Raelians Threaten To Sue Las Vegas Police For Airport Discrimination

Ricky Roehr, a bishop in the Raelian Movement and its North American Continental Guide, says that the movement will file suit against the Las Vegas (NV) police and the Las Vegas airport authority for religious discrimination and abuse of power. A press release from the Raelians says that they were forced to leave the Las Vegas McCarran International Airport on Saturday afternoon under threat of arrest as they awaited the arrival of their spiritual leader, Rael. Roehr says that none of the Raelians created any disturbance that would justify the police order. Hundreds of believers are expected to attend the Dec. 13th International Raelian Celebration in Las Vegas. The Raelians believe that life on earth was created by extraterrestrial human beings. A French journalist, Rael, learned this in 1973 when he was contacted by a visitor from another planet. (Rael website.)

2nd Circuit Hears Arguments In Vermont License Plate Case

The U.S. Second Circuit Court of Appeals yesterday heard oral arguments in Byrne v. Rutledge, a case in which a Vermont federal district court upheld Vermont's policy of refusing to place religious messages of any kind on "vanity" license plates. (See prior posting.) Yesterday's Burlington Free Press reported on the arguments. Appellants claim that the rule amounts to unconstitutional viewpoint discrimination since motorists can obtain vanity plates with letters or numbers that express their non-religious viewpoints on policies. Motorist Shawn Byrne had wanted to obtain a license plate reading "JN36TN," short for John 3:16.

President Bush Gives Half-Hour Interview To Saudi TV Network

Yesterday, President Bush gave a 30-minute interview (full text) to Middle East Broadcasting Center reporter Nadia Bilbassy-Charters. MBC is a Saudi-run television network broadcasting from the UAE. Here an excerpt from the interview:

Q: Sir, some people say that the war on terror is a war on Islam.... Yet you went to the first mosque after 9/11 and you spoke there. How do you convince people in the Middle East that George Bush is not fighting a war against Islam?

THE PRESIDENT: ... [I]t troubles my soul, because I believe we're all God's children. And I hear people say, George Bush doesn't like Muslims; he wants to fight Muslims.... But I am objecting to anybody who murders innocent people to achieve their objectives. I don't think people who murder in the name of religion are truly religious people. And secondly, I would hope that people would know that when we try to use some of our influence to help on education programs ... or we welcome students, Saudi students, to the United States to study here, that it's a sign of respect and a sign of my desire to reach out to all people regardless of their religion.

Vietnam Court Gives Suspended Sentence To Catholic Demonstrators

In Vietnam today, eight Catholics were tried for disturbing public order and damaging property during a series of prayer vigils last year. The vigils were protesting the government's asserted ownership of Church property and the proposed sale of the property near Thai Ha Church to developers. Officials say that defendants destroyed a brick wall around the property whose claimed ownership by the city of Hanoi is disputed by Catholics. (AP). Javno reports that at the conclusion of the trial, seven of the defendants were given suspended prison terms and one was merely given a warning. Nearly 1,000 supporters carried signs outside the Dong Da district court where the trial was taking place. The sentence was more lenient than many had expected. Defendants could have been sentenced to up to seven years in prison. (See prior related posting.)

Title VII's Religious Organization Exclusion Held Non-Jurisdictional

Smith v. Angel Food Ministries, Inc., 2008 U.S. Dist. LEXIS 98280 (MD GA, Dec. 4 2008) is a religious discrimination decision that will be of interest to experts in the Federal Rules of Civil Procedure. Angel Food Ministries (AFM) is an organization that partners with churches to help distribute food to the poor. James and Crystal Smith, who were employed by AFM in non-clergy positions, were discharged because they had stopped attending Emmanuel Praise Church. Attendance was a condition of employment. When the Smiths sued under Title VII of the 1964 Civil Rights Act claiming religious discrimination, AFM moved to dismiss for lack of subject matter jurisdiction, arguing that AFM comes within the exclusion in Title VII (Sec. 702) that permits religious organizations to hire on the basis of religion. The Smiths contend that AFM is not a religious organization entitled to claim that exemption. The court held that whether the religious exemption is available is not a "jurisdictional" question. Therefore plaintiffs' FRCP Rule 12(b)(1) motion is not the appropriate way to assert the defense. Instead the defense should be raised, after discovery, by way of a Rule 12(b)(6) motion for failure to state a claim, or a Rule 56 motion for summary judgment.

