Labor Department Issues Guidance On RFRA Exemption For Grantees

Yesterday the Department of Labor issued a release explaining how recipients of federal grants under the Workforce Reinvestment Act (WRA) can obtain an exemption from statutory provisions barring hiring by grantees on the basis of religion (full text of Guidance document.) The DOL document implements a 2007 Justice Department Ruling (see prior posting) holding that non-discrimination provisions in federal grant programs are trumped by the Religious Freedom Restoration Act. While the DOL guidance is framed in broader terms, the WRA is the only statute administered by DOL that contains an explicit religious non-discrimination provision (29 USC Sec. 2938). The Guidance sets out various representations that applicants for an exemption must make to DOL. [Thanks to Steven H. Sholk for the lead.]

In Nepal, Clergy Challenge Government's Power To Appoint Hindu Priests

Last May, Nepal abolished its monarchy and moved to a parliamentary form of government. The Hindu reported yesterday on a new religious clash created by the change. Historically the King appointed Nepal's top Hindu priests. The Prime Minister, as the new head of state, last week named two priests to lead the Pashupatinath Temple in Katmandu. Some 200 University students have demonstrated against the appointments. Hindu priests want appointment power to rest solely with the clergy, and they have refused to take part in religious ceremonies at the temple since the appointments. Priests say the government is interfering with religion and upsetting centuries of tradition. Since a new constitution for Nepal has not yet been drafted, legal authority to appoint top priests remains unclear.

Cert. Petition Filed In Case Challenging Jurors' Use of Bible

Yesterday, a petition for certiorari (full text) was filed in Oliver v. Quarterman. In the case, the U.S. 5th Circuit Court of Appeals held that a jury's use of the Bible during the sentencing phase in a murder case was improper, but was not shown to have influenced the jury's decision. (See prior posting.) [Thanks to Scott Gant for the lead.]

Repressive Religion Law Signed By President of Nagorno-Karabakh

Yesterday Forum 18 reported that on December 24, President Bako Sahakyan of the unrecognised Republic of Nagorno-Karabakh in the South Caucasus (between Armenia and Azerbaijan) signed a "repressive" new Religion Law. The statute, many of whose provisions were taken from Armenia's Religion Law, will go into effect ten days after its official publication later this month. Forum 18 says:

The main restrictions in Karabakh's new Law are: an apparent ban on unregistered religious activity; state censorship of religious literature; the requirement for 100 adult citizens to register a religious community; an undefined "monopoly" given to the Armenian Apostolic Church over preaching and spreading its faith while restricting other faiths to similarly undefined "rallying their own faithful"; and the vague formulation of restrictions....

Although the Law does not specifically ban unregistered religious activity, Article 25 requires all religious organisations to register or re-register within six months of the new Law coming into force.

California Supreme Court Says Episcopal Church Owns Property of Break-Away Parish

Today in Episcopal Church Cases, (CA Sup. Ct., Jan. 5, 2009), the California Supreme Court held that building and property of the St. James Parish in Newport Beach belongs to the Episcopal Church, not the parish, once the parish broke away and affiliated with the more conservative Anglican Church of Uganda. The Canons of the Episcopal Church provide that property held by a local parish is held in trust for the general church and for the diocese in which the local church is located.

The court determined that the following test should be used in church property disputes under California law:

if resolution of a property dispute involves a point of [religious] doctrine, the court must defer to the position of the highest ecclesiastical authority that has decided the point. But to the extent the court can resolve a property dispute without reference to church doctrine, it should apply neutral principles of law. The court should consider sources such as the deeds to the property in dispute, the local church’s articles of incorporation, the general church’s constitution, canons, and rules, and relevant statutes, including statutes specifically concerning religious property, such as Corporations Code section 9142 [which provides that the governing instruments of a general church may impress a trust on property of a local church].

The court also concluded that the suit was not subject to an anti-SLAPP motion to strike under California law. A partial concurrence by Justice Kennard argued that Corporations Code sec. 9142 vests the property with the Episcopal Church because it imposes the principle that civil courts must accept decisions of the highest authority in an hierarchical church. She argues that the statute does not reflect a "neutral principles" approach, because it imposes a special rule on religious organizations that would not apply under general property law. The statute allowed imposition of a trust on church property without the congregation's agreement by a resolution adopted after it owned the property. [Thanks to John B. Chilton for the lead.]

Victoria AG Temporarily Refused Communion on Christmas Eve

In Australia, Melbourne's Herald-Sun and Sydney's Morning Herald reported last week that Victoria's Attorney-General Robert Hulls was refused communion on Christmas eve by a minister assisting the parish priest at St. Monica's Church in Moonee Ponds. Apparently the refusal was motivated by Hulls' role in referring the state's recently enacted abortion law to the Law Reform Commission, even though Hulls voted against the bill in Victoria's Parliament. The new law permits abortions through the second trimester (and after that with approval of two doctors). After the embarrassing refusal by the minister on Christmas eve, Hulls moved to a second line being served by parish priest Fr. Peter Kenny, who gave him communion. Fr. Kenny says the incident was a misunderstanding, and he had no hesitation in giving Hulls communion and blessing Hulls' children.

Court Says Israel's Religion Ministry Discriminated Against Reform Synagogues

Yesterday's Y Net News reports on the efforts of three Reform Jewish synagogues in Israel to get the Ministry of Religious Affairs to list them on its website of Israeli synagogues. The Ministry, however, objects to listing non-Orthodox congregations. This led the congregations to sue the Ministry under Israel's anti-discrimination law. Shortly after the suit was filed, the Ministry took down the web site completely. The Kfar Saba Magistrate's Court requested that the Ministry post an updated list of synagogues online including the Reform congregations. When the Ministry refused to do so, the court awarded each of the three synagogues damages of $2500.

