9th Circuit Denies En Banc Review of Certification In Boy Scourts Case

In the latest chapter of a complex procedural route through the courts, in Barnes-Wallace v. City of San Diego, (9th Cir., Dec. 31, 2008), the U.S. 9th Circuit Court of Appeals refused to grant an en banc review of a June 2008 order certifying three questions of California state constitutional law to the California Supreme Court. (See prior posting). Six judges dissented from the denial of en banc review. The case a challenge to the City of San Diego's leasing, at nominal rentals, to the Boy Scouts city property on which the Scouts operate a campground and aquatic center. The challenge turns on the scout's exclusion of atheists, agnostics, and homosexuals as members or volunteers and its requirement that members affirm a belief in God. The dissenters argue that plaintiffs lack standing, saying:

Today, our court promulgates an astonishing new rule of law for the nine Western States. Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact. No other circuit has embraced this remarkable innovation, which contradicts nearly three decades of the Supreme Court’s standing jurisprudence. In practical effect, the three-judge panel majority’s unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court.

Today's San Diego Union-Tribune reports on the decision.

Proposed Texas Science Standards Please Scientists

The Ft. Worth Star Telegram reported on Thursday that the proposed final draft (full text) of science curriculum standards for Texas high schools pleases scientists who feared that the standards would undercut the teaching of evolution. The draft defines science using the National Academy of Science language. The draft also says that that students should be able "to evaluate models according to their limitations in representing biological objects or events." This replaces more problematic language in the current science guidelines (full text) that refer to students analyzing the "strength and weaknesses" of scientific theories. The new draft resulted even though the review panel included three anti-evolutionists. (See prior posting.) A public hearing on the new draft will be held Jan. 21, and a final board vote on them will take place in March. [Thanks to Scott Mange for the lead.]

Pennsylvania Court Says Marriages Can Be Performed By Clergy Without Churches

The Philadelphia Inquirer reports that a Bucks County, Pennsylvania judge ruled on Wednesday that a marriage performed by a minister of the Universal Life Church is valid even though the minister was ordained online and has no permanent congregation. In 2007, a judge in York county ruled that such marriages were invalid because Pennsylvania law limits clergy who can perform weddings to those who have a "regularly established church or congregation." (23 Pa. Consol. Stats. 1503 [LEXIS link]). (See prior posting.) Bucks County Court Judge C. Theodore Fritsch Jr. held, however, that it is enough that the minister is ordained by a group that operates under a widely-recognizes system of beliefs. The successful lawsuit was filed by the ACLU which has won similar rulings in two other Pennsylvania counties. (See prior related posting.)

British Proposal Would Authorize Women Bishops With Alternative "Complementary Bishops"

In Britain, the Church of England this week published the draft of proposed legislation that would for the first time permit women to become bishops in the Church of England. They may already be ordained as priests. Under the draft "Bishops and Priests (Consecration and Ordination of Women) Measure," male "complementary bishops" will be appointed to minister to those parishes unwilling to accept women bishops and priests. It also provides for the House of Bishops to adopt a Code of Practice setting out arrangements for functioning of complementary bishops. Yesterday's Spero News and today's Church Times report on the proposal. The report from the legislative drafting group and other primary source materials on the proposal are available from the Church of England website.

Vice Mayor Won't Offer Invocation If It Must Be Non-Sectarian

The Roanoke, Virginia Times reported on Wednesday that Roanoke's vice mayor, Sherman Lea, who is also a minister, is asking that his name be removed from the list of clergy who offer invocations before city council meetings. His request came after council members and the ACLU received an e-mail from a Roanoke citizen complaining about Lea's Dec. 15 invocation which included several Christian references. Lea says he would rather not offer prayers than compromise his beliefs by eliminating possible references to Jesus. [Thanks to Scott Mange for the lead.]

Malaysia Orders Catholic Paper To Cease Publishing Pending Court Decision

In Malaysia, the newspaper Catholic Herald has been in a dispute for some time with government officials over the paper's use of the term "Allah" in its Malay language edition to refer to God. In November, the Herald filed suit asking the courts to resolve the issue. (See prior posting.) AFP reported Thursday that in renewing the paper's license earlier this week, the Malaysian Home Ministry ordered the paper to completely cease publishing its Malay language edition until courts resolve the question of whether "Allah" is a term that can only be used by Muslims.

