European Court of Human Rights Upholds French Limit on Head Scarves In Schools

In Dogru v. France, (ECHR, Dec. 4, 2008) [in English, Word.doc] and Kervanci v. France, (ECHR, Dec. 4, 2008) [in French, Word.doc], the European Court of Human Rights upheld French restrictions on Muslim girls wearing Islamic head scarves in their physical education classes. It found that the rule did not violate the girls' freedom of thought, conscience and religion protected by Art. 9 of the European Convention on Human Rights. As summarized in the Court's press release on the cases:

[T]he purpose of the restriction on the applicants' right to manifest their religious convictions was to adhere to the requirements of secularism in state schools..... [N]ational authorities were obliged to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion. In the Court's view, that concern did indeed appear to have been answered by the French secular model.

In the applicants' cases the Court considered that the conclusion reached by the national authorities that the wearing of a veil, such as the Islamic headscarf, was incompatible with sports classes for reasons of health or safety was not unreasonable..... [T]he penalty of expulsion did not appear disproportionate.... [A]pplicants had been able to continue their schooling by correspondence classes. It was clear that the applicants' religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order. It was also clear that the decision complained of was based on those requirements and not on any objections to the applicants' religious beliefs.

Yesterday's Irish Times and Today's Zaman reported on the decision.

In Nicaragua, Sandinistas Use Religion To Keep Political Support

This week's Nica Times (published in Costa Rica) reports on events in Nicaragua as politicians used religion for political purposes before and after recent Nicaraguan municipal elections. Before the Nov. 9 elections, Sandinista President Daniel Ortega sought out evangelical Christian leaders, giving them land, quoting the Bible, dedicating a Bible Plaza in downtown Managua, and declaring a National Day to Honor the Bible. However, after claims of election fraud in last month's elections, the Catholic Church in particular is concerned with the government's use of religious symbols for political ends. After the election, Sandinistas clashed with demonstrators while wearing government T-shirts bearing religious messages such as "Love is stronger than hate." The Ortega government has also attempted to identify itself with religion by placing statues of the Virgin Mary in all the traffic roundabouts in Managua.

Civil Court May Decide Scope of Authority of Archdiocese Agent

In Favalora v. Sidaway, (FL Ct. App., Dec. 3, 2008), a Florida state appellate court rejected a First Amendment religious autonomy challenge to civil court jurisdiction in a suit against the Catholic Archdiocese of Miami. In the case, plaintiff alleged that the Archdiocese fraudulently induced him to settle a claim by promising reforms which it never planned to implement. Plaintiff also asserted that that the agent for the Archdiocese who entered the settlement lacked authority to bind the Archbishop or Archdiocese. The Archdiocese moved to dismiss, claiming that questions of its agent's delegated powers are matters of internal church governance. The court disagreed, holding: "The mere fact that this case may require inquiry into the applicable church law does not constitute 'excessive entanglement' under the First Amendment.... Nothing in this case suggests that the circuit court is poised to substitute its interpretations of church law for those of the religious organization...."

Complaint In Suit Challenging Kentucky Homeland Security Law Now Available

As reported previously, the American Atheists and ten individuals are suing to challenge provisions in Kentucky statutes creating the state's Office of Homeland Security. The statute requires the agency to stress dependence on God as a necessary part of homeland security, and requires it to install a plaque with specified language to that effect. The lawsuit was filed in a Kentucky state court on Tuesday. (NoGodBlog). The complaint (full text) describes the state law as being enacted in response to the 9-11 attacks on the United States "by religious fanatics in a faith-based initiative." It alleges that the statutes are violative of Section 5 of the Kentucky Constitution (Right of religious freedom), and the First Amendment as well as Article VI of the U.S. Constitution:

The challenged laws unlawfully attempt, inter alia, to establish religion, endorse belief over non-belief, set up a religious test, indoctrinate Kentucky citizens and state employees in theistic religious beliefs, and diminish the civil rights, privileges or capacities of Atheists and others who do not believe in a god, or who believe in a different god or gods than the presumed supernatural entity unconstitutionally endorsed by the legislation complained of herein.

The lawsuit seeks a declaratory judgment and damages.

