New Blog On Religious Liberty Launched

Welcome to the blogosphere to a new blog of interest-- ReligiousLiberty.TV. Its editor, Michael D. Peabody, describes it as an "independent online resource for news, information, commentary, and insights on contemporary issues involving the free exercise and establishment clauses of the United States Constitution." A link to it also appears in Religion Clause's sidebar under Blogs.

DC Circuit Says Chabad Can Proceed Against Russia On Claims To Two Book Collections

The D.C. Circuit Court of Appeals on Friday held that the parent organization for the Orthodox Jewish Chabad movement can pursue its claims against the Russian government to recover two historic collections of Jewish religious books and manuscripts. One collection, known as the "Library", was seized by Russia's Bolshevik government in 1917. The other, known as the "Archive" was taken by Soviet military forces in 1945. In Agudas Chasidei Chabad of United States v. Russian Federation, (DC Cir., June 13, 2008), the court held that Chabad satisfied the jurisdictional requirements of the Foreign Sovereign Immunities Act both as to the Library and the Archive, reversing the district court's holding (see prior posting) that it lacked jurisdiction over the Library claim. The district court had found no violation of international law because the Library was taken from a Soviet citizen-- the Fifth or Sixth Rebbe. However the Court of Appeals found there is a substantial claim that the Library was property of the worldwide Chabad organization, and alternatively that the Library was retaken in government actions in 1991-92 after a legal recovery of the Library by Chabad.

The appellate court also agreed with the district court's rejection of a forum non conveniens motion. Finally the court dealt with Russia's Act of State defense. It agreed with the district court that the defense was not available as to the Archive, and vacated the lower court's holding that the Act of State doctrine was an alternative ground for dismissing the claim as to the Library. The court found that while the events of 1917-25 create substantial questions about the applicability of the Act of State doctrine, Soviet actions in 1991-92 that arguably amounted to a retaking of the Library would not be subject to that defense. Judge Henderson concurred in the judgment, but disagreed with the majority's analysis of what must be shown to prove jurisdiction under the FSIA. The decision is discussed by Jurist and in a press release by Bingham McCutchen, attorneys for plaintiffs

Preacher Sentenced For Demonstrating In Restricted Area

Michael A. Marcavage, director of Repent America, was fined $420 and placed on one year's probation after a 2-day bench trial by a magistrate in a Pennsylvania federal court. Today's Wilkes Barre Times Leader and yesterday's Philadelphia Daily News report that Marcavage was charged with violating a verbal permit and interfering with park rangers after demonstrating last October on a sidewalk in Philadelphia near the Liberty Bell. He refused to move his preaching and protest against abortion to a nearby alternative site at Independence National Historical Park. The National Park Service restricted demonstrations on the sidewalk by the Liberty Bell after the 9-11 attacks. Marcavage's attorney, C. Scott Shields, called the sentence a "travesty of justice" and said he would appeal to a district court judge.

Sikh Sues Disney Over Firing

Friday's Orlando (FL) Business Journal reports that Sukhbir Channa, a Sikh, has filed suit in state court against Walt Disney World alleging he was discriminated against because of his turban, beard and long hair required by his religious beliefs. Originally hired as a seasonal college musician, Channa says he was fired because he did not have the "Disney look". Channa says he wore a toy soldier hat over his turban in his parade performances, and originally was allowed to wear a red turban instead of a beret in atmospheric performances, but supervisors decided this was not sufficient. The suit alleges violations of the Florida Civil Rights Act. It seeks damages of at least $1 million and an injunction preventing Disney from discriminating against Sikh employees and prospective employees in the future.

