Religion Clause

Monday, February 09, 2009

Italy's "Terry Schiavo" Case Generates Constitutional Crisis

Yesterday's London Observer reports that the fate of a 38-year old woman in a persistent vegetative state for the last 17 years has precipitated a constitutional crisis in Italy. Eluana Englaro's father has fought for ten years in court to have her feeding tubes removed, which he says would be consistent with the woman's wishes. Last November Italy's top court agreed with the father. Last week doctors began the process of gradually removing the tubes when Italy's Prime Minister Silvio Berlusconi intervened. After a series of "frantic" telephone conversations in which Vatican secretary of state Cardinal Tarcisio Bertone urged him to act, prime minister Berlusconi issued a decree prohibiting suspending food and water for any patient relying on them. Effectively reversing the court's ruling, the Prime Minister said: "This is murder. I would be failing to rescue her. I'm not a Pontius Pilate." He then added that, physically at least, the woman is "in the condition to have babies." Italy's president, Giorgio Napolitano, has refused to sign the Prime Minister's decree. However Parliament is considering whether to ratify it. The case is reminiscent of the Terry Schiavo case in the United States in 2005. [Thanks to Scott Mange for the lead.]

UPDATE: AP reports that Eulana Englaro died Monday night, as the Italian Parliament rushed to pass a bill to prohibit her feeding tubes from being removed. Rome's mayor Gianni Alemanno, said that the Colosseum-- which has become a symbol in the fight against capital punishment around the world-- would be lit all night Tuesday in mourning for Englaro. Italy's president, Giorgio Napolitano, urged politicians to be silent. [Again thanks to Scott Mange.]

US Officials Complain About Proposed Sri Lankan Anti-Conversion Law

Last week, the U.S. Commission on International Religious Freedom criticized Sri Lanka's proposed Prohibition of Forcible Conversion of Religion Act. It said that, among other things, the proposed law is worded so broadly that its practical effect is to ban distribution of religious literature and chill freedom of inquiry. Yesterday's Christian Post reports that 15 members of Congress have also sent a letter to the Sri Lankan ambassador to the United States urging the Sri Lankan government to drop the bill. A final vote in Parliament on the anti-conversion bill had been expected this month. Sri Lanka is approximately 70% Buddhist. (See prior related posting.)

Sunday, February 08, 2009

Utah AG Discloses Contents of Some Seized FLDS Documents

Yesterday's Salt Lake Tribune reorts on a talk given recently by Utah Attorney General Mark Shurtleff revealing new information about some of the documents seized during the state's raid of the FLDS' "Yearning for Zion Ranch" last April. (See prior posting). Some of the documents showed that early on, FLDS leader Warren Jeffs traveled to the capitals of each of the 48 contiguous states in order to to condemn them with the wrath of God. "Priesthood letters" that were among the items in the 400 boxes seized from the Ranch disclose that Jeffs made the trips to "shake the dust off his feet in condemnation." Jeffs, who is now in jail awaiting trial, has said that "the prison walls are going to be falling down at any moment." Shurtleff says that FLDS members have not yet given up on Jeff's leadership, and expressed concern that Jeffs might excommunicate people that the state is negotiating with about settling a case involving the FLDS' United Effort Plan Trust that holds FLDS property. (See prior posting.)

UPDATE: Tuesday's Deseret News publishes additional excerpts for Jeffs' papers detailing his life on the run as a fugitive.

British Town Restores Funding To Christian Home In Settlement

The London Telegraph reported yesterday that a British town has agreed to settle a religious discrimination lawsuit that was filed against it by Pilgrim Homes. As reported earlier, Brighton & Hove City Council revoked of a £13,000 grant to the local Pilgrim Home after it refused to comply with Equality Act (Sexual Orientation) Regulations. The city wanted the Christian home for the elderly to periodically ask its residents about their sexual orientation and to picture gays in its promotional literature. Its elderly Christian residents objected to the questionnaire. Now Council has promised to restore the funding and withdraw its charges of "institutional homophobia"against the Home. The Home will ask potential residents about their sexual orientation when they apply (but not after that), on the understanding that they have the right to refuse to answer.