Roundtable Releases 2008 Report: Legal Developments In Faith-Based Initiative

On Tuesday, the Roundtable on Religion and Social Welfare Policy announced the release of The State of the Law-- 2008, a report on legal developments affecting government partnerships with faith-based organizations. This is the seventh, and last, of the reports on the Bush Administration's Faith-Based and Community Initiative that have been written annually by Law Professors Ira C. Lupu and Robert W. Tuttle. The report's Executive Summary concludes:

Partnerships between government and faith-based organizations did not begin with the Administration of George W. Bush, but the past eight years have involved an intense effort to expand such partnerships into new shapes and programs, and those efforts have borne significant fruit. The rules governing relationships between the state and religious organizations have been refined and clarified in ways that could not have been predicted on January 20, 2001.... We very much doubt that faith-based organizations will ever again be categorically disqualified from partnering with government in delivering social services.

The Roundtable's website contains extensive additional information on the faith-based social services.

In Britain, Queen Announces Proposal To Create Single Equality Commission

In Britain yesterday, the Queen's speech to Parliament (full text) announced that the government would introduce legislation to create a single commission for equality and human rights. The proposal will consolidate nine existing anti-discrimination laws into one Equality Bill. In 2007, Britain's Ministry of Justice circulated a consultation document on this proposal. (See prior posting.) EPolitix and Pink News yesterday both discussed at greater length the provisions of the proposed new legislation. The British Humanist Association issued a release welcoming the announcement by the Queen, but urged that the law also address discrimination by religious organizations. It said: "Existing UK equality law gives religious groups power to discriminate against those who do not share their beliefs in both employment and service provision – even when they are receiving public funding – and this is one inequality that we look to the Government to address."

UPDATE: The Muslim Council of Britain on Thursday particularly welcomed the proposed provisions in the new Equality Bill that will require public bodies to consider how their spending decisions, employment practices, and service delivery can affect people according to their religion. Current law requires consideration of race, disability or gender; the new law would extend this to religion or belief, gender, age, sexual orientation and sexual reassignment. (Mathaba).

North American Conservative Anglicans Create New Church Province

Over the last several years, courts in the United States and Canada have faced numerous lawsuits involving congregations and dioceses that have broken away from the Episcopal Church or the Anglican Church of Canada. The break-away congregations are more conservative and take issue with the parent Churches' policies on issues such as same-sex marriage, ordination of women and ordination of gay clergy. Yesterday these conservatives announced the formation of the Anglican Church in North America, a competing national Province still claiming to be part of the Anglican Communion. Yesterday's San Francisco Chronicle, reporting on developments, says that it is unprecedented for an Anglican national Province to be created where any other such national church already exists. However the new Province has the support of archbishops in three African countries and Argentina. The new Anglican Church in North America must still adopt a constitution and elect leaders. A Provisional Constitution and Provisional Canons have been published.

UPDATE: Episcopal News Service reported Thursday on a statement from the London office of the Archbishop of Canterbury on the proposed new Anglican province in North America. It said in part: "There are clear guidelines..., notably [Anglican Consultative Council] resolution 12, detailing the steps necessary for ... the creation of new provinces.... Once begun, any of these processes will take years to complete. In relation to the recent announcement from the meeting of the Common Cause Partnership in Chicago, the process has not yet begun."

Egyptian Freed Pending Appeal in Case on Religion in Identity Documents

Compass Direct News reported yesterday on a case in Egypt involving forgery charges against a woman for falsely failing to list herself as a Muslim on her official identification papers, including her marriage certificate. Bahia El-Sisi says that she is a Christian. Her father converted to Islam in 1962, but reconverted to Christianity three years later. He is in prison for obtaining forged identification papers identifying him as a Christian. Only recently has there been any possiblity of legally changing identity papers to reflect such a reconversion. (See prior posting.) El-Sisi and her sister were both charged with forgery and sentenced to jail in abstentia in 2000. Her sister was freed last January. On Nov. 25, Supreme Court Judge Abdel Meged Mahmood rescinded a warrant for El-Sisi's arrest and ruled that she could remain free pending appeal of her conviction.

Maldives Blocks Access To Christian Website

In the Maldives, the restrictive Protection of Religious Unity Act prohibits dissemination of information on non-Muslim religions. (Forum 18 background.) According to Minivan News today, the Maldives Ministry of Islamic Affairs this week blocked access to a website, Sidahitun.com, which contains information about Christianity in the Dhivehi language that is spoken in the Maldives. Sheikh Ibrahim Fareed Ahmed supported the ban, saying: "Although this is an Islamic society, some Maldivians' faith in Islam is not very strong." The Maldives 2008 Constitution (Sec. 27) provides: "Everyone has the right to freedom of thought and the freedom to communicate opinions and expression in a manner that is not contrary to any tenet of Islam."

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.