IOC Rules Create Issue For U.S. Athletes On Religious Expression

Yesterday's Washington Post reports that many U.S. athletes competing in the Olympics plan to display their religious faith publicly during their sporting event by a prayer or a gesture toward the sky, despite concerns by both the government of China and the International Olympic Committee. The Olympic charter prohibits "political, religious or racial propaganda" at "any Olympic sites, venues or other areas." In May, the IOC issued a statement intended to clarify this prohibition. It said: "The conduct of participants at all sites, areas and venues includes all actions, reactions, attitudes or manifestations of any kind by a person or group of persons, including but not limited to their look, external appearance, clothing, gestures, and written or oral statements. As in all Olympic Games, such conduct must also, of course, comply with the laws of the host state." The U.S. Olympic Committee give no instructions one way or the other to American athletes on the issue.

7th Circuit Dismisses Challenge To VA Chaplain Program On Standing Grounds

In Freedom From Religion Foundation, Inc. v. Nicholson, (7th Cir., Aug. 5, 2008), the U.S. 7th Circuit Court of Appeals dismissed for lack of taxpayer standing a challenge to aspects of the Department of Veterans Affairs Chaplain Service. Plaintiffs alleged that the focus of the Chaplain service on clinical care which integrates spirituality and religion into VA treatment programs violates the Establishment Clause. The court held:

Freedom From Religion's lawsuit ... is not predicated ... on the notion that Congress appropriated money from federal taxpayers expressly for the creation of a clinical chaplaincy. Instead, Freedom From Religion simply is challenging the executive branch's approach to veterans' healthcare and the manner in which the executive, in its discretion, uses the services of its chaplain personnel. Allowing taxpayer standing under these circumstances would subvert the delicate equilibrium and separation of powers that the Founders envisioned and that the Supreme Court has found to inform the standing inquiry.

In the case, the trial court had reached the merits and held that the VA's holistic treatment program serves a valid secular purpose. (See prior posting.) [Thanks to Alliance Alert for the lead.]

French Satirist's Firing for Anti-Semitism Raises Free Speech Questions

In France, the firing of a columnist by the satirical weekly paper Charlie Hebdo has created a flood of debate over free speech versus anti-Semitism. AFP reported yesterday that Maurice Sinet, who publishes cartoons and columns under the name Siné, was fired by the newspaper after he refused to apologize for a column about Jean Sarkozy, son of France's President Nicolas Sarkozy. The President's son is engaged to Jessica Sibaoun-Darty whose family founded Darty, a large French retail chain. In a July 2 column, Siné wrote that Jean Sarkozy "has just said he intends to convert to Judaism before marrying his fiancee, who is Jewish, and the heiress to the founders of Darty. He'll go far, that kid." A Charlie Hebdo editor said that these lines "could be interpreted as drawing a link between conversion to Judaism and social success," reinforcing an old stereotype of Jews as wealthy. The Guardian on Sunday, reporting on the controversy, says that Siné had no evidence that Sarkozy intended to convert. It also says that the column was uncontroversial until a radio commentator several days later referred to it as anti-Semitic.

In an open letter in Le Monde, 20 writers and politicians have defended Charlie Hebdo's decision to fire Siné. However many other writers and artists, as well as 8,000 people who have signed an online petition, are backing Siné. In 1985 Sine was convicted of inciting racial hatred because of anti-Semitic remarks for which he later apologized.

Bush Will Not Make Dramatic Human Rights Statement During Olympics Visit

Yesterday's New York Times reports that President Bush, on his trip to China for the Olympics, will not make the kind of dramatic gesture to protest lack of religious freedom in China that some are urging. (See prior posting.) The White House considered having Bush attend a worship service at an underground "house church", but Chinese authorities rejected the proposal. Indeed pastors and other activists with whom Bush might have met have been ordered by Chinese authorities to leave Beijing during the President's visit. The White House has also rejected Bush's giving a confrontational speech on human rights, seeing it as insulting to China and unlikely to be broadcast to the Chinese public. Instead, on Sunday Bush will worship at the officially registered Beijing Kuanjie Protestant Church. Human Rights Watch executive director Kenneth Roth said that this is "not an affirmation of religious freedom. It's an affirmation of government-controlled religion."

Malaysian Appellate Court Avoids Deciding On Right To Renounce Islam

The Court of Appeal sitting in Putrajaya, the federal administrative center in Malaysia, has used a technicality to reject a plea by a Muslim convert that she be permitted to renounce Islam and return to the practice of her original Christian faith. Malaysia's Star reports today that, in a 2-1 decision, the appellate court held that the lower court had no jurisdiction over the suit brought by Lim Yoke Khoon because no person by that name exists any longer. Lim changed her name to Noorashikin Lim binti Abdullah after she converted to Islam. This decision allowed the court to avoid passing on the claim by Lim that under Article 11 of Malaysia's Constitution she has the right to renounce Islam.