Planned Valentine's Day Morals Policing Stirs Controversy In India

In India, controversy has erupted over renewed morals policing by members of the right wing Hindu nationalist group Sri Ram Sena. (Background). Last month in Mangalore, some 40 members of the group attacked women at a pub, slapping them and pulling their hair, claiming they were engaged in obscene dancing and were violating traditional Indian values. (Sindh Today.) Now the group's morals enforcers plan to take on young couples expressing their affection on Valentine's Day.

The Australian reported yesterday that Sri Ram Sena leader Pramod Muthalik announced that his followers will be patrolling the streets on Valentine's Day, and any couple they find publicly expressing their love will be taken to the nearest Hindu Temple and forced to marry. The activists will carry a bridal necklace and turmeric paste used in wedding ceremonies and will be accompanied by a priest. Many are distressed with the Sri Ram Sena's activities. IANS reports today that civil liberties proponents are planning protests. Some will form Valentine Help Escort teams to counter Sri Ram Sena activities. The teams will hand over to police anyone assaulting couples on Valentine's Day. Others will carry chili spray to fight off troublemakers.

Recent Prisoner Free Exercise Cases

In Pinkston-El-Bey v. Illinois, 2009 U.S. Dist. LEXIS 6724 (SD IL, Jan. 30, 2009), an Illinois federal district court dismissed at the screening stage claims by an inmate who is a member of the Washitaw Nation of Muurs. Plaintiff sued the governor of Illinois and the warden of virtually every penal institution in Illinois, alleging that state prisons have not adequately accommodated religious beliefs of Washitaw Ismaili Moslems.

In Goodvine v. Swiekatowski, 2009 U.S. Dist. LEXIS 6946 (WD WI, Jan. 26, 2009), a Wisconsin federal district judge permitted a Sunni Muslim prisoner to proceed with RLUIPA and 1st and 14th Amendment claims relating to restrictions on his religious literature, refusing him a copy of the Qu'ran, denying him a halal diet, refusing to adjust his meal schedules to accommodate fasts and refusing to assist him in his religious research.

In Washington v. Brown, 2009 U.S. Dist. LEXIS 6846 (ED CA, Jan. 21, 2009), a California federal magistrate judge denied defendants' motion for summary judgment and permitted plaintiff to proceed with claims that various prison officials denied him participation in the Ramadan fast.

In Robinson v. Jacquez, 2009 U.S. Dist. LEXIS 7560 (ND CA, Jan. 23, 2009), a California federal district court held that an inmate's allegations, liberally construed, state a 1st Amendment claim that that he was not provided kosher meals or permitted to attend Jewish religious services.

In Shatner v. Page, 2009 U.S. Dist. LEXIS 8324 (SD IL, Feb. 4, 2009), an Illinois federal district judge awarded a prisoner, who was a member of both the Church of Light and the Rosicrucian faith, damages totally $1770 for impropoer deprivation of his Sacred Tarot, Tarot cards, religious books and his religious medallion (as well as for imprper reading of his legal mail). The court found violations of plaintiff's free exercise rights, or RLUIPA and of the Illinois Religious Freedom Restoration Act.

Saturday, February 07, 2009

New York City Considering Converting Some Catholic Schools To Charter Schools

New York City public schools are overcrowded. In Brooklyn, some Catholic schools threaten to close for lack of enrollment. WABC today reports that New York's Mayor Michael Bloomberg and Bishop Nicholas Dimarzio of the Brooklyn diocese are considering a plan to select four Catholic schools in Brooklyn and Queens and convert them to publicly funded charter schools. Religion would be eliminated from the curriculum for the schools that are converted. In order for the plan to be carried out, New York state will need to change its law that now bans the conversion of religious schools to charter schools. Newsday reports that the city will also consider similar conversion arrangements for other private and non-Catholic religiously operated schools in the city.

