Religion Clause

Friday, October 10, 2008

Cert Denied In Parents' Complaints About School Books

Last Monday, the U.S. Supreme Court denied certiorari in Parker v. Hurley (No. 07-1368). (Order List.) In the case, the 1st Circuit had rejected free exercise and parental privacy challenges by two sets of parents who complained that they were not given an opportunity to exempt their elementary school children from exposure to books that offended their religious beliefs. The books depicted families headed by same-sex couples or dealt with love between members of the same sex. (See prior posting.) AP reported yesterday on the cert denial. Numerous other denials of cert were also ordered Monday. (See prior posting.)

Wednesday, October 08, 2008

Major Law Firm Sued for Religious Discrimination In Firing of Associate

American Lawyer reported Monday on a religious discrimination lawsuit filed in New York state court against the 1000-lawyer Dechert law firm. Former associate Marc Lubin says that one of the reasons he was fired was the fact that he was an Orthodox Jew. The partner who fired Lubin complained that he "was different", which Lubin understood to mean that his religious practices required him to eat kosher food and precluded his attendance at some events, such as the firm's Christmas party.

9th Circuit Rejects RFRA Challenge To Hydroelectric Project By Snoqualmie Tribe

In Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission, (9th Cir., Oct. 7, 2008), the U.S. 9th Circuit Court of Appeals upheld FERC's granting of a 40-year license renewal to Puget Sound Energy, Inc. to operate the Snoqualmie Falls Hydroelectric Project. The Falls are a sacred site for religious practices for the Snoqualmie Tribe. Plaintiffs alleged that the project deprived the Tribe of access to the Falls, eliminated the mist necessary for the Tribe’s religious experiences, and changed the sacred water cycle. The court concluded that FERC's action did not violate the Religious Freedom Restoration Act. Applying the test from its recent Navajo Nation decision, the court held that no substantial burden was placed on the Tribe's free exercise of religion. Tribe members will not lose a government benefit or face sanctions for practicing their religion. FERC's application of a different, but more generous, definition was harmless error. The court also rejected the Tribe's challenge under the National Historic Preservation Act, and PSE's cross-petition challenging water flow requirements imposed by FERC. [Thanks to Robert H. Thomas for the lead.]

ACLU Brings Another Suit Against Ohio Judge For Religious Courtroom Poster

The ACLU of Ohio yesterday announced the filing a lawsuit against Richland County Common Pleas Court Judge James DeWeese, challenging a poster hung in his court room that displays "Humanist Principles" next to the Ten Commandments. (Photo of poster.) The complaint (full text), filed in federal district court in the Northern District of Ohio, alleges that the poster violates the Establishment Clause of the U.S. Constitution, as well as Art. I, Sec. 7 of the Ohio Constitution. In 2002, the ACLU obtained an injunction against a different 10 Commandments display in DeWeese's courtroom. In August, an Ohio federal court held that the current display is sufficiently different from the one enjoined in 2002 that DeWeese was not in contempt of the prior injunction. (See prior posting.) That holding apparently led to this new lawsuit.

White House Council Report Supports More Aid For Faith-Based Urban Schools

The White House Domestic Policy Council last week issued a 176-page report titled Preserving a Critical National Asset: America's Disadvantaged Students and the Crisis in Faith-based Urban Schools. The Introduction summarizes the report's recommendations:

[B]etween the 1999–2000 and 2005–06 school years, the K–12 faith-based education sector lost nearly 1,200 schools and nearly 425,000 students. This is a cause for national concern.... [I]f we are to succeed in protecting these valuable education options, more must be done. A sustained collaborative effort by educators, elected officials, philanthropists, neighborhood leaders, and many others will be required. America’s faith-based urban schools—so prized by so many families—are well worth this effort. Their preservation will greatly benefit countless disadvantaged students, numerous underserved communities, and as a result, our Nation at large.

In its section on public policy, the report supports vouchers, "backpack funding" that would allow students to take public dollars to the school of their choice, tax credits, faith-based charter schools and additional support services. Much of the report is a transcript of the White House Summit on Inner-City Children and Urban Schools held last April. (See prior posting.)

