Palestinian Infighting Prevents Gazans From Making Hajj

Some 3000 Palestinians seeking to make Hajj this year find themselves caught in rivalry between Hamas that controls the Gaza Strip and the government of President Mahmoud Abbas that controls the West Bank. According to an AP report yesterday, both rivals submitted a list of Gazans seeking Hajj permits to Saudi authorities. Saudi Arabia granted permits only to the Gazans listed on Mahmoud Abbas' list. Piqued over this, Hamas refuses to permit those individuals to leave Gaza. The Hajj begins tomorrow. (See prior posting.) The head of Egypt's al-Azahr University said that Hamas' interference with pilgrims is a violation of Islamic law. Hamas however says that choosing participants has always been left to local officials, and Abbas has politicized the process.

9th Circuit Defines Religious Workers For Visa Purposes

In Love Korean Church v. Chertoff, (9th Cir., Dec. 5, 2008), the 9th Circuit Court of Appeals interpreted the provisions of 8 USC 1153(b)(4) that provide up to 5000 permanent resident visas per year for religious workers other than ministers. Implementing regulations (8 CFR 204.5(m)(5)) define "religious occupation" as "an activity which relates to a traditional religious function." In deciding whether a choir director qualified, the court rejected the BCIS Administrative Appeal Office's determination that no part of a religious worker’s duties could be non-religious. The court remanded the case for the AAO to determine what quantum of religious duties must be present for the job to qualify. The court also rejected the AAO’s holding that a visa could be issued only if the church had traditionally employed a salaried full-time choir director, saying that the Bureau of Citizenship and Immigration Services was focusing unduly "on the labor history of the institution filing the petition as opposed to the type of work described…." [Thanks to Bob Ritter for the lead.]

UPDATE: As noted by a commenter, the religious worker regulations that are the subject of this decision have recently been amended. The amendments appear to resolve prospectively the issue left open by this decision. See this posting for details.

Many React To Anti-Religion Sign In State Capitol Display

As reported on Tuesday, the Freedom From Religion Foundation created a stir in Olympia, Washington when it took advantage of the state Capitol's open forum policy permitting any group to put up a display during the holiday season. FFRF put up a sign extolling the virtues of non-belief. Sometime overnight between Thursday and Friday, the 50-pound sign disappeared from the Capitol building, and then showed up at a local radio station where an unidentified man dropped it off. Meanwhile, other groups have applied to place displays in the Capitol, including a set of "Nativity balloons" from one applicant, and a "Festivus" pole (honoring a made-up holiday depicted by comedian Jerry Seinfeld) from another group. State troopers are now in the Capitol building guarding the display that remains—a Nativity scene. Presumably they will remain to guard other displays as well.

Bill O’Reilly on Fox News carried a segment (full text)on Tuesday night that was critical of the FFRF display. That led to the Governor’s office receiving over 200 calls per hour objecting to the sign. Governor Chris Gregoire and Attorney General Rob McKenna issued a statement defending the state’s non-discriminatory policy, saying that the state capitol "belongs to all citizens of Washington state." These developments are reported by CNN, KATU News and the AP. [Thanks to Scott Mange for the lead.]

7th Circuit En Banc Upholds Damages Against Muslim Groups For Financing Hamas

In Boim v. Holy Land Foundation for Relief and Development, (7 Cir., Dec. 3, 2008), in a 7-3 en banc decision, the 7th Circuit Court of Appeals held the American Muslim Society and the Quranic Literacy Society liable under 18 USC 2333. The statute, as interpreted by the court, permits the award of treble damages against those who donate funds to a terrorist group. The lawsuit was brought by parents of a Jewish teenager who, in 1996, was shot to death by members of Hamas in Israel. Finding no First Amendment problem even if a donor does not intend to further the illegal goals of an organization, the court said:

Anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to the organization’s terrorist activities. And that is the only knowledge that can reasonably be required as a premise for liability. To require proof that the donor intended that his contribution be used for terrorism—to make a benign intent a defense— would as a practical matter eliminate donor liability except in cases in which the donor was foolish enough to admit his true intent.

The court also said that donors to terrorism should not be able to escape liability just because "terrorists and their supporters launder donations trough a chain of intermediate organizations." The court also rejected the 7th Circuit panel's conclusion that there was not sufficient evidence to find Hamas was responsible the teenager's death.

The court remanded for further trial the question of liability of the Holy Land Foundation, finding that the district court had wrongly applied the doctrine of collateral estoppel in holding it liable. The court reversed the judgment against an individual, Muhammad Salah, because his contributions pre-dated the effective date of a critical portion of the statutes under which the suit was brought. Judges Rovner, Williams and Wood dissented in two separate opinions. Bloomberg and IPT News both reported on the decision earlier this week. [Thanks to Jewish Delaware for the lead.]

Brookings Report Advises Obama On Continuation of Faith-Based Initiative

The Brookings Institution yesterday released a 58-page paper titled Serving People in Need, Safeguarding Religious Freedom: Recommendations for the New Administration on Partnerships with Faith-Based Organizations. Written by Brookings fellow E.J. Dionne, Jr. and Wake Forest Divinity School’s Melissa Rogers, the paper makes sixteen recommendations to the Obama administration for continuing, clarifying, modifying and strengthening President Bush’s Faith-Based and Community Initiative. The report recommends that the new administration ultimately create "a more durable policy regime" for partnering with religious groups so that the ground rules do not change from administration to administration. Brookings has separately posted the "List of Sources" that serve as endnotes to the report.

