South Dakota High Court Issues 3 Decisions On Inmate's Kosher Food Claim

Last week, the South Dakota Supreme Court issued three separate opinions in the case of convicted murderer Charles Sisney who has been litigating extensively over the kind of kosher meals to which he is entitled while in prison. Sisney v. Best, Inc., (SD Sup. Ct., July 23, 2008), involved claims that the bread Sisney was served was not certified as kosher. The court dismissed Sisney's claims under federal civil rights statutes and the state's deceptive trade practices law. However the court permitted Sisney to proceed with his tort claim of deceit.

In Sisney v. State of South Dakota, (SD Sup. Ct., July 23, 2008), the court held that Sisney was not a third party beneficiary to a contract between the state and a food services supplier under which the supplier was to furnish prison meals-- including those to accommodate religious requirements-- which averaged 2500 to 2700 calories per day.

In Sisney v. Reich, (SD Sup. Ct., July 23, 2008), the court allowed Sisney to move ahead with his claim that he was a third-party beneficiary of a settlement agreement between the Department of Corrections and a former inmate. Under that agreement, DOC agreed to provide a kosher diet to all Jewish inmates who requested it, including prepackaged kosher meals for lunch and dinner. Sunday's Bismarck Tribune reported on the decisions. (See prior related posting.)

New Articles and Book of Interest

From SSRN:

• Mark C. Modak-Truran, Beyond Theocracy and Secularism (Part I): Toward a New Paradigm for Law and Religion, (Mississippi College Law Review 159, 2007-2008).
• Robert C. Blitt, How to Entrench a De Facto State Church in Russia: A Guide in Progress, (Brigham Young University Law Review, July 21, 2008, Forthcoming).
• Mark C. Modak-Truran, Book Review: Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts (2007), (Journal of Religion, Vol. 88, No. 2, p. 257, April 2008).
• Mark C. Modak-Truran, Introduction: Symposium on Religion, Religious Pluralism, and the Rule of Law, (Mississippi College Law Review, Vol. 27, p. 1, 2007-2008).
• Gary J. Simson, Reflections on Free Exercise: Revisiting 'Rourke v. Department of Correctional Services', (Albany Law Review, Vol. 70, p.1425, 2007).
• Asifa Quraishi, Who Says Shari'a Demands the Stoning of Women? A Description of Islamic Law and Constitutionalism, (Berkeley Journal of Middle Eastern & Islamic Law, Vol. 1, pp. 163-177, 2008).

Other Recent Articles:

• Joseph Bottum, The Death of Protestant America: A Political Theory of the Protestant Mainline (First Things, Aug./Sept. 2008).
• Jack S. Levey, Why Is This Tenant Different From Other Tenants? Representing A Tenant With A Kosher Business, (Probate and Property, July/Aug. 2008, 38-41).

New Book:

• John Witte, Jr. & Frank S. Alexander (eds.), Christianity and Law: An Introduction, (Cambridge Univ. Press, June 2008).
  

Violence Connected To Religion Sweeps 4 Countries In Unrelated Incidents

Since Friday, in unrelated incidents in four countries around the world, deadly violence with some connection to religious disputes or religious institutions have captured the headlines. In Iraq, in two separate incidents, Shiite pilgrims were killed on their way to ceremonies honoring imam Mussa Kadhim who died 12 centuries ago. On Sunday, gunmen killed 7 pilgrims in Madin, south of Baghdad. Today in Baghdad, bombs killed 25 pilgrims heading toward a shrine, and wounded 70 others. (AFP).

In Turkey today, two bombs exploded in Istanbul killing 17 and wounding 150. While the bombings appeared to be the work of Kurdish separatists retaliating for a crackdown on the outlawed Kurdistan Workers' Party (PKK), they came just as Turkey's Constitutional Court was preparing for a key hearing in the lawsuit seeking to ban the country's ruling party for undermining the secular nature of the country. (AFP).

In India, a series of coordinated bombings in Ahmedabad on Saturday killed at least 45 people. A group called the "Indian Mujahideen" claimed responsibility for the attacks, saying they were in retaliation for a 2002 massacre of Muslims by Hindus in Gujarat. The bombings followed others one day earlier in Bangalore killing one woman. (Reuters-Sun. and Reuters-Mon.).

