Recently Available Prisoner Free Exercise Cases

In Bennett v. Goord, 2008 U.S. Dist. LEXIS 48925 (WD NY, Jan. 7, 2008), a New York federal magistrate judge recommended dismissal of sex offenders' unusual free exercise claim. Plaintiffs argued that the prison counseling program's requirement that they acknowledge their guilt to avoid losing good time credits violates their free exercise rights by "compelling them to recant the truthful testimony they proffered under oath at their trials, where in they placed their hands on the Bible and swore to tell the truth, will subject them to eternal damnation."

In Lombardo v. Holanchock, 2008 U.S. Dist. LEXIS 48753 (SD NY, June 25, 2008), a New York federal district court held that it was reasonable for the defendants to believe that their challenged action was related to a legitimate penological interest. They had restricted a civilly committed offender's participation in one co-ed religious service.

In Maier v. Maurinac, 2008 U.S. Dist. LEXIS 48273 (D MT, June 24, 2008), a Montana federal district court accepted a magistrate's recommendation that a prisoner be permitted to proceed with his free exercise and RLUIPA claims (as well as his ADA claim). However his harassment and due process claims were dismissed.

In Barnes v. Missoula County Detention Facility, 2008 U.S. Dist. LEXIS 48271 (D MT, June 24, 2008), a Montana federal district court accepted a magistrate's recommendation that a Muslim prisoner's free exercise claim be dismissed, with leave to amend. Plaintiff needed to name as defendants the officials who allegedly denied his requests for a no-pork diet, a prayer rug, a kufi and a Qur'an.

In Christiansen v. Adams, 2008 U.S. Dist. LEXIS 47766 (SD IL, June 20, 2008), an Illinois federal district court set aside a prior default judgment against defendant in a case in which a prisoner claimed that officials interfered with his free exercise of religion. Plaintiff claimed officials failed to provide him with a diet and hygiene items that are free of animal products, forced him to attend programs that promoted Christianity and denied him space and time for his prayer and fasting rituals. Defendant originally failed to respond because when served, he no longer was employed by the Department of Corrections and thought that the state Attorney General's office would handle his defense.

Colorado Catholic Bishop Bans Clergy From Giving Political Contributions

The Ft. Collins Coloradoan reports today that Denver Catholic Archbishop Charles J. Chaput will issue a directive this week barring priests and deacons in his diocese from either endorsing political candidates or contributing funds to their campaigns. The ban applies to partisan political campaigns, and not to non-partisan electoral initiatives on issues such as abortion or immigration. Federal Election Commission records show that nationwide during the 2007-08 election cycle, nearly $100,000 has been given to federal candidates and to political parties by approximately 100 Catholic priests and deacons.

Court Says Religious Handbilling In Park Must Be Permitted

In Apple of His Eye, Inc. v. City of St. Louis, Missouri, (ED MO, June 24, 2008), a Missouri federal district court issued a preliminary injunction preventing enforcement of a city ordinance that prohibits distribution of literature in public parks. The lawsuit was brought by individuals who were prevented from handing out religious literature and expressing their religious beliefs during the 2006 gay pride festival held in St. Louis' Tower Grove Park. The court held that: "enjoining the enforcement of § 22.16.100, thereby allowing Plaintiffs to distribute their religious literature and express their religious views in a City park, does not significantly impinge on the public interest, as long as the City retains the authority to enforce other Code provisions which are content-neutral reasonable time, place and manner restrictions, in order to maintain public safety and order." The court also enjoined enforcement of a provision making handbill distributors responsible for proper disposal of the handbills within a 100 foot radius of their distribution. Alliance Defense Fund issued a release on the decision on Thursday.

