevent law enforcement officials from removing members of the Ginew faction of the tribe from a piece of tribal land they have taken over in protest against financial activities of the Tribal Council. The Rhinelander Daily News yesterday reported that the dissident Ginew faction has erected a large tent on the occupied land and constructed a sacred fire inside. Relying on this, the dissidents say that now their First Amendment rights and their rights under the Native American Free Exercise of Religion Act would be violated if they are removed from the land.

Court Finds Church-State Problems With University Training Manual

In Sklar v. Clough, (ND GA, April 29, 2008), a Georgia federal district court found substantial problems with material included in a training manual used in Georgia Institute of Technology's "Safe Space" program. Safe Space is designed to create a supportive environment on campus for gay, lesbian, bisexual and transgender students. In an 84-page opinion, the court focused on material dealing with the views of various religious groups regarding homosexuality. It held that inclusion of this material violates the Establishment Clause by favoring some religious beliefs over others.

In the opinion the court also dismissed claims regarding use of student activity fees because there had not been adequate proof of the responsibility of the specific named defendants. However the court suggested that a suit against proper defendants could well be successful. It said the school's policy against funding religious activities with student fees is administered in a manner that "is whimsical and would appear to exceed even an arbitrary and capricious standard." Alliance Defense Fund yesterday issued a release reporting on the court's decision. Also the Atlanta Journal Constitution and Inside Higher Education both report on it. (See prior related posting.)

Suit Challenging Limits On School Art Projects Settled

Yesterday's Wausau (WI) Daily Herald reports that the parties have agreed in principle to a settlement in A.P. v. Tomah Area School District, a case in which a Tomah High School student challenged a school policy that prohibits art class projects from depicting "violence, blood, sexual connotations, [or] religious beliefs." The school says the policy was intended to keep satanic or gang symbols and other "negative expression" out of student artwork. However, in this case a student was denied credit for a project in which he included a cross and a reference to a Biblical verse. (See prior posting.) Under the agreed upon settlement, students will still be prohibited from depicting gang symbols, violence, blood and sex. However, they will be permitted to express their religious beliefs in their art projects so long as inclusion of religious content satisfies the assignment criteria.

9th Circuit Keeps Injunction Against Pharmacy Board Rules In Place

Yesterday in Stormans Inc. v. Selecky, (9th Cir., May 1, 2008), in a 2-1 decision the U.S. 9th Circuit Court of Appeals refused to stay a preliminary injunction that the district court had entered barring enforcement of Washington State Pharmacy Board regulations against plaintiff, a religious objector to dispensing the "morning after" (Plan B) pill. The challenged regulations require pharmacists to fill all prescriptions even if doing so violates their religious beliefs. (See prior posting.) The majority said that even if the district court was wrong in concluding that the Pharmacy Board regulations violate the Free Exercise clause, there is insufficient evidence that intervenors who sought the stay will face irreparable harm if the injunction remains in effect pending appeal. The injunction requires that a pharmacist who refuses to fill a prescription for Plan B must refer the customer to a nearby source for it.

Judge Tashima wrote a lengthy dissent concluding that appellants had a strong likelihood of success on the merits. Therefore so long as there was a possibility of irreparable harm, particularly in light of the public interest involved, the preliminary injunction should have been stayed. Reuters and Life News both report on the 9th Circuit decision.

Queen's Grandson Keeps Place In Succession As His Fiancee Converts

Britain's Act of Settlement of 1701 requires the monarch to be a member of the Church of England and excludes from the position of king or queen any member of the royal family who has married a Catholic. Agence France-Presse reports today that Queen Elizabeth II's eldest grandson, Peter Mark Andrew Phillips, can remain as eleventh in line for the throne. His fiancee, Autumn Kelly (who he will marry later this month) has converted from Catholicism to the Church of England. Peter Phillips is the oldest child of Princess Anne from her marriage to Captain Mark Phillips. Today's Scotsman says that this development has renewed calls for repeal of the Act of Settlement. (See prior posting).

Times Explores Obama-Wright Relationship

This morning's New York Times carries an interesting article on Barack Obama's relationship with his former pastor Jeremiah Wright, and the eventual rift between them. It says: "Theirs was a long and painful falling out, marked by a degree of mutual incomprehension."