In the United States yesterday, a man carrying a shotgun in a guitar case entered a Knoxville, Tennessee Unitarian Universalist church and opened fire during the performance of a play by a group of children. He killed two people in the audience and wounded seven others. (New York Times). UPDATE: AP reports that the accused shooter, Jim D. Adkisson, left behind a note indicating that he had targeted the Unitarian church because he was upset with its liberal policies, including its acceptance of gays.

Westboro Baptist Church Loses Tax Appeal

In In re Tax Exemption Application of Westboro Baptist Church, (KS Ct. App., July 25, 2008), the Kansas Court of Appeals agreed with the state's Board of Tax Appeals that a pickup truck used by the Westboro Baptist Church to transport church members and signs for the church's high profile picketing of military funerals and other events is taxable personal property. The signs, in "acrimonious language", express the church's view that "God has punished and will continue to punish the United States because of the country's willingness to condone homosexuality." Kansas law grants a tax exemption to property that is used exclusively for religious purposes. Rejecting Free Exercise and Establishment Clause claims, the court concluded that the church's picketing activities have substantial amounts of political and secular content in addition to expressing religious beliefs, and thus do not qualify for the exemption.

Yesterdays Wichita Eagle , reporting on the decision, said that church officials will appeal to the Kansas Supreme Court even though only about $130 per year in taxes is at issue. Church spokesperson Shirley Phelps-Roper said that the principle of taxing religion is at stake, but that it probably did not really matter because the end of the world will come soon. (See prior related posting.)

UPDATE: In upholding the Board of Tax Appeals, the court did find that BOTA's labelling of signs as nonreligious when church members believed them to be religious was an Establishment Clause violation. However, the court found this to be harmless error.

Poll Says Many British Muslim College Students Hold Islamist Views

Today's London Telegraph and London Times Online report that a YouGov poll for the Centre for Social Cohesion shows a wide cultural gap between Muslim and non-Muslim students at British universities. 40% of Muslim students say Shariah should be introduced into British law for Muslims. 57% agreed that Muslim members of the armed forces should be allowed to opt out of operations in Muslim countries. While 53% of Muslim students say that killing in the name of religion is never justified, 28% said it was acceptable if religion was under attack and 4% said it could be justified to promote or preserve religion. One-third of Muslim students supported the establishment of a world-wide caliphate. Among non-Muslim students, 55% thought that Islam was incompatible with democracy. 40% of Muslim students opposed Muslim men and women associating freely, and 25% of Muslim students said they had little respect for gays. The report titled "Islam on Campus" says the group Hizb ut-Tahrir is responsible for much of the radicalization of Muslim students on British campuses.

Times Magazine Carries Photos of FLDS Ranch

The cover story in today's New York Times Magazine is titled Children of God. It introduces a series of 16 photos and another of 18 photos of FLDS women and children taken on July 17 and 18 by photographer Stephanie Sinclair who was was permitted access to the Yearning for Zion Ranch near Eldorado, Texas. In April, Texas authorities, concerned about polygamy and underage marriages, raided the ranch and temporarily took its children into custody. (See prior related posting.)

Muslim Women Sue McDonald's Franchise For Hiring Discrimination

Friday's Detroit News reports that two Muslim women have filed a religious discrimination lawsuit in state court against a Dearborn, Michigan McDonald's restaurant and its manager. The women, who applied for jobs at McDonald's, were told that they would not be able to wear their hijab (Muslim headscarf) while at work because it was too hot in the kitchen for the head coverings. The McDonald's in question is in the midst of many businesses that cater to Dearborn's large Arab-American population, and some of the restaurant's menu items comply with requirements for Halal food. Owners of the franchise say they have a strict policy against discrimination of any kind.