Texas Back In Court Over Some FLDS Children

In San Angelo, Texas, state Child Protective Services is back in court in connection with children of FLDS Church members. Yesterday's Dallas News and San Angelo Standard Times report on developments. CPS wants to remove eight children who were among the hundreds returned to FLDS mothers in May after the Texas Supreme Court found that CPS lacked a sufficient basis to place the children in temporary custody of the state. (See prior posting.) The children who are the subject of the new motion are from four families. In each case, the mothers involved refuse to agree to keep the children away from birth fathers, close relatives or former husbands who have either married underage girls or permitted underage daughters to marry older men. One of the children involved was married to former sect leader Warren Jeffs. Three others are children of current FLDS bishop and ranch leader Merril Jessop. The state has also asked the court to dismiss the cases of 32 children "where there is no evidence of underage marriages in the family."

India's Supreme Court Permits Educational Set-Asides For Muslims

The Times of India reports that on Monday, a panel of India's Supreme Court upheld implementation by the state of Andhra Pradesh of its Reservation in Admissions of Muslims in Educational Institutions Act, 2007. The law sets aside 4% of the seats in various college programs for Muslims. While India's Constitution (Art. 15) prohibits religious discrimination, the Court said this quota was justified because of the social and educational backwardness of the Muslim community in Andhra Pradesh. The Constitution permits states to make "special provision for the advancement of any socially and educationally backward classes of citizens." However the Court's decision is subject to the outcome in other pending cases challenging the constitutionality of the 2007 law creating the set-asides.

Court Rejects Equitable Relief In Inmate's Request To Prevent Autopsy

In Arthur v. Allen, 2008 U.S. Dist. LEXIS 58167 (SD AL, July 31, 2008), an Alabama federal district court refused to grant a temporary restraining order or a preliminary injunction to a death row inmate seeking to prevent the state from performing an autopsy on his body after his execution. Convicted murderer Thomas Arthur claimed the autopsy would violate his sincerely held religious beliefs. Arthur's execution date has been repeatedly delayed for over ten years as various challenges have been filed, and in 2007 his daughter unsuccessfully sought an order from the court to bar an autopsy on her father's body after his execution. (See prior posting.) The current lawsuit was filed by Arthur just days before his then-execution date (which was subsequently again delayed). The court denied Arthur's request on both equitable and statute of limitations grounds. It said:

Arthur suddenly invokes the equitable power of this Court, just two days before the scheduled execution, seeking to restrain the State, without a full hearing on the merits, from performing on autopsy on his body. The timing of this action bears the unmistakable taint of an ambush, an exercise in eleventh-hour gamesmanship with the intent to procure an unfair strategic advantage over defendants. Such conduct is the very antithesis of the equitable, diligent, good-faith, vigilant conduct required of a litigant seeking equitable relief.

In addition the court held that the statute of limitations for filing a claim under 42 USC 1983 had run, holding that even though Arthur seeks prospective relief, his cause of action accrued "not at the time of the autopsy, but when the facts which would support a cause of action should have been apparent to a person with a reasonably prudent regard for his rights."

9th Circuit Hears Church's Challenge To Montana Election Finance Reporting Law

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in Canyon Ferry Road Baptist Church v. Unsworth, a challenge to Montana's election campaign reporting laws. The Montana Commissioner of Political Practices had ruled that the church should have reported its support of activities in 2004 to get voters to pass a constitutional ban on gay marriage. (See prior posting.) Last Saturday's Helena Record sets out background information on the dispute. An audio recording of oral arguments in the case is available online from the 9th Circuit.

Colorado Local Commissions Debate Invocation Policies

Yesterday's Grand Junction (CO) Daily Sentinel reports that Grand Junction, Colorado City Council will consider a resolution at their meeting tomorrow under which the city clerk will randomly select spiritual leaders from local congregations to offer an invocation "according to the dictates of his/her own conscience." However, the person delivering the prayer will be asked that the invocation "not be exploited to proselytize a particular religious tenet or belief or aggressively advocate a specific religious creed or derogate another religious faith or to disparage any other faith of belief." Also the agenda for the meeting will state that the invocation is intended to "solemnize" the meeting, not to establish a particular religion, and will indicate that attendees may sit, stand or leave the room during the prayer. A local group, Western Colorado Atheists and Free Thinkers, has asked Council to eliminate the invocation and replace it with a moment of silence.

