Anti-Religion Sign Is Next To Creche In Capitol Under Open Forum Rules

Last October, the Alliance Defense Fund settled a suit it had brought against Washington state on behalf of private citizen Ron Wesselius who wished to put up a Nativity Scene in the state Capitol building next to a menorah and holiday tree that were previously approved. Under the settlement (see prior posting), Capitol campus facilities would be made available for public use on a non-discriminatory basis. Yesterday's Seattle Times reports that, taking advantage of that open forum designation, the Freedom from Religion Foundation has put up a sign for December at the Capitol reading in part: "Religion is but myth and superstition that hardens hearts and enslaves minds." Because a similar sign placed in the Wisconsin capitol is frequently turned around by those who object to it, the Washington sign has an inscription on the back: "State/Church; Keep Them Separate." A Nativity scene is also being put up near the sign by Ron Wesselius, plaintiff in last year's settled case.

Marijuana Conviction Upheld; Religious Freedom Defense Rejected

In People v. Rubin, (CA Ct. App., Dec. 1, 2008), a California state appellate court upheld a defendant's conviction for selling marijuana and possessing it for sale. The court rejected his argument that the Free Exercise clause of the state and federal constitutions protected his activity. Defendant Craig X. Rubin was the owner of Temple 420, a church in which members could buy various sorts of marijuana. Rubin, ordained online as a minister of the Universal Life Church, even planned to make marijuana available in the church through vending machines. The court rejected Rubin's argument that he was denied a fair trial because he was not allowed to refer to the federal Religious Freedom Restoration Act. The court also rejected Rubin's 1st Amendment defense, saying he was prosecuted for selling and possessing marijuana, not for its religious use. Finally the court rejected Rubin's claim that it should have instructed the jury on mistake of law. (See prior related posting.) [Thanks to Robert H. Thomas for the lead.]

Zimbabwe Court Protects Apostolic Sect From Local Chief

In Zimbabwe, a High Court judge has ruled in favor of the Friday Apostles Johane Masowe Ye Chishanu sect in their lawsuit against Chief Clement Nembire in Mt. Darwin. The background is found in an article from last month in Zimbabwe's Herald. Nembire claimed that the sect, led by Madzibaba Reuben Tapedza, keeps its children out of schools, denies them hospital treatment, and marries off underage children. The sect denied the charges and agreed to protect the rights of children. Nevertheless, Nembire prohibited the sect from engaging in any worship activities in his chiefdom, destroyed its shrine and barred members from meeting together. Nembire threatened violence and murder against anyone who violated these orders. Yesterday's Herald reports that the High Court has now barred Chief Nembire from interfering with the sect's right to worship, and with its members' use of their homes and land. The court ruled that citizens have a right to live free from harassment. The sect was represented by Zimbabwe Lawyers for Human Rights.

Wyoming Prisons Will Accommodate Muslim Prisoner Meal Times

The Jackson Hole (WY) Star Tribune reported last month that the Wyoming Department of Corrections has adopted a new policy to accommodate the religious needs of Muslim inmates. The new policy was agreed to in order to settle a lawsuit filed by the ACLU on behalf of two prisoners. It challenged a rule requiring inmates to eat their meals within 20 minutes of delivery. This mandate often interfered with Muslim prayer times. Now prisoners receiving religious meals will be permitted to keep the meals in their cells until the next meal is served. Those eating in dining halls will also get timing adjustments. Special arrangements will be made for Muslim prisoners to obtain meals when religious fast periods end. Finally, the settlement also requires the prison to install a new microwave oven that will be used only for pork-free food.

Mumbai Muslim Cemetery Refuses To Bury Terrorists; Police Seeking Alternatives

In India, at least one Muslim cemetery is refusing to bury the bodies of the slain Mumbai terrorists. Yesterday's London Times reports that the Jama Masjid Trust said it will not bury the men in its Badakabrastan graveyard because they could not be true followers of Islam. It says that no follower of Islam would be permitted to commit such barbaric crimes. A senior police inspector says: "we are bound to see that their last rites are performed according to the religion they follow. We have heard the trust's decision. We are considering what to do now." There are seven other Muslim cemeteries in Mumbai. However it is anticipated that they will follow the lead of the influential Jama Masjid.

President Bush Talks About Faith In His Life

On Friday, the White House posted on its website excerpts from the interview of President Bush and First Lady Laura Bush by Doro Bush Koch for StoryCorps. Here is one exchange:

Q What role does faith play in your day-to-day life?