Missouri Religious Organization In Tax Dispute

The Joplin (MO) Globe yesterday reported on tax dispute between Jasper County, Missouri and The Bridge, a Christian ministry. At issue is whether the group is entitled to an exemption from real estate and personal property taxes on it building that features climbing walls, a basketball court, a skate park, an arcade, a concert venue and a cafe. Bridge staff get to know young people through those activities in order invite them to participate in Christian religious activities. The Bridge has paid assessed taxes under protest and will now sue for a refund.

Happy New Year and Thanks To Religion Clause Readers

Dear Religion Clause Readers:

Happy New Year! As we enter one of the most challenging years in U.S. history, I want to thank all of you who read Religion Clause. To the long time followers, thanks for your continuing interest; to those who have joined us more recently, welcome aboard! It has been a year packed full of news and developments relating to law and religion. And it has been a good year for Religion Clause blog. The site meter shows that the blog has attracted over 430,000 visits since it began in 2005. Over 205,000 of those were registered in 2008. This past year, Religion Clause was again named by the ABA as one of the 100 best legal blogs. Also this year, upon reader request, I have added an option permitting you to receive Religion Clause through daily e-mails. Some individuals appear to favor that delivery method. (Scroll to bottom of sidebar to sign up).

Religion Clause's established format of strict neutrality, broad coverage and links to numerous primary sources seems to have filled a special niche for those interested in the areas of church-state and religious freedom. I am pleased that my regular readers span the political and religious spectrum. Thanks also to those of you who send me leads to new developments. I read and appreciate receiving them, even though I cannot always acknowledge them. They help me assure that the coverage of the blog is complete.

Best wishes for 2009!

Howard M. Friedman

Christmas Music Case Is On Appeal in 3rd Circuit

Today's New Jersey Jewish News discusses the pending appeal in the 3rd Circuit of Stratechuk v. Board of Education, South Orange Maplewood School District, in which a New Jersey federal district court upheld a school board's holiday music policy that barred inclusion of religious holiday music in school holiday concerts. (See prior posting.) The Thomas More Law Center filed the appeal, arguing that the ban amounts to hostility toward religion, that it changes Christmas from a religious to a secular holiday and that it deprives students of the right to receive information and ideas. The American Jewish Congress is coordinating an amicus brief supporting the lower court's holding.

Vatican Will End Automatic Adoption of Italian Law

ANSA and the Times Online of London report that starting today, the Vatican will end the practice adopted under a Vatican statute signed in 1929 of automatically incorporating laws passed by Italy's Parliament into the Vatican's legal code (except in cases of radical incompatibility with canon law). A new Vatican statute signed in October by Pope Benedict XVI comes into effect today. It requires each Italian law to be carefully examined before being incorporated into the Code of Vatican Law. New international treaties will also be carefully examined. The change stems largely from concerns about liberal Italian laws on divorce and abortion, and trends in Europe that could find their way to Italy on same-sex civil unions and euthanasia, although the Vatican is also concerned about the sheer number of laws passed by Italy's Parliament.

Brokerage Firm Settles EEOC Religious-National Origin Discrimination Suit

Reuters reported yesterday that Merrill Lynch has agreed in a settlement with the EEOC to pay former employee Majid Borumand $1.55 million in damages, back pay and legal fees in a suit alleging that the financial analyst was not promoted and then was fired because he was an Iranian Muslim. Merrill also agreed to train employees to avoid future religious and national origin discrimination and retaliation. The EEOC will monitor Merrill for two years.

EEOC Gets Settlement To Reinstate Seventh Day Adventist Worker

Today's Sacramento Bee reports that Sierra Pacific Industries has entered a consent decree with the EEOC in a suit on behalf of a Seventh Day Adventist who was fired from the company's Oroville, California lumber mill when he refused to work Friday night shifts for religious reasons. The settlement reinstates Luciano Cortez and permits him to work a Monday through Friday day shift so he can be off on his Sabbath. It also awards him damages. The consent decree, approved by a California federal court last week, also requires the company to train its managers annually on accommodation of employees' religious beliefs and other discrimination issues, and to report annually to the EEOC.

