Law Prof Says Pope's Statement Challenges Catholic Judges In U.S.

Law Professor Douglas Kmiec writing for Time Magazine yesterday suggests that a close reading of the statement issued this week by Pope Benedict XVI after his meeting with House Speaker Nancy Peolsi has significant implications for Catholic judges in the United States. The statement was widely reported as a rebuke to Pelosi for her pro-choice positions. (See prior posting.) The Pope's statement (full text) said in part that the Church's teachings on human life

enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work ... in creating a just system of laws capable of protecting human life at all stages of its development. [emphasis added.]

Kmiec says that previous statements by the Church had implicitly recognized that judges were in a different position than legislators, and the judges had no obligation to change the law when the legislature had not done so. Kmiec says: "the Pope's statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists....", and may apply to Catholic judges on all courts.

Control Over "Feed the Children" At Issue In Lawsuit

Today's Oklahoman reports on a lawsuit-- whose pleadings are now sealed by the court-- over control of the Christian non-profit relief organization, Feed the Children. The suit, filed in state court in Oklahoma by five former directors of the charity, claims that plaintiffs were unlawfully replaced as board members last December. The new directors, prominent Christian clergy from around the country, were added to the board by FTC founder Larry Jones and board chairman Dwight Powers. Then 6 long-time directors were sent dismissal letters. The lawsuit asks the court to remove the new directors and invalidate all board action taken since December 4.

New Jersey School Proposes Hebrew Track With After-School Religion Classes

After New York's approval of a Hebrew language charter school (see prior posting), a New Jersey official is proposing an alternative arrangement that will be attractive to Jewish parents who may otherwise send their children to private Hebrew Day Schools. The Forward reported on Thursday that the interim superintendent of the Englewood (NJ) school system is suggesting a public-private partnership that would add a Hebrew language immersion track in a public school, and supplement it with privately-financed classes in Judaism as after-school activities. Modeled on the dual English-Spanish curriculum in some New Jersey schools, this program would follow the New Jersey Core Curriculum and students would mix with other students for lunch, recess and music. Interest in the program is fueled by the high cost of private Jewish Day School tuitions. For the Englewood school district that is under a racial desegregation order, the new track could increase racial diversity in the current largely Black and Hispanic district.

Washington State Says Religious Group Can Refuse Gay Volunteers

Page One Q reported yesterday on a decision handed down by the Washington State Human Rights Commission apparently allowing religious organizations to exclude gays and lesbians as volunteers. In March 2008, Tad Erichsen and John Footh were turned away as volunteers by His Supper Table, a meal program operating in Long Beach, Washington. They say the program director, Mike Renfro, told them that their presence would create a hostile work environment. The two men filed a complaint under the state's anti-discrimination law that, among other things, bars discrimination on the basis of sexual orientation. (RCW Chap. 49.60). The Commission issued a decision last month that was communicated to Erichsen and Footh via a phone exit interview. Apparently the decision concluded that the 1st Amendment protects religious organizations in their decisions to exclude volunteers on religious, sexual orientation or other grounds.

Chaplain Lacks Standing In Establishment Clause Challenge To "Five Faiths Policy"

In McCollum v. State of California, 2009 U.S. Dist. LEXIS 11154 (ND CA, Feb. 13, 2009), a California federal district court held that a volunteer Wiccan prison chaplain lacks both traditional standing and taxpayer standing to bring an Establishment Clause challenge to the California prison system's policy of providing paid chaplains for only five faiths-- Protestant, Catholic, Jewish, Muslim, and Native American. As to traditional standing, plaintiff is attempting to assert rights of third parties, i.e. Wiccan inmates. As to taxpayer standing, plaintiff is not seeking to stop the expenditure of state funds, but rather to increase or transfer expenditures to have Wiccan chaplains hired as well. Establishment Clause taxpayer standing extends only to cases where a taxpayer is attempting to lessen expenditures.

UPDATE: As pointed out by a commenter, plaintiff also claimed standing on the basis that creation of a paid Wiccan chaplain position would give him an opportunity to be hired-- something he had been told he was ineligible for currently. The court said that it was speculative whether, even if (as requested) faith-neutral criteria were applied, he would be hired since that depended on needs of Wiccan inmates.

UPDATE: While the Northern District of California denied standing to a chaplain to challenge the 5 Faiths Policy, a decision from last year has just become available through LEXIS in which the Eastern District of California finds that an inmate does have standing to challenge the policy. In Rouser v. White, 2008 U.S. Dist. LEXIS 107199 (ED CA, Sept. 16, 2008), the court also found that plaintiff's complaint alleges "plausible grounds" for relief in his Establishment Clause challenge.

