Experts Discuss Impact of Religion On Jurisprudence of High Court Justices

The cover story of the September/October issue of Moment Magazine is titled Religion & The Supreme Court. Nine experts discuss whether the religion of Supreme Court justices play a role in their jurisprudence? The article features responses to that question from Jeffrey Rosen, Douglas Kmiec, Abner Joseph Mikva, Marci A. Hamilton, Jamie Raskin, Wendy Webster Williams, Laurence H. Tribe, Eugene Volokh, Jeffrey Toobin.

Minnesota Officials Uncertain About Muslim Charter School

Yesterday's Minneapolis Star-Tribune reports that tension continues to exist between the Minnesota Department of Education and the Tarek ibn Ziyad Academy (TiZA), a K-8 charter school. The state continues to be concerned that TiZA has stepped over the church-state line. The school's executive director is an imam, it shares a building with a mosque and the Minnesota chapter of the Muslim American Society, the school has daily prayer breaks, and its cafeteria serves halal food. School buses do not leave until students have completed elective after-school religion classes. Also at issue is the school's insistence on holding Friday prayer services on premises, though the school now agrees that it will be student-led, with staff there only for student safety. (See prior related posting.)

State Court Says RLUIPA Permits Church To Build

Today's Aspen (CO) Daily News reports that a state trial court judge has dismissed a lawsuit by a group known as the Emma Caucus challenging a decision by Pitkin County, Colorado commissioners to permit construction of a large church complex by Grace Church of the Roaring Fork Valley. The court held that the Religious Land Use and Institutionalized Persons Act supersedes provisions of the county's land-use code. The judge said that the county's out-of-court settlement with Grace Church earlier this summer was an "implicit admission" that the county was in violation of RLUIPA in attempting to prevent construction. In that settlement, the county agreed to pay damages and legal costs in exchange for Grace Church agreeing not to develop their land further over the next ten years. (See prior related posting.)

Property of Break-Away Presbyterian Church Belongs To Parent Body

The Tulsa World reports that an Oklahoma state trial court yesterday ruled that the multi-million dollar building housing Tulsa's Kirk of the Hills Church belongs to the Presbyterian Church USA and its Eastern Oklahoma Presbytery, and not to the local congregation that broke away from the parent body to join the Evangelical Presbyterian Church through the New Wineskins. The court relied on a 1973 Oklahoma Supreme Court decision that held courts will defer to the decisions of hierarchical church bodies in church property disputes. Section G-8.0201 of the Presbyterian Church USA's Book of Order (its constitution) provides that all church property, however titled, is held in trust for the use and benefit of the Presbyterian Church USA. The briefs that were filed in the case are available online.

Court Upholds Teacher's Classroom Banners With Religious-Patriotic Messages

In an interesting decision issued last week, a California federal district court refused to dismiss claims by high school teacher Bradley Johnson against Poway (CA) Unified School District. Johnson, a Christian, was ordered by his principal to remove two banners from the walls of his Westville High School classroom because they conveyed a Judeo-Christian viewpoint. One contained phrases such as "In God We Trust" and "God Bless America". The other included the phrase "All Men Are Created Equal, They Are Endowed By Their Creator." Johnson also hung photos of national parks and of his family in his classroom. In Johnson v. Poway Unified School District, (SD CA, Sept. 4, 2008), the court held that Johnson's free speech rights as a teacher were violated by the order that he remove the banners.

Applying mainly cases involving student speech rights, the court held that, based on allegations in the complaint, the school district had created a limited public forum in which teachers could exercise free speech in their classrooms. The school engaged in viewpoint discrimination since it had permitted other teachers to post Buddhist messages, Islamic messages and a Tibetan prayer flag on their classroom walls. This favoritism of some religious messages over others was also seen by the court as an Establishment Clause violation.

Rejecting the school's argument that it was concerned about future Establishment Clause litigation because of Johnson's banners, the court said: "That God places prominently in our Nation’s history does not create an Establishment Clause problem requiring curettage and disinfectant of Johnson’s classroom walls." The court concluded:

Public schools play an important role educating and guiding our youth through the marketplace of ideas and instilling national values. One method used by the Poway Unified School District to accomplish this task is to permit students to be exposed to the rich diversity of backgrounds and opinions held by high school faculty. In this way, the school district goes beyond the cramped view of selecting curriculum and hiring teacher speech to simply deliver the approved content of scholastic orthodoxy.... By squelching only Johnson’s patriotic expression, the school district does a disservice to the students of Westview High School and the federal and state constitutions do not permit such one-sided censorship.