Moderate Muslims In India Worry About Growing Radicalism

Today's Washington Post reports on the concern among moderate Muslims in India about the growth of stricter forms of Islam in the country. Many of India's Muslims are Barelvi Sunni who are also followers of Sufism, a movement seen as blasphemous by more traditional Muslims. Some moderate mosques have taken to posting signs listing the names of stricter Islamic groups whose followers are not welcome in the mosque. During the past ten years, at mover than 30% of Barelvi Sunni mosques, more fundamentalist Wahhabi groups have contributed funds for repair and have slowly taken them over. In the background of this are a series of bombings during the last three years in India by radical Islamic groups.

Report Says Many Prisoners Claim To Be Jewish To Get Kosher Food

The AP reported Friday on an Idaho prisoner who has been denied kosher food because he has not shown that he is Jewish. The article says that 20,000 inmates nation-wide are claiming to be Jewish without being able to show that this is the case. Gary Friedman, chairman of Jewish Prisoner Services International (JPSI), said that many of these inmates are seeking kosher meals because they offer more variety and are seen as more sanitary. He said that many prisoners "have paranoia about how their food is prepared." Apparently JPSI validates for institutions whether or not a prisoner's claim to be Jewish is accurate.

Origins of "Obama Is A Muslim" Rumor Are Traced

Saturday's Washington Post carries a long article tracing the origins of rumors that Barack Obama is a Muslim. The rumors were spread over the Internet, particularly through chain e-mails. Danielle Allen of the Institute for Advanced Studies, has traced the rumor to an article posted online in 2004 by Andy Martin who, at the time, was attempting to run against Obama for the U.S. Senate. Ted Sampley, a North Carolina man, published a similar article on his own website around the same time. Discussion of these on the Free Republic website discussion forums increased interest in the rumor. However, the exact identity of the person who began the chain of e-mails carrying the rumor has not been determined.

Trial Court Upholds Constitutionality of Virginia's "Division Statute"

In In re Multi-Circuit Episcopal Church Property Litigation, (VA Cir. Ct., June 27, 2008), a Virginial trial court judge upheld the constitutionality of Virginia's "Division Statute" against Free Exercise, Establishment Clause, Equal Protection and Takings Clause challenges. The statute permits the majority of a congregation to decide to which branch of a church its property will belong when there has been a "division" in the church. The court emphasized that the Episcopal Church could have avoided the possibility of a majority in a congregation breaking away and taking church property with it by titling the property in the name of a Bishop or other ecclesiastical officer of the parent church, but did not do so as to the eleven break-away congregations involved in this litigation. (See prior posting and background in Saturday's Fairfax (VA) Times coverage.) In its 49-page letter opinion, the court left open the question of whether the Division statute violates the Contract Clause of the Constitution by impairing contractual relationships between local congregations and the hierarchical church.

In a companion 14-page letter opinion, the court ruled on five other interpretive issues under the Division Statute, concluding that the court's role was merely to determine whether the congregational vote was "fairly taken", and not to consider other factors. It distinguished cases involving the withdrawal of a single congregation from an hierarchical church where there was not a "division" within the church. In an order accompanying the two letter opinions, the court asked for further briefs from the parties on certain remaining procedural issues.

Reports on the court's decision were published by the Washington Post and Episcopal News Service. (See prior related posting.)

US House Passes Resolution Supporting Gospel Music Heritage Month

On June 26, the House of Representatives passed by voice vote H. Con. Res. 370: Expressing Support for Designation of September 2008 as "Gospel Music Heritage Month". In its ten paragraphs extolling gospel music, the only mention of the religious nature of the genre is a paragraph that traces the history of gospel music to "multiple and diverse influences and foundations, including African-American spirituals ... and melodic influences from Irish folk songs and hymns," but saying that gospel music also "borrowed from uniquely American musical styles including ragtime, jazz, and blues". Most of the resolution focuses on the secular contributions of gospel music, such as: "beyond its contribution to the musical tradition of the United States, gospel music has provided a cultural and musical backdrop across all of mainstream media, from hit television series to major Hollywood motion pictures...."

