Suit Challenges Washington State Limits On Special Ed In Religious Schools

In Washington state, three families represented by the Institute for Justice have filed suit against the state's Office of Superintendent of Public Instruction challenging regulations that require religious school students to travel off premises to obtain special education services. The federal Individuals with Disabilities Education Act (20 USC 1412) requires states to make these services available to children in private a well as public schools. Unlike many other states, Washington will not offer therapeutic services on site at religious schools (Wash. Admin. Code 392-172A-04075), relying on the state Constitution's ban on state funding for any religious establishment (Art. I, Sec. 11)and its requirement that no school receiving state aid may be under sectarian control (Art. IX, Sec. 4). The complaint in DeBoom v. Bergeson, (WD WA, filed 11/12/2008), alleges that the Washington regulations violate the Free Exercise, Establishment, Equal Protection and Due Process clauses of the federal Constitution. Yesterday's Seattle Times reports on the lawsuit. the Institute of Justice website provides additional background material.

Humanists Run "Why Believe In God?" Ad In Time For Christmas

The American Humanist Association is apparently fueling a new round in the debate over public displays at Christmas time. CBN News reported yesterday that the AHA will spend $40,000 to place ads on the outside and inside of buses in Washington, D.C. Space is being purchased through December. The ads read: "Why believe in a god? Just be good for goodness' sake." (Photo of ads.) An AHA spokesman explained: "Our reason for doing it during the holidays is there are an awful lot of agnostics, atheists, and other types of non-theists who feel a little alone during the holidays...." An AHA press release last Tuesday says that similar ads are running in the New York Times and Washington Post.

Federal Court Will Not Stop Utah Hearing On Sale of FLDS Land

A Utah federal district court judge yesterday said he would not bar a Friday hearing in a Utah state court on whether to approve sale of Berry Knoll Farm by the FLDS United Effort Plan Trust. (See prior posting.) However Judge Dee Benson asked FLDS attorneys to report on Friday's hearing. The court will then decide-- before the sale closes--whether to hold a further hearing on FLDS claims that its free exercise rights are being violated by Utah's reformation of the terms of the UEP Trust and its takeover of administration of trust property. Yesterday, the Salt Lake Tribune and KSL-TV News reported on the federal judge's ruling.

UPDATE: On Friday, Utah state court Judge Denise Lindberg postponed the scheduled hearing on the sale of Berry Knoll Farm so that the parties could work out "a global resolution" of pending litigation and a plan for its future management. The postponement came at the request of the Utah Attorney General's office and after a meeting in chambers between the judge and attorneys for both parties. Saturday's Salt Lake Tribune reported that 2500 members of the FLDS Church showed up at Friday's hearing to show their disapproval of the proposed land sale.

Council of Europe Gives Guidance on Religious Symbols and Hate Speech

The Council of Europe announced yesterday that it is publishing Manuals to offer guidance on two controversial issues. The Manual on the Wearing of Religious Symbols in Public Areas, authored by Prof. Malcolm Evans, points out that European Court of Human rights case law gives states broad regulatory discretion, but individuals should enjoy the fullest possible freedom of belief. The Manual on Hate Speech, authored by Anne Weber, attempts to distinguish insulting speech that is protected from unprotected hate speech. The Council has posted online in English a fact sheet on wearing religious symbols in public (Word document) and a fact sheet on hate speech (Word document).

California Catholic Bishops Defend Passage of Proposition 8

The Executive Committee of the California Catholic Conference yesterday issued statement defending its support of California's Proposition 8 banning same-sex marriage. The ballot measure passed last Tuesday, and its passage has generated continued controversy. The statement said in part:

The radical change in the definition of marriage to include same-sex partners discounts both history and biology and ignores how deeply marriage—as the union of a man and a woman—is embedded in our culture, language, and laws and how foundational it is for the well-being of children and the flourishing of society. To change the definition of marriage to include any two adults diminishes the institution to mean only a legal partnership.

Under present law domestic partners continue to have the rights and benefits of married couples in the State of California. It is our conviction that it is not necessary to change the definition of marriage to protect those rights and benefits.