Russian Orthodox Patriarch Alexy II Dies

The International Herald Tribune reports that Russian Orthodox Patriarch Alexy II died today in Moscow at age 79. Heading the Church since 1990, Alexy presided over a restoration of the influence of the Orthodox Church in Russia. He maintained close ties with the Russian government and also often spoke out on moral issues. Alexy's relations with the Roman Catholic Church were often contentious. Pope Benedict XVI issued a statement of condolence. (International Herald Tribune.) The Jewish Telegraphic Agency eulogized Alexy, saying that he "became one of the first major religious Christian voices to call for an end to anti-Semitism in Russia." The Moscow Times speculates on Alexy's likely successor.

Times Ad Condemns Violence Against LDS Church For Its Prop 8 Support

A full-page ad titled "No Mob Veto" (full text) ran in today's New York Times. The ad condemns the "violence and intimidation" being directed at the Mormon Church by reason of its support of California's Proposition 8 that banned same-sex marriage. (See prior posting.) Coordinated by the Becket Fund, the ad is signed by thirteen prominent religious, academic and human rights leaders. The ad indicates that the signers have different views on the "wisdom and justice" of Proposition 8, but agree on their opposition to anti-religious bigotry and violence. Signers included individuals with Evangelical, Catholic and Jewish organizational affiliations.

In a press release on the ad, Interfaith Alliance President C. Welton Gaddy said: "I am pleased to see the newfound commitment of some of my friends on the right to fight against anti-religious bigotry and violence against houses of worship.... [However] I do wonder if the signers will be willing to spend tens-of-thousands of dollars along with their prestige the next time a primarily gay congregation’s legitimacy is called in to question, or a mosque is targeted for harassment." Towleroad blog has additional background on the ad.

Irish Broadcasting Commission Rejects Christmas Ads From Catholic Bishops

The Broadcasting Commission of Ireland (BCI) General Advertising Code, Sec. 9, as well as Section 10(e) of Ireland's Radio and Television Act of 1988 and Section 65 of the Broadcasting Act 2001, ban the broadcast in Ireland of ads "directed towards a religious end." In a press release issued yesterday, BCI said that applying this ban, it had rejected a number of scripts for a proposed Christmas advertising campaign by the organization Veritas which is owned by the Irish Catholic Bishops Conference. According to yesterday's Irish Times, the offending ad encouraged people to buy a Christmas gift that "means more."

NY Appellate Court: Civil Courts Can Require Inspection of Church Records

In Tae Hwa Yoon v New York Hahn Wolee Church, Inc., (NY App. Div., Nov. 25, 2008), a New York state appellate court reversed the dismissal of one claim in a lawsuit against a Yonkers (NY) church, its pastor and several of its trustees. Plaintiff, a member and former trustee of the church, alleged that defendants had diverted or misappropriated church funds. Invoking the New York Not-For-Profit Corporation Law, plaintiff sought to inspect the church's books and records, compel an accounting, enjoin defendants from accessing certain church funds and obtain a declaration that the election of the trustee who replaced him and the installation of a new pastor violated the church's bylaws. The trial court dismissed on the ground that the case could not be decided by the application of neutral principles of civil law.

The Appellate Division held that the claim for production of church books and records (N-PCL Sec. 621) could be decided without examining issues of religious doctrine. The Appellate Division upheld dismissal of the remainder of the claims, but on the ground that since they were asserting rights of the church, they needed to be brought as a derivative action and the special procedural requirements of such actions needed to be met. (N-PCL Sec. 623). [Thanks to J.J. Landa for the lead.]

Saudi Ministry Prepares For Hajj Pilgrims

The Hajj takes place in Saudi Arabia this year from Dec. 7 to 11. Only pilgrims with Hajj permits may participate. The Saudi Gazette today reports on arrangements that have been made by the Saudi Ministry of Islamic Affairs, Daw'a, and Guidance to handle the thousands who will take part. Over 800 religious guides and 180 interpreters have been stationed at pilgrim entry points and at holy sites. It has created a toll-free telephone number, and has set up 123 field centers in Mecca and Medina, to answer Hajj related questions. An area in Mecca has been converted into a spiritual center for sermons and instructions on performing the Hajj. The Saudi Project for Utilization of Sacrificial Animals will act as the agent of pilgrims in carrying out the slaughtering of animal offerings and the distribution of the meat in accordance with Shariah.

Tourist Council Treads Carefully In Funding for Christian Music Festival

A column in today's St. Petersburg (FL) Times discusses the state and federal constitutional issues that presented themselves last month as the Hernando County Tourist Development Council decided what kind of support it would give to the Brooksville Ministerial Association's annual summer Freedom Fest Christian music festival. As reported by the Nov. 25 issue of Hernando Today, originally the county agreed to give the Ministerial Association $5000 to help with promotion of the event. However, after questions were raised by the ADL and the ACLU, the Council decided that the funds, to be used to promote tourism, would go directly to vendors and advertisers, and not to the Association. Also, as reported by the Nov. 22 St. Petersburg Times, this year's festival slogan was changed from "God and Country" to the more secular "Family, Freedom and Country." Rev. Joe Santerelli, president of the Ministerial Association, however, says that they are still "going to proclaim the gospel of Jesus Christ at the event."

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."