New Scholarly Articles and Books of Interest Abound

From SSRN:

• Ayelet Shachar, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, (June 25, 2008, Theoretical Inquiries in Law, Vol. 9, No. 2, pp. 573-607, 2008).
• Katja Rost, Emil Inauen, Margit Osterloh & Bruno S. Frey, The Corporate Governance of Benedictine Abbeys: What Can Stock Corporations Learn from Monasteries?, (May 25, 2008).
• Frederick Mark Gedicks, Fundamentalism, Spirituality, and Church-State Relations in the United States. Chapter in Multiculturalisms: Different Meanings and Perspectives of Multiculturalism in a Global World (Durham, NC: Carolina Academic Press, Barbara Pozzo ed. forthcoming 2008).
• John M. Bickers, Of Non-Horses, Quantum Mechanics, and the Establishment Clause" (forthcoming 57 Kansas Law Review (2009)).
• Vincent Phillip Munoz, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress" Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120 (2008).

From SmartCILP:

• Lisa Shaw Roy, History, Transparency, and the Establishment Clause: A Proposal for Reform, 112 Penn State Law Review 683-729 (2008).
• John Witte, Jr., "Fairer Still the Woodlands" --Mapping the Free Exercise Forest, (Reviewing Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness.) 24 Constitutional Commentary 551-565 (2007).
• The Wren Cross Controversy: Religion and the Public University. Essays by Erwin Chemerinsky and Gerard V. Bradley. 49 William & Mary Law Review 2193-2263 (2008): Chemerinsky, Why Church and State Should Be Separate; Bradley, Religion at a Public University.
• Frank S. Ravitch, Intelligent Design in Public University Science Departments: Academic Freedom or Establishment of Religion, 16 William & Mary Bill of Rights Journal 1061-1090 (2008).
• Thomas L. Shaffer, Business Lawyers, Baseball Players, and the Hebrew Prophets, 42 Valparaiso University Law Review 1063-1080 (2008).
• Nicholas A. Schuneman, One Nation, Under ...The Watchmaker?: Intelligent Design and the Establishment Clause, 22 BYU Journal of Public Law 179-227 (2007).
• Jeffrey Shulman, What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child, 53 Villanova Law Review 173-208 (2008).
• William Joseph Wagner, To the Age of Social Revolution: As Papal Rejoiner, "The Apocalypse Is Not Now", 53 Villanova Law Review 209-271 (2008).

New books:

• The Center for American Progress has published in full online a collection of essays titled Debating the Divine: Religion in 21st Century American Democracy. Links to individual essays are on the Center's web page devoted to the book. [Thanks to Melissa Rogers for the lead.]
• Mark Silk & Andrew Walsh, One Nation, Divisible: How Regional Religious Differences Shape American Politics, (Rowman & Littlefield, June 2008). [Thanks to Spiritual Politics for the lead.]

Bush, Fukuda Will Both Attend Olympics Opening Despite Human Rights Concerns

In a joint press conference today (full text) with Japanese Prime Minister Yasuo Fukuda, President George W. Bush defended his decision to attend the opening ceremonies at the Beijing Olympics next month. As reported by CNN, Bush took the position in the face of decisions by some European leaders to boycott the opening ceremonies to protest human rights violations in China. At the press conference, Prime Minister Fukuda for the first time confirmed that he too would be attending the opening ceremonies. Here is a portion of the Q&A:

Q ... I was wondering if you could ... explain ... your decision to attend the Opening Ceremonies of the Olympics next month. And more generally, I'm wondering what you would say to ... your friends and allies in the United States who are very concerned about religious freedom and human rights in China....

PRESIDENT BUSH: I view the Olympics as a opportunity for me to cheer on our athletes.... [E]very time I have visited with [the Chinese] ... I have talked about religious freedom and human rights. And so ... I don't need the Olympics to express my concerns. I've been doing so.... [N]ot going to the opening games would be ... an affront to the Chinese people, which may make it more difficult to ... speak frankly with the Chinese leadership.... I think it would be good for these athletes who have worked hard to see their President waving that flag....

... I have been very clear in my view that, for example, a whole society is one that honors religion, and that people shouldn't fear religious people.... China benefits from people being able to worship freely. It looks like there's some progress, at least in the talks with the Dalai Lama....