5 Catholic Adoption Agencies In Britain Comply With Equality Act

Ekklesia reported yesterday that five of the eleven British Catholic adoption agencies that were given 21 months to adjust to the 2007 Equality Act (Sexual Orientation) Regulations have now come into compliance. The 21-months expired January 1. The complying agencies can no longer refuse to place children for adoption with gay and lesbian couples. One of the eleven Catholic agencies will close, two are seeking exemptions and authorities hope that the other three will come into compliance. (See prior related posting.)

Recent Articles Of Interest

From SSRN:

• Jeffrey Shulman, The Outrageous God: Emotional Distress, Tort Liability, and the Limits of Religious Advocacy, (Penn State Law Review, Vol. 113, p. 381, 2008).


• Jeffrey Shulman, What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child, (Villanova Law Review, Vol. 53, p. 173, 2008).


• Doug Ford, Inspiring and Inadequate: The Krstic' Genocide Conviction Through the Eyes of a Srebrenica Survivor, (HUMAN RIGHTS ADVOCACY STORIES, Deena Hurwitz, Margaret Satterthwaite, & Douglas Ford, eds., Foundation Press, 2009.)


• Francis Joseph Mootz, Faithful Hermeneutics, (Michigan State Law Review, 2009).


• Sylvie Bacquet, Manifestation of Belief and Religious Symbols at Schools: Setting Boundaries in English Courts, (October 30, 2008).


• Cristine Soliz & Joseph, Harold, Native American Literature, Ceremony, and Law, (MLA Options For Teaching Literature and Law, Austin Sarat, Cathrine Frank, Matthew Anderson, eds., 2009).

From SmartCILP:

• Ronald J. Krotoszynski, Jr., The Apostle, Mr. Justice Jackson, and the "Pathological Perspective" of the Free Exercise Clause, 65 Washington & Lee Law Review 1071-1089 (2008).


• Rene Reyes, Conscience Reexamined: Liberty, Equality, and the Legacy of Roger Williams, (Reviewing Martha C. Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality.) 36 Hastings Constitutional Law Quarterly 1-11 (2008).


• Symposium: Law and Religion. Lecture by Leslie C. Griffin; articles by Barbara L. Atwell, Bradley Aron Cooper, Karen Sandrik and Ian J. Silverbrand. 85 University of Detroit Mercy Law Review 475-604 (2008).

Rahm Emanuel's Rabbi Talks About The New Chief-of-Staff

Today's Springfield (IL) State Journal Register carries an interview about Rep. Rahm Emanuel with Emanuel's rabbi, Rabbi Asher Lopatin. Emanuel is President-elect Obama's new chief of staff. Lopatin, rabbi of Chicago's Anshe Sholom B’nai Israel, a Modern Orthodox synagogue, says that Emanuel is "definitely a deeply religiously committed person." Lopatin relates that he advised Emanuel that it was appropriate for him to participate last Rosh Hashana in a conference call regarding the pending financial bail-out bill. Lopatin concluded that it was important enough to be a matter of life-and-death for some individuals. In Jewish law, the saving of a life takes precedence over most other religious commandments.

Obama Transition Studying Faith-Based Funding Partnerships

Today's Christian Science Monitor reports on efforts underway by the Obama transition team to extend and modify Pres. Bush's Faith-Based and Community Initiative. It reports that the transition has set up a large advisory committee with differing perspectives on the most contentious issues to tackle the church-state issues involved in federal funding of faith-based organizations. Among the most troublesome issues is when, if ever, faith-based hiring should be permitted for federally funded programs. Obama has proposed a Council for Faith-Based and Neighborhood Partnerships, with 12 federal offices to promote the program.

New Policy On Comments

Beginning immediately, I will be moderating all comments before they appear online on Religion Clause. I regret moving to this system, but lately there has been a significant increase in commercial spam and in off-topic and inappropriate comments. I welcome reasoned comments on all postings. However this is not a forum for personal attacks on other commenters or invective directed at various groups. While I encourage a broad spectrum of diverse viewpoints, repetitious comments by the same individual on numerous postings will also be excluded.

Court Rejects RFRA Defense To Charges of Illegal Importation of Animal Parts

In United States v. Manneh, 2008 U.S. Dist. LEXIS 105209 (D NY, Dec. 31, 2008), a New York federal district court refused to dismiss an indictment against Mamie Manneh who was charged with importing parts of endangered African primates without the permit required by the Convention on International Trade in Endangered Species and failing to disclose to border officials the true nature of the product she was importing. Manneh, a Liberian immigrant, argued that her prosecution violated her rights under the Religious Freedom Restoration Act. She claims that bush meat is sacred to her. The court found that Manneh's religious claim was not sincere, but instead was merely pretextual. It concluded that even if her beliefs about bush meat were sincere, there was nothing in them that prevented her from disclosing the nature of her imports or applying for the required import license. Friday's New York Daily News reported on the decision. (See prior related posting.)

Professor Suggests Cremating Bodies of Mumbai Terrorists

As previously reported, Muslim cemeteries in India have refused burial to the bodies of the Mumbai terrorists, saying that their actions demonstrate that they could not be true Muslims. Vanderbilt University Professor Leor Halevi, in an opinion piece from the Washington Post reprinted today, says that burying the terrorists outside a Muslim ceremony in their battlefield clothing would be inappropriate. This is the method Islamic law prescribes for burying martyrs-- who do not need more to go to heaven. Instead, Halevi suggests that the best way to handle the bodies is to cremate them (a non-Muslim method of disposing of bodies) and then scattering their ashes at sea (to prevent creation of a memorial to the dead men and to indicate the international aspect of the terrorism problem).

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.