DC Historic Church Refused Request To Permit Demolition

Last year, over the church's objections, the Washington D.C. Historic Preservation Review Board in a unanimous decision (full text) voted to designate D.C. Third Church of Christ, Scientist as an historic landmark. (See prior posting.) Now, according to a Washington Post report on Friday, the Review Board has unanimously voted down the church's request that it be permitted to tear down its building and construct a new one in its place. Church officials say that the concrete building, designed by architect Araldo Cossutta, has an unwelcoming appearance, is dark inside and is expensive to heat and cool. Preservation Board chairman Tersh Boasberg criticized church leaders for failing to try to work out alternatives to demolition. Apparently church officials will now file a lawsuit challenging the Review Board's decision as a violation of the Religious Land Use and Institutionalized Persons Act.

Posting of Anti-Muslim Audio Clip Protected By Fair Use Doctrine

In Savage v. Council on American-Islamic Relations, (ND CA, July 25, 2008), a California federal district court rejected copyright infringement claims brought by radio talk-show host Michael Savage against CAIR. After Savage engaged in a four-minute anti-Muslim, anti-CAIR tirade on air, CAIR posted on its website an audio file of the relevant portion of the broadcast as well as a critique of the remarks. Savage sued, claiming that CAIR "in posting the audio clip on their website, engaged in copyright infringement in an effort to raise money for terrorism and further a terrorist conspiracy." The court held that CAIR's use of the audio clip is protected by the fair use doctrine. Savage also alleged a civil RICO claim against CAIR which the court dismissed on standing, proximate cause and pleading grounds, indicating that CAIR had substantial First Amendment defenses to the claim. However plaintiff was given leave to amend the RICO portion of his complaint. Friday's San Jose (CA) Mercury News reported on the decision.

Clergyman's Pay Dispute With Church Dismissed on First Amendment Grounds

In Jones v. Crestview Southern Baptist Church, (CO Ct. App., July 24, 2008), a Colorado state Court of Appeals dismissed a lawsuit by Baptist pastor Raymond Jones against his church for back pay allegedly due to him. The court held that "one of the issues to be resolved is whether Jones properly performed his duties as a pastor. " Determining this, the court said, would unconstitutionally entangle it in ecclesiastical matters. Similarly, the court said that adjudicating Jones' "equitable claims for unjust enrichment and quantum meruit would require determinations of the value of his services as a Baptist pastor, a matter that is largely ecclesiastical and thus not subject to court inquiry under the First Amendment."

Court Administrator Gets Partial Win In Claim for Retaliation and Discrimination

In Pucci v. Nineteenth District Court, (ED MI, July 10, 2008), a Michigan federal district judge permitted Julie Pucci, the former deputy administrator of a Michigan state court, to proceed with certain of her claims against the court's chief judge, Mark W. Somers. The federal court decision rejected Pucci's claim that the elimination of her postition as deputy administrator was motivated by Somers' religious objections to her live-in relationship with another judge on the court with whom Somers clashed. However the federal court permitted Pucci to move ahead with her First Amendment claim that her termination was in retaliation for her complaints about Somers' preaching religious beliefs from the civil court bench. The Dearborn (MI) Press & Guide reported on the decision in its Sunday edition. (See prior related posting.)

Obama's Note From Western Wall Published By Israeli Paper

When Barack Obama visited Israel during his recent foreign trip, like most visitors to the country he stopped at the Western Wall. Following a traditional custom, Obama left a note containing a personal prayer in one of the crevices in the Wall. Friday's Los Angeles Times reports, however, that in a breach of tradition, a young Orthodox Jewish student searched the Wall once Obama left and found his note. Obama's prayer for protection, wisdom and forgiveness, written on note paper from the King David Hotel, was turned over to the Israeli paper Maariv that then published it. The LA Times article contains a photo of the note.

UPDATE: Maariv's publication of Obama's note sparked outrage, and calls for a boycott of the paper and for a police investigation. Rabbi Shmuel Rabinowitz, who supervises the Western Wall, said the unauthorized removal of the note was a sacrilege. However Maariv said that Obama had submitted a copy of his note to media outlets when he left his Jerusalem hotel. (Haaretz). Meanwhile JTA reported on Sunday that the student who removed the note from the Wall went on Israel's Channel 2 television to apologize. Channel 2's religious affairs correspondent took the note and transmitted it to the Western Wall Heritage Foundation, which in turn placed it back in the Wall. [Thanks to Joel Katz for the lead.]