Yesterday, Americans United issued a release taking issue with the report, saying: "Government officials should focus on improving public schools, not subsidizing religious education."

Challenge To Green Bay Creche Dismissed On Standing Grounds

In Freedom from Religion Foundation, Inc. v. City of Green Bay, (ED WI, Oct. 7, 2008), a Wisconsin federal district court dismissed an Establishment Clause challenge to a nativity scene displayed last year on the roof of the entrance to Green Bay's City Hall. Plaintiffs sought a declaratory judgment, an injunction and nominal damages. Without reaching the merits, the court concluded that plaintiffs lacked standing because "none of the relief they seek would redress the injuries they claim." City Council had already enacted a moratorium on all displays, until a policy is worked out in the future. Also the city took down the display at issue on December 26, just hours before this lawsuit was filed. The claim for nominal damages was not sufficient by itself to create standing. The AP reported on the decision. (See prior related posting.)

Shariah Compliant Mutual Funds Benefit From U.S. Financial Crisis

Commodity Online reported yesterday that one unanticipated effect of the current U.S. financial crisis is the growth of assets invested in Shariah mutual funds and other Shariah-compliant investments. Because Islamic law prohibits paying or receiving interest, most of the mutual funds have avoided the now-battered stocks of financial services firms. For the same reason, the funds also tend to avoid companies with large amounts of debt on their balance sheets. These companies are now less likely to be hurt by the credit freeze in the U.S.

6th Circuit Upholds Limits On Leaflet Distribution In School Hallways

In M.A.L. v. Kinsland, (6th Cir., Oct. 7, 2008), the U.S. 6th Circuit Court of Appeals upheld restrictions imposed by a Monroe, Michigan middle school on a student's handing out anti-abortion leaflets as part of the national "3rd Annual Pro-Life Day of Silent Solidarity." School rules required that any material students wished to hand out had to first be submitted to the principal. If approved, the principal could designate the time and place for distribution. Even though 14-year old Michael did not submit his leaflets to the principal, the Jefferson Middle School permitted him to post them on hallway bulletin boards and hand them out during lunch in the cafeteria. Michael, however, wanted to distribute the leaflets in school hallways. The court held that the school hallways are nonpublic forums. School officials are permitted to place viewpoint neutral and reasonable time, place and manner restrictions on hallway speech. Jefferson's rules complied with this requirement. They provide clear content-neutral standards for the principal to use in deciding whether or not to approve a proposed distribution. Yesterday's Detroit News reports on the decision.

Tuesday, October 07, 2008

Ancient Jewish Custom of "Prozbul" Still Being Used to Assure Debt Collectibility

In Israel last week, Rosh Hashanah marked the end of the Sabbatical Year-- the seventh year, in which, according to Jewish law, farm lands are to lie fallow. (See prior posting.) Also, according to a provision of Jewish law that was designed to assist the poor, most outstanding debts are cancelled at the end of the Sabbatical Year. Not surprising to modern economists, this provision in fact was counter-productive, leading to a freezing of the credit system near the Sabbatical Year. So 2,000 years ago, rabbis created a solution-- the "prozbul". Debtors, using this legal loophole, would transfer their debts to a rabbinical court which could collect them even after the end of the Sabbatical Year. Haaretz reported on Sunday that this custom is still being observed in many Jewish communities throughout the world, with assignments being made to the Supreme Rabbinical Court in Jerusalem.

In another twist on the custom, a charitable group in Israel sought out "loans" from donors just before the end of the Sabbatical year, with the understanding that they became grants once Rosh Hashanah passed. The funds are being used by the group, Pa'amonim, to provide budget counseling to those in financial distress. [Thanks to Religion and State In Israel for the lead.]

In Indonesia, Council of Ulemas Gains Strength

This morning's New York Times reports on the growing power in Indonesia of the Council of Ulemas. The quasi-governmental council of Muslim scholars was formed in 1975 by then-President Suharto to limit the growth of political Islam. More recently, however, the Council, which represents established Muslim organizations, has become more radical and politically powerful. It advises the government on religious matters and distributes fatwas that are non-binding. The Council's budget is growing. It has purchased a new office tower for its headquarters and has 150 offices around the country. The Council has increasing support from moderate President Susilo Bambang Yudhoyono who, this summer, at the Council's urging, limited the activities of the Ahmadiya sect. (See prior posting.)

