Potenital County Resident Has Standing To Challenge 10 Commandments Display

In ACLU of Florida Inc. v. Dixie County Florida, 2008 U.S. Dist. LEXIS 61177 (ND FL, Aug. 8, 2008), a Florida federal district court held that an ACLU member had standing (and thus so did the ACLU) to challenge on Establishment Clause grounds a stone display of the 10 Commandments on the steps of the Dixie County (FL) courthouse. The member, identified only as John Doe, did not live in Dixie County, but was looking to purchase property there on which he and his wife could park their recreational vehicle. They encountered the offending display when they went to the county courthouse to research any encumbrances on property they were considering. Because of the display, Doe decided not to make an offer on the property. Prior reports indicate that the ACLU had been having difficulty finding actual county residents to bring the challenge.

IL Appellate Court Majority Invalidates Ban On Heirs Intermarrying

In In re Estate of Max Feinberg, (IL Ct. App., June 30, 2008), an Illinois District Court of Appeals, in a 2-1 decision, held unenforceable decedents' testamentary provision disinheriting any grandchild who marries outside the Jewish faith unless the spouse converts within one year of the marriage. Justice Cunningham delivering the opinion of the court held that public policy invalidates such provisions because they seriously interfere with an individual's right to marry the person of his or her choice. The opinion cites Restatement Third of Trusts that takes this position as well. Justice Quinn concurred specially, in order to more specifically counter the arguments of the dissent. Justice Greiman dissented, pointing out that a majority of other jurisdictions validate such provisions. He characterized the clause as an attempt by Max and Erla Feinberg to "to preserve their 4,000 year old heritage." An op-ed in yesterday's St. Louis Jewish Light discusses decision.

Turkey's AKP Official Ignites New Concerns Over Secularism Principle

After narrowly avoiding court-ordered dissolution for undermining Turkey's secularism (see prior posting), Turkey's Justice and Development Party (AKP) is again embroiled in controversy. After the court verdict, Prime Minister Recep Tayyip Erdoğan said that he would try to avoid polarizing Turkey's society. Today's Zaman reports, however, that the party's Deputy Chairwoman Edibe Sözen recently introduced a bill calling for places of worship for all children to be built in schools and for strong new rules against pornography. The bill was withdrawn after the Party publicly rebuked Sözen. However opposition parties say this shows the AKP still has a hidden Islamist agenda.

Prison Inmates Who Have Declared Multiple Faiths Create Issues for Chaplains

This morning's Tacoma (WA) News- Tribune carries an article about prisoners who declare multiple religions under a new Washington Department of Corrections Policy adopted earlier this year. (See prior posting.) McNeil Island Prison chaplain John Barnes says he is uncomfortable with the policy, which gives inmates the right to possess religious items from each declared faith. The Tribune's Lights & Sirens blog carries videos of interviews with several inmates who have declared multiple faiths.

Sheriff's Church Protection Program Questioned By County Commissioners

In Cleveland, Tennessee, according to yesterday's Cleveland Banner, Bradley County Commissioners are questioning a new Church Protection Program announced by Sheriff Tim Gobble. The Cleveland Banner reported earlier this month that the program was created in response to increased violence against churches around the country. According to the paper: "Any church [with over 50 attendees] desiring special deputies for the Church Protection Program must request the appointment of a maximum of two regularly attending church members, within good standing, who are trustworthy and responsible. The candidates must also be sponsored by church elders or the church's governing body." Commissioners raised not only questions of cost and liability, but also church-state issues. Commissioner Jeff Yarber questioned whether the program could be open to churches without extending it to all non-profit groups.

DC Land Exchange With Homeless Shelter Said To Violate Establishment Clause

Americans United for Separation of Church and State announced yesterday that it has written to the mayor of Washington, D.C. (full text of letter) to protest a proposed exchange of land between the District and Central Union Mission. Last Sunday, a letter to the editor in the Washington Post from a Presbyterian minister John W. Wimberly, Jr., also expressed strong objection to the deal. The city is giving the Mission a former school building worth nearly $9 million, plus $7 million in cash and expenditures for renovation, so the Mission can relocate its homeless shelter there. In exchange, the District is getting a piece of land worth $2.7 million. The Mission's activities are heavily religious. A Christian religious message is preached at every meal, and long term residents are enrolled in a"Spiritual Transformation Program." AU says that the land exchange supports a religious ministry in clear violation of the Establishment Clause. Today's Washington Post reports that Mission director David Treadwell says residents can opt out of prayer services and Bible study at the Mission.