Texas High Court Says Exorcism Claims Entangle Court in Religious Dispute

In Pleasant Glade Assembly of God v. Schubert, (TX Sup. Ct., June 27, 2008), in a 6-3 decision, the Texas Supreme Court yesterday rejected a lower court's award of damages to young woman for false imprisonment and assault by the senior pastor, youth minister and several members of an Assembly of Gods Church. The lawsuit grew out of psychological injuries suffered by then 17-year old Laura Schubert from a "laying of hands" on her to exorcise demonic forces from her. The court held that deciding the case would unconstitutionally entangle it in matters of church doctrine. the majority said:

We do not mean to imply that "under the cloak of religion, persons may, with impunity," commit intentional torts upon their religious adherents.... Moreover, religious practices that threaten the public’s health, safety, or general welfare cannot be tolerated as protected religious belief.... But religious practices that might offend the rights or sensibilities of a non-believer outside the church are entitled to greater latitude when applied to an adherent within the church....

The Free Exercise Clause prohibits courts from deciding issues of religious doctrine. Here, the psychological effect of church belief in demons and the appropriateness of its belief in "laying hands" are at issue. Because providing a remedy for the very real, but religiously motivated emotional distress in this case would require us to take sides in what is essentially a religious controversy, we cannot resolve that dispute.

Chief Justice Jefferson in a dissent joined by Justice Green and in party by Justice Johnson said:

After today, a tortfeasor need merely allege a religious motive to deprive a Texas court of jurisdiction to compensate his fellow congregant for emotional damages. This sweeping immunity is inconsistent with United States Supreme Court precedent and extends far beyond the protections our Constitution affords religious conduct. The First Amendment guards religious liberty; it does not sanction intentional abuse in religion’s name.

Justice Green also filed a separate dissent as did Justice Johnson. Today's Austin American-Statesman reports on the decision.

Muslim Physicist Files Suit Charging Energy Department With Discrimination

In Pittsburgh, (PA) yesterday, nuclear physicist Dr. Moniem El-Ganayni filed suit in federal district court charging the U.S. Department of Energy with religious discrimination in its suspension of his security clearance last December. The suspension cost El-Ganayni his job with Bettis Laboratory where he had worked since 1990. Yesterday's Pittsburgh Tribune-Review reported on the case. The Department of Energy has refused on national security grounds to disclose the reason for the security clearance suspension. El-Ganayni, a founder of the Islamic Center of Pittsburgh, says that the FBI and Energy Department have questioned him about his religious beliefs, his work as a prison chaplain, his political views on the Iraq war and speeches he gave at local mosques critical of the FBI. He says he was never questioned about security breaches or handling of classified information. The lawsuit also charges the security clearance suspension violated El-Ganayni's First Amendment free speech rights.

WI High Court Rules on Limitations Issues In Clergy Child Sex Abuse Case

In State of Wisconsin v. MacArthur, (WI Sup. Ct., June 26, 2008), a clergy child sexual abuse case, the Wisconsin Supreme Court held that sexual assault cases that occurred before 1989 are covered by the 6-year statute of limitations then in effect. It also held that the judge in a pretrial proceeding, not the jury at trial, decides whether the statute was tolled because the defendant was not a public resident of the state. Tolling need be shown only by a preponderance of the evidence. Yesterday's Minneapolis Star-Tribune reported on the decision.

President Speaks At National Hispanic Prayer Breakfast

Yesterday the President attended the National Hispanic Prayer Breakfast. In remarks (full text) he said: "Each of you here this morning is here to celebrate a simple and powerful act -- prayer to an Almighty God. You know the comfort that comes from placing our worries in the hands of a higher power. You know the humility that comes from approaching our Maker on bended knee. And you know the strength that comes from lifting our thoughts from worldly cares and focusing on the eternal." His wide-ranging remarks included references to his Faith-Based Initiative, to those serving in the military and to the struggle for human rights in Cuba. He concluded his remarks by thanking the attendees for their spiritual support, saying: "Being your President has been an unimaginable honor and a joyous experience."