PRIME MINISTER FUKUDA: ... [H]ere for the first time, I will announce that I -- announce officially that I will attend the Opening Ceremony of the Olympics.... I don't think you really have to link Olympics to politics.... In the past ... the U.S. and others criticized Japan for certain behaviors.... So we really have to ... have humility in asking ourselves, do we have the right to make those points to China and others.... We are neighbors, after all, and it will good for Japan if our neighbors are in a sound state, as well. So with that in mind, as well, I shall attend the Opening Ceremony.

Historian Says Links Between Democrats and Evangelicals Have Deep Roots

Historian Ted Widmer writes a piece in today's New York Times Magazine titled Redemption Politics in which he makes the case that Barack Obama's outreach to evangelicals has deep roots in American history. He writes in part:

Maybe the distance between liberals and evangelicals, each eternal optimists in their way, is much smaller than we realized. In our week of national reflection, it’s worth recognizing that religious enthusiasm in America has as often as not had a reformist or even revolutionary cast to it....

We often forget how close the revolutionaries were to the Great Awakening of the 1730s and ’40s, when revival meetings were held across the colonies and apocalyptic expectation hung heavy in the air....

For most of American history, evangelicals were Democrats or their equivalents, profoundly uncomfortable near the temple of the moneychangers. Jefferson attracted huge numbers of voters simply because his running mate, Aaron Burr, was the grandson of the great evangelist Jonathan Edwards.

Canadian Human Rights Commission Dismisses Charges Against Catholic Magazine

Catholic Insight reports that the Canadian Human Rights Commission (CHRC) has dismissed a complaint brought against it by Rob Wells, a member of the Gay, Lesbian and Transgendered Pride Center of Edmonton. (See prior posting.) Wells claimed violations of section 13 of the Canadian Human Rights Act because of some 108 articles and reports on Catholic Insight's website. Catholic Insight says that the postings merely "communicated the theological reasoning of the Catholic Church which opposes the homosexual way of life as contrary to the will of God the Creator, and, therefore, sinful." In its letter to Catholic Insight the CHRC said: "After examining this information, the Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because the material is not likely to expose a person or persons to hatred or contempt based on sexual orientation."

Civil-Religious Courts Clash Again In Indonesia

In Malaysia, the ongoing tension between jurisdiction of civil and religious courts has come to the fore in the case of an ethnic Indian, Elangeswaran Benedict, who committed suicide. Indo Asian News Service reported yesterday that when Benedict's family sought to claim his body from the Parit Buntar Hospital in Kuala Lumpur, they were told that they could not take the body for Hindu cremation rites because Benedict was a Muslim convert. The family brought suit in the High Court in Kuala Lumpur seeking a declaration that he was Hindu. A hearing was scheduled for Friday afternoon. However, on Friday morning, religious authorities quickly obtained an order from a Syariah Court ordering Benedict's burial as a Muslim. Benedict's wife, named as a respondent in the case, was not present in the religious court for the hearing. Benedict's family are now back in the High Court seeking an injunction to prevent religious authorities from claiming the body.

UPDATE: On July 7, High Court judge Datuk Balia Yusuf Wahi rejected the family's request for an injunction and Elangesvaran's body was buried according to Muslim tradition by the Parit Buntar state religious council. Nevertheless, according to the New Straits Times, the family has filed a notice of appeal in the case.

Court Upholds Restraining Order Against Autistic Teen At Services

The Minneapolis Star Tribune reported last week on a decision issued June 27 by a Todd County, Minnesota state District Court. Siding with the Church of St. Joseph in Bertha (MN), the court upheld a May 13 restraining order barring 13-year old Adam Race from attending church. The teenager is autistic, and the church says his conduct disrupts services. As previously reported, at issue was whether Adam's conduct violated the state's harassment statute under which the restraining order was issued. The court concluded that while Adam "did not specifically intend to harass anyone," his conduct at church services was "objectively unreasonable." It included "repeated, disruptive or distracting acts, sounds, and gestures." Under the statute, harassment is defined as including "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect ... on the safety, security, or privacy of another." [Thanks to Joel Sogol via Religionlaw listserv for the lead.]