8th Circuit Upholds Prison Grooming Rules In Split Decision

In Fegans v. Norris, (8th Cir., Aug. 11, 2008), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected an Assemblies of Yahwah adherent's challenge to Arkansas grooming regulations for prisoners. The majority held that both the restrictions on long hair and the prohibition of beards withstand scrutiny under Religious Land Use and Institutionalized Persons Act. Judge Melloy, dissenting in part, cited the state's different treatment of women and those with dermatological conditions. The dissent argued that the case should be remanded for individualized review of "whether security could be achieved while not substantially burdening Fegans’s exercise of his religion." Yesterday's Northwest Arkansas Daily News reported on the decision.

Does McCain Ad Link Obama With the Antichrist?

An article in Friday's Wall Street Journal explores the controversy over whether an Internet ad being run by the McCain campaign contains a hidden message linking Barack Obama with the Biblical figure of the Antichrist. The ad, captioned "The One" [from YouTube], is described by the McCain campaign as merely a light-hearted attempt to show that Obama "gets carried away" when he speaks. Others, however, say that for those familiar with the "Left Behind" series of apocalyptic novels, the ad uses numerous symbols of the Antichrist.

Cert. Petition Filed In Case Excluding Religious Material From Class Project

The Alliance Defense Fund announced that yesterday it filed a petition for certiorari (full text) seeking Supreme Court review of the 6th Circuit's decision in Curry v. Hensinger. In the case, the Court of Appeals upheld a Saginaw, Michigan school principal's decision barring a fifth-grader from selling candy canes with religious material attached as part of a classroom project to learn about marketing. The 6th Circuit found that the school's decision was motivated by legitimate pedagogical concerns.

College Raises Church-State Issues By Program Offered Through A Church

Inside Higher Ed today reports on problems faced by North Carolina Central University, a part of the University of North Carolina system. The campus violated UNC rules by opening an out-of-state program housed at a Georgia megachurch, New Birth Missionary Baptist Church. The program, called New L.I.F.E. College, existed for four years and awarded 25 bachelor's degrees until NCCU's accrediting body, the Southern Association of Colleges and Schools, required the unapproved program to end. The pastor of New Birth church is NCCU alumnus, Bishop Eddie Long. Long recently donated $1 million to NCCU. Inside Higher Ed reports that it asked NCCU officials about church-state concerns involved in a public university awarding degrees "for a program that is described as the arm of a church, for courses taught in a church, for which tuition revenue goes to a church." The school responded that the question would need to be answered by its former Chancellor who is now president of Florida A&M University. However NCCU said that tuition revenue went back into a trust account to support the program.

Nigerian Prelate Blames Crime and AIDS on Ending of Religion In Schools

In Nigeria, the Prelate of the Methodist Church, Dr. Ola Makinde, is blaming most of the country's societal ills on the federal government's decision to replace Christian and Islamic religious studies in the schools with courses in social studies. The Punch reported yesterday that Makinde, speaking at the end of the church's 41st biennial conference, blamed cultsim, HIV/AIDS and crime on the change. He said: "The quality of education churned out when we missionaries ran schools in the country cannot be compared with what we have now. Government should return our schools to us so that we could bring back discipline and the fear of God."

Good News Club Wins Preliminary Injunction On Facilities Fee

In Child Evangelism Fellowship of Virginia v. Williamsburg-James City County School Board, (ED VA, Aug. 8, 2008), a Virginia federal district court granted a preliminary injunction barring the school board from charging a facilities usage fee to the Good News Club for its after-school Bible study and enrichment program. The court found that CEF suffered irreparable harm and had a high likelihood of success on the merits. School board policy grants fee waivers to various community organizations, but not to religious groups. The policy granting the superintendent authority to waive fees was, according to the court, vague and gave unfettered discretion that could be used to discriminate on the basis of viewpoint. Relying on 4th Circuit precedent, the court concluded that "a fee-waiver given arbitrarily to non-religious organizations by school administrators under the guise of enforcing a vague policy is a violation of a religious organization's First Amendment rights." Liberty Counsel, which represents plaintiff, today issued a release on the decision.