THE PRESIDENT: I've been in the Bible every day since I've been the President, and I have been affected by people's prayers a lot. I have found that faith is comforting, faith is strengthening, faith has been important....

I would advise politicians, however, to be careful about faith in the public arena. ...In other words, politicians should not be judgmental people based upon their faith. They should recognize -- as least I have recognized I am a lowly sinner seeking redemption, and therefore have been very careful about saying (accept) my faith or you're bad. In other words, if you don't accept what I believe, you're a bad person.

And the greatness of America -- it really is -- is that you can worship or not worship and be equally American. And it doesn't matter how you choose to worship; you're equally American. And it's very important for any President to jealously protect, guard, and strengthen that freedom.

Pope To Visit Israel In May To Ease Catholic-Jewish Tensions

Haaretz reported last week that Pope Benedict XVI will visit Israel and the Palestinian Territories in May. The visit is designed to reduce some of the tension of recent weeks over the timing by the Vatican in moving toward the canonization of Pope Pius XII. Many Jews say that Pius XII failed to protest the murder of Jews during the Holocaust and did not intervene when Jews were deported from Rome to Auschwitz. Pope Benedict and many other Catholics contend that Pius did help save many Jews during World War II. Benedict is considering a request to delay the canonization process until all the Holocaust-related documents in the Vatican archives are released-- probably in about 7 years. Some conservatives in the Vatican however want the canonization process sped up.

Recent Articles and Book of Interest

From SSRN:

• Frederick Mark Gedicks, Indeterminacy and the Establishment Clause, (Constitutional Commentary, 2009).

FromSmartCILP:

• Mark DeForrest, The Use and Scope of Extrinsic Evidence in Evaluating Establishment Clause Cases in Light of the Lemon Test's Secular Purpose Requirement, 20 Regent University Law Review 201-255 (2007-2008).


• Gary S. Gildin, Book Review: The Protection of Free Exercise of Religion for Minority Faiths, (Reviewing Bruce Ledewitz, American Religious Democracy), 14 Widener Law Review 255-264 (2008).


• The Role of Religion in Public Debate. Introduction by Hon. Diane S. Sykes; articles by James W. Skillen, Robert Audi and Hon. Michael W. McConnell; response by Kent Greenawalt. 20 Regent U. L. Rev. 301-335 (2007-2008).

Recent Book:

• Phillip F. Lawler, The Faithful Departed: The Collapse of Boston’s Catholic Culture, (Encounter Books, Feb. 2008), reviewed on PowerBlog.

Religious Coalition Presses For New Policies On Mortgage Foreclosures

Saturday's Washington Post reports that a coalition of 1000 religious congregations, operating under the label PICO National Network, is attempting to change national economic policies in a way that prevents mortgage foreclosures. The group, which recently held a "prayer rally" outside of the Treasury Building, wants a requirement that every bank receiving federal bailout money must agree to a uniform set of loan-modification procedures. Mortgage payments would have to be set at no higher than 34% of income, and in some cases principal on loans would be reduced. Many congregations say that members are turning to them for help when they are hit by the current financial crisis.

Infringing Confession's Confidentiality OK Under Australia's Free Exercise Clause

In SDW v Church of Jesus Christ of Latter-Day Saints, (NSW Sup. Ct., Nov. 27, 2008),the Supreme Court of the Australian state of New South Wales held that the statute of limitations had run on a claim by a woman who contended that the Mormon Church breached a duty of care it owed to her. The woman had, as a teenager, been sexually molested by her stepfather, who was excommunicated from the Church as a result. Plaintiff now claims that the Church had a duty to protect her against further molestation by, among other things, reporting her step-father to child protection or police authorities. In the course of its decision, the Court held that a law overriding the confidentiality of a religious confession is not an unconstitutional infringement of the free exercise of religion that is protected by Australia's Constitution, Sec. 116. The court found that this free exercise argument was so unmeritorious that it refused to include costs associated with presenting the argument in those costs assessed against plaintiff. Australia's Herald Sun reported on the decision last week.

Assault Charge To Be Retried Under Parent Discipline Defense

In State of Washington v. McHenry, (WA Ct, App., Nov. 25, 2008), a Washington state appellate court reversed and remanded for retrial a defendant's conviction for assaulting his daughter with a knife. The court upheld his conviction on other counts of assault against the daughter. On the one count, defendant claimed that his religion allowed him, as a father, to cut his daughter's hair if he believed she was using her beauty to be promiscuous. The court held that failure of defendant's counsel to request a jury instruction under RCW 9A.16.100 (which allows a parent to impose reasonable and moderate physical discipline on a child) amounted to ineffective assistance of counsel on that count.

