New Articles and Book of Interest

From SSRN:

• Richard J. Ross, Puritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of 'Intensity', (American Historical Review, Vol. 113, pp. 975-1002, 2008).
• John Witte & Joel A. Nichols, More than a Mere Contract: Marriage as Contract and Covenant in Law and Theology, (University of St. Thomas Law Journal, Vol. 5, p. 595, 2008).
• Barbara P. Billauer, With Liberty and Justice for All: Abortion, Religious Freedom and the Constitution, (October 31, 2008).
• A. Scott Loveless, The Forgotten Founding Document, (October 23, 2008).
• Thomas Charles Berg, Religious Choice and Exclusions of Religion,(PENNumbra, 2008).
• Ben Saul, Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols, (FORCED MIGRATION, HUMAN RIGHTS AND SECURITY, pp. 181-212, J. McAdam, (ed), Hart Publishing, UK, 2008).
• Phiolmila Tsoukala, Marrying Family Law to the Nation, (October 23, 2008).

PLI:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (in PLI Course Handbook, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings, October 2008).

From SmartCILP and elsewhere:

• Daniel Dalton, The Religious Land Use and Institutionalized Persons Act Update, 40 Urban Lawyer 603-622 (2008).
• David F. Holland, Sovereign Silences and the Voice of War in the American Conflict Over Slavery, 26 Law & History Review 571-594 (2008).
• John S. Kane, Refining Chevron--Restoring Judicial Review to Protect Religious Refugees, 60 Administrative Law Review 513-591 (2008).
• Lena Salaymeh, Early Islamic Legal-Historical Precedents: Prisoners of War, 26 Law & History Review 521-544 (2008).
• Narendra Subramanian, Legal Change and Gender Inequality: Changes in Muslim Family Law in India [abstract], 33 Law & Social Inquiry 631-672 (2008).
• Eli Wald, The Rise of the Jewish Law Firm or Is the Jewish Law Firm Generic?, 76 UMKC Law Review 885-938 (2008).
• John Witte, Jr. Rights, Resistance, and Revolution in the Western Tradition: Early Protestant Foundations, 26 Law & History Review 545-570 (2008).
• The full text of Volume 47, No. 2 (2008) of the Journal of Catholic Legal Studies is available online. It includes a Symposium on Catholic Teaching, Catholic Values, And Catholic Voters: Reflections On Forming Consciences For Faithful Citizenship, as well as articles on migration, just wars, and economic ordering.
• Journal of Church & State, Vol. 50, No. 3 (Summer 2008) has recently been published. The Table of Contents is online.

Recent Book:

• Tarek Fatah, Chasing a Mirage — The Tragic Illusion of the Islamic State, (John Wiley & Sons, May 2008), reviewed in Pakistan's Daily Times and Haaretz.

Muslim Group To Meet In Vatican On Interfaith Relations

Common Word, a group of Muslim leaders and scholars, will meet for three days beginning tomorrow in the Vatican with Catholic officials including the Pope. Reuters today reports that the group wants to develop better interfaith relations, including a joint crisis management plan that could diffuse tensions such as those that arose in 2006 after a Danish newspaper published cartoons of the Prophet Muhammad. The group would also speak out against persecution of Christians in Iraq. The group has previously met with Protestant leaders. It was formed, issuing the Common Word manifesto, last October partly in response to a speech by Pope Benedict XVI in Regensburg that was seen by Muslims as offensive.

Presidential Campaigns Target Church Members Yesterday

Yesterday, according to the AP, volunteers for both the Obama and McCain campaigns attempted to bring their candidates' messages to churches as Tuesday's election approaches. In order to comply with IRS rules, the campaigns did not involve the churches, but instead asked individual supporters who are church members to distribute candidate messages. The McCain campaign distributed literature and recruited volunteers for last-minute phone banks. The Obama campaign asked members of black churches in battleground states to read a "nonpartisan letter" from Obama during church announcements.

India's Tribal Religions Want Separate Census Recognition

Today's Calcutta Telegraph reports that in India, members of nature worshipping tribal religions in the state of Jharkhand are demanding that they be identified separately in census records. Currently they are generally included in census records as Hindus, Muslims or Christians, but they say they have their own set of customs and traditions and should be recognized as a separate minority religion.

Malaysia About To Bar Muslims From Practicing Yoga

According to today's Brunei News, on Friday Malaysia's National Fatwa Council will issue a ruling barring Muslims in the country from practicing or teaching yoga. The country's Department of Islamic Development undertook a 6-month study of the practice after Zakaria Stapa of Universiti Kebangsaan, Malaysia's Islamic Studies Centre, said yoga could lead Muslims to deviate from Islamic teachings. Supporters of yoga, which has Hindu origins, say it can be practiced without religious content. An op-ed in today's Malaysia Star by a Muslim who practices yoga for relaxation and to control back pain takes strong issue with the proposed fatwa. [Thanks to Scott Mange for the lead.]