Danish Party Opposes Muslim Magistrates Wearing of Head Scarves

According to a story today from Agence France-Presse, Danish authorities last December authorized Muslim magistrates to wear headscarves in their courtrooms. Now that this has been recently disclosed, Denmark's right-wing DPP party is launching a series of newspaper ads opposing the practice. The ads call headscarves a "veil of tyranny". Justice Minister Lene Espersen suggested that new rules might be adopted that would ban judges from wearing any religious symbol that could impair the neutrality of the court. This would include Christian crosses as well as Muslim head scarves.

Today's National Day of Prayer Is Surrounded by Controversy

Today is National Day of Prayer (see prior posting), and controversies surround it. Jews on First reports that its campaign for an "Inclusive National Day of Prayer" has failed. Its website says: "Almost all of the governors ... have issued National Day of Prayer proclamations to the National Day of Prayer Task Force, a group linked to Focus on the Family.... even though we informed the governors that the Task Force practices religious discrimination." (See related prior posting.)

Meanwhile, yesterday the Public Record reported that at least six active duty military officers (chaplains and others) have been working closely with the National Day of Prayer Task Force as coordinators of events at military installations. The application that coordinators must sign states in part: "I agree to ... ensure a strong, consistent Christian message throughout the nation. I commit that NDP activities I serve with will be conducted solely by Christians while those with differing beliefs are welcome to attend." This may raise Establishment Clause issues.

Alliance Defense Fund says that its "attorneys sent an informational letter last week to nearly 1,200 of the nation's largest cities, advising them of their constitutional right to recognize and participate in the 2008 National Day of Prayer...."

In Washington, DC, the 90-hour long U.S. Capitol Bible Reading Marathon, held on the steps of the nation's Capitol, comes to an end today. In the afternoon, there will be a Pastors and Church Leaders Gathering at the Cannon House Office Building and in the evening there will be a Public Prayer and Unity Assembly on the West Lawn of the Capitol. (Details). Usually the White House has its own separate National Day of Prayer ceremony. (See 2007 Day of Prayer posting.)

UPDATE: This morning, the White House hosted its own National Day of Prayer ceremony-- as it has done for the last 8 years. A video of the entire ceremony is available from the White House website. The ceremony was opened by NDP Task Force Chair Shirley Dobson who announced all sorts of prayer events taking place around the country, including private pilots and their passengers flying near state capitols in every state, and a "pray for election day" initiative. President Bush spoke at the event (transcript), which included Jewish as well as a variety of Christian participants.

Truck Owner Says Town Is Discriminating Against His Religious Speech

WWNYTV News on Tuesday reported that a contractor in Gouverneur, New York is challenging a citation he received for violating the town's billboard ordinance (full text , see Sec. 17.N.). Dan Burritt has parked a large semi-trailer on his property and put up religious messages on both sides of it. The town says this is in reality a billboard that requires a permit. Burritt's lawyers, however, say that the town is singling out religious speech because another semi-trailer with a drug company logo on it is parked beside a town road and no citation has been issued claiming that it violates the billboard law. The WWNYTV story includes photos of the two trucks. [Thanks to Alliance Alert for the lead.]

Attorneys Fees Awarded In RLUIPA Case That Resulted In Nominal Damage Award

In Layman Lessons v. City of Millersville, 2008 U.S. Dist. LEXIS 34996 (MD TN, April 29, 2008), a Tennessee federal district court, in a religious land use case, awarded plaintiff Layman Lessons nearly $60,000 in attorneys fees and costs. The court said: "the fact that Layman Lessons originally sought compensatory damages but was ultimately only awarded $ 2.00 in nominal damages does not mean in this particular case that its success was merely technical or de minimis. Even though the damages award was minimal, Layman Lessons achieved its primary objective: the vindication of its rights." In the case (see prior posting) the court found that the initial denial of an occupancy permit for commercially zoned property to a Christian ministry imposed a substantial burden on its exercise of religion and violated RLUIPA. The court also found a due process violation in the enforcement of an inapplicable buffer-strip zoning ordinance to prevent use of the land by the ministry that was formed to aid the homeless.