President Bush Raises Religious Freedom Issues In Beijing

The McClatchy Newspapers today report on President Bush's activities and statements yesterday nudging the Chinese on religious freedom. The President and Laura Bush, in Beijing for the Olympics, attended services at the Beijing Kuanjie Protestant Christian Church, one of China's state-approved Protestant churches. Aljazerra reports that the service, conducted mostly in Chinese, was specially translated for Bush. (See prior related posting.) The Toronto Star reports that admission to the service was limited to those who had been specifically invited, to the dismay of Liu Peiqin, a member of an unapproved "house church" who had hoped to attend. After the service, the President made brief remarks (full text), saying: "Laura and I just had the great joy and privilege of worshiping here in Beijing, China. You know, it just goes to show that God is universal, and God is love, and no state, man or woman should fear the influence of loving religion."

Later in the day, Bush met with China's president, Hu Jintao. In remarks (full text), Bush told Hu: "As you know, our relationship is constructive and it's important and it's also very candid, and I thank you for that. And once again, I had a very uplifting experience by going to a church, and I want to thank you for arranging that, as well. It was a spirit-filled, good feeling. And as you know, I feel very strongly about religion, and I am so appreciative of the chance to go to church here in your society."

In a press briefing (full text) after Bush's meeting with Hu, Dennis Wilder, Senior Director for East Asian Affairs, said:

The President raised human rights and religious freedom. He told President Hu that this is an important aspect of the U.S.-China dialogue, and that the Chinese can expect that any future American President will also make it an important aspect of our dialogue. As the President has said, candor on these kinds of issues are part of a constructive and cooperative process between the United States and China.

The President noted that he had been to church; noted that believers will strengthen China; that he sincerely believes that China will be a better place if there is more freedom of religion. And President Hu seemed to indicate that the door is opening on religious freedom in China and that in the future there will be more room for religious believers.

Recent Articles and Books of Interest

From SSRN:

• Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering, Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008.


• Josh Paul Davis & Joshua D. Rosenberg, The Immanent Structure of Free Speech Doctrine: Bong Hits, Jesus, and the Role of the Public Schools in Controlling Student Speech, (August 5, 2008).


• Christopher Scott Maravilla, The Diaspora Paradox: Integrating International Legal Norms into Domestic Law to Protect the Rights of Middle Eastern Diasporas (August 2, 2008).


• Malcolm Voyce, Buddhist 'Transgressions': The Violation of Rules by Buddhist Monks, Macquarie Law Working Paper No. 2008‐23 (June 17, 2008).

From SmartCILP:

• Diarmuid F. O'Scannlain, From Pierce to Smith: the Oregon Connection and Supreme Court Religion Jurisprudence, 86 Oregon Law Review 635-656 (2007).


• Jeffrey G. Sherman, Can Religious Influence Ever Be "Undue" Influence?, 73 Brooklyn Law Review 579-644 (2008).

New Books:

• Daniel Moeckli, Human Rights and Non-Discrimination in the "War on Terror", (Oxford University Press, Jan. 24, 2008), (Table of contents and introduction from SSRN).


• Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson (eds.), Same-Sex Marriage and Religious Liberty, (Rowman & Littlefield, August 28, 2008), reviewed in Becket Fund release.

3 USCIRF Commissioners Are Reappointed

Three current members of the U.S. Commission on International Religious Freedom have been reappointed for additional two-year terms on the Commission, according to a USCIRF release last week. The 9-person Commission is made up of members appointed by the President, the President Pro-tempore of the Senate and the Speaker of the House of Representatives. (Sec. 201 of Intl. Relig. Freedom Act of 1998). Michael Cromartie and Leonard A. Leo were reappointed by the President. Dr. Elizabeth H. Prodromou was reappointed by the Speaker of the House.

Recent Prisoner Free Exercise Cases

In Washington-El v. Diguglielmo, 2008 U.S. Dist. LEXIS 58304 (ED PA, July 31, 2008), a Pennsylvania federal district court denied defendants' motion to dismiss a claim by a prisoner who was a member of the Moorish American Moslem faith. Plaintiff asserted that he was refused the right to participate in Ramadan, to keep a copy of the Koran and to receive visits from clergy of his religion.

In Gooden v. Crain, 2008 U.S. Dist. LEXIS 59857 (ED TX, Aug. 6, 2008), a Texas federal district court rejected a RLUIPA challenge by a Muslim prisoner to Texas prison grooming standards that prevented him from wearing a beard. The court held that while the policy imposes a substantial burden on plaintiff's exercise of religion, the state had shown a compelling interest for the restriction and that the policy is narrowly tailored in light of administrative and budgetary concerns.

