Westhampton Eruv Supporters File Arguments In Response To Opposition

On Oct. 19, attorneys for the Hampton Synagogue in Westhampton Beach, New York, filed a letter with the Village Board (full text) defending the constitutionality of their proposed eruv (symbolic enclosure of space). The letter comes in response to a memo filed with the Village Board earlier this month by opponents of the eruv. (See prior posting.) The synagogue's letter says that the important constitutional issue at stake is whether the issuance by a governmental body of a ceremonial proclamation, necessary in order that the eruv be valid, is a violation of the Establishment Clause. Citing prior case law, the letter argues that the proclamation poses no Establishment Clause problem:

Whether judged under the Lemon test or the endorsement test ... there is a secular purpose-allowing observant Jews to carry and push babycarriages and wheelchairs to the park or to the homes of friends . It does not advance any particular religion since it would not impose the Jewish religion on any other residents and ... the Village has taken action to accommodate the religious beliefs of other Village residents . Finally, there will be no entanglement since no further government approvals are necessary and the eruv will be constructed and maintained with no expenditure of public funds . Similarly, under the endorsement test ..., no reasonable observer would conclude that by issuing the proclamation, the Trustees are endorsing the practices of Orthodox Jews.

The letter further argues that refusing a petition to issue a proclamation validating the eruv would be a violation of the free exercise rights of members of the Hampton Synagogue. Hamptons.com yesterday reported on the synagogue's letter to Village trustees.

Cert. Filed In Mojave Desert War Memorial Cross Case

On Oct. 10, the U.S. Solicitor General filed a petition for certiorari with the Supreme Court in Kempthorne v. Buono, (Docket No. No. 08-472). In the case, the 9th Circuit found Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the Veterans of Foreign Wars. The full 9th Circuit, with 5 judges dissenting in a long opinion, denied en banc review. (See prior posting.) Today's Los Angeles Times reports on the filing of the cert. petition, indicating that the petition argues that the retired park service employee who brought the action lacked standing and, in any event, Congress cured any problem by conveying the land to the VFW, a private organization. (See prior posting.)

UPDATE: Here is the full text of the petition for certiorari, thanks to Inverse Condemnation blog.

Death Sentence For Journalism Student Reduced to 20 Years By Afghan Court

As previously reported, in January journalism student Sayad Parwez Kambaksh was sentenced to death after a 5-minute trial by an Afghanistan court. He was charged with distributing an online article to which he had added comments, critical of the Quran's view of women. Yesterday's New York Times reported than an appeals court has now reduced the student's sentence to 20 years in prison. However international journalism organizations are severely criticizing the fairness of both the trial and the appellate proceedings. Kambaksh's lawyer plans an appeal to the Supreme Court and asked Afghan President Hamid Karzai "to intervene and to not let the corruption in the judicial system violate the rights of Afghan citizens."

CNN Interviews Muslim-Americans On Upcoming Election

In a report published yesterday, CNN interviewed a number of Muslim-Americans about their views on the upcoming election. CNN says that Muslim-Americans "are more interested than ever before in the political process, in part because their religion has been reduced to a talking point in the presidential campaign." This report followed on Sunday's remarks by former Secretary of State Colin Powell criticizing Republican attempts to paint Barack Obama as a Muslim, but adding:"What if he is? Is there something wrong with being a Muslim in this country? No, that's not America. Is there something wrong with some 7-year-old Muslim kid believing that he or she can be president?"

Court Says Loyalist Members of Episcopal Parish Are Proper Board of Governors

New v. Kroeger, (CA Ct. App., Oct. 21, 2008) is an action brought by the members of San Diego, California's St. John’s Parish who remained loyal to the Episcopal Church after a majority of parish members broke away and affiliated with the more conservative Anglican Church in Africa. Plaintiffs sought a declaration that the governing board they elected is the proper board of directors of the Parish. After the break-off, they, as remaining remaining members, elected a new governing board, but the break-away board refused to relinquish their seats or control of parish assets. The Court of Appeals, reversing the trial court, held that the break-away members lacked authority to amend the Parish corporation's governing documents to make it part of the Anglican church. By taking the action they did, defendants were no longer part of the Episcopal Church and could not be the lawful directors. The court then concluded that, applying neutral rules, it must give deference to the San Diego Diocese's determination as to who constituted the true members of St. John's Parish. Today's Los Angeles Metropolitan News-Enterprise reported on the decision. [Thanks to Robert H. Thomas for the lead.]