Bush Visits Pope In Vatican

During his trip to Europe, on Friday President George W. Bush met with Pope Benedict XVI in the Vatican. Catholic News Service reports that in a break with normal protocol in order to express the Pope's thanks for the hospitality he was shown in the U.S. in April, the two met in the Vatican Gardens, held private talks in St. John's Tower, and listened to a choral performance in the grotto of Our Lady of Lourdes performed by the Sistine Chapel Choir. U.S. Ambassador to the Vatican, Mary Ann Glendon, commented that Bush and the Pope have "a shared foundation of spiritual and moral views that colors the way they discuss political issues," calling it "a living example of what the pope means when he speaks about positive secularism." She continued: "It is a living example of the fact that democracy and Christianity are good for each other." As Bush looked at the surrounding area from the top of St. John's Tower, he asked how large Vatican City was. A Vatican aide replied: "Not quite as big as Texas."

Recent Prisoner Free Exercise Cases

In Mitchell v. Department of Corrections, 2008 U.S. Dist. LEXIS 44752 (SD FL, Jun 6, 2008), a Florida federal district judge adopted a magistrate's recommendation to transfer venue to the Northern District of Florida in a prisoner's case that, among other things, alleged free exercise and RLUIPA violations. The RLUIPA claim challenges Florida Department of Corrections discontinuation of the Jewish Dietary Accommodation Program.

In Hudson v. Jabe, 2008 U.S. Dist. LEXIS 43019 (ED VA, June 2, 2008), a Virginia federal court ordered a pro se plaintiff to particularize his Free Exercise, RLUIPA and equal protection allegations regarding a Virginia prison's refusal to recognize The Nation of Gods and Earth as a separate religious group, the prison's classification of the group as a gang, and the prison's refusal to permit inmates to possess certain religious literature and to practice their religion outside of their cells.

In Gipbsin v. Kernan, 2008 U.S. Dist. LEXIS 41596 (ED CA, May 5, 2008), a California federal magistrate judge dismissed a prisoner's free exercise claim against certain of the defendants because plaintiff had not alleged a connection between those defendants' acts and any constitutional deprivation which he suffered.

Florida Ballot Measures on Vouchers, Blaine Amendment Challenged In Lawsuit

In Leon County, Florida today, a group of individuals and organizations, including the Florida Education Association and Americans United for Separation of Church and State filed suit alleging that Florida's Taxation and Budget Commission exceeded its authority in placing two constitutional amendments on the November ballot. The Miami Herald reports on the lawsuit, as does a press release from Americans United. At issue are Ballot Initiative 7 that would eliminate the constitutional prohibition on directing state funds to aid religious institutions (see prior posting) and Ballot Initiative 9 that would permit school voucher programs (see prior posting). The complaint (full text) also alleges that that the title and summary language for Ballot Initiative 9 are misleading.

UPDATE: Plaintiffs also filed a motion for a temporary injunction (full text) and a Memorandum of Law in support of the motion (full text). [Thanks to Steven Sheinberg for these.]

Ontario Parliament Keeps Lord's Prayer, But Adds Others As Well

In the Canada, members of Ontario's Legislative Assembly yesterday reached a compromise over Premier Dalton McGuinty's proposal that its sessions no longer open with a reading of the Lord's Prayer. (See prior posting.) Under the arrangement approved unanimously, the Lord's Prayer will stay, but it will be followed by a second prayer. The additional prayer will rotate among religious traditions. It will include Buddhist, Hindu, Islamic, Sikh, Jewish and Baha'i prayers, as well as a moment of silence, a Native spiritual passage and a non-denominational prayer blessing Queen Elizabeth and her representative in the province. Today's Ottawa Citizen and Toronto Star report on the decision and reactions to it. A complete transcript of yesterday's debate in the legislature on the motion is available online.

Cub Scout In Scotland Objects To Oath To Queen Because of Anti-Catholic Rules

In Scotland, the mother of an 8-year old is threatening to go to the European Court of Human Rights to challenge the requirement by the Cub Scouts that her son recite a promise that includes doing his duty to the Queen. Matthew McVeigh's mother says that she wants the wording changed because Britain's 1701 Act of Settlement discriminates against Catholics, not allowing them to take the throne. Matthew says he does not want to have to recite a pledge he does not believe in. The Cub Scout commissioner says that if Matthew continues to refuse, he would not be totally out of the scouts. He could go on trips, but would not be insured. Also he could not wear the Cub Scout necktie. Yesterday's London Daily Mail and today's Scotland's Daily Record both report on the controversy. [Thanks to Scott Mange for the lead.]