Today's San Diego Union Tribune reports on the decision, noting that the Poway school district has been involved in other free speech litigation as well. (See prior posting.) Thomas More Law Center which represented Johnson also issued a release on the decision.

MN Appellate Court Refuses Temporary Injunction To Muslim Cabbies

In Dolal v. Metropolitan Airports Commission, (MN Ct. App., Sept. 9, 2008), a Minnesota Court of Appeals upheld a trial court's refusal to issue a temporary injunction sought by Muslim cab drivers against the commission that regulates ground transportation at the Minneapolis- St. Paul International Airport. At issue are regulations that penalize the cab drivers who refuse service to passengers. Muslim drivers argue that requiring them to transport passengers who are carrying alcohol infringes their free exercise of religion protected by the Minnesota constitution. The court of appeals agreed that the cab drivers had not suffered irreparable harm. Any suspension of a cab driver would be stayed while an order is being reviewed administratively, and the stay could be continued if that decision is reviewed in the courts. USA Today reports on the decision. (See prior related posting.)

Netherlands Plans To Ban Burkas in Schools

In the Netherlands, Education Minister Ronald Plasterk says legislation will be introduced in Parliament next year to ban the wearing of the burka at all elementary and secondary schools, including private Muslim schools. The London Telegraph reported yesterday that the proposed ban will apply to all teachers and visitors, as well as to parents picking up their children. Plasterk argued that "It is important for children to learn that proper communication requires being able to look the other person in the eye ." Estimates indicate that only about 100 women in all of the Netherlands wear burkas. Yesterday's Dutch News says that Plasterk's proposal follows a decision by the Cabinet in February not to totally ban the burka in public. However, a burka ban is likely to also be imposed on government employees and hospital workers, and extended by local authorities to council buildings and public transportation. (See prior related posting.)

3rd Circuit Hears Oral Arguments In Title VII Muslim Police Officer Case

The Philadelphia Inquirer reports that yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments in Webb v. City of Philadelphia, a case in which a Pennsylvania federal district court rejected a Title VII religious discrimination claim brought by a Muslim police officer who wanted to cover her head for religious reasons with a khimar. (See prior posting.) She requested a religious accommodation under the 1964 Civil Rights Act after male Muslim police officers were allowed to wear beards. Officer Kimberlie Webb has a custom-made khimar with a Velcro fastener so that it breaks away if someone grabs at it. Eleanor Ewing, arguing for the city, said Philadelphia's police uniform policy was intended to maintain religious neutrality. However, apparently other officers have been allowed to wear Christian crosses and angel pins.

Pittsburgh Episcopal Diocese Makes Financial Arrangements For Split-Off

For several years, the Episcopal Diocese of Pittsburgh has been moving toward separating from Episcopal Church (ECUSA) and affiliating with the more conservative Anglican Province of the Southern Cone. A final vote is expected on October 4. Yesterday's Pittsburgh Post-Gazette reports that Calvary Episcopal Church has been leading the minority of parishes that object to Bishop Robert Duncan's plans. In 2003, it filed suit against the Diocese and settled the litigation through a 2005 agreement that endowment funds, but not necessarily parish property, would continue to be held by those loyal to ECUSA. Now, the Diocese has agreed to have an inventory of all its property carried out by an individual appointed by the court. It also agreed this week to allow parishes that oppose the secession to place diocese support payments in escrow accounts that will go to ECUSA. The Diocese agrees that a fair distribution of property will be arranged if the secession resolution passes next month. (See prior related posting.)

Recent Prisoner Free Excercise Cases

In Zapata v. Brandenburg, (10th Cir., Aug. 25, 2008), the U.S. 10th Circuit Court of Appeals upheld the dismissal of a prisoner's claim that he was removed from a faith-based program because he refused to convert to a different faith. The lower court found that the removal was related to legitimate penological interests-- he was combative and threatening toward other inmates and staff.

In Hughes v. Banks, (8th Cir., Sept. 3, 2008), the U.S. 8th Circuit Court of Appeals affirmed dismissal of a free exercise claim by a prisoner who alleged that when he refused to comply with staff-precaution procedures, he was not given meals. This caused him to miss meals during Ramadan.

