Los Angeles Jews for Jesus Leafleting Case Settled

Alliance Defense Fund announced yesterday the settlement of a challenge to leafleting restrictions imposed by the City of Los Angeles (CA) on a Jews for Jesus group. Last year, a California federal district court issued a preliminary injunction ordering police to protect Jews for Jesus members who planned to hand out literature outside an Israel Independence Day Festival, so long as they remained at a prescribed distance. (See prior posting.) Now, in a stipulated permanent injunction in Jews for Jesus v. City of Los Angeles, California, (CD CA, Nov. 12, 2008), the court issued a permanent injunction permitting Jews for Jesus to hand out literature and converse with attendees at future Israeli Independence Day Festivals, but only if they remain at least 10 yards away from the entrance gate and outside the Festival's fenced off area. Following entry of the judgment, the court, on Dec. 1, entered a Stipulation of Voluntary Dismissal.

RLUIPA Protects New York Church's Catering Activities From Adverse Zoning Action

In Third Church of Christ, Scientist v. City of New York, (SDNY, Dec. 2, 2008), a New York federal district court, applying the "equal terms provision" of RLUIPA, enjoined the city from revoking previously granted approval for a church to use its building for catering activities. The city argued that the catering activities were no longer an "accessory use." Rather they had become so extensive that use of the building as a church by the declining congregation's membership was no longer the building's primary use. The court was troubled that this interpretation would permit smaller religious groups to be treated less favorably than larger ones. Ultimately however the court said that it did not need to resolve the issue of "accessory use" because

the Equal Terms provision is squarely implicated by the City's decision to revoke its earlier granted pre-consideration for the Church when other food-service and catering businesses, associated with non-religious groups, operating in the same neighborhood as Plaintiff, also in violation of the Zoning Resolution, were given only a "Notice of Violation."

Finding that the 2nd Circuit had not interpreted the RLUIPA's equal terms provision, the court held that under either the 3rd or 11th Circuits' competing interpretations, Plaintiff would prevail. The court also expressed concern over the City's policy of investigating zoning violations only when a complaint is filed. This can lead to "unfair targeting of unpopular groups." Yesterday's New York Times reported on the decision. (See prior related posting.)

Capitol Visitor Center Opens With Objection To Lack of Religious References

Yesterday, the $621 million U.S. Capitol Visitor Center, over-budget and behind schedule, opened to the public. (Washington Post.) South Carolina Republican Senator Jame DeMint almost delayed the opening further, according to the McClatchy Newspapers yesterday. DeMint complains that the Center "fails to appropriately honor our religious heritage that has been critical to America’s success." (DeMint Press Release.) Problems began when, on a preview tour, DeMint discovered that a panel on a wall incorrectly identified "E Pluribus Unum", rather than "In God We Trust" as the national motto. The chairman and the ranking member of the Senate Rules and Administration Committee have agreed to support removal of the erroneous reference to "Our Nation's Motto" (which has been temporarily plastered over), and to adding engravings of "In God We Trust" and the Pledge of Allegiance in prominent locations in the Visitor Center. DeMint says:

While the Architect of the Capitol has pledged to include some references to faith, more needs to be done.... The current ... displays are left-leaning and in some cases distort our true history. Exhibits portray the federal government as the fulfillment of human ambition and the answer to all of society’s problems. This is a clear departure from acknowledging that Americans' rights 'are endowed by their Creator' and stem from 'a firm reliance on the protection of Divine Providence.'

DeMint particularly objects to the engraving near the entrance reading: "We have built no temple but the Capitol. We consult no common oracle but the Constitution."

Fired Human Resources VP Who Disputed Gay Rights Sues University

The Toledo Blade reports that on Monday a federal lawsuit was filed against the University of Toledo by its former Associate Vice-President for Human Resources, Crystal Dixon. Dixon was fired after she wrote a column for a local newspaper arguing that gays and lesbians are not "civil rights victims." (See prior posting.) The complaint (full text) alleges that "Plaintiff, an African-American woman and sincere practicing Christian, believes that homosexuality is a grave offense against the Law of God and that comparing homosexual activity with the struggles of African-American civil rights victims is absurd and untenable because she believes homosexuality is a lifestyle choice and not an immutable or inherent genetic and biological characteristic...."

The lawsuit alleges that Dixon's column expressed her personal views, and that her firing infringes her 1st Amendment free speech rights. The complaint also claims equal protection violations, arguing that other University personnel have been permitted to speak out on political and social issues without consequences. Richard Thompson of the Thomas More Law Center who represents Dixon said that homosexuals have an "inordinate amount of influence" over University president Lloyd Jacobs. The University claims that Dixon's human resources position was one of special sensitivity, and that her ability to perform that job was undermined by her statements.