New Mexico Removes 3 Minors From Cult's Strong City Compound

The AP reported yesterday that New Mexico authorities have removed two girls and a boy-- all under age 18-- from the "Strong City" compound of The Lord Our Righteousness Church near Clayton, NM. The children are currently in state custody. The move took place after allegations of inappropriate contact between the three minors and the church's leader Wayne Bent (also known as Michael Travesser). In a statement on the group's website, Travesser says there has never been sex with minors.

Shi'ites In Saudi Arabia Unhappy With Removal of Court Head

In Saudi Arabia, tensions have erupted between the dominant conservative Sunnis and the minority Shi'ites who live mainly in Qatif and al-Ahsa in the Eastern Province. Yesterday's Khaleej Times reports that the recent removal of Sheikh Mohammed al-Obaidan as head of the Shi'a court in Qatif is seen by Shi'as as an attempt to subordinate their court system to Sunni judicial authorities. The current 10 judges staffing Shi'ite courts are insufficient to serve the growing Shi'ite population. So some Shi'ites have been forced to use Sunni courts.

School District Sued For Permitting Free Use of Buildings By Religious Groups

The Freedom from Religion Foundation has filed suit (press release) against the Rio (WI) Community School District and the Wisconsin state Superintendent of Public Instruction challenging the Rio district's policy of allowing all local non-profit groups to use school buildings after school hours free of charge. The schools also post information from the non-profits on school bulletin boards and send home information about events with school children. The complaint (full text) in Freedom from Religion Foundation v. Burmaster, (Dane Co. Cir. Ct., filed 4/25/08) alleges that inclusion of religious groups, including the Child Evangelism Fellowship, in this policy violates the Wisconsin state Constitution. Art. I, Sec. 18 prohibits the use of state funds for the benefit of religious groups, and Art. I, Sec. 24 permits the legislature to authorize the use of public school buildings by civic, religious or charitable organizations during nonschool hours, but only upon payment by the organization of reasonable usage fees. Today's Portage Daily Register reports on the lawsuit.

UPDATE: The full text of correspondence between the Freedom from Religion Foundation and the Rio School District has been posted online by the Portage Daily Register.

Canadian Christian Social Service Agency Barred From Enforcing Lifestyle Code

In Heintz v. Christian Horizons, 2008 HRTO 22 (April 15, 2008), the Ontario Human Rights Tribunal held that a non-profit group, Christian Horizons, is not entitled to an exemption from the sexual orientation non-discrimination provisions of the Ontario Human Rights Code. Section 24(1)(a) of the Code provides that the right to equal treatment in employment is not infringed when a "religious ... organization that is primarily engaged in serving the interests of persons identified by their ... creed... employs only ... persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment." Christian Horizons operates Christian residences for developmentally disabled children. It is the largest community living service provider in the province and receives $75 million per year in government funding.

Connie Heintz, a support worker at a Christian Horizons residential facility was told she would be terminated because she was not in compliance with the organization's Lifestyle and Morality Statement which, among other things, prohibits staff from engaging in homosexual relationships. The Tribunal held the Sec. 24(1)(a) exemption inapplicable because "the primary object and mission of Christian Horizons is to provide care and support for individuals who have developmental disabilities, without regard to their creed." Nor is the employment requirement a reasonable qualification because of the nature of Heintz's employment. The Tribunal went on to find that "Independent of whether Christian Horizons has met the conditions for the exemption under section 24(1)(a), [it] ... has infringed Ms. Heintz’s rights under the Code as a result of the work environment and how she was treated once her sexual orientation came to light."

The Tribunal in its lengthy opinion awarded Heintz damages of $23,000 plus lost wages and benefits. It also ordered Christian Horizons to cease imposing its Lifestyle and Morality Statement as a condition of employment and ordered it to adopt an anti-discrimination and an anti-harassment policy as well as a human rights training program for all its employees. [Thanks to Alliance Alert for the lead.]

Cardinal Says Giuliani Should Not Have Received Communion During Pope's Visit

New York's Cardinal Edward Egan says that former New York Mayor Rudy Giuliani should not have received Holy Communion during the Pope Benedict XVI's recent visit to the U.S. Yesterday's Washington Post reports that Egan had "an understanding" with Giuliani that he was not to receive the Eucharist because of Giuliani's support of abortion rights.

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.