Israeli Court Says Religious Ritual Is Not True Sale of Land for Civil Purposes

In Israel last week, the Petach Tikva District Court handed down an interesting decision intertwining civil and religious property law. The case grew out of a lease of land last year, which was the Sabbatical year in Israel. According to Jewish religious law, observant Jews are to allow their land to lie fallow during that year. Produce grown on Jewish-owned land in Israel during the year is not considered kosher. Some rabbis however have accepted a loophole, allowing produce to be grown on the land if the land is technically "sold" to a non-Jew for the year. This practice, known as "heter mechirah", has become controversial among competing schools of Orthodox rabbis, but Israel's High Court in a 2007 decision effectively required the practice to be recognized. (See prior posting.)

Dei'ah veDibur (Feb. 19) reports that in the Petach Tikva case, the Israel Land Authority sued lessees for illegal use of land they had rented from the Authority. The lessees countered that the Authority has no claim against them because the Authority had "sold" the land to someone else under the practice of "heter mechirah". The civil court ruled, however, that the sale was merely a legal fiction, so the Land Authority still owned the property for purposes of enforcing its lease provisions. Rabbis who oppose the use of "heter mechirah" are pointing to the ruling as further support for their position. If the "sale" is not valid, then, they say, the land is still Jewish-owned and its cultivation is prohibited as a matter of religious law. [Thanks to Religion & State in Israel for the lead.]

Suit Challenges Refusal of College To Rent Space To Chuch

Alliance Defense Fund has announced that a federal lawsuit was filed Monday against Broome Community College in Binghamton, NY. The College has refused to continue renting space in one of its buildings to North Pointe Church for weekly religious meetings. Even though space is rented to other groups, the College terminated the church's rental agreement after objections were lodged by a few individuals who had seen an ad for the church's meetings. The complaint (full text) in North Pointe Church v. Moppert, (ND NY, filed 2/23/2009) alleges that for the first time, after these objections, the College told plaintiff of its policy that prohibits the use of campus facilities for "religious services or observances . . . for the benefit of the general public." The complaint alleges that the College's treatment of the Church violates the speech, free exercise and establishment clauses of the 1st Amendment and the due process and equal protection provisions of the 14th Amendment.

UPDATE: A settlement in the case described as "favorable to North Pointe Church" led to a voluntary dismissal on Aug. 18, 2009. Alliance Defense Fund issued a release on the settlement. [Thanks to commenter for this lead and spelling correction.]

Options for IRS In Future Investigation of Living Word Christian Center Are Complex

BNA's Feb. 20 Daily Report for Executives [subscription required] discusses the options available to the Internal Revenue Service after the Minnesota federal district court decision last month in United States v. Living Word Christian Center. (See prior posting.) In the case, the court held that current IRS procedures for opening tax investigations of churches does not comply with legal requirement for pre-approval by a high-level Treasury official. One option for the government is appealing the decision to the 8th Circuit. A letter (full text from BNA, subscription required) to the Department of Justice from Living Word's lawyer, Walter Pickhardt, outlines problems that would be presented if IRS simply attempts to open a new investigation authorized by a higher level official. IRS regulations call for any investigation of tax-exempt status to focus on the three most recent tax years. Thus different years would be involved in any new probe (with only one overlapping year). Also, according to Pickhardt, IRS Regulations would preclude using information already furnished by Living Word as the basis for "reasonable belief" that a new investigation should be undertaken.

Court Refuses To Enjoin Contribution Reporting Requirement For California Prop 8

In ProtectMarriage.com v. Bowen, 2009 U.S. Dist. LEXIS 13059 (ED CA, Jan. 30, 2009), a California federal district court refused to grant a preliminary injunction to excuse the required Jan. 31 filing of semi-annual contribution reports by groups that supported Proposition 8, the contentious anti-gay marriage amendment that passed in California in last November's election. California law requires committees to report the names, addresses, occupations and employers of everyone who contributed $100 or more to the initiative campaign. The information is available on the Secretary of State's website. Plaintiffs allege that contributors, many motivated by their religious opposition to gay marriage, have been subject to threats, reprisals, and harassment. (See prior related posting.) The court found little likelihood of success on the merits of plaintiffs' First Amendment "as applied" challenge to the reporting requirements. The court rejected plaintiffs' arguments that Supreme Court precedent protecting the privacy of contributors to minor parties applies here. Here plaintiffs were part of a majority and the level of harassment alleged did not reach that threatened in those minor party cases.