Orthodox Church Wants Russia To Outlaw Satanism and Church Desecration

Concerned with Satanist symbols, swastikas and inverted stars being scratched on church walls, a Russian Orthodox Church official has called on Russia to adopt a statutory ban on Satanism. Interfax reported yesterday that Archpriest Vsevolod Chaplin, deputy chairman of the Moscow Patriarchate Department for External Church Relations, also wants a law banning desecration of religious shrines. Chaplin says Satanism leads to murder, animal abuse and desecration of churches and graves.

Court Says No Free Exercise Problem In Homicide Charges Against Parents

In Wausau, Wisconsin, a trial court judge ruled Monday that Dale and Leilani Neumann's free exercise and due process rights are not violated by prosecuting them for reckless homicide. AP reports that the parents are charged with praying for the recovery of their 11-year old daughter instead of getting her medical assistance as required by law. She died of untreated diabetes. The court's opinion stated that the parents' "right to transfer religious belief into conduct must yield to neutral, generally applied criminal statutes designed to protect public safety." The court ruled, however, that if it is shown that the parents "genuinely believed that prayer alone would save their daughter and that she was in no danger of dying without medical care, then they could not be found criminally negligent." The court also ruled that the exclusion of treatment by prayer from the state's child abuse statute did not preclude fair notice to the parents that the homicide law could still cover their behavior.

Australian Court Is Asked To Order Police Investigation of Religious Group

In Australia, three women, former members of the Christian Exclusive Brethren movement, have petitioned the Federal Court seeking to have it issue a writ of mandamus to force government authorities to investigate the religious group. The Age (Melbourne) today reports that the petitioners, three sisters, say they are on the run from the sect that they accuse of trafficking, debt bondage and cultural genocide. Justice Tony North urged petitioners, who appeared pro se, to obtain an attorney. When they said they could not afford one, North said he would attempt to have the Law Institute furnish a lawyer free of charge. Melbourne's Herald Sun yesterday, reporting on the case, said that the Exclusive Brethren is very controversial in Australia because of allegations that it used its wealth to prevent the Senate from investigating it. The court petition raises questions of whether the Federal Court has jurisdiction to order the Federal Police to investigate allegations of crime.

Massachusetts High Court Lets Rastafarian Go To Trial Against Jiffy Lube

In Brown v. F.L. Roberts & Co., Inc., (MA Sup. Jud. Ct., Dec. 2, 2008), the Massachusetts Supreme Judicial Court rejected defendant's motion for summary judgment and ordered to trial a case in which a Rastafarian sought an exemption from an employer's grooming policy. Plaintiff, Bobby Brown, alleged religious discrimination in violation MGL c. 151B, § 4(1A) after Jiffy Lube told the lube technician that he could only work in the lower bay, where there was no customer contact, because he wore a beard and long hair. The statute requires an employer to accommodate an employee's religious practices unless accommodation would impose an undue hardship. The court held that Jiffy Lube must show more than merely a non-economic cost to its image to prove undue hardship. It also held, however, that Jiffy Lube is entitled to a trial on whether working in the lower bay was a reasonable accommodation of Brown's religious needs. The Quincy Patriot Ledger and the AP report on the case.

Cuba Improves Relations With Vatican As Castro Attends Beatification Mass

NBC News reported yesterday that Cuba's government has taken an important step toward improving relations with the Catholic Church. Last week end, Cuban President Raul Castro sat in the front row at a 3-hour mass beatifying Cuban Friar Jose Olallo Valdes. The 19th century friar is known as "father of the poor."

Religion Clause Nominated As One of "100 Best" By ABA For Second Year

I am pleased to announce that Religion Clause has been nominated by the editors of the ABA Journal as one of the 100 best legal blogs for 2008. (ABA press release.) Religion Clause is one of only 50 blawgs that have been nominated to the list of the "100 best" two years in a row. Until January 2, you can vote online for the best blog in each of the ABA's ten categories. Religion Clause is nominated in the "Niche" category, along with 14 other great blawgs. To vote for the best in the Niche category, click here. To vote in all of the categories, click here.

Limitation on Church Attendance Does Not Violate Parolee's Free Exercise Rights

In Burchett v. Bromps, 2008 U.S. Dist. LEXIS 96920 (ED WA, Nov. 20, 2008), a Washington federal district court rejected a free exercise challenge to the conditions of his community release brought by a pedophile sex offender. Donald Burchett, whose offense was committed at a church, was required to obtain permission of his parole officer in order to go within three blocks of a church. This specific requirement was imposed after the parole officer received a complaint from a pastor that Burchett was harassing a female member of the congregation. The court held:

The limitation placed on Mr. Burchett by the stipulated Agreement did not represent a substantial burden on the observation of a central religious belief or practice, and cannot be considered anything more than an inconvenience. Mr. Burchett could still attend church if he so desired; he merely had to seek permission before doing so.... The government has a compelling interest in making sure the community is protected from pedophile sex offenders.

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.