Court Allows Menorah Again In Downtown Poughkeepsie

Articles last week and this week in the Poughkeepsie Journal report on efforts by a local Chabad rabbi in Poughkeepsie, New York, to again erect a 22-foot tall menorah on downtown city property as he has done each Hanukkah since 1996. In the past, city workers have helped him put it up. However this year, the city (along with four intervenors) sued claiming that the use of city workers violates the Establishment Clause.

After complaints last year, the city adopted a policy barring city workers from helping to put up any displays, but allowing anyone to place religious or secular holiday symbols on a specified city-owned vacant lot. Rabbi Yacov Borenstein wants to continue to use the traditional city site for his display, and wants a city "cherry picker" truck to lift him to the top of the menorah for the daily lighting ceremonies. Trial court Justice James D. Pagones ruled yesterday in favor of Rabbi Borenstein, in part because the city traditionally uses tax money to put up wreaths on downtown utility poles and to decorate Christmas trees on city-owned property. He wrote that excluding the menorah would have the principal effect of promoting Christianity and inhibiting Judaism in violation of the Establishment Clause.

UPDAATE: On Dec. 16, a state appellate court judge refused to stay Judge Pagones' ruling pending appeal. (Poughkeepsie Journal).

Articles Analyze Background of Nigeria's Muslim-Christian Violence

Nigeria's Daily Sun this week published an extensive two-part article explaining the background of the recent much-publicized Muslim-Christian violence in the city of Jos. (See prior posting.) Part 1 of the article titled Beyond the Black Friday in Jos says that "an incendiary mix of factors including politics, ethnicity, religion and class combine to create ideal circumstances for sectarian violence" which is common in northern Nigeria. Part 2 says that "the Federal Government must work on erecting a wall of separation between religion and politics," including an end to sponsorship of Mecca and Jerusalem pilgrimages. It also complains that "a frightening number of our young people are unemployed, unschooled and unskilled. They live on the margins of the society from where they can be recruited to torch churches and mosques or to blow up oil pipelines." It analyzes the cause: "some politicians come in the name of Allah; others come in the name of Jesus. The end result is the same – the plunder of the treasury and the impoverishment of the people."

Transcript Available Of Today's SCOTUS Arguments In Iqbal Case

The U.S. Supreme Court today heard oral arguments in Ashcroft v. Iqbal (Docket No. 07-1015), an appeal growing out of claims that the U.S. government engaged in religious, racial and national origin discrimination in its arrest and subsequent treatment of more than 700 Muslim or Arab men treated as persons of "high interest" after the 9/11 attacks. This case was brought by Pakistani Muslim, Javaid Iqbal, who was placed in solitary confinement for almost six months. He was ultimately deported. Among the defendants named in Iqbal's lawsuit are former Attorney General John Ashcroft, and FBI Director Robert Mueller. The government claimed that they should be dismissed on the basis of qualified immunity. However the Second Circuit disagreed. (Full text of 2nd Circuit decision.)

Here is the government's description of the issues in its petition for certiorari:

The court of appeals held that cabinet-level officers and other high-ranking officials-in this case, a former Attorney General and the incumbent Director of the FBI-may be subjected to discovery and the demands of litigation (at least through the summary judgment stage) in this Bivens action based on bare and conclusory allegations that they knew about and condoned the allegedly discriminatory actions of much-lower-level officials in the Department of Justice in responding to an unprecedented national-security crisis. In addition, the Second Circuit's decision effectively holds that high- ranking officials-including Cabinet officers-may be held potentially liable in Bivens suits on a constructive notice theory that is tantamount to imposing respondeat superior liability.

Today the Los Angeles Times and the AP report on the arguments presented. The full transcript of the arguments is now available, as are all the briefs of the parties and amici.

Today Is 60th Anniversary of Universal Declaration of Human Rights

Today is the 60th anniversary of the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights. Article 18 of the document provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

President Bush yesterday issued a Proclamation (full text) declaring December 10 as Human Rights Day; December 15 as Bill of Rights Day; and the week beginning December 10 as Human Rights Week.

In Britain, the National Secular Society is marking the day by launching the "One Law for All" campaign inthe House of Lords-- a campaign against the use of Sharia law in Britain. According to an NSS press release: "The campaign calls on the UK government to recognise that Sharia law is arbitrary and discriminatory and for an end to Sharia courts and all religious tribunals on the basis that they work against and not for equality and human rights. The campaign also calls for the Arbitration Act 1996 to be amended so that all religious tribunals are banned from operating within and outside of the legal system."

