Israeli Chief Military Rabbi Given Sensitive Task As To Kidnapped Soldiers

The Chief Rabbi of the Israel Defense Forces, Brig. Gen. Avichai Ronski finds himself in the middle of a highly charged political situation. In July 2006, two IDF soldiers were kidnapped by Hizbullah in a cross-border raid from Lebanon. (Background.) Ever since, the fate of Sgt. Ehud Goldwasser and St.-Sgt. Eldad Regev has captured the attention of the Israeli public. Now amidst reports that a deal between Israel and Hizbollah relating to the two soldiers is in the offing, Rabbi Ronski has been given the task of deciding whether there is enough evidence to declare that Regev and Goldwasser-- currently listed as missing in action-- can be presumed dead.

Arutz Sheva reported yesterday that the IDF Chief Rabbi, as the military's highest religious authority, is generally the one given this task-- usually after intelligence services have concluded that individuals are not alive. However, Ehud Goldwasser's family may petition the High Court of Justice to prevent the IDF from beginning the process of determining whether the men should be classified as dead. Meanwhile, Haaretz says the fact that the men's files have been turned over to the Chief Rabbi signals that the deal with Hezbollah will not happen. It reports that intelligence officials object to releasing terrorist Samir Kuntar as part of the deal without resolution of the fate of a third missing Israeli, airman Ron Arad.

Michigan Supreme Court Will Not Review Witness' Religious Rights In Being Sworn

The Michigan Supreme Court in Donkers v. Kovach, 2008 Mich. LEXIS 1182 (MI Sup. Ct., June 13, 2008), denied leave to appeal a decision upholding the right of a witness to refuse for religious reasons to raise her right hand when being sworn in. (See prior posting.) However three judges dissented. In an opinion by Judge Markman they said: "plaintiff offered no explanation for her refusal to act in accord with the law other than vaguely claiming that she holds contrary 'religious beliefs'.... Even if factual developments established this as a bona fide "free exercise" claim, I would still not affirm the Court of Appeals, but rather would grant leave to appeal to determine under what standard such claims are to be evaluated in Michigan...."

6th Circuit Reverses Dismissal of Campus Evangelist's Claims

In Gilles v. Garland, (6th Cir., June 18, 2008), the U.S. 6th Circuit Court of Appeals vacated the lower court's dismissal of claims by Christian evangelist James Gilles who was was denied permission to continue a speech at Ohio's Miami University campus. University policy permitted him to speak only if he obtained an invitation or sponsorship from a recognized student organization. The court held that while this requirement "is nominally unambiguous ..., it includes no standards by which student groups are to judge requests in discharging the authority delegated them by the university... [and therefore] is facially vulnerable to due process challenge." The court also reversed the lower court's dismissal of Gilles free speech claim, holding that "we are loath to conclude that plaintiff undoubtedly can prove no set of facts consistent with his allegations that would entitle him to relief." A concurring opinion by Judge Moore argued that the majority did not need to reach the question of whether open areas on campus are limited public forums. The majority held that they are. (See prior related posting.)

U.S. Muslims Frustrated With Obama's Distance From Them

Today's New York Times reports that Muslim voters are disappointed at Barack Obama's hesitancy to reach out to Muslims. While Obama has spoken at churches and synagogues, he has not visited any mosques. He also asked Representative Keith Ellison, the country’s first Muslim congressman, to cancel a speech supporting him scheduled before the Iowa primary last December in a mosque in Cedar Rapids, Iowa. Muslims are also frustrated that while Obama keeps denying rumors that he is a Muslim, he has never said that there is nothing wrong with being a Muslim.

UPDATE: Last Saturday's Wall Street Journal carried an article on the same topic.

Israel High Court Refuses To Block Jerusalem Gay Pride Parade

Israel's High Court of Justice on Monday refused to block the gay pride parade scheduled to be held in Jerusalem on Thursday. YNet News reported yesterday that Jerusalem Mayor Uri Lupolianski had urged the court to ban the parade, saying: "Past experience shows that the parade greatly offends, deliberately and unnecessarily, the feelings of Jews, Muslims and Christians, who view its sheer existence, and the blatant manner in which it takes place, as a desecration of the holy city and of the values with which they were raised." However the court said that parade participants do not plan on provoking Jerusalem residents in any way. Haaretz, also reporting on the court's decision, said: "protests against the Gay Pride parade will be far less substantial than in previous years, especially because of the religious community's understanding that it is precisely their protest that grants so much publicity to the event and exposes their youth to the gay/lesbian community."