Reporter Charges Kenneth Copeland Ministries With Financial Improprieties

Associated Press religion writer Eric Gorski today published a long article detailing the business ventures connected with the ministry of TV evangelist Kenneth Copeland. Gorski writes:

Here in the gentle hills of north Texas, televangelist Kenneth Copeland has built a religious empire teaching that God wants his followers to prosper. Over the years, a circle of Copeland's relatives and friends have done just that.... They include the brother-in-law with a lucrative deal to broker Copeland's television time, the son who acquired church-owned land for his ranching business and saw it more than quadruple in value, and board members who together have been paid hundreds of thousands of dollars for speaking at church events.

Church officials say no one improperly benefits through ties to Copeland's vast evangelical ministry.... While Copeland insists that his ministry complies with the law, independent tax experts who reviewed information obtained by the AP through interviews, church documents and public records have their doubts. The web of companies and non-profits tied to the televangelist calls the ministry's integrity into question, they say.

Copeland's ministry is one of six being investigated by Sen. Charles Grassley. Copeland has strongly resisted Grassley's inquiries. (See prior posting.)

"Desecration of Eucharist" Charged In Incidents At Two Universities

In the history of the Catholic Church, "desecration of the host" is a form of sacrilege and charges of descration were a pretext for massacres of Jews in the Middle Ages. (Background). Over the last month, charges of desecrating the Eucharist-- in circumstances rather different from the historical precedents-- have come to the fore in two related incidents at universities in two states. As reported by WFTV, this all began at a June 29 Mass on the campus of the University of Central Florida. Student Senator Webster Cook, instead of immediately consuming the Eucharist handed to him as required by Catholic doctrine, took it back to his seat to show to a non-Catholic friend who was curious. Cook says someone tried to physically stop him from doing this. A week later, Cook returned the wafer in a plastic bag after receiving outraged e-mails from Catholics objecting to his desecration of the Eucharist. (WFTV). Then, according to the Orlando Sentinel, on July 17, Student Senate began impeachment proceedings against Cook, based not on his taking the Eucharist, but on his falsely representing himself as a student government officer at the service.

Meanwhile, in early July according to the Washington Times, a University of Minnesota Morris biology professor, Paul Z. Myers, used his blog to support Cook, asking in this post for his readers to send him (Myers) a consecrated Communion wafer for display. Last Thursday in this post, Myers displayed the Communion wafer pierced with a rusty nail tacked to pages torn from the Quran and some pages from Richard Dawkins The God Delusion. This led Catholic League for Religious and Civil Rights president Bill Donohue to file a complaint against Myers with the University of Minnesota, asserting that his posting amounted to a bias incident under University rules. (Catholic League July 24 release.) However University Chancellor Jacqueline Johnson said in a letter in response that academic freedom permits faculty "to speak or write as a public citizen without institutional discipline or restraint…." (Catholic League release, July 25).

In yet another development, Prof. Myers appeared on a Houston radio station on July 11 to complain in his own strong language about attacks against him by Catholic League's Donohue. In response to this, a delegate to the upcoming Republican National Convention has asked for the GOP to provide additional security so Catholics can worship without fear of violence. (Catholic Online, July 12). The request came despite the fact that Morris, MN is over 170 miles from Minneapolis- St. Paul. [Thanks to Scott Mange for the original lead on this.]

Los Angeles Sees Rise In Hate Crimes, Including Religiously Motivated Incidents

According to an AP story yesterday, hate crimes rose significantly in Los Angeles County, California last year, even though the overall crime rate dropped. A majority of the hate crimes were racially motivated. However, 105 of the 763 hate crimes reported in 2007 were religiously motivated-- with three-quarters of these directed against Jews. This amounts to a 17% increase in religiously motivated hate crimes for the year. Some 111 hate crimes were based on sexual orientation, mostly directed against gay men. The full text of the 2007 Hate Crime Report compiled by the Los Angeles Human Relations Commission is available online.