Arizona Supreme Court Hears Arguments On School Vouchers

Attorneys yesterday presented oral arguments to the Arizona Supreme Court in Cain v. Horne, a case testing the constitutionality of two Arizona school voucher programs. An Arizona appellate court had held that while the programs do not violate the Religion Clause of Arizona's constitution, they do violate the separate state constitutional ban on aid to private or sectarian schools. (See prior posting.) The Arizona Capitol Times reported on the arguments, which focused on whether families receiving vouchers, rather than the schools, are the "true beneficiaries" of the state funds. Voucher opponents argued that the state voucher plans effectively reroute funds intended for public schools into private schools in violation of the drafters' desire to protect the public school system and avoid forcing citizens to pay for religious instruction with which they disagree. Before the hearing, hundreds of voucher supporters demonstrated near the court.

Sacristan Gets Unemployment Comp Despite Firing For Opposing Parish Policy

In Czajka v. Department of Employment Security, (IL App., Dec. 5, 2008), an Illinois appellate court overturned the denial of unemployment compensation benefits to Carmen Czajka, a sacristan at the Saint Liborius School responsible for keeping the sacristy clean. She was fired because of her disagreement with a Parish program that would show school children a film, followed by discussions, concerning inappropriate physical contact. She had contacted parents warning them about the program and telling them that they could opt out of the video which Czajka believed "bordered on pornography." The court said: "there simply is no evidence demonstrating that [Czajka] engaged in the conduct with an awareness of any rule or policy forbidding her from expressing her views to parishioners." It also concluded that her actions did not cause harm to the parish. Finding these grounds on which to overturn the denial of benefits to Czajka, the court said it need not decide her First Amendment challenge to the denial of benefits.

Proposal To Protect Scientology From Picketing Tabled

The Riverside, California Board of Supervisors yesterday decided that the proposed cure was worse than the disease as they voted to defer further consideration of an anti-picketing ordinance that had been introduced in response to repeated protests against the Church of Scientology by the international group "Anonymous" that opposes Scientology. The San Diego Union Tribune reports that the tabled proposal would have restricted "targeted picketing" in unincorporated communities to at least 300 feet away from the subject's residence. Council members were concerned that they were being drawn into a religious dispute, and that, in any event, merely moving a protest away from Scientology's San Jacinto compound to a different location does not solve the problem.

Oral Arguments Heard In Missouri Baptist Dispute

The Associated Baptist Press yesterday reported on arguments presented on Nov. 25 to a Missouri state appellate court in the latest installment in a dispute between the Missouri Baptist Convention (MBC) and five institutions that amended their charters to break away from MBC in 2000 and 2001. The institutions apparently disagreed with the fundamentalist stance of new leaders of MBC. (Background.) One of those institutions, Windermere Baptist Conference Center, was the focus of this appeal from a trial court decision that had upheld the change in the Windermere's articles of incorporation. At issue are questions under Missouri's non-profit corporation law as to who could properly vote on the article amendments. Windermere argues that it has no members, so its directors are the proper parties to vote. MBC on the other hand argued that it was the sole member of Windermere and that it controls amendments. The website missouribaptists.org says that MBC has spent $3.7 million in its lawsuits attempting to reassert control over the five break away institution. (See prior related posting.)

Ads Countering Humanists To Appear On D.C. Busses

Washington Post columnist John Kelly yesterday reported on the response being mobilized to ads recently placed on D.C. buses by the American Humanist Association. The Humanists' ad reading "Why believe in a god? Just be good for goodness' sake" has generated considerable reaction. (See prior posting.) Now former Capitol Hill staffer Jo Ellen Murphy has raised nearly $9000 for counter-ads that will begin running on buses next week. They will show the Sistine Chapel's image of God's finger reaching out to Adam, with the added words: "Why Believe? Because I created you and I love you, for goodness' sake. -- God." Murphy's campaign has its own website, "I Believe Too" which features a photo of the ad. A separate group, Pennsylvania Friends in Christ, will be running ads reading: "Believe in God. Christ is Christmas for goodness sake."

ABC Interview With Bush Includes Extensive Discussion of Religious Views

Last night, ABC's Nightline aired a wide-ranging interview with President George W. Bush. An article and published excerpts of the interview on ABC's website report that among the topics discussed were Bush's religious beliefs. Bush said he is not a literalist when it comes to reading the Bible. Asked about his views on evolution, Bush said:

I think evolution can -- you're getting me way out of my lane here. I'm just a simple president. But it's, I think that God created the Earth, created the world; I think the creation of the world is so mysterious it requires something as large as an almighty, and I don't think it's incompatible with the scientific proof that there is evolution.

Asked about the development of his personal faith, Bush said:

It is hard for me to justify or prove the mystery of the Almighty in my life. All I can just tell you is that I got back into religion and I quit drinking shortly thereafter and I asked for help -- I was a one-step program guy.

In the interview, Bush rejected the notion that he was chosen by God to be president, and the suggestion that his decision to go to war in Iraq was based on his religious views.