Jewish Pick For Air Force Chief of Staff Inherits Proselytization Issues

The Forward yesterday profiles Air Force General Norton Schwartz who earlier this week was chosen by Defense Secretary Robert Gates to be the new Air Force Chief of Staff. The appointment is subject to Senate confirmation. Schwartz, who is Jewish, will inherit issues at the Air Force Academy relating to Christian proselytizing of students and failure to accommodate needs of non-Christian cadets.

Seventh Day Adventist Church Scores Partial Trademark Win

General Conference Corporation of Seventh Day Adventists v. McGill, 2008 U.S. Dist. LEXIS 45526 (WD TN, June 11, 2008) is a trademark infringement and unfair competition lawsuit brought by the Seventh Day Adventist Church against a break away pastor of a 3-member church he currently calls "A Creation Seventh Day & Adventist Church". The court held that the trademark "Seventh Day Adventist" is not generic and thus is protectable and that defendant illegally used the mark without permission. The court found however that that there is a material issue of fact as to whether the registered mark "Adventist" is generic and that plaintiffs had not proven that "SDA" is a valid trademark.

Amish Sentenced To Jail Over Waste Disposal Violations

Two Swartzentruber Amish farmers who refuse to comply with state code requirements for disposal of waste from their community school outhouses and who say obtaining a permit for the outhouses would violate their religious beliefs have also refused the options of paying a fine or performing community service. (See prior posting.) So a Pennsylvania trial court judge has sentenced them to 90 days in jail. Today's Centre Daily Times (State College, PA) reports Judge Michael Zungali did not accept the defendants' claim that community service would violate their religious beliefs, saying it could be performed near their homes. The judge told defendants that if they appealed they would not be sent to jail immediately. The two men said it violates their religious beliefs to hire their own attorney for the appeal, but they would accept volunteer help or permit someone else to pay for their defense-- which a local farmer offered to do.

New Poll on Religion and Public Life

Earlier this week, the Henry Institute at Calvin College released its 2008 National Survey on Religion and Public Life (link to full survey results). The survey breaks out subgroups of Protestants and Catholics, as well as other faith traditions and looks both at political affiliation and attitudes toward free trade, environmental regulation, posting of the 10 Commandments, abortion, gay rights, the Iraq war, clergy endorsement of candidates and likely vote in the Presidential elections. [Thanks to Melissa Rogers for the lead.]

Report Calls For Understanding Church of England's Role In Welfare System

In Britain earlier this week, the Von Hugel Institute issued a report that had been commissioned by Rt Rev Stephen Lowe, the Church of England's Bishop for Urban Life and Faith. The report, titled Moral, But No Compass Government, Church and the Future of Welfare, calls for increased understanding of the Church of England's role in delivery of welfare services. (Church of England press release.) The report, available for purchase, is summarized by its publisher. Last Sunday, just before the release of the report, Ekklesia reported on interviews with the report's authors.

Minnesota Pastor Challenges IRS Limits On Church Political Involvement

In Warroad, Minnesota, pastor Gus Booth, a delegate to the Republican National Convention, is openly challenging IRS restrictions on church involvement in political campaigns. In May, Booth delivered a sermon telling his congregation not to vote for either Hillary Clinton or Barack Obama because of their positions on abortion. Two weeks later Booth e-mailed Americans United for Separation of Church and State saying:

I am writing you to let you know that I preached a sermon in my church on Sunday, May 18, 2008, that specifically addressed the current candidates for President in the light of the Bible. As you can see from the attached newspaper article, I specifically made recommendations as to who a Christian should vote for.

I have read in the past about how you have a campaign to intimidate churches into silence when it comes to speaking about candidates for office. I am letting you know that I will not be intimidated into silence when I believe that God wants me to address the great moral issues of the day, including who will be our next national leader.