FLDS Church Sues To Challenge Reform of UEP Trust

After years of ignoring Utah state court proceedings that have reformed the United Effort Plan Trust of the FLDS Church, the Church on Monday filed a federal lawsuit alleging that the attorneys general of Utah and Colorado, the special fiduciary appointed by the court and Utah state district court Judge Denise Lindberg have violated the Church's First Amendment free exercise rights. Yesterday's Deseret News and Salt Lake Tribune both reported on the case. The complaint alleges that by reforming the trust in a way that secularizes it, the court has infringed free exercise rights of FLDS members. It contends:

The UEP Trust was formed so FLDS Church members could live the United Order and the Law of Consecration by seeking religious stewardships within the meaning of Holy Scripture. FLDS Church members cannot practice the United Order or the Law of Consecration under the reformed trust.

The lawsuit also alleges that one of the reasons for reforming the trust was the argument that it supported polygamy. The complaint argues that this is invalid because Utah's bigamy statute is unconstitutional. This lawsuit is apparently part of a broader effort to challenge the court's control of the UEP trust-- a change in strategy undertaken after a raid last April on the FLDS Ranch in Eldorado, Texas. (See prior postings 1, 2).

California Brings Back "Bride" and "Groom" On Marriage Licenses

As previously reported, some in California are objecting to the current form of California's marriage licenses. In order to take account of now-recognized same-sex marriages, the forms merely identify the parties to be married as Party A and Party B. In response, the California Department of Public Health last week announced a change. Effective November 17, new forms will be used. They will call for information about the "First Person" and "Second Person" applying for the license. In addition, optional boxes will be available that can be checked to identify the applicants as "Bride" and "Groom". Yesterday, the AP reported on the change. [Thanks to Alliance Alert for the lead.]

Cert. Denied In Three Cases of Interest

Yesterday, as the U.S. Supreme Court opened its Fall Term, it denied certiorari in a number of cases. (Order List). Among them were three cases that relate to law and religion issues:

In Lucero v. Texas (No. 07-1429), the Texas Court of Criminal Appeals held that the jurors' verdict was not affected by their reading of a passage fro the Bible during their deliberations. Christian Science Monitor reported on the denial of cert.

In Boldt v. Boldt (No. 07-1348), a change of custody case, a now-divorced mother who is a member of the Russian Orthodox Church sought to prevent her former husband-- a convert to Judaism-- from having their 12-year old son circumcised. The Oregon Supreme Court remanded the case for the trial court to decide whether the child wants the circumcision. (See prior posting.) The Seattle Times reported on the denial of cert.

In Stanton v. Arizona Life Coalition (No. 07-1366), the 9th Circuit Court of Appeals held that the free speech rights of Life Coalition were violated when the Arizona License Plate Commission denied its application for a special "Choose Life" license plate. The AP reports on the denial of cert. [Thanks to Alliance Alert for the lead.]

Atlanta Church Sues To Challenge Use Permit Denial

Last week in Atlanta, (GA), Kingdom First Ministries filed a lawsuit against the city of Atlanta challenging its refusal to grant the Church a special use permit. The Church wants to operate out of a building it has leased in Atlanta's Historic West End. Under Atlanta's zoning law, a permit is required in this area for churches and synagogues on lots of over one acre. The complaint filed in federal district court (full text) alleges that the denial violates RLUIPA's "equal terms", "substantial burdens" and "unreasonable limitation" provisions, the equal protection clause of the 14th Amendment, and the 1st Amendment's free exercise and free speech protections. Alliance Defense Fund issued a release yesterday announcing the filing of the case.

California Teacher's Religious Discrimination Claim Rejected By Court

In Jalali v. Los Angeles Unified School District, (CA Ct. App., Oct. 2, 2008), a California state appellate court rejected a claim of religious and national origin discrimination in employment brought by an elementary school teacher. Plaintiff is a Muslim of Iranian descent. She claimed discrimination and harassment based on her ethnicity and religion. The court concluded that none of the instances that form the basis of the suit rise to the level of "adverse employment actions" as that term is used in California's Fair Employment and Housing Act. Yesterday's Metropolitan News-Enterprise reported on the decision.