Jewish Army Employee Sues To Challenge Assertion of State Secrets Privilege

Another lawsuit has been filed in the long-running dispute between U.S. Army employee David Tenenbaum and the Department of Defense. In a series of events beginning in 1997, Tenenbaum, an Orthodox Jew, lost his access to classified information and had his security clearance revoked on the basis of unsubstantiated allegations that he was spying for the state of Israel. The government never found sufficient evidence to prosecute Tenenbaum, and a DOD Inspector General's Report issued last year concluded that "Tenenbaum was subjected to unusual and unwelcome scrutiny because of his faith and ethnic background...." (See prior posting). Tenenbaum had attempted previously to bring suit over his treatment, but one of the two major cases he filed was dismissed after defendants claimed that they would be required to disclose state secrets in order to defend themselves. (Tenenbaum v. Simonini, 6th Cir., 2004).

In a suit filed yesterday in a Michigan federal district court, Tenenbaum asserts that he was deprived of his constitutional right to full and fair access to the courts by defendants' false assertion, through sealed affidavits, of the state secrets privilege. The complaint (full text) in Tenenbaum v. U.S. Department of Defense, (ED MI, filed 2/19/2009) alleges that defendants asserted the state secrets privilege "with knowledge and/or in reckless disregard of the fact that no state secrets existed in the Action because there was never any evidence against Tenenbaum." Today's International Herald Tribune reports on the filing of the case.

Catholic Church Campaigns Against Bill That Has Not Been Introduced

Time Magazine yesterday reported on the intensive campaign initiated by the U.S. Conference of Catholic Bishops against Congressional passage of the Freedom of Choice Act, even though the Act has not even been introduced into Congress. In the 108th and 110th Congresses, the Freedom of Choice Act was introduced, but did not pass. It would have essentially codified Roe v. Wade so that if the constitutional basis for the decision were ever reversed, the same right to choose would be protected as a matter of statutory law. (Full text of bill in 110th Congress.) The anti-FOCA campaign has spread fast through the Internet, with a number of exaggerated claims about the law being disseminated. The furor apparently stems for a single remark Obama made as a candidate in 2007 when he told a Planned Parenthood affiliate that the first thing he would do as president is to sign FOCA. Time Magazine says:

FOCA is proving to be the perfect political issue for anti-abortion advocates — and for congressional Republicans, who have taken up the cry as well. Unless and until FOCA is voted on by Congress, they can invoke it as a looming threat. And the longer it remains a dormant issue, the more credit they can take for their own "proactive" efforts to "defeat FOCA"...

Several Catholic groups have attempted to counter fears that the bill is about to be enacted and have tried to correct some of the inaccurate claims being circulated.

British School's Handling of Child's Religious Remarks Brings National Attention

An incident in a British school between two young children is turning into a national controversy. As reported by Ekklesia and by Church Times, last week 5-year old Jasmine Cain, a student at Landscore Primary School in Crediton, upset a classmate by telling her that she would "go to hell" if she did not believe in God and Jesus. Head teacher Gary Read told Jasmine that her remark was inappropriate in the school with children from diverse backgrounds. Jasmine's mother, Jennie Cain, works as the receptionist at the school. Read asked her to make sure that her daughter did not repeat the remark that left her classmate in tears. Now Jennie Cain is challenging the head teacher's actions, saying that her daughter's religious beliefs are not being respected. She sent out e-mails to ten friends asking them for support. When Jennie was asked to stay home while the matter was being investigated, supporters around the country began to speak out. The Archbishop of York said that the school's treatment of Jennie Cain is an affront to the sensibility of Christians. (London Telegraph, Feb. 13.) Now the Governors of the school have set up a special committee to investigate the incident.

West Virginia Proponents of Marriage Amendment Create Controversy

In West Virginia, a group seeking to convince the legislature to propose a state constitutional amendment barring same-sex marriage has created controversy by a nearly 6-minute video it has posted on YouTube and on the WV 4Marriage website. At one point, the video shows a traditional family in the cross hairs of a rifle scope. The narrator says that activists are "working tirelessly to define marriage away from God's design" and says that same-sex marriage has created a crisis for the church. Yesterday's Times of West Virginia reports on the amendment efforts spearheaded by the Family Policy Council of West Virginia. A posting at Edge yesterday contains the video and discussion of further excerpts from it. Churches around the state will support the amendment efforts by participating in "Stand4Marriage Sunday" on March 1.