Student Christian Groups Lose Challenge To University Non-Discrimination Rules

In Every Nation Campus Ministries v. Achtenberg, (SD CA, Feb. 6, 2008), a California federal district court upheld the application of the California State University’s non-discrimination policy to four Christian groups at two universities. At San Diego State University and California State University Long Beach, officials refused official recognition to the four student groups because they refused to admit non-Christians as members. They also denied membership to "individuals who believe they are innately homosexual, or advocate the viewpoint that homosexuality is a natural part of God's created order." Relying on the 9th Circuit’s 2008 decision in Truth v. Kent School District (see prior posting), the court concluded that the schools may apply their policy against discrimination on the basis of race, religion, national origin, ethnicity, color, age, gender, marital status, citizenship, sexual orientation, or disability to these student groups. It concluded:

the CSU student organization program is a limited public forum to which the state may restrict access as long as the restrictions are reasonable and viewpoint-neutral in light of the purpose served by the forum, which they are. The Court further finds the First Amendment burdens imposed by the policy are viewpoint-neutral and uniformly applied to all clubs irrespective of their particular viewpoints. Accordingly, Plaintiffs' free association, free speech, and free exercise rights are not impermissibly infringed by the policy, nor is there any evidence that Plaintiffs have been treated inequitably in their exclusion from the forum due to their discriminatory membership criteria.

In the course of its decision, the court said that it was leaving open the question of whether the restrictions imposed by these groups amount to discrimination on the basis of sexual orientation, since some homosexuals could become members under the groups’ criteria. Today's San Diego Union Tribune, reporting on the decision, says an appeal in the case is likely.

Breakaway Church Keeps Property In Largely Evidentiary Ruling

In Hudson Presbyterian Church v. Eastminster Presbytery, (OH App., Feb. 4, 2009), an Ohio appellate court upheld a state trial court’s decision that a break-away Presbyterian congregation retained title to its property. The Presbyterian Church USA claimed that under the PCUSA constitution (Book of Order, Sec. G-8.0201), congregational property is held in trust for the parent church body. Rejecting a claim that the dispute was ecclesiastical in nature, and thus outside of the court’s jurisdiction, the court held that defendant had failed to prove that an express trust over the congregation’s property had been created. It found that no admissible evidence of the Presbyterian Church USA's constitution had been introduced, and that defendant had not preserved for appeal the issue of whether a charitable trust had been created. The Layman Online discusses the opinion further.

Federal Statute On Tolling Of Limitations For Military Raised In Clergy Abuse Case

In 2002, the California legislature created a one-year window in which clergy sexual abuse claims could be asserted, even though the statute of limitations had previously run on them. (See prior posting.) LA City Beat this week reports on a case in which a plaintiff, who was abused as a 16-year old Catholic high schooler, has brought suit asserting that he may still file because the federal Servicepersons’ Civil Relief Act tolls the expiration of the one-year window. Plaintiff enlisted in the Air Force in 1993 at age 22, and has since been serving on active duty, including in Iraq. The Act provides that the time a person is serving on active duty in the military may not be included in computing any limitation period for filing any civil action. The Los Angeles archdiocese is claiming that the Civil Relief Act should not be read to apply to a person, like plaintiff, who volunteered for military service instead of being drafted, or called up as a reservist or member of the National Guard. [Thanks to Pontifications for the lead.]

Friday, February 06, 2009

Amendment To Stimulus Bill Defeated; Ban on Constrution Aid for Religious Use Remains

As previously reported, both the House and Senate versions of the economic stimulus bill contain a provision authorizing grants to state higher education agencies for "Higher Education Facilities." However the bill imposes limitations on sub-grants to colleges and universities for renovation and modernization of buildings. No grant may be used for "modernization, renovation, or repair of facilities— (i) used for sectarian instruction, religious worship, or a school or department of divinity; or (ii) in which a substantial portion of the functions of the facilities are subsumed in a religious mission..."

As reported by CNS News yesterday, a number of conservative Christian groups have attacked this provision as discriminatory, arguing that the language is so broad that it could prevent a state university from receiving renovation funds for a building if it permitted a group to hold a worship service in the building.