Recently Available Prisoner Free Exercise Cases

In Holloway v. Bizzaro, 2008 U.S. Dist. LEXIS 94861 (SD FL, June 27, 2008), a Florida federal magistrate judge recommended dismissal of an inmate's damage claim. Plaintiff claimed that denial of pork-free meals violated of his religious rights. Under the Prison Litigation Reform Act, however, plaintiff can recover compensatory damages only if he suffered a physical injury.

In Abobkr v. Mills, 2008 U.S. Dist. LEXIS 95973 (D MS, Nov. 17, 2008), a Mississippi federal magistrate judge recommended dismissal of claims by a Muslim inmate that he was not allowed to lead Muslim prayer services and was forced to pray behind another less knowledgeable prisoner, and that on two occasions he was prevented from praying in the law library.

In two opinions in Foster v. Ouachita Correctional Center, 2008 U.S. Dist. LEXIS 96513 (WD LA, Sept. 22, 2008) and 2008 U.S. Dist. LEXIS 96523 (WD LA, Oct. 30, 2008), a Louisiana federal magistrate judge recommended dismissing complaints by a Muslim prisoner that prison officials refused to "provide assistance" to Muslim inmates in their obligation to fast and read scripture during Ramadan; refused to set up a worship program for Muslims; and refused to furnish Muslims a non-pork diet. He also alleged that during Ramadan Muslims were required to attend Christian programs.

Indian Authorities Waive Autopsies On Chabad House Victims

India Express reports today on efforts to have the bodies of those brutally killed in the Chabad center in Mumbai returned to Israel for burial without autopsies being performed. Jewish law generally prohibits autopsies. The Israeli Consulate sent a request to Mumbai's Police Commissioner and to the Home Minister to hand over the bodies without autopsy so they can be buried according to Jewish law. DNA India reports that a letter from the Indian Ministry of External Affairs approving these arrangements arrived Saturday night.

Muslim-Christian Clashes In Nigerian City Following State Elections

BBC News today reports that in the Nigerian city of Jos, hundreds of people have been killed in clashes between Muslims and Christians. Jos is the capital of the state of Plateau. The violence followed state elections in which the Christian-backed People's Democratic Party won over the Muslim-backed All Nigeria People's Party. The results are being contested amid reports of election irregularities. Violence, including burning of homes, churches and mosques, began Thursday night. Plateau has a history of religious clashes between indigenous Christians and more recently arrived Hausa-speaking Muslims.

Nativity Scene To Go Up Without Opposition In Illinois Capitol Building

A press release issued yesterday by the Springfield Nativity Scene Committee (SNSC) reports that a privately funded Nativity Scene will be displayed starting next week until after Christmas in the East Hall of the Illinois state Capitol Building. The unveiling ceremony will include a prayer and Christmas carols. Choirs will perform near the display throughout the Christmas season. The Secretary of State's office approved the display, apparently on the theory that this area of the Capitol is a designated public forum open to all. Dan Zanoza, Chairman of the SNSC, said: "The Nativity Scene is primarily meant to honor the birth of Jesus Christ. We are also hoping to demonstrate that such expressions of religious faith in the public square are legal under both the U.S. and Illinois State Constitutions." In support of that position, he cited a 1989 federal district court decision that upheld a creche on Daley Plaza. (Grutzmacher v. Public Bldg. Com., 700 F. Supp. 1497 [LEXIS link]). The ACLU is not opposing the Capitol display, saying: "anybody can express their message there and frankly there is room in that space for lots of different messages." (Suburban Chicago Daily Herald, 11/18).

Louisiana Parish Repeals Fortune Telling Ban After Court Holds It Invalid

Last month in Gryphon's Nest Gifts, Inc. v. Parish of Livingston, (MD LA, Oct. 7, 2008), a Louisiana federal district court held unconstitutional an ordinance enacted by the Parish of Livingston that bans soothsaying, fortune telling, palm reading, clairvoyance, crystal ball gazing, mind reading, card reading "and the like" for a fee. The ordinance was challenged by a business that caters to the spiritual and educational needs of Wiccans and other pagans. After Hurricane Katrina it wished to move to Livingston Parish. The court held that the ordinance was an unconstitutional content-based prohibition of speech. It also found that the law was unconstitutionally vague. Now, according to a report in The Advocate earlier this week, on Monday, the Parish Council by a 7-1 vote, on advice of its attorney, decided to repeal the ordinance instead of appealing the case. (See prior related posting.) [Thanks to About.com's Paganism/Wicca blog for the lead.]