Somalian Clerics Want Moderate Sharia Nationwide

In Somalia, according to Reuters yesterday, a meeting of over 100 mainly moderate clerics has given the new government of Sheikh Sharif Ahmed, also a moderate, 120 days to declare that all of Somalia will be governed by Islamic law. This will require some amendments to the country's current constitution. The head of the Somali Uluma Council for Correction and Reconciliation says that its demands for Islamic law refer to a moderate version of Sharia, not the strict version that al-Shabab militants have declared after taking control of Baidoa last month.

5th Circuit Holds No Damage Claims Permitted In Prisoner RLUIPA Suits

In Sossamon v. Lone Star State of Texas, (5th Cir., Feb. 18, 2009), the U.S. 5th Circuit Court of Appeals held that a suit for damages (as opposed to injunctive and declaratory relief) is not available under the Religious Land Use and Institutionalized Persons Act. It agreed with the 11th Circuit that damages are not available in suits against officials in their individual capacities. Because RLUIPA was enacted under Congress' Spending Clause Powers, only the governmental recipient of the grant may be liable for a violation. It went on to hold that official-capacity damage actions are barred by the state's sovereign immunity. Agreeing with the 4th Circuit, it concluded that RLUIPA did not clearly alert the state of Texas that it would waive sovereign immunity for damage actions by accepting federal funding. However the court remanded for further proceedings plaintiff's claim for injunctive and declaratory relief. Plaintiff objected to the prison's policy of prohibiting congregational worship in the prison's chapel. He claimed that alternative worship venues do not give him access to Christian symbols or furnishings such as an altar or cross. [Thanks to Carol Gardner for the lead.]

4th Mexican State Places Pro-Life Amendment In Its Constitution

The Mexican state of Colima has become the fourth Mexican state to adopt a pro-life amendment to its state Constitution. LifeSite News reports that on Tuesday, state legislators unanimously adopted the amendment which provides in part: "Life is a right inherent in every human being. The State will protect and guarantee this right from the moment of conception." The amendment came after the legislature last month rejected a proposal to legalize abortion. Sponsors of the amendment say it was not religiously motivated. The legislative committee report on the bill says it is based on medical evidence. Similar amendments have been passed in the Mexican states of Baja California, Sonora, and Morelos. A suit is pending in Mexico's Supreme Court challenging the constitutionality of the Baja California amendment. (LifeSite News, Jan. 30).

Church Sues Illinois City Over Building Permit Delays

In Cicero, Illinois, a growing Spanish-language Mennonite congregation has filed a federal lawsuit seeking to force the city to process its building permit application and also seeking damages. The complaint (full text) in Sonido de Alabanza v. Town of Cicero, (ND IL, filed 2/18/2009), alleges that the city failed for a year-and-a-half to inform the church of the formal requirements that it submit drawings and a contractor contract in applying for a permit. Instead the city led the Church through a separate process that the Church believed was correct, only to later be told by the Building Department that this was not the appropriate route. The lawsuit alleges free exercise and RLUIPA violations, violations of the Illinois Religious Freedom Restoration Act, as well as violations of other of its 1st and 14th Amendment rights. In a press release announcing the filing, the Church said: "Ironically, while the SDA church has experienced two years of delays, a nearby liquor store ... has not only had plans approved but has completed construction and is open for business."

Court Says Eagle Feather Provision Violates RFRA

In United States v. Wilgus, (D UT, Feb. 17, 2009), a Utah federal district court held federal provisions that discriminate against non-Native American adherents of Native American religions violate their rights under the Religious Freedom Restoration Act. The ruling came in a challenge to convictions in two separate cases that had been remanded to the court by the U.S. 10th Circuit Court of Appeals in a 2002 opinion. Members of federally recognized tribes can apply to obtain feathers for ritual use from the National Eagle Repository. Non-Native American adherents cannot apply and, under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act, are subject to prosecution for possessing eagle feathers. The court held that the government has failed to carry the burden of showing that this complete ban on non-Native Americans is the least restrictive means of furthering its compelling interest of protecting eagle populations and Native American culture. AP yesterday reported on the decision.