During debate on the stimulus bill yesterday, Sen. Jim DeMint proposed an amendment to eliminate this restriction on grants. (S. Amend. 189). The proposed amendment was defeated by a vote of 43 yes, 54 no, 2 not voting. After the vote, DeMint issued a release captioned "Democrats Vote to Discriminate Against Students of Faith." Blaming the ACLU, DeMint said that the provision remaining in the bill will "in effect bar use of campus buildings for groups like the Fellowship of Christian Athletes, Campus Crusade for Christ, Catholic Student Ministries, Hillel, and other religious organizations." This appears to be something of an overstatement. The bill would preclude grants to renovate buildings used primarily by such groups, but not for other campus buildings. The ACLU says there is nothing novel about this restriction. (Fox News.)

UN Reviews Saudi Arabia Human Rights Record Today

The United Nations Human Rights Council implements a Universal Periodic Review process that reviews the human rights record of each of the UN's 192 members once every four years. Today in Geneva, the Council will focus on the human rights record of Saudi Arabia. AFP reports that among the Council's numerous concerns are strict Islamic practices in Saudi Arabia that require a male guardian's permission for women to travel, work or marry. Critics also say that the country's sharia-based legal system has too few precedents and places too much discretion in the hands of religiously trained judges. Other human rights concerns have also been raised. Human Rights Watch reports that the Council will consider three separate reports: one from the Saudis, one from UN observers and one from non-governmental organizations. Saudi's Human Rights Commission will say that progress has been made, and will ask for patience as it deals with "inherited customs and traditions."

Georgia Good News Club Lawsuit Settled

Liberty Counsel announced yesterday that a Georgia federal district court has approved a settlement in a lawsuit filed last month against the Cobb County School District. The suit, filed on behalf of Child Evangelism Fellowship's Good News Clubs, alleged that the school district charged higher fees for CEF to use school facilities after school than is charged to secular groups. (See prior posting.) The court-approved consent decree provides for access to facilities in the future for CEF on the same fee basis as is granted to similar secular student organizations. It will, in addition, permit CEF to use facilities immediately after school, rather than only later in the afternoon. The settlement also provides that the school district will repay CEF the excessive fees it paid, and will pay attorney's fees and costs.

Britain's National Health Service Issues Guide On Religion In Health Care

A Press Association report yesterday focuses on guidelines issued last month by Britain's National Health Service titled Religion or Belief: A Practical Guide for the NHS. While the new publication focuses on many aspects of religion in the workplace and in providing health care services, a nurse who was temporarily suspended for offering to pray for a patient focuses concern on a section of the guidelines that bars proselytizing. That section says in part:

Members of some religions, including Mormons, Jehovah’s Witnesses, evangelical Christians and Muslims, are expected to preach and to try to convert other people. In a workplace environment this can cause many problems, as non-religious people and those from other religions or beliefs could feel harassed and intimidated by this behaviour.

Commenting on the issue, Dr Peter Saunders, general secretary of the Christian Medical Fellowship, said: "It is quite ironic that people seem to be seeing Christian belief as something unhelpful."

High School Sued Over Refusal To Recognize Student Bible Club

Yesterday a high school student in Lindenhurst, New York, filed a federal lawsuit against his high school challenging its refusal to give official recognition to a student Bible Club. The school claimed that recognition would violate the Establishment Clause. The complaint (full text) in A.Q. v. Board of Education of Lindenhurst Union Free School District, (ED NY, filed 2/5/2009), alleges that the school's insistence on treating the Bible Club as an outside community group violates the federal Equal Access Act, as well as students' speech, religion, equal protection and due process rights. Alliance Defense Fund yesterday issued a release announcing the filing of the lawsuit.

Property Adjudication In Lubavitch Feud is Upheld, But Injunction Reversed

Earlier this week, a New York appellate court handed down another decision in the long running legal battle between two factions of the Chabad Lubavitch movement. (See prior related posting.) In Merkos L'Inyonei Chinuch, Inc. v Sharf, (NY App. Div., Feb. 3, 2009), the appellate court upheld the trial court's decision that Congregation Lubavitch, Inc. (the Messianist faction of Chabad) had no ownership interest in two adjoining properties making up the headquarters and central synagogue of the Lubavitch movement. The court held that

the existence of a divisive doctrinal dispute within the Lubavitch community does not render this action nonjusticiable, even if the facts underlying the action arise from that dispute and ... the commencement of the action was motivated by that dispute. Property disputes between rival religious factions may be resolved by courts, despite the underlying doctrinal controversy, when it is possible to do so on the basis of neutral principles of law....