Consultant Sues Wisconsin Diocese After Pressure To Turn Over Confidential Data

Last Friday's Madison (WI) Capital Times reported on a lawsuit that was filed earlier this month in Dane County Circuit Court against the Catholic Diocese of Madison by Phoenix Fundraising Counsel of Madison. The lawsuit claims that the Diocese has failed to pay Phoenix $350,000 it owes for the firm's survey work in connection with a planned capital campaign to build a new cathedral. The paper reports that conservative Bishop Robert Morlino tried to pressure Phoenix CEO John Richert to turn over the names of priests who, in the survey, expressed concerns or complained about Morlino. Phoenix refused because it had promised confidentiality to those who participated in the survey.

Pew Forum Issues New Report On Religious Views of Americans

Today's New York Times reports on the Pew Forum's new U.S. Religious Landscape Survey. It finds that "most Americans have a non-dogmatic approach to faith. A majority of those who are affiliated with a religion, for instance, do not believe their religion is the only way to salvation." This report on Religious Beliefs and Practices/ Social and Political Views is the second to come out of data collected last year in a survey of 35,000 Americans.

Recent Prisoner Free Exercise Cases

In Meyer v. Wisconsin Department of Corrections, 2008 U.S. Dist. LEXIS 46639 (WD WI, June 13, 2008), a Wisconsin federal district court stayed a decision on whether a prisoner could proceed with a RUIPA claim while he supplements his complaint to identify his religion, the religious item he claims to have been denied, and its relationship to his religious practice.

In Harvey v. Adams County Sheriff's Office, 2008 U.S. Dist. LEXIS 46390 (D CO, June 4, 2008), a Colorado federal magistrate judge ruled that a material factual dispute exists over whether an institution's vegetarian diet met a Muslim prisoner's religious needs. He also found that defendants did not show it was reasonable to deny Muslim inmates access to the institution's kosher diet-- in the absence of available Halal food. Plaintiff's rights under the 1st Amendment, RLUIPA and the equal protection clause were not violated, however, when officials failed to provide him a copy of Hadith -- a religious book or hold Muslim religious services.

In Tafari v. Annetts, 2008 U.S. Dist. LEXIS 45901 (SDNY, June 12, 2008), a New York federal magistrate judge recommended granting of summary judgment to defendants in a case in which a prisoner asserted violations of his rights when he was denied kosher meals on four occasions during his transfer between institutions. The court also rejected his claim that his request to transfer institutions was denied on racial grounds. [Corrected].

In Sacred Feather v. Merrill, 2008 U.S. Dist. LEXIS 47544 (D ME, June 19, 2008), a Maine federal magistrate judge, after having earlier dismissed some of plaintiffs' claims for failure to exhaust administrative remedies (2008 U.S. Dist. LEXIS 47543), recommended that summary judgment be entered for defendant on claims by Native American prisoners regarding a shelter for their ceremonies, the right to have pow wows and feasts, the availability of a sweat lodge, and an entitlement to more funding. Much of the opinion criticizes counsel on both sides for their scanty presentation of facts and legal arguments.

Odinists Win Right To Group Worship In Prison

In an interesting prisoner free-exercise decision, an Indiana federal district court has ruled that the Indiana Department of Correction's policy banning all group worship for Odinists violates RLUIPA. In Hummel v. Donahue, 2008 U.S. Dist. LEXIS 47534 (SD IN, June 19, 2008), the court held that while the interest in maintaining safety and security is compelling, prison officials must do more than speculate that a religious practice will lead to problems. Here officials were concerned that white supremacists would claim to practice Odinism, but presented no concrete evidence to support this. Secondly, there were less restrictive alternatives than totally banning group worship. These included pre-approved scripts for worship services, increased training for correctional officers, pre-approved volunteers from outside to lead services, and research into solutions found by other prison systems. The court gave defendants 60 days to put a new policy for group worship by Odinists into place.

Church Sites Important In Success of Federal Fugitive Surrender Program

The Cleveland Plain Dealer reported yesterday that the success of Fugitive Safe Surrender programs is due in large part to the use of churches as surrender sites. Operated by the U.S. Marshals Service, the program "encourages persons wanted for non-violent felony or misdemeanor crimes to voluntarily surrender to the law in a faith-based or other neutral setting." A study by researchers at Kent State University to be released this week finds that 80% of those who surrendered say having the site at a church played an important role in their decision. An article in the Spring 2008 Kent State Magazine explores further the motivations of individuals who gave themselves up through the program.