Meanwhile yesterday's Grand Junction Daily Sentinel reports that a Mesa County Commissioner (the county in which Grand Junction is located) is taking a different view. Under a policy adopted in 2005, one of the three Commissioners opens the County Commission meeting with a prayer which those in attendance are told they may join if they wish. Commissioner Janet Rowland yesterday ended her prayer "in the name of Jesus". Challenged at the meeting by a local resident, Rowland, who is in the midst of a primary contest for Republican nomination for a Commission seat, said: "I don't mind losing the election, but I do mind losing my faith or my belief in the Constitution."

Greek Court Acquits Missionary on Illegal Proselytizing Charges

Greece's Constitution and Greek law prohibit proselytizing, but define the ban narrowly. (Background.) Mission Network News today reports that, following that narrow interpretation, a court in Greece has acquitted a member of AMG International who had been charged with illegal proselytizing for handing out copies of the Gospel of Luke at a youth outreach event in 2004. Because the outreach event was open, and not covert or coercive, the court held that the ban did not apply.

D.C. Circuit Holds Navy Chaplains Lack Standing In Establishment Clause Case

In In re Navy Chaplaincy, (DC Cir., Aug. 1, 2008), the D.C. Circuit Court of Appeals, in a 2-1 decision, dismissed on standing grounds an Establishment Clause challenge by a group of non-liturgical Protestant Navy chaplains to the operation of the Navy's retirement system. Plaintiffs claimed that the system operated to favor Catholic chaplains. Plaintiffs, however, did not allege that they suffered any discrimination, but rather that other chaplains did. They claimed taxpayer standing, and standing as persons who have been subjected to the Navy’s "message" of religious preference. The majority said:

Plaintiffs' argument would extend the religious display and prayer cases in a significant and unprecedented manner and eviscerate well-settled standing limitations. Under plaintiffs’ theory, every government action that allegedly violates the Establishment Clause could be re-characterized as a governmental message promoting religion. And therefore everyone who becomes aware of the "message" would have standing to sue.

Judge Rogers dissented, arguing that plaintiffs' membership in the Chaplains Corps gives them sufficient particularized injury to meet the Article III standing requirements. (See prior related posting.)

Westboro Baptist Church Fire Called Hate Crime By Church's Leader

On Saturday morning, according to a report by PageOneQ, a fire broke out at Topeka, Kansas Westboro Baptist Church causing from $10,000 to $30,000 damage. Westboro has gained national notoriety by its activities in picketing military funerals and other events with signs condemning America's tolerance for homosexuality. The Church's pastor, Fred Phelps, sent a hate crime complaint to the Justice Department and other law enforcement agencies on Sunday, charging that the fire was motivated by religious hatred. (WIBW). Meanwhile, in a message posted on You Tube, Phelps said: "This is the latest in a long line of criminal acts perpetrated against us by the mean-spirited citizens of this evil, hellbound nation." (PageOneQ report containing the YouTube clip.)

Florida Court Rejects Challenges To November Ballot Initiatives

In Ford v. Browning, (FL 2nd Cir. Ct., Aug. 4, 2008), a Florida trial court has rejected challenges to two initiatives placed on the November ballot by the state's Taxation and Budget Reform Commission. Initiative 7 proposes repeal of a provision in Florida's Constitution that bans use of public funds to aid any religious or sectarian institution. It also adds language barring exclusion of any person or institution from any public program because of religion. Initiative 9 changes language in Florida's constitution regarding public schools to essentially overrule an earlier state supreme court decision striking down school vouchers. The amendment also requires at least 65% of a district's school funding to be spent on classroom instruction. (See prior posting.)

The court held that the two ballot initiatives were within the authority of the Taxation and Budget Reform Commission since they both involve matters relating to taxation or the budgetary process. It also found that the title and ballot summary for Initiative 9 are not misleading to voters. The Florida Times-Union reports on the decision. Alliance Defense Fund issued a release supporting the court's decision. Americans United for Separation of Church and State announced it would appeal the ruling.

Spanish Lawsuit Seeks To Rehabilitate Reputation of Knights Templar

In Spain, a group claiming to be descended from the legendary Knights Templar has filed suit against the Vatican in an attempt to restore the The Templar's reputation. The Association of the Sovereign Order of the Temple of Christ has sued, asking the Vatican to recognize the seizure of assets worth 100 billion Euros by Pope Clement V. Yesterday's London Telegraph reports:

The Templars was a powerful secretive group of warrior monks founded by French knight Hugues de Payens after the First Crusade of 1099 to protect pilgrims en route to Jerusalem. They amassed enormous wealth and helped to finance wars waged by European monarchs, but spectacularly fell from grace after the Muslims reconquered the Holy Land in 1244 and rumours surfaced of their heretic practices. The Knights were accused of denying Jesus, worshipping icons of the devil in secret initiation ceremonies, and practising sodomy....