In Baker v. Schriro, 2008 U.S. Dist. LEXIS 66284 (D AZ, Aug. 20, 2008), an Arizona federal district court refused to dismiss a prisoner's claim that prison authorities destroyed his religious materials without any legitimate penological objective.

Palin and Jews For Jesus Speaker Both Clarify Their Views

As Sarah Palin's religious views are closely scrutinized by the media, last week remarks of a guest speaker at her Wasilla church were widely circulated. Jews for Jesus executive director, David Brickner spoke there, and his remarks were characterized as suggesting that conflict in the Middle East was a punishment for Israel's not accepting Jesus. (See prior posting.) Now Brickner says that his statements were misinterpreted. In a posting on Jews for Jesus website, he said that he was referring to "the need for all people, both Jews or Gentiles, to repent and seek forgiveness through Y'shua." Meanwhile, MSNBC reports the McCain campaign made clear that Palin does not share Brickner's views. McCain-Palin spokesman Taylor Griffin said: "This was a guest at the church who Governor Palin did not know would be speaking. Gov. Palin does not share the views he expressed, and she and her family would not have been sitting in the pews of this church for the last seven years if his remarks were even remotely typical." [Thanks to a commenter on my prior posting for the lead.]

Colorado Company Faces Dispute Over Ramadan Accommodation For Workers

In Greeley, Colorado, JBS Swift & Co. finds itself in the middle of protests regarding the appropriate accommodation of religious practices of its many Muslim employees-- mostly African refugees-- who are fasting during Ramadan. Today's Greeley Tribune reports that those working the late shift want their break time moved up to 7:30 pm so they can break their fast at sundown. Non-Muslim employees say it is unfair to give accommodation to Muslim employees that are not available to others. Federal law requires reasonable accommodation of workers' religious practices.

8th Circuit Affirms Dismissal of Religious Challenge To Controlled Substances Acts

In Olsen v. Mukasey, (8th Cir., Sept. 8, 2008), the U.S. 8th Circuit Court of Appeals held that plaintiff's attempt to enjoin enforcement against him of the federal and Iowa's controlled substances acts should be dismissed. Carl Olsen, a member of the Ethiopian Zion Coptic Church, uses marijuana for sacramental purposes. The court concluded the Olsen's RFRA, free exercise and equal protection claims were barred by collateral estoppel. His claims had been previously adjudicated in state and federal criminal prosecutions against him. The court held that RLUIPA does not apply because Olsen is not an institutionalized person. The court's decision affirms the dismissal of Olsen's claims by the district court.

Biden's Remarks On "Life" Trigger Bishops' Response

Catholic bishops around the country have reacted strongly to remarks by Democratic vice-presidential nominee Joseph Biden on last Sunday's "Meet the Press" (full transcript). Asked by interviewer Tom Brokaw what he would tell Sen. Obama if he asked Biden when life begins, Biden replied:

I'd say, "Look, I know when it begins for me." It's a personal and private issue. For me, as a Roman Catholic, I'm prepared to accept the teachings of my church. But let me tell you. There are an awful lot of people of great confessional faiths--Protestants, Jews, Muslims and others--who have a different view. They believe in God as strongly as I do. They're intensely as religious as I am religious. They believe in their faith and they believe in human life, and they have differing views...

I'm prepared as a matter of faith to accept that life begins at the moment of conception. But that is my judgment. For me to impose that judgment on everyone else who is equally and maybe even more devout than I am seems to me is inappropriate in a pluralistic society....

MR. BROKAW: But if you, you believe that life begins at conception, and you've also voted for abortion rights...

SEN. BIDEN: No ... I voted against telling everyone else in the country that they have to accept my religiously based view that it's a moment of conception. There is a debate in our church, as Cardinal Egan would acknowledge, that's existed.... [W]hen Thomas Aquinas wrote "Summa Theologia," he said ... it didn't occur until quickening, 40 days after conception....

Catholic News Agency yesterday reported on responses to Biden's remarks by Madison, (WI) Bishop Robert C. Morlino and Archbishop of Denver Charles J. Chaput. Bishop Morlino discarded his prepared Sunday homily in order to make impromptu remarks on Biden. He said that Biden does not understand the difference between "religious faith and natural law." He explained: "Any human being -- regardless of his faith, his religious practice or having no faith -- any human being can reason to the fact that human life from conception unto natural death is sacred."