Canadian Court Concerns Over Kirpan Lead To Testimony Via Teleconference

In Canada, a Calgary, Alberta judge has ruled on a compromise arrangement to obtain trial testimony by a Sikh man who was originally refused entrance into the Court of Queen's Bench because he refused for religious reasons to remove his kirpan (ceremonial sword). Yesterday's Calgary Herald reports that Justice Bryan Mahoney will now permit Tejinder Singh Sidhu to testify by video conference. Sidhu was a witness to a fatal car crash in 2006. Court security procedures bar anyone taking into court an object that could be used as a weapon.

Children Taken In Anti-Polygamy Raid 50 Years Ago Want Apology

Fifty years ago, Utah officials took Vera Black's seven children and threatened to place them in adoptive homes because Black refused to renounce polygamy. The Salt Lake Tribune reported yesterday that Black's children are now asking the state to apologize to their elderly mother while she is still alive. Vera and her husband Leonard were targeted as part of a 1953 raid which unsuccessfully attempted to end polygamy in Short Creek, Utah and Colorado City, Arizona. In their 1954 trial, the Blacks said they had not lived together since the raid, but because they refused to renounce plural marriage the court found that their home was an "immoral environment" and ordered their children into foster care. Prosecutors pointed out that 5 of Leonard Black's older daughters were in plural marriages. After the appeal process had run its course, the state took custody of the seven children in January 1956. Six months later, in order to avoid the children being placed for adoption, Vera announced that while she still believed in polygamy, she would "discourage my children from entering into polygamous marriages as long as the state has laws against it." The state returned the children to Vera. One of the daughters, Lillian, said that the six months away only "made us love our parents and our religion much more."

Recent Prisoner Free Exercise Cases

In Garrison v. Dutcher, 2008 U.S. Dist. LEXIS 85727, (WD MI, Aug. 14, 2008), a Michigan federal magistrate judge recommended dismissal of an inmate's RLUIPA and free exercise challenges to delays in delivering him spiritual herbs mailed to him, and the mail room's rejection of a Bible mailed to him because it was sent by an unauthorized vendor.

In McQuiter v. Burnett, 2008 U.S. Dist. LEXIS 74909 (WD MI, Sept. 29, 2008), a Michigan federal district court adopted in part a magistrate's recommendations, 2008 U.S. Dist. LEXIS 85739, (July 30, 2008). The court agreed that summary judgment should be granted to defendants because valid reasons exist to refuse to provide prisoner plaintiff a Kosher diet. Prison officials found that plaintiff's lack of knowledge about his claimed religious beliefs indicated a lack of sincerity. However the court rejected the magistrate's conclusion that Plaintiff may assert individual capacity claims under RLUIPA.

In Mann v. Wilkinson, 2008 U.S. Dist. LEXIS 86606, (SD OH, Sept. 17, 2008), an Ohio federal district court held that an inmate's claim regarding officials' refusal to return to him a pamphlet setting out the Christian Identity Church's doctrinal statement of beliefs is now moot. The pamphlet has been returned to him and changes in the screening process for religious literature make future withholding of religious publications is certainly unlikely. (See prior related posting).
In Wiley v. Glover, 2008 U.S. Dist. LEXIS 87185, (MD AL, Sept. 3, 2008), an Alabama federal magistrate judge recommended dismissal of a claim by a Hebrew Israelite prisoner that his free exercise rights were violated by the jail's hygiene policy requiring him to have short hair. On Oct. 17, (2008 U.S. Dist. LEXIS 83979), the court vacated its earlier adoption of the magistrate's recommendations and gave plaintiff until Nov. 3 to file objections to the magistrate's report.

In Vazquez v. Brown, 2008 U.S. Dist. LEXIS 87993, (D NJ, Oct. 30, 2008), a New Jersey federal district court denied a preliminary injunction to a prisoner of the Santeria faith who was denied a consecrated beaded necklace, and was required to obtain religious oils through the prison chaplain instead of having them mailed directly.

In Maier v. Mavrinac, 2008 U.S. Dist. LEXIS 87949, (D MT, Oct. 30, 2008), a Montana federal district court dismissed a prisoner's free exercise claim regarding conditions of administrative segregation because plaintiff had been transferred out of the correctional facility about which he complained.