9th Circuit Rules In Favor of Egyptian Copts Seeking Asylum

In Morgan v. Mukasey, (9th Cir., June 25, 2008), the U.S. 9th Circuit Court of Appeals reversed a decision by the Board of Immigration Appeals that had denied asylum to an Egyptian Coptic Christian couple and their three children. The immigration judge in the case found that the couple's testimony about their mistreatment in Egypt lacked credibility. The 9th Circuit concluded, however, that "the immigration judge’s negative credibility determination is fatally marred by the errors we have noted." The court also found due process denials as a result of the immigration judge's refusal to permit two of the couple's children to testify and his ignoring of a psychological report. The court also found significant problems with the fact that the government had lost its copy of the record in the case. The court remanded the case and suggested that it be assigned to a different immigration judge. Yesterday's Los Angeles Metropolitan News-Enterprise reports on the decision.

Britain Says Security Measures Limited By Muslim Religious Sensitivities

Today's London's Daily Express discusses a report issued by Britain's Department of Transport on experiments with security alternatives at Tube stations. Concluding that airport style screening is not feasible, the report urges reliance on sniffer dogs and x-ray, but says that use of these is constrained by religious sensitivities of Muslim passengers. Muslims consider dogs spiritually "unclean". According to the report, sniffer dogs should only come in contact with passengers' luggage, since their use is problematic for Muslims if the dogs make direct contact with passengers. In connection with x-ray screening, the report says that some female Muslims object to the use of a body scanner, seeing it as tantamount to being forced to strip.

White House Hosts Conference On Faith-Based Initiative

Yesterday and today the White House is hosting the "Innovations in Effective Compassion" National Conference, a meeting of over 1000 people interested in the federal Faith Based and Community Initiatives. In anticipation of the conference, OFBCI director, Jay Hein, held a press briefing (full text). Responding to a question about church-state issues raised by the program, Hein said:

I think really one of the stellar achievements of this initiative is that we've clarified ... what is allowable and what is not allowable, according to the First Amendment.... the President felt very strongly that it was wrong to just artificially close the door for those who were motivated by their private faith to perform a public service -- if they were creating these housing solutions for the homeless, and other important community outcome.

At the same time, we know that the First Amendment prohibits establishment of church, and so the President said very clearly that tax dollars are not to be used for spiritual mission -- only for secular mission; only for community service mission.

Yesterday as President Bush addressed the conference (full text of remarks), the White House issued a Fact Sheet on the Initiative. The President summarized the achievements of OFBCI:

we have helped level the playing field for faith-based groups and other charities -- especially small organizations that have struggled to compete for funds in the past. We've educated religious groups about their civil rights. We've made the federal grant application process more accessible and transparent. We've trained thousands of federal employees to ensure that government does not discriminate against faith-based organizations. We've ensured that these groups do not have to give up their religious character to receive taxpayer money.

The Justice Department has also released the text of Attorney General Michael B. Mukasey's remarks prepared for the conference. Describing the reexamination of federal policy represented by OFBCI, he said in part:

The Department of Justice has played, and will continue to play, a major role in that reexamination. In doing so, we built upon the principles behind Congress’s Charitable Choice laws and the Supreme Court’s First Amendment jurisprudence: that government must respect the essential character of faith-based providers; that no one needing help may be turned away because of his or her religion and that no one may be forced into religious practices; and that directly-awarded government funds must be spent on social services, not on religion.

UPDATE: Jim Towey, former director of the White House Office of Faith-Based and Community Initiatives,writes a column in the June 28 Washington Post setting out questions on the future of the faith-based initiative that he believes should be asked of the Presidential candidates.