Denver's Archbishop Charles J. Chaput and auxiliary Bishop James D. Conley issued a statement similarly criticizing Biden, saying that while there may be a debate over when "personhood" begins, there is no doubt that human life begins at conception. They argued that: "Resistance to abortion is a matter of human rights, not religious opinion."

Dutch Court Creates Controversy In Accomodating Beliefs of Muslim Lawyer

Courts in Europe continue to struggle with questions of accommodating Muslim religious practices. NIS News today reports that the Dutch Bar Association, along with politicians from both the ruling and opposition parties, oppose a ruling by a Rotterdam judge that Muslim lawyer Mohammed Enait need not rise when judges enter the courtroom. Enait says that standing for a judge would violate his Muslim religious beliefs that all people are equal. Enait is a controversial figure, previously having been embroiled in a dispute regarding his refusal to shake hands with women, even though his law firm's website carries pictures of two porn actresses who are supposedly the firm's secretaries.

City Says RLUIPA Limits Its Response To Distracting Church Sign

A church sign near Interstate 90 in Janesville, Wisconsin is too bright and so is distracting to motorists. However, according to yesterday's Church Solutions, the city will merely request that the church dim the sign. It will not require the church to do so, saying that the Religious Land Use and Institutionalized Persons Act protects the church's right to display the sign.

British Unions Call For Removal of Anti-Gay Equality Commissioner

In Britain, the Trade Unions Conference has unanimously called for the removal of Joel Edwards as one of the 17 commissioners on the Equality and Human Rights Commission (EHRC). Edwards, who was appointed to the new Commission created by the Equality Act 2006, is director of the Evangelical Alliance and a senior figure in Britain's black community. Pink News reported yesterday that those seeking Edwards removal say that the Evangelical Alliance is one of the strongest opponents of gay rights in the UK, and has previously launched large-scale campaigns against the Sexual Orientation Regulations that are now enforced by the EHRC.

Scientology Faces Charges In France; Takes Offensive Against YouTube

Jurist and AFP report that on Monday a French judge ordered the Church of Scientology to appear before a Paris Magistrate's Court to face criminal charges of organized fraud and ordered seven of its members to face charges of illegal practice of pharmacy. The cases arise out of a complaint by a woman that she paid over $28,000 (US), for classes, books, medications and an electrometer.

Meanwhile, the Electronic Frontier Foundation reports that in 12 hours last week (between Thursday and Friday), American Rights Counsel sent out over 4000 DMCA takedown notices to YouTube, all claiming copyright infringement by posted videos that were critical of the Church of Scientology. Many YouTube users responed with DMCA counter-notices.

Amish Men's Trial Delayed Over Obtaining Counsel

Yesterday's Watertown (NY) Daily Times reports that Hammond, New York's civil lawsuit against two members of the Swartzentruber Amish sect to enforce compliance with building codes has been delayed because defendants' religious beliefs are preventing them from obtaining attorneys. Amish refuse on religious grounds to retain attorneys, but will permit the court to appoint counsel or will permit counsel to intervene on their behalf. Public defender Steven Ballan was appointed to represent Joseph J. Swartzentruber and Henry D. Mast in criminal proceedings against them in Morristown, but he cannot represent them in a civil case. (See prior posting.) Nor may the court appoint counsel. Ballan is working to get a religious freedom group to intervene on behalf of the two Amish men. At issue in the lawsuit is the refusal of defendants to obtain building permits, install smoke detectors or get engineer-approved designs for homes they built.

Russian Prosecutors Say "South Park" Incites Religious Hatred

In 2006, Russia passed a law expanding the definition of extremism to include "inciting religious and national hatred." According to Reuters today, prosecutors in Moscow's region of Basmanny have filed a motion in court against the television station 2x2 seeking to ban the U.S. show South Park. Prosecutors' action came after the Russian Union of Christians of Evangelical Faith (RUCEF) filed a complaint against an episode of the program titled Mr. Hankey's Christmas Classics. The episode was broadcast in Moscow in January, dubbed into Russian. Prosecutors say the episode "bore signs of extremist activity." RUCEF says that South Park is just one of many cartoons that need to be banned because they insult religious believers and incite religious and national hatred.