Dutch Cabinet Proposes End of Blasphemy Law, Expansion of Hate Speech Ban

In Netherlands, the cabinet on Friday voted to recommend that Parliament repeal the country's blasphemy law and replace it with an expanded hate speech law. Today's Windsor (Ont.) Star reports that the proposed new law will prohibit giving serious offense to any group of people, not just to specified groups now covered. Radio Netherlands reports that the cabinet's action was taken at the demand of a majority of the parties in Parliament, even though two of the three parties in the ruling coalition are Christian. The blasphemy law has been in the news in recent years as a possible source of redress against those who have produced anti-Islamic material, such as right-wing politician Geert Wilders who posted a controversial film, Fitna, online. (See prior posting.)

Ads On Donations From Atheists Continue In North Carolina Senate Race

As previously reported, North Carolina Senator Elizabeth Dole created substantial controversy by running an ad against Kay Hagan, her opponent in Tuesday's election, alleging that Hagan took a contribution from supporters of the Godless American PAC. Hagan ran a counter-ad and filed a defamation suit. (See prior posting.) McClatchy Newspapers today report that now Dole is running a second ad (video clip) that includes an announcer asking: "If Godless Americans threw a party in your honor, would you go?" Dole says she is not questioning Hagan's faith, just her associations. Dole also filed a motion to dismiss Hagan's lawsuit as frivolous. According to the AP, Hagan says she wants to talk about the issues, and the ads are a distraction from the race. Rev. Sekinah Hamlin, president of the N.C. Council of Churches, strongly criticized Dole's ads attacking Hagan, who is a Sunday school teacher at a Presbyterian church.

VA High Court Approves Tax Exemption For Upscale Retirement Community

In Virginia Baptist Homes, Inc. v. Botetourt County, (VA Sup. Ct., Oct. 31, 2008), the Virginia Supreme Court, in a 5-2 decision, held that the upscale retirement community, The Glebe, owned by Virginia Baptist Homes, is entitled to a property tax exemption under legislation that granted VBH an exemption for any of its property used exclusively for non-profit religious or benevolent purposes. The dissenters argued that the property is not used for benevolent purposes since all residents pay for 100% of their care, and that it is not used for religious purposes because it is open to anyone, regardless of religious beliefs, and staff are not required to be of any particular religious belief. WDBJ7 News reported on the decision yesterday. (See prior related posting.)

Tax Incentives By Tennessee County For Bible Park Questioned

Last May, Tennessee's Attorney General issued an opinion ruling that state law permits the use of public funds to support the development of Bible Park USA, but left open the question of whether public funding for the theme park would violate the Establishment Clause of the federal constitution. (See prior posting.) Now that plans for the theme park are moving ahead, others are raising the Constitutional questions, according to today’s Tennessean. The ACLU of Tennessee has asked Wilson County for copies of the application for assistance and correspondence relating to the Bible Park along with copies of all applications for tax increment financing filed with the county over the last ten years. ACLU is seeking to determine whether similar tax incentives are available to all, or whether county officials acted to promote religion in dealing with the Bible Park.

Vermont Candidate Places Anti-Semitic Statements In State Voters' Guide

Vermont law (17 V.S.A. § 2810) directs Vermont's Secretary of State to publish a Statewide Candidate Information Publication that contains photos, biographical sketches and position statements submitted by candidates for statewide and federal office. Today's Rutland Herald reports that the position statement by independent candidate for governor, Cris Ericson, in this year's publication (full text) has raised controversy because of anti-Semitic statements in her rambling essay. Ericson, citing verses from the Biblical book of Leviticus, says in part:

Are any of the people, in charge of organizations holding candidate forums and debates, Jewish? Some Jews allegedly discriminate against Disabled Vermonters. Some Jewish Doctors, Social Workers, Police, and Housing Authority Administrators allegedly "talk down" to Disabled People.... Jews have no right to impose their religious Law of discrimination against Disabled People when they receive state and/or federal funding for Police, Housing Authority, Medicaid, Medicare, and organizations holding candidate debates and forums.

Before publishing this year's booklet, Secretary of State Deb Markowitz asked Vermont's attorney general whether she could edit out the offending statements. She was told that the law authorizing the publication, as well as First Amendment speech protections, preclude editing of candidates' statements.

For Halloween, British Government Asked To Pardon 16th to 18th Century Witches

Marking Halloween, Britain's Justice Secretary Jack Straw will be presented with a petition today seeking a symbolic royal pardon for individuals who were punished for witchcraft in Britain between the 16th and 18th centuries. The Witchcraft Act of 1541 made witchcraft a felony punishable by death. Today's London Guardian reports that the petition (full text), initiated by the family which operates the costume firm Angels, sets out the facts of eight historical cases as examples of the miscarriages of justice before Britain passed the 1735 Witchraft Act that eliminated capital punishment and instead treated witchcraft as a type of fraud that could lead only to a fine and imprisonment. Earlier this year, the Swiss government pardoned Anna Goeldi, the last person executed in Europe for witchcraft.