Iowa Christian Group Wants Information On Judges' Worldview

The Cedar Rapids (IA) Gazette reports today that the Iowa Christian Coalition is urging the public to vote "No" on retention of all judges who are up for a retention vote in November under Iowa's merit-based selection system. An article by ICC lobbyist Norm Pawlewski objects that none of the voters guides on judges reveal a judge's political views or worldview-- especially on issues such as abortion or gay rights. He concludes: "Considering that the Iowa Bar and the Iowa Trial Lawyers Association are the source of most of the judges now on the bench, and that both of those organizations are considered by most Christians to be less than supportive of a biblical worldview and would hardly put forward for appointment an openly Christian conservative lawyer, guess what worldview dominates Iowa’s Judiciary?"

Taliban In Afghanistan Kill Aid Worker, Charging Christian Proselytizing

The AP reports that the murder of a Christian aid worker in Afghanistan today was carried out on orders of the Taliban who objected to her engaging in proselytizing activity. Gayle Williams, 34 years old and a dual citizen of Britain and South Africa was gunned down by assailants on a motorbike as she walked to work. Taliban spokesman Zabiullah Mujahid told the AP: "This woman came to Afghanistan to teach Christianity to the people of Afghanistan. Our (leaders) issued a decree to kill this woman." A spokeswoman for the aid group SERVE denied that Williams, who worked with handicapped Afghans, was engaged in proselytizing.

Rector's Suit Against Bishop Opens In Pennsylvania Today

Today's Philadelphia Inquirer reports on an unusual trial that begins today in a Pennsylvania state trial court. Rev. David Moyer, former rector of Good Shepherd Episcopal parish in Rosemont (PA), is suing Episcopal Bishop Charles E. Bennison Jr. for fraud and deception allegedly used to remove Moyer as a priest six years ago. Moyer is a conservative, opposed to same-sex marriage and ordination of gays and women. Moyer and several other conservative rectors barred the liberal Bishop Bennison from preaching or administering sacraments in their parishes, arguing that Bennison's views on homosexuality were unbiblical and close to heresy. In response, Bennison "inhibited" Moyer, and in 2002 removed him, and denied him a church trial on the removal saying that Moyer had "broken communion" with the Episcopal Church by accepting (and then refusing) appointment as a bishop in the conservative Anglican Church in America. While civil courts usually refuse to adjudicate these kinds of internal church determinations, Common Pleas Court Judge Thomas Branca held otherwise last year after Moyer argued that he lacked other remedies since he had been improperly denied a church trial.

Meanwhile Bennison himself is facing possible removal on charges that 30 years ago he failed to take action and concealed information when his older brother John--then a youth minister-- sexually abused a teenage girl in his parish. [Thanks to James Maule via Religionlaw for the lead.]

UPDATE: As the trial reached its third day on Wednesday, Bennison's lawyers asked the court to dismiss the case on First Amendment grounds. Judge Joseph Smyth who is presiding at trial said that perhaps the case does not belong in civil court, but decided that he should honor the rulings to the contrary by Judge Thomas Branca and complete the trial. According to the Philadelphia Inquirer, Smyth said he anticipated important appellate issues would be raised.