Alaska Court Upholds Tax Exemption For Church-Owned Teacher Housing

In 2006, the Alaska legislature passed HB 334 which, among other things, extended local property tax exemptions to "the residence of an educator in a private religious or parochial school." Today's Anchorage Times reports that in a decision handed down on Thursday, an Alaska Superior Court judge upheld the constitutionality of the law. At issue was the exempt status of Anchorage Baptist Temple's housing for teachers. The court said that the exemption, as written, does not discriminate in favor of religion, because under the law both religious and non-profit secular schools can obtain exemptions by proving the same facts. The court left open the possibility of a further challenge if the law is administered in a way that favors religious organizations. (See prior related posting.)

Press Groups Support En Banc Reivew In Eagle Case

Defendant Winslow Friday is asking the U.S. 10th Circuit Court of Appeals for en banc review of a decision that upheld his prosecution under the Bald and Golden Eagle Protection Act for killing of an eagle to use in a tribal sun dance. (See prior posting.) In his review request, Friday has found unusual allies. The Wyoming Press Association and the Colorado Press Association have both filed motions to intervene to support the call for en banc review. The press groups object to the extensive review of "constitutional facts" undertaken by the Court of Appeals in its panel decision. Yesterday's Casper (WY) Star-Tribune reports that newspaper publishers fear the holding means they may have to defend defamation cases a second time on appeal, after they win at trial, instead of having the appellate court give deference to the findings of fact at trial.

Town Tries To Stop Catholic Radio Station After It Ends Ecumenical Programs

In Burlington, Connecticut, the town's planning and zoning commission has voted to issue a cease-and-desist order to prevent the Catholic Archdiocese of Hartford from continuing to use a radio tower on Johnnycake Mountain to transmit programming on its radio station, WJMJ-FM. Yesterday's Hartford Courant reports that the city contends the archdiocese is violating a 1987 agreement that ended lengthy zoning litigation. Under that arrangement, the archdiocese could operate the tower so long as the station was nonprofit and its programming multi-denominational. Now however the archdiocese has ended its 14 hours of ecumenical Sunday programming, called "Festival of Faith," and has replaced it with Catholic features.

Rev. John Gatzak, spokesman for the archdiocese, says that the Festival of Faith programming was not of high quality, and that the archdiocese has a responsibility to use its station for Catholic evangelizing. However, Gatzak has met with Protestant and Orthodox producers from "Festival of Faith" and agreed to discuss alternative ecumenical programs. [Thanks to Scott Mange for the lead.]

British Court Says Jewish School Can Admit Students On Basis of Religion

In Britain yesterday, a High Court judge upheld the policy of a leading government-funded Jewish school to give preference in admissions to "children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR)." In R(E) v. Governing Body of JFS, (High Ct. QB Adm. Ct., July 3, 2008), three families were challenging the refusal of the Jewish Free School (JFS) to admit their children because they were not considered to be Jewish under Orthodox Jewish law. In each case, the child's mother had converted to Judaism. While normally the child of a Jewish mother is considered to be Jewish, in these cases for various reasons the mothers' conversions were not recognized as valid under Orthodox Jewish law. In the case of the lead plaintiff, the conversion had been performed by a rabbi in the Progressive movement. The court summarized the issue:

As will become apparent, the religious issue at the heart of this controversy – though not, I emphasise, a matter for determination by me – is the answer to the question, Who is a Jew? And, as will also become apparent, that is not a matter on which all those who conscientiously believe themselves to be Jews agree.

The main contention in the case by plaintiff was that JFS had engaged in racial discrimination in violation of the Race Relations Act 1976 since the determination of Jewishness was not based on belief or religious practice, but on ancestry. The court concluded, however, that

what one has here ... is at most discrimination on religious grounds between one part and another part of what the law recognises as a racial (ethnic) group, but ... not race discrimination.... [A] a policy which permitted preferences only on the basis of religious practice would prejudice religions, such as Judaism, which define membership exclusively by status and not by practice or observance.

Times Online reports on the decision. (See prior related posting.)