AU Asks IRS To Investigate NC Baptist Convention Speech By Michelle Obama

In yet another of its growing list of complaints filed with the Internal Revenue Service, Americans United yesterday sent a letter (full text) to the IRS asking it to investigate a meeting of the General Baptist State Convention of North Carolina this week at which Michelle Obama spoke. According to AU, her appearance "took on the trappings of a campaign rally." In its press release announcing its action, AU said that the event was not the type of non-partisan activity that non-profit organizations such as churches are permitted by the tax code to host. The website for AU's Project Fair Play lists over 95 complaints that it has filed against churches and other non-profit religious groups for impermissible endorsements of political candidates since 1996.

Las Cruces Lawsuit Ends

Last Friday, the U.S. 10th Circuit Court of Appeals denied a request for reconsideration of its decision in Weinbaum v. City of Las Cruces, according to today's Las Cruces Sun-News. The decision handed down last month found no Establishment Clause problem with Las Cruces, New Mexico's using three Latin crosses as a symbol of the city and as part of the logo for the school district. (See prior posting.) Plaintiffs Paul Weinbaum and Martin Boyd say they will not seek further review from the U.S. Supreme Court, citing the costs of an appeal and the current philosophy of the Supreme Court.

Arizona Supreme Court Will Review School Voucher Decision

Phoenix's East Valley Tribune reported yesterday that the Arizona Supreme Court has agreed to grant review in Cain v. Horne, (Case No. CV-08-0189-PR) (text of order). In the case, a state appellate court found that two school voucher programs enacted by the state legislature in 2006 violate the Arizona Constitution by aiding private and sectarian schools. (See prior posting.)

Israel Supreme Court Permits Museum Construction Over Old Muslim Cemetery

Israel's Supreme Court yesterday ruled that it would not block construction of a Museum of Tolerance on land in Jerusalem, despite objections by Muslims that the proposed building will cover part of an ancient Muslim ceremony. The International Herald Tribune reports that the court approved plans of the U.S.-based Simon Wiesenthal Center for the museum in part because Muslim groups raised no objections in 1960 when the city put a parking lot over part of the cemetery. The Court ordered the Museum to create a plan with the state Antiquities Authority to either remove human remains for reburial or to build a barrier between the museum foundation and the ground below to avoid disturbing graves. The cemetery is 300 to 400 years old, but fell out of use after 1948. A portion was sold in the 1930's with approval of a top Muslim cleric for construction of a hotel. The Simon Wiesenthal Center issued a release applauding the decision. (See prior related posting.)

Three Algerian Christians Acquitted

BosNewsLife and Compass Direct both yesterday reported on the acquittal in a court in Algeria of three Christians who had been charged with blaspheming Islam and threatening a member of their congregation who re-converted to Islam. The ruling by a court in Ain El-Turck apparently came because of a lack of evidence against Youssef Ourahmane, Rachid Seghir and Hamid Ramdani. Responding more broadly to international pressure, in the last few months Algeria has eased its campaign against evangelical Christians who have often been charged under a 2006 presidential decree that limits worship services to government-approved buildings and prohibits proselytizing Muslims. (See prior related posting.)

Religion Remains Important In This Year's Political Campaigns

Religion has played an important part in the upcoming elections for many months. As election day draws near, several news stories attest to its continuing role. At a conference titled Religion and Freedom: The United States and Europe, held in Rome on Tuesday, U.S. Ambassador to the Vatican, Mary Ann Glendon. talked about the importance of religion in U.S. politics. As Catholic News Service reports, Glendon told her audience that U.S. public officials speak openly of their faith in a way that English, French or Italian candidates would not.

The electorate has become part of the conversation. Catholic News Service yesterday reported on a 58-page booklet authored by Boston physician, Dr. Patrick Whelan, titled The Catholic Case for Obama.

In North Carolina, a different kind of argument over religion is playing out in the heated U.S. Senatorial campaign. Fox News yesterday reported that incumbent Republican Sen. Elizabeth Dole is accusing her Democratic challenger, Kay Hagan, of of attending a "secret fundraiser" sponsored by the Godless Americans PAC. The ad (YouTube video) says of Hagan: "She hid from cameras. Took godless money. What did Kay Hagan promise in return?" Hagan has demanded that Dole take down the ad, but the Dole campaign says the ad will remain.

UPDATE: Here is Kay Hagan's ad respoonding to Dole's charges. And the AP reported that on Wednesday Hagan filed a lawsuit in Wake County (NC) Superior Court accusing Dole of defamation and libel, charging that Dole's ad is injuring Hagan's good name and reputation.