Virginia Senate Committee Rejects Bill To Allow Sectarian Prayer by Police Chaplains

Yesterday a Virginia state Senate committee rejected a House-passed bill that would have specifically permitted volunteer State Police chaplains to deliver sectarian prayers at departmental ceremonies. HB 2314 was a reaction to a directive issued last September by the State Police Superintendent ordering the State Police department's 17 volunteer chaplains to deliver only non-denominational prayers at government sponsored events. This led to resignation of six officers from their chaplaincy duties. (See prior posting.) The House version of the bill would have permitted police chaplains to pray according to their own consciences, but would have required a disclaimer in printed programs for police events to emphasize that the invocation was not approved or reviewed by the police department. Yesterday's Hampton Roads Virginian Pilot reports that in the Senate Courts of Justice Committee, the 8-7 party line vote which came after nearly an hour of debate effectively retains the ban on chaplains invoking the name of a specific religious deity. Del. Charles W. "Bill" Carrico Sr., sponsor of HB 2314, characterized the Senate committee defeat of it as persecution of the Christian faith.

Consultant Says Rubashkin Indictments Influenced By Jewish Stereotypes

The Des Moines (IA) Register reports on Monday's federal district court hearing on motions challenging the 97-count indictment of Sholom Rubashkin, a former executive of kosher meat producer, Agriprocessors, Inc. (See prior posting.) Rubashkin, a Hasidic Jew, was indicted last year on charges of immigration fraud, bank fraud and failure to pay cattle producers. A consultant hired by defense lawyers says that grand jury members' perceptions of Rubashkin were gradually influenced by grand jury testimony suggesting Jewish stereotypes. Prosecutors say that the claims take small pieces of grand jury testimony out of context and, in any event, that Rubashkin was not prejudiced by any bias that the grand jury felt.

Cert. Denied In Two Cases Involving Religious Exercise Issues

Yesterday the U.S. Supreme Court denied certiorari in Morrison v. Board of Education of Boyd County, (Docket No. 08-701) (Order List.) In the case, the U.S. 6th Circuit Court of Appeals had denied a Christian high school student and his parents standing to challenge a school's now-abandoned speech code and related anti-harassment training. Plaintiffs alleged that the speech code prevented Christian students from expressing their views that homosexuality is sinful. (See prior posting.) 365Gay News reported yesterday on the decision.

Yesterday the U.S. Supreme Court also denied certiorari in Friday v. United States, (Docket No. 08-6651). (Order List.) In the case, the U.S. 10th Circuit Court of Appeals upheld the criminal prosecution of a member of the Northern Arapaho Tribe, for killing a bald eagle so he could use it in his tribe's Sun Dance. The court found that the Bald and Golden Eagle Protection Act, and the regulations under it, were narrowly drawn to further a compelling governmental interest. (See prior posting.) The case had generated unusual interest among press groups who were concerned about the 10th Circuit's extensive review of constitutional facts. (See prior posting.) Yesterday's Hays (KS) Daily News reported on the denial of cert.

Environmental Requirements Delay O.K. of Hillel Building On California Campus

At the University of California, San Diego, Hillel (the Foundation for Jewish Campus Life), has been attempting for 5 years to get approval to build a new Jewish student center near campus. As reported in yesterday's UCSD Guardian, a California appellate court has agreed with an environmental group that the proposed building may have substantial environmental effects so that an environmental impact statement relating to traffic and parking, biological resources and aesthetics and community character is required. In Taxpayers for Responsible Land Use v. City of San Diego, (CA Ct. App., Feb. 18, 2009), a California appellate court, while imposing the new environmental requirement, rejected claims of procedural defects in the city's sale of the land to the Hillel Foundation.

RLUIPA Lawsuit By Church Over Approval of Concert Site Is Settled

Yesterday's Pittsburgh Post-Gazette reports on the settlement of a RLUIPA lawsuit brought by the Church of Universal Love and Music against Fayette County, Pennsylvania. The church was seeking rezoning or a special exception so it could continue to use property in an agricultural area for religious concerts. County officials claimed that concert venue founder William Pritts did not claim that his organization was a church until zoning problems arose. (See prior posting.) A confidentiality agreement prevented disclosure of terms of the settlement which is merely described as "mutually satisfactory."