Wrongful Death Suit Over Death of Jehovahs' Witness Girl Dismissed

In Canada, the Alberta Court of Queen's Bench in Calgary has dismissed most of the claims in a wrongful death suit by the father of a Jehovah's Witness girl who died from lukemia in 2002. Canwest News Service reported Saturday on developments in the suit by Lawrence Hughes against the the Watch Tower Bible and Tract Society of Canada and two lawyers who had represented his daughter Bethany. After Bethany became ill, Hughes changed his religious views and fought to get her medical treatment. Eventually a court ordered blood transfusions, over Bethany's objections. The lawsuit claimed in part that Bethany's lawyers gave her inaccurate information about treatment of her condition, and that they had a conflict of interest because Watch Tower Society was also their client. In dismissing the claims, the court said Hughes, who is appearing pro se, had little chance of success.

Legal Maneuvering Goes On In Suits Involving FLDS Trust

Yesterday's Deseret News reports that legal maneuvering continues regarding the United Effort Plan Trust (UEP), the body holding real estate of the Fundamentalist LDS Church. In 2005, a Utah court took control of the trust from former FLDS leader Warren Jeffs, reformed it, and appointed a special trustee to oversee it. (See prior posting.) Elissa Wall, a former FLDS member who testified against FLDS leader Warren Jeffs, has sued FLDS and the Trust alleging that when she was 14, they coerced her to marry her 19-year old cousin. The current UEP has asked the court to dismiss it as a defendant in Wall's lawsuit, saying it is not liable for actions of the old UEP trustees. Meanwhile UEP is still trying to get information about the management of the old UEP, and has subpoenaed documents taken in the recent raid of the FLDS Ranch in Texas, seeking information on FLDS assets that the Trust could recover.

Recently Available Scholarly Article of Interest

From SSRN:

• Lawrence McNamara, Catch the Fire Ministries v. Islamic Council of Victoria: Religious Vilification Laws in the Victorian Court of Appeal (30 March 2007).
• Patrick Parkinson, Religious Vilification, Anti-Discrimination Laws and Religious Minorities in Australia: The Freedom to Be Different, (Australian Law Journal, Vol. 81, No. 12, pp. 954-966, 2007 ).
• David N. Cassuto, Animal Sacrifice and the First Amendment, (in Animal Law and the Courts: A Reader, Taimie Bryant, David N. Cassuto, Rebecca Huss, eds., Thomson West, 2008.)
• Lawrence McNamara, Review of Neil Addison, Religious Discrimination and Hatred Law (Routledge-Cavendish 2007), (6(1) Entertainment and Sports Law Journal (2008)).

From SmartCILP:

• Jennifer S. Evans-Cowley & Kenneth Pearlman. Six Flags Over Jesus: RLUIPA, Megachurches, and Zoning, 21 Tulane Environmental Law Journal 203-232 (2008).
• Pamela S. Karlan, Harris Lecture: Taking Politics Religiously: Can Free Exercise and Establishment Clause Cases Illuminate the Law of Democracy?, 83 Indiana Law Journal 1-20 (2008).
• Ashira Pelman Ostrow, Judicial Review of Local Land Use Decisions: Lessons from RLUIPA, 31 Harvard Journal of Law & Public Policy 717-760 (2008).
• Steven G. Calabresi, Render Unto Caesar That Which Is Caesar's, And Unto God That Which Is God's, Harvard Journal of Law & Public Policy 495- 504 (2008).

Grand Jury To Meet In FLDS Case; Jeff's Daughter May Testify

In Schleicher County, Texas tomorrow a grand jury will begin hearing testimony growing out of the state's raid earlier this year on the FLDS Ranch in Eldorado. Yesterday's Dallas News reports that searches on April 3 and 6 netted 1,000 boxes of evidence plus a number of DNA swabs from adult FLDS members. It appears that among the charges that the grand jury will investigate are claims of sexual abuse of minors. In that connection, the Deseret News reports that on Friday court-appointed attorney Natalie Malonis obtained a restraining order from Judge Barbara Walther to prevent FLDS leader Willie Jessop from having contact with her 16-year old client (and the client's mother). The 16-year old is a daughter of former church leader Warren Jeffs.

Attorney Malonis claims the girl is a victim of sexual abuse, and that Jessop is trying to coerce her to avoid a subpoena to testify to the grand jury. However on Thursday the girl wrote Judge Walther saying that she was not a victim of sexual abuse and is not pregnant. Church leader Jessop says that the court should appoint a guardian ad litem for the girl to argue in favor of the FLDS lifestyle. Attorney Rod Parker, who often speaks for FLDS, argued that the girl needs a new attorney because Malonis has a "dysfunctional relationship" with his client. (See prior related posting.)