6th Circuit Upholds Michigan's Exclusion of Biblical Quotes From Advocate Directory

In Grosjean v. Bommarito, (6th Cir., Dec. 4, 2008), the U.S. 6th Circuit Court of Appeals rejected free speech, free exercise, overbreadth and vagueness challenges to the editorial practices of Michigan's Unemployment Insurance Agency in its listing of advocates available to assist claimants. Advocates are private contractors paid by the state to furnish free advice and representation to claimants in their appeals of rulings on unemployment benefits.

The Agency removed Biblical quotations that plaintiffs wished to include in their profiles that UIA sent out to claimants. Clients had previously been attracted to plaintiffs because of those references. The court held that the current compilation, using a required template that limits the form and style of biographical information presented, is government speech. So UIA can make content-based choices to limit published information to narrow professional biographical data. An earlier, more open-ended version, of the listings arguably were not government speech. However they were a non-public forum, in which the UIA could impose reasonable, content-based regulation. (See prior related posting.)

Denial of Equal Protection To Jews Claimed In Appeal of Bail Denial

A fascinating religious discrimination issue is raised in a motion to reverse an Iowa federal magistrate's denial of bail in the prosecution of Sholom Rubashkin. (Full text of Motion and of the Memorandum in Support of the Motion in US v. Rubashkin, (ND IA, filed 12/8/08.)) Rubashkin is the former CEO of the large Postville, Iowa kosher meat packing plant, Agriprocessors, Inc. The plant was the subject of a high-profile immigration enforcement raid earlier this year. (See prior posting.) Originally Rubashkin, charged with immigration law violations, was released on bail. Two weeks later he was arrested under a superseding indictment, this one including bank fraud charges. This time the magistrate judge denied bail, claiming a risk that Rubashkin would flee to Israel. In denying bail, the magistrate pointed to the fact that two other Agriprocessors supervisors had fled, and that Israel's Law of Return gives Jews moving there an automatic right of citizenship.

In appealing the magistrate's order to the court, defendant argued first that the extradition treaty with Israel made reliance on the Law of Return useless. Defendant went on to argue that invoking the Law of Return violated his equal protection rights. The brief argues that a rule which treats Jews differently is subject to strict scrutiny. It went on:

The government clearly has a compelling interest in insuring that defendants are present at trial.... But it has no compelling interest in a rule that Jews are a heightened bail risk, for the simple reason that is has failed to demonstrate any statistical correlation between Jews and flight risk. In other words, the government introduced no evidence that Jews are more likely to flee because of the Law of Return than non-Jews. An unproven assumption is fatal in a case subject to strict scrutiny.... Moreover, there are clearly narrower, tailored measures, that would be effective rather than subjecting Jews to a different set of standards.

JTA reported on these developments yesterday.

UPDATE: Here is the full text of the magistrate's Nov. 20, 2008 Order for Detention denying bail, thanks to Volokh Conspiracy.

President Bush Sends Muslims Greetings On Eid al-Adha

In a statement issued yesterday (full text), President Bush sent greetings to Muslims around the world who were celebrating Eid al-Adha, the Festival of Sacrifice. As reported by AFP, the festival, which was celebrated yesterday as the Hajj concludes, commemorates Abraham's willingness to sacrifice his son at God's command. In the end, God provided a sheep as an alternative sacrifice. Muslims sacrifice a sheep to symbolically re-enact the moment. In his statement, Bush said: "Our Nation is blessed by vibrant Muslim communities. On this holiday, all Americans celebrate our religious liberty, and we remember that religious freedom belongs not to any one nation but to the world."

Cert. Denied In Case On Religious Candy Canes In School

Yesterday, the U.S. Supreme Court denied certiorari in Curry v. Hensinger, (Docket No. 08-190) (Order List.) In the case, the 6th Circuit Court of Appeals concluded that a Saginaw, Michigan school had legitimate pedagogical reasons for barring a fifth-grader from selling candy canes with religious material attached as part of a classroom project to learn about marketing. (See prior posting.) Education Week reported on the Supreme Court's action. [Thanks to Alliance Alert for the lead.]

Another Appeal To 5th Circuit Filed In World Wide Street Preachers Case

According to the Monroe (LA) News Star, an appeal to the 5th Circuit has been filed in World Wide Street Preachers Fellowship v. Town of Columbia, Louisiana. The Fellowship is seeking reversal of a determination by a Louisiana federal district court that the town of Columbia should be dismissed as a defendant because the court found no widespread municipal practice of infringing speech rights. (See prior posting.) A claim under 42 USC Sec. 1983 can be brought against a municipality only if it has a policy or custom of infringing constitutional rights. Regardless of the outcome of the appeal, the trial court has allowed plaintiffs to proceed against a police officer who broke up the Fellowship's protests. The Fellowship generally protested against abortion, homosexuals and the ordination of women ministers. The case has already been on appeal once before the 5th Circuit.

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.