The legal move by the Spanish group ... follows the unprecedented step by the Vatican towards the rehabilitation of the group when last October it released copies of parchments recording the trials of the Knights between 1307 and 1312.... The Chinon parchment revealed that, contrary to historic belief, Clement V had declared the Templars were not heretics but disbanded the order anyway to maintain peace with their accuser, King Philip IV of France.

Court Says Defendant Did Not Show AA Meetings Were Religious

In State of Ohio v. Turner, (OH Ct. App., Aug. 1, 2008), an Ohio appellate court rejected an Establishment Clause challenge to mandatory attendance at Alcoholics Anonymous. The requirement was part of defendant's sentence for driving while intoxicated. The court held that defendant had not introduced sufficient evidence to prove the religious nature of the AA meetings involved.

Utah-Appointed Trustee For FLDS Is Seeking Control of Canadian School

The Toronto Globe and Mail today reports that Bruce Wisan, the special fiduciary appointed by a Utah state court to oversee the assets of the FLDS Church, is moving to take control of an FLDS school in Canada. Wisan has petitioned the British Columbia Supreme Court for permission to take over the Bountiful Elementary-Secondary School, a private school located outside Creston, B.C. Wisan wants the B.C. court to appoint him as trustee to run the school and take title to its assets in order to obtain an equitable distribution of FLDS assets in Canada. He alleges that the organization that runs the school operates it in trust for the UEP. School directors say school property was not acquired for the UEP trust. There is a split among FLDS members in Canada. Some follow former leader Warren Jeffs, while other are led by Canadian Winston Blackmore. (Background.) Jeffs followers have excluded followers of Blackmore from the school. (See prior related posting.)

South Carolina Legislator Says Lord's Prayer In New Display Law Is "Poison Pill"

Last month the Governor of South Carolina signed a bill permitting schools and local governments to post a Foundation of American Government display comprised of 12 documents, including the Ten Commandments and the Lord's Prayer. (See prior posting.) Yesterday's Augusta (GA) Chronicle carries a column by South Carolina state senator Shane Massey who was one of 12 members of the state Senate to vote against including the Lord's Prayer in the permitted documents. He says that the inclusion of the Lord's Prayer, added through an amendment offered by Sen. Brad Hutto, a Democratic opponent of the entire bill, is a "poison pill" that now makes the law "constitutionally suspect". The amendment, which Republicans found it difficult to vote against, was, Massey says, one of several offered in an attempt to kill the bill by opponents who originally objected to inclusion of the 10 Commandments in it.

Recently Scholarly Articles and New Book of Interest

From SSRN:

• Steven J. Heyman, Hate Speech, Public Discourse, and the First Amendment, (in Extreme Speech and Democracy, Ivan Hare, James Weinstein (eds.), Oxford University Press, Forthcoming).
• Maleiha Malik, Religious Freedom and Multiculturalism: R (Shabina Begum) V Denbigh High School, (King's Law Journal, Vol. 19, No. 2 (July 25, 2008)).

From SmartCILP and elsewhere:

• Adam Grieser, Peter Jacques & Richard Witmer, Reconsidering Religion Policy as Violence: Lyng v. Northwest Indian Cemetery Protective Association, 10 The Scholar: St. Mary's Law Review on Minority Issues 373-396 (2008).
• Osama Siddique & Zahra Hayat, Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan--Controversial Origins, Design Defects, and Free Speech Implications, 17 Minnesota Journal of International Law 303-385 (2008).
• Lisa M. Holmes, Religious Affiliation, Personal Beliefs, and the President's Framing of Judicial Nominees, 56 Drake Law Review 679-704 (2008).
• Christine L. Nemacheck, Have Faith in Your Nominee? The Role of Candidate Religious Beliefs in Supreme Court Selection Politics, 56 Drake Law Review 706-728 (2008).
• Symposium: Educational Choice: Emerging Legal and Policy Issues, 2008 BYU Law Review 227-592 [full text of all articles].
• Andrew P. Morriss, Bootleggers, Baptists and Televangelists, Regulation, Vol. 31, No. 2, pp. 26-31, Summer 2008.
• The Spring 2008 issue (Vol. 50, No. 2) of the Journal of Church and State has recently been issued. [Table of Contents].

New Book:

• Herbert London, America’s Secular Challenge-- The Rise of a New National Religion, (Encounter Books, 2008), reviewed by the Washington Times.

McCain Catholic Outreach Spokesman Criticized

The Arizona Republic reported last week that at least three religious groups have called on John McCain to remove Deal W. Hudson from McCain's national Catholic outreach group. In 1994, Hudson resigned a tenured position at Fordham University after he was accused of having sex with a freshman student. A member of McCain's steering committee said that Catholics reject Hudson as a moral arbiter. In 2004, Hudson left George W. Bush's re-election campaign after the Fordham incident was publicized. However the McCain campaign has been resisting the calls for Hudson's ouster.