Monday, October 06, 2008

Sikh Temple Members In Metro Portland Sue Leaders Over Building Move

In Vancouver, Washington (part of metropolitan Portland, Oregon), a lawsuit has been filed by four members of the Guru Ram Dass Sikh Community of Vancouver and Portland against leaders of the local Sikh temple (Gurdwara). Yesterday's Vancouver Columbian reports that the internal dispute is over whether the temple should move from its current location to a former athletic club building. The suit alleges that the purchase of the athletic club building should have required a vote of the temple membership. Instead it was approved by an"executive committee" which allegedly seized control of the Gurdwara. One member says that it costs $5000 to join the executive committee, and that the Gurdwara is supposed to be run by a board whose members are elected by verbal vote. The suit also alleges that the executive committee has used intimidation to impose its will on a majority of the Sangat. Meanwhile, neighbors of the athletic club are concerned about increased traffic that may result from the new use of the property.

Court Allows Native American Kindergartner Into Class With Long Hair

The Houston Chronicle reported on Friday that parents of a Needville, Texas kindergartner have been successful in convincing a federal district judge to issue a preliminary injunction ordering school officials to permit 5-year old Adriel Arocha to return to his regular school classroom with his long hair in plain sight. The ACLU of Texas had filed suit on behalf of the Native American student who insisted on wearing his hair long, in violation of the school dress code, for religious reasons. The school had offered to accommodate Arocha by allowing him to wear his hair in a single braid tucked into his shirt. He had refused, and was being taught separately from his classmates in a one-on-one setting until he complied.

Traditional Pre-Yom Kippur Ritual Rasies Some Legal Concerns

The Jewish holiday of Yom Kippur begins Wednesday evening. Legal authorities in some cities are raising questions about a pre-Yom Kippur ceremony observed by some Orthodox Jews. The ritual of Kaparot, in its traditional form, involves swinging a live chicken around one's head, symbolically transferring one's sins to it. Afterwards the chicken is slaughtered and donated as food to the poor.

The Bay Area Independent Media Center reported last week from Los Angeles that the city's Animal Services general manager is discouraging the ceremony. Many Jews, as an alternative, place money in a handkerchief, swing it over their head, and then donate it to the poor. Kaparot using animals may be illegal in Los Angeles. Under Los Angeles Municipal Code, Sec. 53.67, it is illegal to kill "any animal in any religious ... ritual ... [if not done] primarily for food purposes, regardless of whether ... such animal is subsequently consumed."

Meanwhile, according to Friday's Lower Hudson Journal-News, in Monsey, New York, many again this year plan to carry out the traditional pre-Yom Kippur ritual using chickens. In January, a group was fined for not cleaning up the area in which the chickens were slaughtered at last year's ceremony. In past years, the Hudson Valley Humane Society for the Prevention of Cruelty to Animals found chickens brought in for the ceremony housed in poor conditions, sometimes without food or water. However this year a new site is being used, and, according to Humane Society inspectors, those in charge are now treating the chickens well prior to slaughter.

UPDATE: The Lower Hudson Journal (Oct. 10) reported that on the day before Yom Kippur, the county Health Department issued two citations to organizers of the kaparot ceremony in Monsey, NY for washing slaughtered chicken remains down a storm sewer. Last week the Department also issued a citation after the ritual site was littered with trash and chicken remains.

IL Court Applies Abstention Doctrine In Challenge To Hiring of Priest

In Buss v. Przybylo, (IL App. Ct., Sept. 26, 2008), an Illinois appellate court applied the ecclesiastical abstention doctrine to dismiss a complaint by two members of The Shrine of Christ the King challenging a contract entered into by the church to employ Father Chester Przybylo to serve as priest for the congregation. The Shrine was established to promote the Tridentine Latin Mass. Plaintiffs alleged that Przybylo did not have the proper credentials to serve and that he had been accused in a lawsuit of sexually molesting a minor. The court concluded that determining whether a person is qualified to serve as a clergyman is a doctrinal decision. The First Amendment precludes civil courts from involving themselves in matters of church governance, faith or doctrine.