Religious Worker Visa Rules Have Been Amended

The Department of Homeland Security has recently amended its regulations implementing the Citizenship and Immigration Services' Religious Worker program. (73 Fed. Reg. 72275 (Nov. 26, 2008)). The long-pending regulations were adopted after Public Law 110-391, signed by the President on Oct. 10, 2008, mandated their issuance within 30 days. Responding to concerns about fraud in the religious worker program, the new regulations require

religious organizations seeking the admission to the United States of nonimmigrant religious workers to file formal petitions with USCIS on behalf of such workers.... USCIS will conduct inspections, evaluations, verifications, and compliance reviews of religious organizations to ensure the legitimacy of the petitioner and statements made in the petitions. This rule adds and amends definitions and evidentiary requirements for both religious organizations and religious workers. Finally, this rule amends how USCIS regulations reference the sunset date by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence.

The new rules appear to answer prospectively an issue left open by the 9th Circuit in a decision handed down last week. In order to qualify as a "religious occupation," among other things the duites may not be "primarily administrative or support such as janitors, maintence workers, clerical employees, fund raisers, persons solely involved in the solicitation of dontations, or similar positions, although limited administrative duties that are only incidental to religious functions ar permissible."

Responding to criticism of the rules as they were originally proposed in 2007 (see prior posting), USCIS announced:

The final rule also removes the examples of employment positions from the proposed definition of "religious occupation.'' The listed employment positions were only examples, but commenters appeared to believe that the examples represented an exhaustive or biased list of employment positions that were eligible for religious worker status and that the list was tailored only to Judeo-Christian organizations. USCIS has removed those examples to eliminate confusion. The final rule, however, clarifies that religious organizations must submit evidence identifying religious occupations that are specific to that denomination.

India's Supreme Court Says Marriage By Christian Under Hindu Marriage Act Is Void

In Raj v. Pavani, (India Sup. Ct., Dec. 4, 2008), the Supreme Court of India held that a marriage entered into and registered under the Hindu Marriage Act is void where the husband was actually a Roman Catholic and misrepresented at the time of the marriage that he was Hindu. The court held that the wife (who was now remarried) should be granted a decree of nullity. The Hindu on Sunday reported on the decision.

Recent Articles and Book of Interest

From SmartCILP:

• Donald R. Davis, Jr., Before Virtue: Halakhah, Dharmasa, and What Law Can Create, 71 Law & Contemporary Problems 99-108 (2008).


• Laura Dudley Jenkins, Legal Limits on Religious Conversion in India, 71 Law & Contemporary Problems 109-127 (2008).


• Martha Nussbaum, David C. Baum Memorial Lecture. Living Together: The Roots of Respect, 2008 University of Illinois Law Review 1623-1641.

New Book:

• Zaki Cooper and Guy Lodge (Eds.), Faith in the Nation:Religion, Identity and the Public Realm in Britain Today, (IPPR, Dec. 2008), reviewed in the Times of London.

Group Calls for Removal of Texas State Board of Education Member

The Texas Freedom Network is calling for the removal of Cynthia Dunbar from the Texas State Board of Education. Saturday's Ft. Wort Star-Telegram reports that the call came after Dunbar published a new book titled One Nation Under God. In it she claims that the public school system is unconstitutional and tyrannical, because public schools undermine the scriptural authority of families to direct their children's education. However she goes on to say that it would not be responsible at this late date to try to dismantle our system of public education. Dunbar says her book was written for Christian parents seeking an alternative to public education. [Thanks to Scott Mange for the lead.]

Texas County Denies Televangelist Tax Exemption Because of Secrecy on Salaries

Ft. Worth (TX) televangelist Kenneth Copeland, who has been resisting Congressional requests for financial information from his prosperity gospel organization (see prior posting), now finds that this lack of transparency has created state tax problems. According to yesterday's Ft. Worth Star-Telegram, Tarrant County, Texas has denied Kenneth Copeland Ministry's application for a personal property tax exemption for its $3.6 million jet. Texas Comptroller of Public Accounts Form 50-115, which charitable organizations must file to apply for a property tax exemption, requires the charitable organization to attach a list of salaries and other compensation for services paid in the last year, and to list any funds distributed to members, shareholders or directors. Tarrant's chief appraiser denied the Ministry's application because Copeland's accountant was only willing to state that the ministry "is operated in a way that does not result in accrual of distributable profits, realization of private gain resulting from payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered...." The Ministry is appealing the exemption denial at a hearing on Monday.