Yesterday a press release from Americans United and the Minneapolis Star Tribune report on developments. Yesterday, AU wrote the IRS urging them to investigate (full text of letter).

Judge Ready To Rule Against Tangipahoa Parish In Graduation Prayer Case

The Advocate reports today that in a pending case against Tangipahoa Parish School Board challenging a teacher-led prayer at the 2007 PM High School graduation, a Louisiana federal district judge says he has a draft opinion that will rule in favor of the ACLU's challenge. However he is delaying issuing it in order to give the parties until June 27 to agree on a consent order and award of attorneys' fees. The school board has admitted that the prayer was an inadvertent violation of board policy and was unconstitutional. At the last minute the principal asked the teacher to deliver the invocation when the student who was scheduled to do so did not show up. The ACLU has sued Tangipahoa Parish seven times since 1994 over religion in school issues. (See prior related posting.)

Judge In FLDS Case Guarded; Joint State Efforts Discussed

The Deseret News reported yesterday that Texas police are guarding the home of Judge Barbara Walther, the trial court judge who recently ordered removal of over 450 children from the FLDS ranch in Eldorado, Texas. They were especially on the lookout for 16 FLDS members who Utah police see as a threat. A website that supports FLDS members published Walther's home address and her home and work telephone numbers. Her address has now been removed at the request of FLDS leaders. The website also links to petitions to impeach Walther, impeach Governor Rick Perry and abolish Texas Child Protective Services.

In a related development, the Desert News reports today that top law enforcement officials from Utah, Arizona, Nevada and Texas recently met in Las Vegas to discuss cooperative efforts t prosecute crimes within polygamous sects.

9th Circuit Again Certifies Issues To California High Court In Boy Scout Case

The complex journey through the courts continues in a challenge to the City of San Diego's leasing, at nominal rentals, to the Boy Scouts city property on which the Scouts operate a campground and aquatic center. The challenge turns on the scout's exclusion of atheists, agnostics, and homosexuals as members or volunteers and its requirement that members affirm a belief in God. In December 2006, the 9th Circuit in the Barnes-Wallace v. Boy Scouts of America certified three questions of California state constitutional law to the California Supreme Court. (See prior posting.) In response, the Boy Scouts filed a motion for a rehearing and en banc review. (See prior posting.) Yesterday, the 9th Circuit (full text) granted a panel rehearing, withdrew its 2006 certification order and issued a new certification order certifying the same questions. As before, the order is accompanied by an opinion, a concurrence and a dissent (full text).

South Carolina AG Says Bill On Display of Historical Documents Is Constitutional

The AP reported yesterday that South Carolina Attorney General Henry McMaster has issued an opinion that H3159 awaiting the governor's signature is constitutional. The bill permits schools and local governments to post a Foundations of American Law and Government display comprised of 12 documents, including the Ten Commandments and the Lord's Prayer. (See prior posting.) The opinion says that the documents have an established place in teaching American constitutional history and civic virtue, and that their display would teach morality, ethics and integrity.

UPDATE: Late Wednesday, Gov. Mark Sanford signed the bill into law. (CBN News).

Gambian President Threatens Gays With Punishment Under Islamic Principles

In Gambia, according to a Human Rights Watch release issued Tuesday, President Yahya Jammeh has threatened to expel or kill any gays or lesbians who do not immediately leave the country, saying: "We are in a Muslim dominated country and I will not and shall never accept such individuals [homosexuals] in this country." In response yesterday, an Islamic cleric in the United States issued a fatwa criticizing some of the President's remarks. Yesterday's Pink News reports that Sheikh Mohamed El-Moctar El-Shinqiti, director of the Islamic Center of South Plains, Texas took issue with the President, saying: " Gambian president Jammeh deserves respect for his enthusiasm for Islam and virtue in his society. However, before iterating his threats, he needs to wait and make sure of the legal foundation of them...."