Rhoades v. Alameida, 2008 U.S. Dist. LEXIS 59349 (ED CA, Aug. 4, 2008), involved objections by a Native American prisoner that certain of his religious artifacts were destroyed by prison officials. The court said that there were disputed issues of fact that prevented granting the magistrate's recommended summary judgment for defendants on this claim. However the court dismissed plaintiff's equal protection claim, finding that the items he wanted to keep did not have the same religious significance as a Bible or Koran that were allowed to other inmates.

Palermo v. Wright, 2008 U.S. Dist. LEXIS 60014 (D NH, July 24, 2008), a New Hampshire federal magistrate judge allowed a prisoner to move ahead with 1st Amendment and RLUIPA claims that he was denied the religious diet and ritual items required by his Wicca religion.

University of California's Rejection of Christian School Courses Upheld

In Association of Christian Schools International v. Stearns, (CD CA, Aug. 8, 2008), a California federal district court upheld the University of California's refusal to recognized certain high school courses offered by Christian schools in making admissions decisions. In an earlier decision (see prior posting) the court rejected facial challenges to the University's policy. In this decision, the court also rejected a series of "as-applied" challenges.

On procedural and standing grounds, the court limited the as-applied challenge to rejection of literature, history, government and world religions courses offered by Calvary Chapel Christian School and one Biology course offered by another school. In rejecting plaintiffs' viewpoint discrimination challenge as to those courses, the court said: "Defendants necessarily facilitate some viewpoints over others in judging the excellence of those students applying to UC. Therefore, the decision to reject a course is constitutional as long as: (1) UC did not reject the course because of animus; and (2) UC had a rational basis for rejecting the course." The court also rejected free exercise, establishment clause and equal protection challenges.

The Californian on Friday reported on reactions from Robert Tyler, an attorney who represented Calvary Christian School in the case. Saying that they planned an appeal, Tyler remarked: "We're worried in the long term, Christian education is going to be continually watered down in order to satisfy the UC school system." University officials have approved 43 courses offered by Calvary Christian School, and test scores can be used as an alternative admissions criterion.

Air Force Chief of Chaplains Interviewed By AF Times

The Air Force Times on Friday published an interview with the Air Force's recently-appointed Chief of Chaplains, Maj. Gen. Cecil Richardson. Much of the interview focused on defining the appropriate line between sharing one's faith and proselytizing. However Richardson also spoke about changes he plans to introduce to focus more on counselling those being deployed. He said: "We’re working with individuals to build a foundation of faith to stand on when they go through the most difficult time in their whole life." [Thanks to Blog from the Capital for the lead.]

7th Circuit Invalidates City's Handbilling Restrictions

In Horina v. City of Granite City, Illinois, (7th Cir., Aug. 7, 2008), the U.S. 7th Circuit court of Appeals, in a 2-1 decision, held that a city ordinance regulating the distribution of handbills is unconstitutional. In a challenge brought by a born-again Christian who regularly placed pro-life literature and Gospel tracts on the windshields of cars parked near a women's clinic that provides abortions, the court held that the city's restrictions had not been justified as legitimate time, place and manner restrictions. Granite City had failed at trial to introduce any evidence that the ordinance was needed to combat litter, intrusion, trespass or harassment. The ordinance was not narrowly tailored and failed to leave open ample alternative channels of communication. The court however held that the trial court's award of compensatory damages to plaintiff was not justified by the record and reduced the amount of attorneys fees that the trial court had awarded.

Judge Manion dissenting in part argued that the ordinance was a valid time, place and manner regulation and that "common sense" can be used to demonstrate the City’s substantial governmental interest in enacting the ordinance. On Friday, the Thomas More Society issued a release supporting the decision.

New York's Governor Supports Synagogue's Eruv Proposal

Thursday's Forward reports that New York Governor David Patterson spoke earlier this month during services at a synagogue in Westhampton Beach (NY), supporting the congregation's proposal to build an eruv around their community in the Hamptons. An eruv is a symbolic enclosure of an area, usually by wires or strings on utility poles, that under Jewish law permits observant Jews to carry items and push strollers on the Sabbath. Long Island Power Authority and Verizon agreed to the synagogue's proposal, but objections surfaced when the synagogue sought approval from the village board. Critics say the eruv would be a violation of separation of church and state and would be a divisive force. They ran a full page newspaper ad urging residents to vote against political candidates who support the eruv. Patterson in his prepared remarks urged tolerance and understanding for the eruv proposal, and said he might attend a community forum later this week to help clear up public misconceptions.