9th Circuit Again Rejects Challenge To Cal State's Religious Studies Courses

In Lafreniere v. Board of Trustees of the California State University, (9th Cir., June 17, 2008), the U.S. 9th Circuit Court of Appeals summarily dismissed a claim that Cal State's use of taxpayer money to fund certain religious studies classes violates the Establishment Clause and California's False Claims Act. It concluded that the issues raised in the pro se appeal are identical to those it rejected in a 2006 decision.

Court Rejects Challenges To Permit Requirement For Homeless Shelter

In Family Life Church v. City of Elgin, 2008 U.S. Dist. LEXIS 47210 (ND IL, June 18, 2008), an Illinois federal district court rejected a series of challenges by Family Life Church to Elgin, Illinois requirement that it obtain a conditional use permit in order to operate a homeless shelter in its church building. It was eventually granted a permit, but sued challenging the 8-month delay it faced as well as the permit requirement. The court rejected the Church's free exercise and RLUIPA challenges, finding that "Elgin's zoning ordinances are facially neutral and generally applicable and ... have not saddled Family Life with a substantial burden." It also rejected the Church's Equal Protection challenge and its challenge under the "equal terms" and the "unreasonable limitations"provisions of RLUIPA. It rejected the challenge by a homeless man, also a plaintiff, to limitations on the length of time those from outside the city could stay at the shelter. Finally it rejected the Church's state RFRA claim and the homeless plaintiff's infliction of emotional distress claim.

Court Says Virginia's RFRA Only Applies In Suit Against Government

In the widely followed litigation between eleven break-away congregations and the Episcopal Diocese of Virginia, a state trial judge has ruled that Virginia's Religious Freedom Restoration Act is irrelevant to the case. In In Re: Multi-Circuit Episcopal Church Property Litigation, 2008 Va. Cir. LEXIS 49 (Cir. Ct., May 12, 2008), the court held that Va. Code Ann. § 57-2.02 only applies to lawsuits against governmental entities, not to a suit between two private parties. The holding came in a decision refusing to permit the Episcopal Church and the Diocese of Virginia to amend their previously filed answers in the lawsuit. The decision preceded an important May 28 hearing in the case on whether Virginia's post-Civil War "division statute" is constitutional. (See prior posting.)

Anti-Muslim Bias In Western Europe Explored

Writing in today's New York Times Magazine, Noah Feldman writes that in Western Europe, familiar arguments against immigrants "are mutating into an anti-Islamic bias that is becoming institutionalized in the continent’s otherwise ordinary politics." He suggests that:

[E]ven after 60 years of introspection about the anti-Semitism that led to the Holocaust, Europeans are not convinced that culturally and religiously different immigrants should be treated as full members of their societies....

The U.S. had its own terrible legacy of legalized racism... [H]owever, we began slowly and agonizingly to come to terms with this past. Racial bias is still with us, but so is self-consciousness about our problems and how they must be overcome.

In Europe, by contrast, Hitler’s horrifying success at killing so many Jews meant that the burgeoning postwar societies of the continent never had to come to terms with difference, because it was to a great extent eradicated. Today, as the birthrate for European Muslims far outstrips that for their neighbors, it is as if Europe’s discomfort with difference is being encountered for the first time.

Ohio School Fires Controversial Science Teacher

On Friday, the Mount Vernon (OH) City School Board voted unanimously to fire controversial science teacher John Freshwater. (See prior posting.) AP reports that the vote came one day after a consulting firm released its report on Freshwater. The report (full text ) concludes that Freshwater taught creationism or intelligent design in class, told his class that anyone who is gay is a sinner, improperly used an electrostatic device to put a cross on the arm of a student, was excessively involved in the school's Fellowship of Christian Athletes and was insubordinate in failing to remove religious materials when ordered to do so by his principal. [Thanks for leads to Scott Mange and Dispatches from the Culture Wars.]

Sheriff Tells Church Students That God Was Briefer Than the Ohio Revised Code

In Weston, Ohio, Wood County Sheriff Mark Wasylyshyn was invited to be guest speaker at the Church of Christ's Vacation Bible School. His talk, as reported by Friday's Bowling Green (OH) Sentinel-Tribune, raises interesting church-state questions. After talking to the children about safety, the sheriff (apparently in his official uniform) held up a paperback copy of the New Testament and a thick volume of the Ohio Revised Code, telling students that God had been able to do in 10 rules what the state code takes so many more pages to do. He said it would be much simpler if society just had God's 10 rules, so a deputy could pull a driver over and inform him or her which of the commandments he or she had broken. The sheriff gave each child a plastic badge and offered them a copy of the New Testament furnished by the church. [Thanks to Tom Klein for the lead.]