Denmark Proposing Ban On Judges Wearing Headscarves In Court

Denmark's Justice Minister Brian Mikkelsen says he is about to introduce legislation that would prohibit Muslim women judges from wearing headscarves in court. Politiken.dk yesterday reported on the proposed legislation that would reverse a ruling handed down last year by Denmark's independent Judicial Board. A Justice Ministry news release explains: "during court hearings, judges must not, through behaviour or clothing, express religious or political affiliations or attitudes towards religious or political issues." (See prior related posting.)

"Seven Aphorisms" Case Argued In Supreme Court [UPDATED]

The Supreme Court this morning heard oral arguments in Pleasant Grove City, UT v. Summum (Docket No. 07-665), a case in which the 10th Circuit Court of Appeals held that members of the Summum faith are entitled to erect a "Seven Aphorisms" monument in a city park in which a 10 Commandments monument donated by the Fraternal Order of Eagles is already displayed. (See prior posting.) Links to all the merit and amicus briefs filed in the case are available on Scotus Wiki. The parties in their briefs focus on whether the existing park monuments are government speech or private speech, and whether the Utah city park is a traditional public forum for unattended permanent displays. A release by Americans United on Monday, and an editorial in today's New York Times, reflect the view put forth in some of the amicus briefs that the Court should analyze the case under the Establishment Clause, instead of treating it as merely a speech case. An articles in yesterday's New York Times previews the case.

Jay Sekulow, Chief Counsel of the American Center for Law and Justice, argued on behalf of Pleasant Grove City. Last month, one of the venues in which he rehearsed his argument was Liberty University School of Law (Liberty Champion). The Solicitor General's Office also presented oral argument in support of Pleasant Grove City. Deputy Solicitor General Daryl Joseffer opened his argument as follows:

Of course the Government can select the content and viewpoint of monuments on the National Mall and in other public parks across the country. The Vietnam Veterans Memorial did not open us up to a Viet Cong memorial. When the Martin Luther King Memorial is completed on the mall, it will not have to be offset by a monument to the man who shot Dr. King.

Washington attorney and law school professor Pamela Harris argued on behalf of Summum. Early in the argument, Chief Justice John Roberts asked Sekulow why the city had agreed to put up the 10 Commandments monument originally, though later Roberts also challenged Harris' arguments. The Washington Post, reporting on today's oral arguments, says: "Although the debate was spirited, it lacked some of the rancor of the last time the high court took up a dispute over the 10 Commandments."

The full transcript of oral arguments is available online.

Indian Panel Investigating Dow Chemical Construction At Holy Hindu Site

Members of the Warkari Hindu sect believe that land near the town of Chakan in the Maharashtra state in India is sacred because it is the land of a 17th century sage, Sant Tukaram. Today's Business Standard reports that last month, members of the sect burned down a Dow Chemical research and development facility being constructed there because they feared it would pollute the sacred area. In response, Maharashtra's Chief Minister, Vilasrao Deshmukh, put a hold on Dow's construction activity and appointed a four-person committee to look into the complaints. The committee, chaired by retired Supreme Court judge S. P. Kurdukar was to submit a report this week. However now the environment ministry says that Justice Kurdukar has resigned after discovering that a close relative previously worked as legal counsel for Dow.

U.N. Session on Religious Tolerance Opens Today

A two-day session of the United Nations General Assembly to discuss religious tolerance and inter-religious cooperation begins today, with over a dozen world leaders in attendance. Most of them are in the United States also to attend a G-20 Financial Summit in Washington beginning Friday. The U.N. session, titled "Culture of Peace" was initiated by Saudi Arabia's King Abdullah who will open the session. He will be followed by Israel's president Shimon Peres, as well as Lebanese and Palestinian leaders. U.S. President George Bush will speak on Thursday. Abdullah and Peres were invited to dinner last night by UN Secretary-General Ban Ki-Moon. Reports on the U.N. meeting appeared yesterday in the International Herald Tribune, Jerusalem Post, and Abu Dhabi's The National. The meeting is seen as emphasizing the importance that world leaders place on resolving religious disputes without resort violence. Human rights activists however criticize King Abdullah for lack of religious freedom in Saudi Arabia.