State Petitions To Get Medical Treatment For Amish Child

In Watertown, New York, the Department of Social Services has filed a petition in St. Lawrence County Family Court seeking to have a one-year old boy removed from his Amish parents and placed in foster care so he can receive medical treatment for his potentially fatal heart condition. WNYF TV News reported yesterday that Eli Hershberger needs open-heart surgery, but that his parents, Barbara and Gideon Hershberger, on religious grounds object to use of medical treatment and hospitals. The court has appointed the County Conflict Defender to represent the parents, and a guardian ad litem has been appointed to represent Eli's interests.

On a related issue, yesterday Religion News Service published an interview with Shawn Francis Peters, author of the book, When Prayer Fails: Faith Healing, Children and the Law. Asked to explain the theology behind various denominations' choice of prayer over medicine, Peters cited James 5:14 which reads: "Is any among you sick? Let him call for the elders of the assembly, and let them pray over him, anointing him with oil in the name of the Lord, and the prayer of faith will heal him who is sick, and the Lord will raise him up."

British Judge Says Sharia As Part of Arbitration Is OK

England's senior judge, Lord Chief Justice Lord Phillips, delivered a controversial speech on Thursday at a mosque in east London. The Mail reports that Phillips supported the possibility of using principles of Islamic Sharia law as part of an alternative dispute mechanism in family, marriage and financial disputes. He said in part: "'Those who are in dispute are free to subject it to mediation or to agree that it shall be resolved by a chosen arbitrator. There is no reason why principles of sharia law or any other religious code should not be the basis for mediation or other forms of dispute resolution." However, he said that any sanctions must be "drawn from the laws of England and Wales", so that severe physical punishment cold not be meted out by a Sharia arbitration panel. Opponents of the idea say, however, that this approach could disadvantage women.

Social Conservatives Adopt Declaration of American Values

A group of prominent social conservatives meeting in Denver this week adopted a "Declaration of American Values", whose introductory and concluding language use phrases from the Declaration of Independence. Its ten paragraphs focus on the right to life, marriage and family, parental rights, free exercise of religion, opposition to pornography, rights of private property (while acknowledging stewardship of the environment), right to own firearms, checks and balances so that the judiciary does not usurp power, a strong military and a fair tax system. Baptist Press yesterday reported that the attendees agreed to unite behind John McCain's presidential candidacy. Liberty Counsel's Mat Staver said that while McCain would not support all of the group's values, McCain would support more of them than would Barack Obama.

Belgian Court Says Patka Ban Violates Human Rights Convention

On Tuesday, according to Punjab Newsline, a Belgian court ruled that a uniform rule imposed by a public school, KTA Domein Speelhof, infringed the rights of Sikh students in violation of Art. 9 of the European Convention on Human Rights. The Hasselt Civil Court overturned the school's ban on Sikh boys wearing the Patka, finding that the school's ban on any head wear infringed on the Sikh students' right to practice their religion.

Santeria Adherent Fined For Animal Cruelty

App.com reports that in Spring Lake, NJ, Alain Hernandez was assessed fines and restitution fees totalling $900 after pleading guilty yesterday in Municipal Court to a charge of animal cruelty. Hernandez's mother is a Santeria priestess. Another Santero ritually killed a number of animals in a ritual designed to generate wealth. The Santero told Hernandez to put the carcasses in a wealthy community to get better results. That explains police finding chicken carcasses, dead fish, fruits and a dollar bill scattered on the beach at Spring Lake. Apparently no Free Exercise claims were raised by Hernandez.

9th Circuit Says California Law Does Not Ban Anti-Abortion Display Near Schools

The U.S. 9th Circuit Court of Appeals yesterday held that a California statute prohibiting anyone from disrupting a school or its pupils could not be applied to prohibit an anti-abortion organization from driving a truck around the perimeter of a middle school, displaying enlarged, graphic photos of early-term aborted fetuses. In Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department, (9th Cir., July 2, 2008), the court held that First Amendment concerns would be raised if California Penal Code, Sec. 626.8 were read to apply to situations in which officials merely object that the content of speech is offensive to students. The court said the statute should be construed to apply only when disruptions are caused by the manner, rather than the content, of speech. However the court held that officers have qualified immunity as to plaintiffs' claim for damages because previously it was not clear that case law prohibiting a "heckler's veto" applied where the target audience is children. The court remanded the case for consideration by the trial court of injunctive relief.