Muslim Lawsuits Speed Up Processing of Citizenship Applications

In response to class action lawsuits filed by Muslims in several states, federal authorities began in May to reduce a nationwide backlog of citizenship applications that have been delayed because of required name checks and background checks. Today's Arlington Heights (IL) Daily Herald reports that the U.S. Citizenship and Immigration Services and the FBI have reduced the backlog from 82,000 to 10,000 cases, and hopes by November to process any name checks that have been pending for more than one year. Groups such as CAIR say that that regulations on name and background checks have unfairly targeted Muslim immigrants, and that officials spend too much time investigating applicants' connections with Muslim organizations. Federal officials deny this, saying that the problem is multiple spellings of foreign names and a large increase in citizenship applications in 2007 ahead of new fee increases. The FBI is building a new high-tech records facility that it hopes will prevent future processing delays. (See prior related posting.)

British and Moroccan Agencies Impose Religious Tests On Adoptive Parents

Last Saturday's Times of London reports on the religious demands made upon Robert and Jo Garofalo, a British couple who adopted a Moroccan child in 2006 and later attempted to adopt a second child from the same orphanage. At the time of the first adoption, apparently as required by Moroccan authorities, the couple converted to Islam. When the couple approached their local social services agency in Surrey to obtain permission to adopt a second child, British social workers-- in conducting an initial assessment-- raised questions as to whether the parents doing enough to nurture their first child's Muslim heritage. The social service report stated that in the Garofalo's home, "there is no outward sign that this is a Muslim family." The Garofalo's think that social workers should not be judging their commitment to Islam. Because of objections to various aspects of the required re-assessment by British social services, the Garofalo's have given up on adopting a second child.

Recent Articles and Books of Interest

From SSRN:

• Saadiah Mohamad, Islamic Hedging: Gambling or Risk Management?, (August 27, 2008).
• Penelope Andrews, Who's Afraid of Polygamy? Exploring the Boundaries of Family, Equality and Custom in South Africa, (Utah Law Review, 2009).
• Joseph Vining, Is There an Implicit Theology in the Practice of Ordinary Law?, (Mercer Law Review Vol. 53, No. 3, Oct. 2008).
• Kenneth L. Marcus, Privileging and Protecting Schoolhouse Religion, (Journal of Law and Education, 2008).
• Rod Dixon, Pledging to God While Getting a Public Education: Why a Wall of Separation Divides Ceremonial Celebration from Religious Indoctrination: Elk Grove Unified School District V. Newdow and the Right of Parental Privacy, (October 13, 2008).
• Ann Piccard, Faith-Based and Community Initiatives: Unconstitutional Delegations of Executive Power, (Oct. 13, 2008).

From SmartCILP:

• Steven Wilf, The Ten Commandments Cases: A View from Within, (40 Connecticut Law Review 1329-1345, 2008).
• 25th Anniversary Issue. Islamic Law in a Globalized World: Implications for Contemporary Finance Law. Introduction by Faiza Soniya Yunus; articles by Mahmoud A. El-Gamal, Scheherazade S. Rehman, Mohammad H. Fadel, Michael J. T. McMillen, Hikmahanto Juwana, Yeni Salma Barlinti, Yetty Komalasari Dewi and Walid Hegazy. (25 Wisconsin International Law Journal 605-835 (2008)).
  

Recent Books:

• Mark A. Noll, God and Race in American Politics: A Short History, (Princeton Univ. Press, 2008), reviewed in the Chronicle of Higher Education.
• Michael Bachelard, Behind the Exclusive Brethren, (Scribe Publications, Oct. 2008), reviewed by GayNZ.com.

Times Reports On China's Increasing Restrictions On Muslim Uighurs

A front page story in today's New York Times reports on the "intricate series of laws and regulations intended to control the spread and practice of Islam" imposed by China on Uighurs in the autonomous region of Xinjiang:

Official versions of the Koran are the only legal ones. Imams may not teach the Koran in private, and studying Arabic is allowed only at special government schools.... Students and government workers are compelled to eat during Ramadan, and the passports of Uighurs have been confiscated across Xinjiang to force them to join government-run hajj tours rather than travel illegally to Mecca on their own. Government workers are not permitted to practice Islam, which means the slightest sign of devotion, a head scarf on a woman, for example, could lead to a firing.