Israeli Police Break Up Fight Between Monks In Church of Holy Sepulcher

The Jerusalem Post reported that Israeli police entered the Church of the Holy Sepulcher last Sunday and arrested two monks after a fight broke out between them at the site of Jesus' crucifixion, burial and resurrection. The dispute between Armenian and Greek Orthodox monks involved a Greek Orthodox attempt to place a monk inside what is believed to be the tomb of Jesus. The incident occurred during the annual Armenian procession commemorating the 4th-century discovery of the cross believed to have been used for Jesus' crucifixion. Total Catholic reported yesterday that a Franciscan official said the altercation resulted from confusion over "Status Quo Agreements" that regulate the way that six Christian groups divide control over the Church of the Holy Sepulcher. [Thanks to Religion and State in Israel for the lead.]

Court Says County Violated RLUIPA, Equal Protection In Denying Church Applications

In Reaching Hearts International, Inc. v. Prince George's County, (D MD, Nov. 4, 2008), a Maryland federal district court upheld a jury verdict in favor of a Seventh Day Adventist Church that, because of various regulations and administrative actions, was prevented from constructing a church and school on land it owned. The court said the church found itself engaged in "a fruitless three-year-long shadowboxing match that was doomed from the start."

The jury, in special verdicts, found that the county's actions were motivated, at least in part, by religious discrimination in violation of the Equal Protection Clause, and that those actions imposed a "substantial burden" on plaintiff's rights in violation of RLUIPA. Accepting those findings, the court concluded that the county failed to demonstrate a compelling interest for its actions and that its actions were not the least restrictive means that could be used. The court confirmed the jury's $3.7 million damage award and granted injunctive relief as well, in part ordering the county to consider future applications by the church "without any discriminatory animus." Yesterday's Maryland Daily Record reported on the decision.

Liberty Counsel Renews "Friend or Foe Christmas Campaign"

Liberty Counsel, a legal advocacy group, announced yesterday that it is launching its sixth annual "Friend or Foe Christmas Campaign." The campaign includes distribution of legal memoranda defending public references to Christmas and its celebration in the workplace. (Memo on Public Christmas Celebrations; Memo on Celebrating Christmas in the Workplace). The campaign, which provides "free assistance to those facing persecution for celebrating Christmas," focuses on situations such as use in retail ads of "holiday" instead of "Christmas", renaming of Christmas trees as "holiday trees", exclusion of religious Christmas carols in schools and bans on religious decorations in public places. Its "Naughty and Nice List" names retailers that specifically refer to Christmas and those that instead use more generic terms in their advertising, on their websites and in their stores.

Israel's New Divorce Law Aids Women By Accelerating Property Split

Israel's Knesset last week passed new divorce legislation that permits courts to award a financial settlement before the divorce is finalized by the giving of a religious divorce document ("get"). The Jerusalem Post reports that the new law will prevent husbands from using their power to refuse to give a get as leverage to achieve a better financial settlement or child custody rights. Under the new law, courts have the power to divide marital assets between the parties 12 months after the divorce action is filed, even if the divorce has not been finalized. Even earlier property distribution is permitted in cases of violent and abusive spouses. (Jerusalem Post.) Most, but not all, members of the Knesset from religious parties opposed the amendments to the Financial Relations Law. It was, however, strongly supported by women's rights proponents who have been working to resolve the problem of so-called agunot -- women who cannot remarry because their husbands refuse to give them a get. [Thanks to Religion and State In Israel for the lead.]

Louisiana Street Preachers' Suit Against City Dismissed

In World Wide Street Preachers Fellowship v. Town of Columbia, Louisiana, 2008 U.S. Dist. LEXIS 90674 (WD LA, Nov. 7, 2008), a Louisiana federal district court-- in a case on remand from the 5th Circuit-- held that a police officer was not motivated by the content of the speech of a group of demonstrators when he dispersed the group, arrested one of its members and threatened to arrest others. The group, an organization of street preachers, on several occassions carried signs protesting abortion and the ordination of women as ministers. The court held that because the officer, in dispersing the demonstration, did not offer protesters any alternative other than ending their demonstration, his interference was not narrowly tailored to further a significant governmental interest and leave open alternative channels of communication. However the court found no widespread municipal practice of infringing speech rights. Therefore it dismisssed plaintiffs' Section 1983 suit against the city. (See prior related postings 1, 2 .)