In a press release reacting to the decision, the Center for Bio-Ethical Reform said: "We are grateful to God for granting the Founding Fathers the wisdom to create appellate courts which can rectify the mistakes of trial court judges.... The First Amendment means nothing if it doesn't mean the right to show people things they don't want to see."

2nd Circuit Rejects Capital Defendant's Challenge To Evidence About His Religious Beliefs

In United States v. Fell, (2d Cir., June 27, 2008), the U.S. 2nd Circuit Court of Appeals rejected the challenge by a defendant who had been sentenced to death to the introduction of evidence at penalty stage of his trial regarding his religious beliefs. The court found that testimony regarding defendant Donald Fell's interest while incarcerated awaiting trial in the Muslim and Native American religions, and his filing of grievances regarding participation in religious rituals, were relevant to whether or not Fell had successfully adjusted to prison. Testimony about Fell's past interest in Satanism was more troubling to the court. The court concluded, however, that it did not prejudice Fell sufficiently to call for a new trial, especially since the trial court had instructed the jury that it could not consider Fell's religious beliefs in rendering its verdict.

LAPD Officer Sues Department Claiming Religious Discrimination

Yesterday's Los Angeles Times reports that L.A. police officer Sgt. Eric Holyfield, who is also a pastor, has filed a religious discrimination lawsuit in state court against the Los Angeles Police Department and Deputy Police Chief Charlie Beck. Holyfield alleges that he was passed up for promotions and raises after he preached a controversial eulogy at the funeral of another police officer, Nathaniel Warthon Jr. Holyfield, dressed in black clerical attire, identified himself as a police sergeant and Warthon's supervisor as he spoke at the funeral. In his eulogy, he said that homosexual acts are "sinful" and would lead to condemnation in hell if there was not repentance. Holyfield quoted Biblical passages that condemn homosexuality. After the funeral, Deputy Chief Beck filed a formal complaint against Holyfield. Holyfield says that Beck's actions were motivated by "religious biases." The complaint in his lawsuit alleges that LAPD has "historically discriminated . . . and continues to discriminate against officers that cite from the Holy Bible."

Some Oppose Obama's Limit On Faith-Based Hiring In Funded Programs

Wall of Separation yesterday reported that a number of conservative religious leaders are unhappy with one part of Barack Obama's plans to expand President Bush's faith-based initiative. Obama announced his proposals in a speech in Ohio earlier this week. (See prior posting.) Obama will not permit faith-based hiring for the social service programs that receive federal funding. (See July 1, Columbus Dispatch report.) Jim Towey, former director of the White House Office of Faith-Based and Community Initiatives, said: "The reality is an Orthodox Jewish group ceases to be Orthodox if they have to hire atheists or Southern Baptists. What Senator Obama is saying is groups will have to secularize if they play ball with government and receive federal funding, and that flies in the face of what many small groups want." Southern Baptist Convention public policy spokesman, Richard Land, said: "If you can’t hire people within your faith community, then you've lost the distinctive that is the reason why faith-based programs exist in the first place."

Get Religion yesterday focused on the same concerns. It quotes an example from the blog Spiritual Politics : "You can certainly imagine situations where ... a relatively small church wants to hire a youth pastor but can only afford one half time, so wants to be able to make that a full-time position ... by making him head of the publicly funded after-school program. That’s not allowed (unless, of course, you open the youth pastor position to people of any religious persuasion). "

UPDATE: The July 5 New York Times surveys the debate over religious-based hiring by religiously affiliated social service providers receiving federal funds. It says that Obama's position implicates "deeper questions about religious freedom that could very well seal the fate not only of any new and potentially improved partnerships between government and religious groups but also even those partnerships that, in reality, had been operating for decades."

Proposed Iranian Law Would Treat Blogs That Promote Apostasy As Capital Offense

Khaleej Times reported yesterday that Iran's Parliament is set to debate a draft bill that would not only continue to punish apostasy and a number of other crimes with death, but would add to the list of capital offenses "establishing weblogs and sites promoting corruption, prostitution and apostasy." The draft bill also provides that the sentence in these cases "cannot be commuted, suspended or changed". Last year, Iran carried out 317 executions.