Producer Says Pennsylvania Business Name Statute Violates 1st Amendment

The name of a corporation or limited liability company that is included in the articles it files with the state is generally subject to certain restrictions, usually to prevent duplication of names. Pennsylvania, however, also prohibits certain words from being used in the name of a business association. 19Pa. Code Sec. 17.5 provides that "An association name may not contain words that constitute blasphemy, profane cursing or swearing or that profane the Lord's name." The New York Times reports yesterday that a lawsuit has been filed in federal district court by filmmaker George Kalman challenging the constitutionality of that provision. Kalman wanted to name his production company "I Choose Hell Productions," to reflect the philosophical theme of his movies. In 2007, articles with that name were rejected because of the blasphemy and profanity prohibition, and he ultimately refiled under the name "ICH Productions LLC". Kalman's suit asserts that the statute violates the Establishment Clause because it prescribes a religious standard that was used in rejecting his filing. He also asserts that it violates his free expression rights, giving to state employees the discretion to reject business names that offend them.

Illinois Immigration Detainees Will Get More Clergy Visits

Yesterday's Chicago Tribune reports that religious groups have begun training around 30 volunteers who will pay visits to individuals being held in county jails awaiting federal deportation. The Access to Religious Ministry Act, passed by the Illinois legislature last December, will go into effect June 1. It requires jails to give reasonable access to religious workers to visit immigration detainees. Currently Illinois jails only permit religious visits for two hours a month to the rotating group of 750 deportees held in jails under contract with the Immigration and Customs Enforceement Agency. [Thanks to Joel Katz for the lead.]

NY Teacher Loses Suit Claiming Religious Discrimination and Christian Activities In School

In Eder v. City of New York, 2009 U.S. Dist. LEXIS 11501 (SD NY Feb. 12, 2009), a New York federal district court rejected claims by a Jewish public school teacher who was denied tenure that various Christian activities at her school violated the Establishment Clause. It also rejected teacher Melissa Eder's federal and state religious employment discrimination claims and her Title VII claims of retaliation and hostile work environment. The court held that activities such as a teachers' prayer group in the Principal's office and prayers over food at a faculty holiday party were private activities and did not carry the imprimatur of the school. The court found insufficient evidence of religious discrimination in the extension of Eder's probationary period, instead of granting her tenure, despite claims that the principal had referred to her as "poison." The court also rejected claims that incidents such as someone leaving a rabbi's picture on Eder's chair and co-workers referring to Adolph Hitler as a revolutionary thinker amounted to a hostile work environment.

Pope Meets Nancy Pelosi; Criticizes Her Pro-Choice Views

Yesterday Pope Benedict XVI met privately for 15 minutes with U.S. House Speaker Nancy Peolsi who is on an official visit to Italy . In what may have been an uncomfortable meeting with Pelosi who is Catholic, but who favors keeping abortion legal, the Pope, according to CNS, "told her that all Catholics, especially those who are lawmakers, must work to protect human life at every stage." In the past, Pelosi had said that church leaders over the centuries disagreed on when life begins. The Vatican's statement after the Papal meeting with Pelosi focused on the "church's consistent teaching on the dignity of human life from conception to natural death." Pelosi in a statement released after the meeting said nothing of the abortion issue, and instead congratulated the Pope on a number of initiatives such as fighting poverty, hunger and global warming. BeliefNet also comments on the Pope's "reprimand" to Pelosi.

Italian Teacher Suspended For Removing Crucifix

In Italy where controversy continues about Christian crosses in public buildings, a school teacher has been suspended for a month by the National Education Council after his students complained that he took down the crucifix that had been hanging in his classroom in Umbria. BBC News reported yesterday on the action against literature teacher Franco Coppoli who says that education and religion should not be mixed. (See prior related posting.)

Jesuit Order Files For Chapter 11 Bankruptcy In Oregon

The Society of Jesus, Oregon Province , has become the first major religious order to file for federal bankruptcy reorganization, according to a report in today's Fairbanks (AK) Daily News-Miner. The filing was primarily in response to some 200 additional claims of sexual abuse of children-- mainly from Alaska-- against the Order. Over 200 other claims have previously been settled. The bankruptcy petition was filed Tuesday in Portland, Oregon federal Bankruptcy Court. Rev. Patrick J. Lee, Oregon Province Jesuits provincial, said: "It is the only way we believe that all claimants can be offered a fair financial settlement within the limited resources of the province." However David Clohessy, national director of Survivors Network of those Abused by Priests, called the filing "a morally irresponsible and selfish decision designed solely to protect the reputations of complicit church officials." Some 235 Oregon Province Jesuits serve five Northwestern states. (See prior related posting.)