Court In Kashmir Says Hajj Travel Is Protected Fundamental Right

In Indian Kashmir, a High Court judge has ruled that the State Hajj Committee wrongly denied travel documents to ten individuals attempting to make the Hajj pilgrimage to Saudi Arabia this year. According to a report published yesterday by Greater Kashmir, a pilgrim pass was denied to 40 individuals, but only ten sued. The denials were based on reports of past arrests or of anti-national activities. The court said, however: "Haj for Muslim is an essential and integral part of the religion forming one of the five pillars of Islam. It can safely be concluded that withholding of the pilgrim pass ... amounts to infringement of fundamental right guaranteed under the Constitution of India...." Art. 25 of India's Constitution guarantees the right to freely practice one's religion. Even though the last flight to Jeddah left two days before the court's decision, the court ordered the government to arrange for plaintiffs' travel.

Tribal Lawsuit Raises Unusual Religious Liberty Question

In Havasupai Tribe v. Arizona Board of Regents, (AZ Ct. App., Nov. 28, 2008), an Arizona state appellate court decided a procedural issue in a case that raises a fascinating religious liberty question. The procedural issue was whether plaintiffs adequately complied with the notice of claims requirement in Arizona law that applies to suits filed against public entities or public employees. Focusing on that issue, in a 2-1 decision the court reversed the trial court's grant of summary judgment in favor of defendants.

Underlying the procedural wrangling is a claim by the Havasupai Indians and tribal members that blood samples given to Arizona State University researchers were used for purposes beyond those consented to. Researchers were to study whether genetics accounted for the large increase in diabetes among tribe members. However when that study was completed, the blood samples were also used to study the evolutionary genetics of the Havaupai, including theories regarding the ancient migration of populations across the Bering Strait from Asia to North America. That notion contradicts the Havasupai belief that, as a people, they originated in the Grand Canyon. Reporting on the case, yesterday's East Valley Tribune quotes plaintiff's attorney:

It's a life-altering event for each and every one of those tribal members that academic institutions and science is now telling these folks that their religion and their cultural beliefs are wrong.... They would have never opened themselves up to this type of scrutiny or challenge to their belief systems, not in a million years would they have done that, had they known that this was the true intent of Arizona State University and others.

The AP also reported on the decision yesterday.

Former Maldives President Suing For Defamation Over Comments On His Religious Beliefs

Miadhu News today reports from the Maldives on the ongoing civil defamation lawsuit brought by former Maldives President Maumoon Abdul Gayoom against Adhaalath Party. Gayoom says that Sheikh Husain Rasheed has publicly defamed him on several occasions by saying that he was a not a Muslim. (See prior posting.) The first hearing in the lawsuit was held yesterday at which Gayoom's attorneys presented his case.

UDATE: Minivan News reported on Jan. 8, 2009 that Gayoom's defamation suit has been withdrawn, with Gayoom saying it would be futile to pursue it once the election is over.

Kentucky's Homeland Security Law Requires Acknowledgement of God

Today's Lexington Herald-Leader reports on a little-noticed provision in Kentucky's law enacted in 2006 to create the state Office of Homeland Security. KY Code 39G.010 requires that the agency's executive director is to "publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth by including [specified findings] ... in its agency training and educational materials. The executive director shall also be responsible for prominently displaying a permanent plaque at the entrance to the state's Emergency Operations Center" with the same inscription on it. The required language is in KY Code 39A.285(3) :

The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches and proclamations of American Presidents, including Abraham Lincoln's historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy's November 22, 1963, national security speech which concluded: "For as was written long ago: 'Except the Lord keep the city, the watchman waketh but in vain.' "

Current Kentucky Governor Steve Beshear's office was not aware of the provision until reporters asked about it. The required plaque is still up, but the statutory language is not in the Homeland Security office's current mission statement, nor is it on its website.

UPDATE: Bluegrass Politics reported on Monday that American Atheists and ten Kentuckians will file a federal court lawsuit on Tuesday seeking to eliminate references to God in the Homeland Security statute. The suit will also seek an award of damages.