The government justifies the particularly strict regulation as an attempt to prevent destabilization of the region by forces of separatism, terrorism and religious extremism. Other media have previously published similar reports. (See prior posting.)

Michigan Court Upholds Social Security Number Requirement For Drivers License

In Champion v. Secretary of State, (MI Ct. App., Oct. 16, 2008), the Michigan Court of Appeals rejected claims under the free exercise and equal protection clauses of the Michigan constitution and required that a religious objector furnish his social security number in order to obtain a drivers license. Plaintiff, while he has a social security number, believes that they are a precursor to the mark of the beast described in the Book of Revelation. The social security number requirement was enacted by Michigan under provisions of the federal Child Support and Establishment of Paternity Act (CSEPA). While Michigan applies the "compelling interest" test to state free exercise claims, the court concluded that the state has a compelling interest in enforcing child support payments. Also, in the court's view, No less restrictive means are available to achieve that compelling interest.

In an interesting footnote, however ,the court rejected the state's alternative argument that it has a compelling interest in obtaining the federal funding that is available only if it complies with CSEPA. The court said: "It would indeed be troubling to conclude that Michigan can, without state constitutional ramifications, effectively burden a citizen's free exercise of religion, or any constitutional right, if sufficient monies are thrown in its direction by the federal government."

Recent Prisoner Free Exercise Cases

In Smith v. Kyler, (3d Cir., Oct. 9, 2008), the U.S. 3rd Circuit Court of Appeals upheld the policy of the Pennsylvania Department of Corrections to provide chaplains only for the largest major faith groups and to prohibit group worship by others unless a volunteer faith group leader could be found. The court rejected free exercise, equal protection and RLUIPA challenges brought by a Rastafarian prisoner who wished to attend weekly services.

In Vann v. Hernandez, 2008 U.S. Dist. LEXIS 80272 (ED CA, Oct. 6, 2008), a California federal magistrate judge recommended that an inmate be permitted to proceed with his claims that correctional officers used excessive force against him and trashed his cell at least in part because he is Jewish, and that they retaliated against him based on his religion. However the court found no allegations supporting a free exercise claim.

In Torres v. Snyder, 2008 U.S. Dist. LEXIS 80749 (ED CA, Sept. 23, 2008), a California federal magistrate judge dismissed for lack of supporting factual allegations a free exercise claim brought by a prisoner who complained that correctional staff refused to believe that he is white.

In Moro v. Winsor, 2008 U.S. Dist. LEXIS 71705 (SD IL, Sept. 22, 2008), an Illinois federal district court accepted in part and rejected in part a magistrate's recommendations (2008 U.S. Dist. LEXIS 82525, Aug. 5, 2008) in a case brought by a Gnostic Catholic prisoner. Plaintiff alleged delays in receiving religious materials, denial of the opportunity to gather in the chapel or on religious feast days, and prohibition of certain religious items, as well as other violations. The court found that issues of fact remain for determination in plaintiff's free exercise and RLUIPA claims against certain of the defendants, and that some claims for injunctive relief are not moot even though he has been moved to a different facility.

Complaints Aired Over Ban on Teachers At "See You At the Pole"

The Carlisle (PA) Sentinel reported that at last Thursday's meeting of the Carlisle Area School Board, a group of parents and teachers attended to complain about the Board's decision to bar teachers from attending September's student-initiated "See You At the Pole" prayer event. District Solicitor Jim Flower has said the decision was based on a recent Third Circuit ruling involving New Jersey football coach Marcus Borden praying with his student team members.