Indian Court Rejects Ban On Publication of Hindu Book

In India yesterday, the Delhi High Court reversed a lower court decision that had banned the Sarvadeshik Press from publishing of a 135-year old Hindu religious book, Satyarth Prakash, written by social reformer Swami Dayanand Saraswati. IANS reports that the lawsuit challenging the book had alleged that its publication hurt the religious sentiments of Muslims. The High Court said it was not its role to decide on the truthfulness of religious books or to regulate religious sentiments, and said the lawsuit was merely a publicity stunt.

Appeal and New Suit Continue Challenge To Sale of FLDS Property

Members of the FLDS Church are attempting in both state and federal court to prevent the sale of Berry Knoll, a large tract of farm land along the Utah-Arizona border owned by the Church's United Effort Plan Trust. The land was supposed to be a future site of an FLDS temple. The sale is being proposed by the special fiduciary appointed by a Utah state court. (See prior posting 1, 2.) Yesterday's Deseret News reports that the members have filed an emergency appeal with the Utah Supreme Court to block the sale. Church representatives argue that the lower court proceedings that were supposed to ensure that the UEP Trust was properly administered have "now become a vehicle ... to ensure that the trust is administered to destroy and thwart the religious doctrines and goals of the FLDS Church." Also, according to the paper, a lawsuit had now been filed against the fiduciary, Bruce Wisan, in Arizona by FLDS member Willie Jessop.

European Parliament Says Sikh Members Cannot Wear Kirpan In Building

Asian Image reported yesterday that security authorities at the European Parliament in Brussels have decided that the Sikh kirpan (ceremonial dagger) is a security threat, and so have refused to allow Sikh Parliament members to enter the Parliament building wearing their religious daggers. This prevented a new All-Party Sikh Interest Group from holding their planned first meeting in one of the Parliament's main rooms.

Israel's High Court Orders Bus Company To Accept Ads of Women Candidates

In Israel, elections for mayor and City Council of Jerusalem are being held today. (Background JTA article.) Yesterday Israel's High Court of Justice, in a suit filed by the Wake Up Jerusalem movement, ruled that the Egged Bus Cooperative cannot refuse to accept election ads that portray women candidate for Council. According to Y Net News, Canaan Advertising Agency that sells advertising space at the Egged bus stops had refused to accept the posters, fearing that Ultra-Orthodox Jews would destroy the posters and the bus stop shelters on which they hung.

University Offers Refund On Tickets To Controversial Plays

At Southeastern Missouri State University in Cape Girardeau, a student production of Christopher Durang's, Sister Mary Ignatius Explains It All for You, offended Wendy Kurka Rust. The campus theater in which the play was performed is one named after Rust-- presumably because she was a major donor to it. Yesterday's Southeastern Missourian reported that the University has offered to refund the play's $6.40 ticket price to anyone who requests it, and is also offering an $11.80 refund on tickets to Tony Kushner's, Angels in America. Rust wrote a letter to the school complaining about the Durang play, saying: "a play that ridicules and scorns the Christian religion under the label of satire is inappropriate to be included in the offering of season ticket holders." The University provost says that in the future, a committee will decide which plays being performed should be part of the season ticket package.

Recent Articles and Book Of Interest

From SSRN:

• P.G. Monateri, The Prophetic Nature of Equity, (THE CONCEPT OF EQUITY, Daniela Carpi, ed., pp. 69-82, Heidelberg, Winter 2007).


• Perry Dane, A Holy Secular Institution, (Emory Law Journal, Forthcoming, 2008).


• Susan J. Stabil, The Challenges of Opening a Dialogue between Catholic and Secular Feminist Legal Theorists, (U of St. Thomas Legal Studies Research Paper No. 08-33, Oct. 12, 2008).

New Book:

• Edward Kritzler, Jewish Pirates of the Caribbean: How a Generation of Swashbuckling Jews Carved Out an Empire in the New World in Their Quest for Treasure, Religious Freedom--and Revenge, (Doubleday, Nov. 18, 2008), reviewed by San Francisco Chronicle.