DC Circuit Rejects Free Exercise Challenge To DNA Sampling

In Kaemmerling v. Lappin, (DC Cir., Dec. 30, 2008), rejected a federal prisoner's free exercise challenges the government's taking of a required DNA sample from him pursuant to the DNA Analysis Backlog Elimination Act. Russell Kammerling argued that as an Evangelical Christian, submitting to DNA testing is repugnant to his religious beliefs regarding the proper use of "the building blocks of life." He views the collection and retention of DNA samples as laying the foundation for the rise of the anti-Christ.

First, the court held that Kammerling need not exhaust administrative remedies, because the Bureau of Prisons had no authority to grant him any relief on this issue. Moving to the merits, the court rejected Kammerling's challenges under the First Amendment and RFRA. As to RFRA, the court concluded that the DNA collection does not burden any exercise of religion by Kammerling-- it does not pressure him to change his behavior. Even if his religious exercise were burdened, the court concluded that the government had a compelling interest in collecting prisoners' DNA. Yesterday's Washington Post reported on the decision.

Amish Farmer Charged For Failing To Register Livestock Premises

Yesterday's Chicago Tribune reports that for the first time in Wisconsin, an Amish farmer has been charged civilly with failing to comply with the state's livestock premise registration law. The law is designed to facilitate notice to farmers when there are emergencies or disease outbreaks. Emanuel Miller, Jr.'s failure to register slowed down the state's response to a 2007 outbreak of pseudorabies. The Amish are concerned that the identification number that will be assigned to their farm could be considered the "mark of the beast." Miller faces a possible fine of up to $5000.

NY Court Refuses To Confirm Arbitration Award Of Jewish Religious Court

In In re Brisman v. Hebrew Academy of the Five Towns & Rockaway, (Sup. Ct. Kings Co. NY, Dec. 18, 2008), a New York state trial court refused to confirm an arbitration award issued by a Bet Din (Jewish religious court) in a dispute between a religious school and a teacher who was terminated after his contract expired. The Bet din had awarded back pay and ordered reinstatement of the teacher with tenure at a set salary. the court held:

The Beth Din's determination ... essentially forces Respondent, an "at will" private employer, to employ Petitioner, who ... has a clear difference in ... religious philosophy from Respondent's administration, for an indefinite tenure. Furthermore, the salary set forth by the Beth Din of $100,000 is arbitrary, unfounded and irrational, as the base salary, as set forth by the expired employment contract, was $54,000....

Secondly, by retaining indefinite jurisdiction, the Beth Din exceeded a specifically enumerated limitation on its authority, as set forth by the parties in their own agreement to arbitrate.

Lastly, the award is violative of public policy. The Beth Din's ruling sets a precedent that will impact and limit the ability of private schools to make and enforce routine employment decisions....

[Thanks to Joel Katz for the lead and to Failed Messiah for posting the opinion.]

Oregon Appeals Board Says Animist Church Must Be Permitted Under RLUIPA

In Young v. Jackson County, (OR Land Use Bd. App., Dec. 23, 2008), the Oregon Land Use Board of Appeals held that the "equal terms" provision of RLUIPA was violated when a county denied an application to operate a church in an existing dwelling on land zoned for farm use, but within three miles of an urban growth boundary. Scott and Sulara Young, who practice a form of Native American Animism known as Huichol Shamanism, already use the 10-bedroom house as a religious retreat center. The Board found that the county permits a number of other uses that have a similar impact on agricultural land, such as parks, playgrounds, community centers golf courses and living history museums. Today's Medford (OR) Mail Tribune reports on the decision.