Alabama School Board Seeks To Fend Off Litigious Preacher

In Bay Minette, Alabama, the Baldwin County (AL) School Board has filed a lawsuit in state court asking the court "for guidance in hopes of preventing prolonged legal expense to the taxpayers." The problem is repeated litigation by Christian preacher Orlando Bethel and his wife Glynis-- including a new suit seeking $5 million in damages for refusing to permit a Christian after-school program on teenage pregnancy, juvenile delinquency and sexual abstinence. Since 2005, the Bethels have filed more than a dozen lawsuits against various governmental units in Alabama. According to today's Birmingham Press-Register, the Baldwin school board has already incurred over $30,000 in legal fees in two of those suits. The Bethels are currently under a restraining order prohibiting them from coming within 200 feet of Loxley Elementary School, Baldwin students and board employees during school hours and functions. Apparently they have disrupted school activities and frightened students.

California's Proposition 8 Pushed By Religious Groups, Especially Mormons

California's Proposition 8 on the ballot in November aims to overturn the California Supreme Court's recognition of same-sex marriage. (See prior posting.) Yesterday's News Blaze carries a long article about the involvement of religious organizations-- and particularly the Mormon Church-- in support of Proposition 8. Calls are being made into California by out-of-state Mormons, such as a group in Rexburg, Idaho. LDS volunteers are also going door-to-door in support in California. The article goes on to report on funding for the Proposition 8 campaign:

Proposition 8 has exploded into the most expensive, extensive gay-marriage battle ever. The forces pushing it include all the Mormons who've made individual campaign donations totaling more than $9 million (more than 40 percent of the war chest...). Conservative Catholics, including the Knights of Columbus, have kicked in more than $1 million. Other notable backers include Dobson's Focus on the Family (about $500,000), a wealthy board member of that group ($450,000), an Orthodox Jewish group based in New York City, evangelical groups from all over, miscellaneous Baptists and Muslims and Sikhs, the National Organization for Marriage (about $950,000), the American Family Association ($500,000), a couple of right-wing foundations ($1.5 million), and countless Republicans who don't necessarily belong to any of the other groups.

Louisiana Governor Criticized For State Travel To Worship In Various Churches

Yesterday, Americans United issued a release strongly criticizing Louisiana Governor Bobby Jindal for traveling in State Police helicopters a dozen times to worship in churches in northern Louisiana. A long article last week in the Advocate discloses that Jindal ran up extensive costs for the state by using the helicopters for various kinds of trips, including those that involved worshiping in churches around the state. Those church visits, largely unadvertised, are coupled with visits to local officials. At one church, Jindal spoke, sharing a message of Christian faith with the congregation.

Justice Department 2007 Memo Says RFRA Trumps Non-Discrimination Law

Yesterday’s New York Times reported on a 25-page memorandum (full text) written in 2007, but released only last week, by the Justice Department’s Office of Legal Counsel (OLC). The memo concludes that the Religious Freedom Restoration Act (RFRA) trumps the religious anti-discrimination provisions of the Juvenile Justice and Delinquency Prevention Act (JJDPA). The memo concludes that a Christian organization, World Vision, could receive a federal grant to support its Vision Youth Program (which is directed toward "at-risk youth") even though the organization hires only Christian staff. The program serves youth regardless of religious affiliation.

In the memo, OLC concluded that requiring World Vision to comply with the JJDPA nondiscrimination provision would substantially burden its religious exercise, and enforcing the religious nondiscrimination provision would not further a compelling governmental interest. Some civil rights groups took strong exception to the newly released memo. ACLU senior legislative counsel Christopher E. Anders called it "the church-state equivalent of the torture memos."

Vietnam Official Wants Hanoi Archbishop Ousted

Viet Catholic News Agency reports today that local government officials in Vietnam are attempting to force the Catholic Church to oust Archbishop Joseph Ngo Quang Kiet, Archbishop of Hanoi. Nguyen The Thao, Chairman of the People’s Committee of Hanoi (a position similar to mayor) told a group of diplomats earlier this week that the present Archbishop "has neither reputation nor creditability with the city's citizens, including Catholic faithful." State-controlled media echoed the call for the Archbishop’s removal. According to Catholic media, Catholics in Hanoi and elsewhere, however, have held large prayer vigils in support of the Archbishop.