Supreme Court Grants Cert In Sunrise Rock Cross Case

The U.S. Supreme Court today granted certiorari in Salazar (Interior Secretary) v. Buono (Docket No. 08-472, cert. granted 2/23/2009). (Order List.) In the case, a panel of the 9th Circuit found Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW. Five judges dissented from the 9th Circuit's denial of en banc review, writing a long opinion saying there that there was no evidence that the government would maintain or support the Sunrise Rock Cross after its transfer. (See prior posting.) The Justice Department has posted the government's petition for cert. which raises both questions of the lower court's ruling on standing as well as its application of Establishment Clause doctrines to the sale of real property as a way to rid the government of Establishment Clause problems. Here is respondent's brief in opposition (from SCOTUS blog), and the government's reply brief. [Thanks to Derek Gaubatz for the lead.]

Timothy Dolan Named Archbishop of New York

Pope Benedict XVI today appointed 59-year old Milwaukee Archbishop Timothy M. Dolan to be the new Archbishop of New York. AP reports that Dolan, who succeeds retiring Cardinal Edward Egan, is a defender of Catholic orthodoxy. Dolan has a doctorate in Church History form the Catholic University of America and for seven years was rector of the North American College in Rome. Dolan is well known for his calls to end abortion, comparing it to the moral urgency of ending slavery. However he does not deny communion to Catholic legislators who support abortion rights, saying it is up to each person to decide whether to take communion. In 2004 Dolan was among those archbishops who publicly released the names of priests credibly accused of sexual abuse, though critics say he has not done enough to expose abusing priests in independent religious orders who work in his archdiocese.

Lawsuit Charges Scientology Is Responsible For Man's Suicide

Saturday's St. Petersburg (FL) Times reported on a new lawsuit filed in federal district court in Tampa (FL) against the Church of Scientology and against three individuals. The wrongful death lawsuit seeks damages for the death of Kyle Brennan who committed suicide while visiting his father, a Scientologist who lives in Clearwater (FL). Brennan's mother blames Scientology for the death. The lawsuit alleges that Denise Gentile, twin sister of the Scientology's worldwide leader David Miscavige, (along with her husband Gerald Gentile) convinced Brennan's father to take away Kyle's antidepressant medication. Scientology is strongly opposed to psychiatry and psychiatric medications. The lawyer handling the case, Ken Dandar, previously won a confidential settlement in another long-running high profile wrongful death suit against the Church of Scientology.

City Homeless Shelter Now Operated By Church With Required Prayer

In Hammond, Indiana, a new arrangement between the city and First Baptist Church of Hammond raises interesting church-state issues. Yesterday's Munster (IN) Times reports that when the city-owned Calumet Area Warming Shelter was about to close, the city negotiated an arrangement with First Baptist Church for the church to operate the homeless shelter at church expense while the city retains ownership of the building. The Church is within walking distance of the shelter. Under new rules imposed by the Church, a resident must attend a specified number religious services offered by First Baptist, or church services elsewhere, in order to eat or stay at the shelter. Residents and shelter officials have somewhat different accounts of the number of services at which attendance is required. So far three people have been asked to leave the shelter for non-attendance (or leaving services early) since the Church began operating the shelter as part of its City Rescue Mission Ministry last December 31. [Thanks to Scott Mange for the lead.]

Recent Articles and Book of Interest

From SSRN:

• Andrew F. March, Marriage, Equality and Subsidizing Families in Liberal Public Justification: Is There a Right to Polygamy?, (February, 20 2009).


• Ali Khan, Speech Diversity under Islamic Law, (February 11, 2009).


• Andrew F. March, Are Secularism and Neutrality Attractive to Religious Minorities?, (Islamic Discussions of Western Secularism in the 'Jurisprudence of Muslim Minorities' (Fiqh Al-Aqalliyyat) Discourse, February, 18 2009).


• Natasha Bakht, Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms, (February 2, 2009).


• Geraldine Szott Moohr & Roger Sherman, Book Review: Religion in Criminal Justice by Monica K. Miller, (January 29, 2009).

From the Feb. 2009 issue of Engage:

• Kimberlee Wood Colby, Monumentally Speaking: Pleasant Grove City v. Summum.
• G. David Mathues, Two Visions, Two Results: Making Sense of the Disagreement over the Application of the Ministerial Exception to Teachers in Parochial Schools.
• Stuart J. Lark, Equal Treatment for Religious Expression after Colorado Christian University v. Weaver.

From SmartCILP:

• Anthony A. Braga, David Hureau & Christopher Winship, Losing Faith? Police, Black Churches, and the Resurgence of Youth Violence in Boston, 6 Ohio State Journal of Criminal Law 141-172 (2008).


• Kent Greenawalt, The Cultural Defense: Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act, 6 Ohio State Journal of Criminal Law 299-321 (2008).