Recent Prisoner and Institutional Free Exercise Cases

In Desimone v. Bartow, 2008 U.S. Dist. LEXIS 97271 (MD GA, Oct. 27, 2008), a Georgia federal district court refused a request to appoint counsel in a pro se case in which plaintiff, confined in a mental health Department of Corrections facility, alleged that his free exercise rights were violated by authorities denying him the ability to write in a language he refers to as "Atlantean." (See prior related posting.)

In Hawkins v. Ferriter, 2008 U.S. Dist. LEXIS 98220 (D MT, Dec. 4, 2008), a Montana federal district court dismissed a prisoner's free exercise claim against Montana Governor Brian Schweitzer. Plaintiff had alleged that the Governor holds authority over the workings of the Montana State Prison and harbors "anti-Catholic feelings."

In Marr v. Foy, 2008 U.S. Dist. LEXIS 97891 (WD MI, Dec. 3, 2008), a Michigan federal district judge affirmed a federal magistrate's order denying plaintiff prisoner's motion for appointment of counsel in a suit alleging free exercise and RLUIPA violations. The suit alleges that in retaliation for his requesting kosher food, authorities assigned plaintiff to work as a "midnight porter" which interfered with his daytime religious study and worship.

CBN News reports (Dec. 4) that the ACLU of New Jersey has filed a lawsuit against New Jersey prison authorities on behalf of inmate Howard N. Thompson Jr., an ordained Pentecostal minister, challenging a 2007 ban imposed by the New Jersey Corrections Department on preaching by inmates.

California Housing Discrimination Case Settled

Lookout News reported on Friday that a settlement has been reached in a complex group of lawsuits in Santa Monica, California growing out of charges that a group known as Or Khaim Hashalom (OKH) was evicting tenants from a rent-controlled apartment building because of their race, religion and national origin in order to build luxury condominiums for Jewish persons from the Middle East. The building is located in an exclusive part of the city. The city also says that OKH falsely claimed to be a religious organization. The city had designated the building an historic landmark in order to keep OKH from demolishing it. (See prior posting.) Under the terms of the settlement, OKH will adopt a comprehensive fair housing policy, will return the apartments to the jurisdiction of the Rent control Board at their former rates, and will keep the building on the rental market for at least three years (with an additional one year grace period for current tenants). The settlement allows evicted tenants to move back and provides for mandatory mediation with tenants over damages.

Samoan Council of Churches Wants To Limit Entry of New Religions To Country

In the South Pacific Ocean nation of Samoa, Congregational Church minister Oka Fau'olo, who is head of the Samoa Council of Churches, says the Council has asked the country's Prime Minister to consider limiting the constitutionally protected freedom of religion in the country. According to Radio New Zealand on Friday, Fau'olo want the government to limit the number of religious groups entering the country. He is concerned that mainstream churches are losing members. Their congregants are converting to small denominations and non-Christian beliefs. Currently the main religious groups in Samoa are the Congregational Christian Church of Samoa, the Methodists, Roman Catholics, Latter Day Saints, Assembly of God and Seventh Day Adventist. The prime minister is skeptical about the proposal that would likely require amendment Article 11 of Samoa's Constitution. The limitation is not a new idea. A 2002 Pacific Magazine article reported Fau'olo supported the idea then, although the Samoan Supreme Court had ruled that it was illegal for village councils to forbid the entry into villages of new religious groups.

Nebraska High Court Rejects Free Exercise Challenge To Newborn Screening Law

In In re Interest of Joel Anaya, (NE Sup. Ct., Dec. 5, 2008), the Nebraska Supreme Court held that the religious freedom clause of the Nebraska Constitution (Art. I, Sec. 4) should be interpreted identically to the federal Free Exercise clause in determining whether a neutral law of general applicability is constitutional. Applying this standard, the court rejected a state constitutional free exercise challenge to a Nebraska statute that requires newborns to have a blood screening test for specified metabolic and genetic disorders. The court pointed to its 2005 decision in which it had reached the same conclusion in a federal free exercise challenge to the law brought by the same family in connection with another of their children. However, the court concluded that the state's enforcement of the newborn screening law by taking temporary custody of the newborn was not justified, since there was not evidence of child neglect. The AP today reports on the decision. (See prior related posting.)

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.