NJ Finds Discrimination In Faith Group's Refusal To Rent Premises For Civil Union

The New Jersey Division of Civil Rights announced yesterday that its investigation had found probable cause to credit allegations that the Methodist-affiliated Ocean Grove Camp Meeting Association had discriminated against a lesbian couple when it refused to rent its Boardwalk Pavilion for the couple to use for their civil union ceremony. In Bernstein v. Ocean Grove Camp Meeting Association, (NJ Civ. Rts. Div., Dec. 29, 2008), the Division first found that the Association's Boardwalk Pavilion-- widely used by the public-- is a place of public accommodation under New Jersey's Law Against Discrimination. The Division rejected the Association's free exercise of religion and free speech defenses to the discrimination charges. It found that in renting the Pavilion, the Association did not distinguish between religious or secular weddings, or between Christian weddings or those of other faiths, and that the Pavilion was not being used by the Association to convey a particular message. The case now moves from this preliminary determination to a hearing by an administrative law judge.

In a second case, Moore v. Ocean Grove Camp Meeting Association, (NJ Civ. Rts. Div., Dec. 29, 2008), the Division rejected a complaint from another lesbian couple who applied to sue the Boardwalk Pavilion for a civil union ceremony after the Association decided to stop renting it out to anyone for weddings or similar events. The AP reports on the decisions. It points out that an appeal in a suit alleging that the state Division of Civil Rights lacks jurisdiction to decide the Bernstein case is pending before the 3rd Circuit. A federal district court refused to enjoin the state from investigating the complaint. (See prior posting.)

Amended Complaint Expands Reigious Promotion Charges Against Army

Yesterday the Military Religious Freedom Foundation filed an amended complaint (full text) in Chalker v. Gates, (D KA, filed 12.29/2008), seeking to protect enlisted military personnel from being required to attend military functions and formations that include Christian prayer. Plaintiff, an atheist stationed at Ft. Riley, Kansas, says that his treatment is evidence of a broad pattern and practice of the Defense Department and the U.S. Army unconstitutionally promoting religious belief. The 25-page amended complaint lists more than 2o examples of impermissible promotion of religion by the military. These range from military flyovers at religious events to the content of the Army's suicide prevention program. The suit was originally filed last September. (See prior posting.) Yesterday's Kansas City Star reports that the expanded complaint was filed after Chalker unsuccessfully attempted in recent months to pursue his complaints administratively. The amended complaint alleges that Chalker has exhausted the intra-Army administrative process in seeking relief.

Newdow Lawsuit Challenges Inaugural Oath and Invocation [UPDATED]

A press release from the American Humanist Association reports that a lawsuit was filed on Dec. 30 in Washington, D.C. federal district court challenging two elements of the upcoming inauguration ceremony planned for Barack Obama. The complaint (full text and links to Appendices) in Newdow v. Roberts, (D DC, filed 12/29/2008) asks the court to enjoin the Chief Justice-- who will administer the oath of office-- from adding "so help me God" to the constitutionally prescribed presidential oath (Art. II, Sec. 1). It also asks the court to declare unconstitutional the use of clergy to deliver an invocation and benediction. Plaintiffs allege that both of these practices violate the Establishment Clause, Free Exercise Clause and the Religious Freedom Restoration Act. In addition to the Chief Justice, defendants include the Presidential Inaugural Committee and its leaders, and the clergy scheduled to take part in the ceremony. Some 40 individuals and organizations-- atheist and secular humanist in belief-- are named as plaintiffs. On the crucial issue of standing, the complaint alleges:

Under the Establishment Clause, Plaintiffs have a right to view their government in action without being forced to confront official endorsements of religious dogma with which they disagree. This is especially the case when that dogma stigmatizes them in the process.

Being forced to confront such religious dogma as the price to pay for observing a governmental ceremony is a substantial burden upon Plaintiffs’ rights of Free Exercise as well.

The Examiner carries a posting commenting on the filing. Volokh Conspiracy has extensive commentary on the lawsuit.

2nd Circuit Says Asylum Applicant Is Not Genuine Falun Gong Adherent

In Zheng v. Mukasey, (2d Cir., Dec. 29, 2008), the U.S. 2nd Circuit Court of Appeals upheld the denial of asylum to an immigrant from China who claimed that he would face religious persecution if he was returned home. The court held that there was substantial evidence to support the Immigration Judge's finding that Yangli Zheng was not a genuine Falun Gong adherent and that he would not practice Falun Gong if returned to China.