Group Challenges July 4 Religious Broadcast Interview With Army General

Yesterday's Kansas City Star reported that the Military Religious Freedom Foundation is objecting to a portion of a program scheduled to be re-broadcast on July 4 and 5 on the Trinity Broadcasting Network. MRFF says that 20 minutes of the 2-hour "Red, White and Blue Spectacular" starring Christian singer and evangelist Carman may violate a prohibition against uniformed military officers endorsing specific religions. The program, originally produced in 2003, includes an interview with Army Lt. Gen. Robert L. Van Antwerp, in uniform, introduced as president of the Officers Christian Fellowship and talking in part about his Christian religious faith. MMRF has posted online a video of the relevant portion of the broadcast.

Borough To Sue Churches Over Cemetery Upkeep

The Borough Council in Palmyra, Pennsylvania voted Monday night to file suit in Lebanon County (PA) Court against two local churches in order to determine who is responsible for the upkeep of a local cemetery. The Harrisburg (PA) Patriot-News yesterday reported that Palm Lutheran Church and Trinity United Church of Christ, congregations that cared for the cemetery for 140 years, now disclaim ownership and say the borough should care for the cemetery that contains about 1,000 graves.

Court Hears Arguments on Restraining Order Barring Boy From Services

In Todd County Minnesota District Court, a hearing was held on Tuesday on a temporary restraining order that had been obtained by St. Joseph’s Catholic Church in Bertha (MN) to prevent congregant Carol Race from bringing her severely autistic 13-year-old son to church for Mass. Today's Wadena (MN) Pioneer Journal reports on the proceedings. The church alleged that Adam Race has engaged in highly disruptive conduct during services, including spitting, urinating, hitting a child and running out of church. The restraining order was obtained under Minn. Criminal Code, Sec. 609.748 allowing a person who is a victim of "harassment" to obtain a restraining order. Harassment is defined, in part, by the statutes as: "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect ... on the safety, security, or privacy of another."

Carol Race, representing herself in court, denies that her son's conduct was disruptive, and argues that the harassment statute unconstitutionally infringes on her son's right to assemble in a public place. The church argues that the parish has the authority to determine who comes onto its property. It also asserts that as a religious corporation it has exclusive authority to decide how its liturgy and religious business is conducted. Thomas Janson, attorney for St. Joseph's Church, argued that requiring the church to allow Adam Race in services would violate the church's free exercise rights protected by the U.S. and Minnesota constitutions.

ACLU Presses Naval Academy on Mealtime Prayer

Today's Baltimore Sun reports that the ACLU of Maryland is renewing pressure on the U.S. Naval Academy to end its long-standing practice of having one of its chaplains lead prayer before midshipmen eat their noon meal. Students stand at parade rest, and are asked (but not required) to bow their heads during the prayer. After receiving complaints from nine students, the ACLU wrote the Academy last month, saying in part: "The government should not be in the business of compelling religious observance, particularly in military academies, where students can feel coerced by senior students and officials and risk the loss of leadership opportunities for following their conscience." In a statement yesterday, Cmdr. Ed Austin said the Academy does not intend to change its practice, and is coordinating a response to the ACLU with the Department of the Navy. (See prior related posting.)

Tajikistan's Last Synagogue Destroyed In Urban Renewal Project

Truth News and Forum 18 this week both report on the destruction in Dushanbe, Tajikistan of the country's only remaining synagogue. This culminated legal steps begun in 2003 to clear land for construction of a new presidential complex, the Palace of the Nation. Last April, the Administrative Court of Dushanbe's Ismoiliy Somoniy District ruled that the synagogue must vacate its building. The building, which was nationalized by the Soviet Union in 1951 was being used free of charge under an agreement with the government signed in 1980. (Forum 18, May 2008). Apparently the community was offered land at the far edge of the city where it could build a new synagogue at its own expense-- something the Jewish community could not afford. When the synagogue destruction became inevitable, the Jewish community asked to be allowed to dismantle the building itself, but the remaining wall was bulldozed by the government when it became dissatisfied with the speed of the Jewish community's work. The loss of the synagogue has resulted in an end of Jewish worship services and of the Jewish community's food program for the poor and elderly. The Nani-Hayat (Bread of Life) Protestant Church is apparently next on the list to be torn down in the urban building project.