However the court did reverse the award of a permanent injunction against CLI, finding that plaintiffs failed to show a threatened or probable violation of their property rights. There was no evidence linking CLI to vandalism against a plaque on the building. [Thanks to Y.Y. Landa for the lead.]

Thursday, February 05, 2009

Obama Sets Up Revamped Faith-Based Office; Delays Decisions On Religion-Based Hiring By Grantees

President Barack Obama today issued an Executive Order (full text) setting up the White House Office of Faith-Based and Neighborhood Partnerships as the successor to the Bush administration's Office of Faith Based and Community Initiatives. Several paragraphs were added to the section of the Bush Executive Order expanding the functions of the Office. Among the additions are "ensur[ing] that services paid for with Federal Government funds are provided in a manner consistent with fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and prohibiting laws respecting an establishment of religion."

The Executive Order creates a new President's Advisory Council on Faith-Based and Neighborhood Partnerships made up of not more than 25 members. In a separate announcement, the President today named the first 15 members. They are a diverse group, including some individuals from secular social service agencies, as well as religious ones. A number of Protestant clergy, an academic (Melissa Rogers of Wake Forest University), and the president of Catholic Charities USA are among the Council members. As previously announced, the President also appointed Joshua DuBois as Director of the new office. (See prior posting.)

One provision in the Executive Order allows the White House to submit to the Attorney General constitutional and statutory questions on whether existing or prospective grants and practices are consistent with law. This reflects the President's decision not to issue a blanket regulation on whether recipients of faith-based funding can hire on religious grounds. Instead, as reported today by Politico, it will consider the issue on a case-by-case basis. According to US News, this is consistent with a report issued by the Brookings Institution last December (full text) that called for further study of the issue based on better data. (See prior related posting.)

Obama Gives Wide-Ranging Talk At National Prayer Breakfast

This morning, President Barack Obama attended the annual National Prayer Breakfast at the Washington Hilton hotel. (Washington Post.) The vice president, and various members of the Cabinet and of Congress also attended, as did representatives from around the world. The keynote address at the breakfast was delivered by former British Prime Minister Tony Blair. (USA Today.) President Obama gave a fascinating speech (full text), alluding to national and world problems facing his administration. He observed:

it strikes me that this is one of the rare occasions that still brings much of the world together in a moment of peace and goodwill. I raise this history because far too often, we have seen faith wielded as a tool to divide us from one another – as an excuse for prejudice and intolerance.

Previewing the Executive Order that he will sign later today creating the White House Office of Faith-Based and Neighborhood Partnerships, he said:

The goal of this office will not be to favor one religious group over another – or even religious groups over secular groups. It will simply be to work on behalf of those organizations that want to work on behalf of our communities, and to do so without blurring the line that our founders wisely drew between church and state.... We will also reach out to leaders and scholars around the world to foster a more productive and peaceful dialogue on faith.

Obama also spoke of his own religious upbringing and journey:

I was not raised in a particularly religious household. I had a father who was born a Muslim but became an atheist, grandparents who were non-practicing Methodists and Baptists, and a mother who was skeptical of organized religion, even as she was the kindest, most spiritual person I’ve ever known....

I didn’t become a Christian until many years later, when I moved to the South Side of Chicago after college. It happened not because of indoctrination or a sudden revelation, but because I spent month after month working with church folks who simply wanted to help neighbors who were down on their luck....

Oath Requirement In Oregon Tax Form Violates Free Exercise Rights

In Aslin v. Coos County Assessor, (OR Tax Ct., Jan. 13, 2009), a county tax assessor in Oregon refused to accept an unsigned personal property tax return from James Aslin. Aslin objected on religious grounds to the oath, included in the tax form, that required him to state "under penalties of false swearing" that the return is accurate. He submitted his return with the declaration crossed out and "I don't swear" written in the signature box. The Oregon Tax Court held that by rejecting Aslin's return without offering him an alternative method to confirm or declare the information in it was true, the assessor's office violated Aslin's free exercise rights under Art. I, Sec. 3 of the Oregon Constitution.