RLUIPA Challenge To Zoning Denial For Counselling Center Fails

In Calvary Temple Assembly of God v. City of Marinette, Wisconsin, 2008 U.S. Dist. LEXIS 55500 (ED WI, July 21, 2008), a Wisconsin federal district court rejected a RLUIPA challenge brought by a church that wanted a special exemption to locate a professional counselling center on land next to its church building. The City of Marinette concluded that the proposed faith-based counselling center would be a "professional office," a use not permitted in areas zoned residential. The court held that it need not decide whether the counselling center would be a "religious exercise" under RLUIPA because, even if it was, the church failed to show that the zoning denial imposed a "substantial burden" on its religious exercise.

Student Activity Fee Policy At Wayne State Challenged

At Wayne State University in Detroit (MI), a registered student group, Students for Life, has filed a federal lawsuit against the university challenging its policy on the spending of student activity fees. According to yesterday's Battle Creek Enquirer, last spring the the Student Council denied the group's request for $4000 to support a week of anti-abortion events because of "spiritual and religious" references, even though the group says it has no specific religious affiliation. Events included having one's picture taken with a model of a fetus. The lawsuit alleges that the funding denial amounts to unconstitutional viewpoint discrimination.

Suit Challenges Exclusion of Religious Literature From Distribution to Students

Alliance Defense Fund yesterday announced that it had filed a lawsuit in federal district court in Arizona on behalf of the First Baptist Church of Maricopa and its pastor, Jim Johnson, challenging Maricopa County school district's policy on distribution of literature by nonprofit groups. The school, after months of delay, denied Johnson's request that he be allowed to distribute a flyer on one of his church's weekly programs for high school students-- its Awana Journey 24 Club, a weekly Bible study program. School policy permits nonprofit groups to have their literature promoting various events and activities made available to students in schools. However the policy excludes literature from any sectarian organization or literature that promotes a particular religious belief or participation in religion. The complaint (full text) alleges that the denial violates plaintiffs' First and 14th Amendment rights and their rights under Arizona's Religious Freedom Restoration Act.

UPDATE: An ADF release dated Aug. 13 says that Maricopa Unified School District has reversed its position and will now permit the church's flyers to be distributed.

Senate Judiciary Committee Holds Hearings on Polygamous Sects

The U.S. Senate Judiciary Committee has posted the testimony presented by eight witnesses at yesterday's hearings on Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response. The hearings, which coincided with Utah's Pioneer Day, received wide coverage in the media. Some of the most extensive coverage appeared in yesterday's Deseret News , in the Salt Lake Tribune and at CNN. Senate majority leader, Harry Reid, who is a convert to Mormonism and the Senator who has led the call for hearings and the creation of a federal task force, told the Senate panel:

We do honor our pioneer ancestors by condemning those who have wrongfully cloaked themselves in the trappings of religion to obscure their true criminal purposes.... I am here to tell you that polygamist communities in the United States are a form of organized crime.... The most obvious crime being committed in these communities is bigamy, child abuse — teen and pre-teen girls are forced to marry older men and bear their children. But the criminal activity that goes on in these places is far broader. Witnesses at this hearing will describe a web of criminal conduct that includes welfare fraud, tax evasion, massive corruption and strong-arm tactics to maintain the status quo.

(See prior related posting.)

Pennsylvania Supreme Court Affirms Invalidation of Ethnic Intimidation Law

On Wednesday, the Pennsylvania Supreme Court issued a 2-sentence per curiam order affirming last year's decision by a Pennsylvania appellate court striking down amendments to the state's ethnic intimidation law. The law was amended in 2002 to add sexual orientation and several other categories to its previous coverage of crimes committed because of race, religion or national origin. In Marcavage v. Rendell, (PA Sup. Ct., July 23, 2008) the state Supreme Court agreed that the 2002 amendments violated the state constitution's ban on amending bills during the legislative process to change their original purpose.

The lawsuit challenging the statute was brought by several Christian evangelists, who were members of Repent America. A press release was issued by one of their attorneys, the Foundation for Moral Law. FML head, former Alabama Supreme Court Chef Justice Roy Moore, said: "We are very happy that the Pennsylvania Supreme Court has ruled in our favor to stop the Governor and a group of corrupt politicians from sneaking a 'hate crimes' bill through the Pennsylvania legislature. Preaching to homosexuals about the sin of sodomy should not be made a 'thought crime' in Pennsylvania or any other state."