The Journal of Law and Religion, Vol. XXIV, No. 1 (2008-09) has recently been published.

Recent Book:

• Warren J. Blumenfeld, Khyati Y. Joshi & Ellen E. Fairchild (Eds.), Investigating Christian Privilege and Religious Oppression in the United States, (Sense Publishers, Dec. 2008), reviewed in the Ames Tribune.

Justice Department Settles RLUIPA/ Housing Suit With Nashville, TN

The current issue of Religious Freedom In Focus (the newsletter of Justice Department's Civil Rights Division) announces the recent settlement of the Justice Department's civil rights suit against Nashville (TN) that alleged both disability and religious discrimination. The lawsuit claimed violations of the Fair Housing Act and of RLUIPA in Nashville's denial of zoning approval for a residential treatment center to Teen Challenge, a Christian substance abuse program. The consent decree in United States v. Metropolitan Government of Nashville and Davidson County, Tennessee, (MD TN, Feb. 5, 2009), among other things requires Nashville to appoint an FHA and RLUIPA Compliance Officer. It also requires Nashville to give fair housing and RLUIPA training to various of its employees. Nashville will pay a $20,000 civil penalty and damages of $50,000 to individual plaintiffs. Teen Challenge itself has already won a significant jury verdict in the case. (See prior posting.)

Loooking Inside Bible Course In Tennessee High School

Yesterday's Chatanooga (TN) Times Free Press reports on what goes on inside the classroom during teaching of the course on the Bible and its influence on literature, art, music, culture, and politics, authorized by a 2008 law enacted by the Tennessee legislature. (See prior posting.) In the Marion County classroom of high school teacher John Paulsen, many of the copies of the Bible used as a textbook were purchased with funds donated by churches. Paulsen challenges students to think about religion scientifically and to think of science religiously. He walks a fine line, urging students to decide for themselves whether various miracles in the Bible are reported accurately, or are a form of religious mythology.

Recent Prisoner Free Exercise Cases

In Allen v. Hense, 2009 U.S. Dist. LEXIS 11363 (ED CA, Feb. 3, 2009), a California federal magistrate judge concluded that a Muslim inmate had not shown a substantial burden on free exercise in alleging that he was served two meals that did not meet his religious dietary requirements and was met with racial and religious comments when he complained.

In Ashanti v. Tilton, 2009 U.S. Dist. LEXIS 11899 (ED CA, Feb. 18, 2009), a California federal magistrate judge recommended that a preliminary injunction issue requiring a Muslim prisoner to be served a kosher diet to satisfy his religious needs until a proposed Halal meat diet plan is implemented by the prison system. However the magistrate judge recommended denying relief on plaintiff's claim that separate worship space for Muslims should be provided.

In State ex rel. Myers v. Smith, (WI Ct. App., Feb. 18, 2009), a Wisconsin court of appeals affirmed a trial court's dismissal of a prisoner's complaint because it was directed at the wrong individual. In the case, a Wiccan prisoner was attempting to obtain access to a book he argued was needed for spiritual purposes, but which prison authorities claimed was pornographic. The court also agreed that his suit was frivolous and that he could not circumvent regulations by attempting to obtain the book through discovery to prepare his case.

Clinton's Visit To China De-emphasizes Religious Rights Issues

On Friday, Secretary of State Hillary Clinton travelling in Asia held a news conference in Seoul, South Korea (full text) as she was about to leave for China. As reported by AFP, human rights activists were upset by her statements that she would not let human rights concerns interfere with U.S.-Chinese cooperation on the economic crisis, climate change and security issues. As Clinton put it:

We know that we're going to press them to reconsider their position about Tibetan religious and cultural freedom, and autonomy for the Tibetans and some kind of recognition or acknowledgment of the Dalai Lama. And we know what they're going to say, because I've had those conversations for more than a decade with Chinese leaders.

Reuters reports today that Clinton ended her visit in China by attending services at a government-approved church. She also spoke with women's rights activists. These activities were aimed at showing Clinton's commitment to civil and religious rights without offending the Chinese government.

Op-Ed Suggests Compromise On Same-Sex Marriage

An op-ed in today's New York Times suggests an innovative compromise on the divisive issue of gay marriage. This is the crux of the proposal made by David Blankenhorn and Jonathan Rausch:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

British Baroness Urges New Requirements To Stop Muslim Polygamy In UK

In Britain, Baroness Sayeeda Warsi, the Conservative Party’s shadow minister for community cohesion has called for the government to require all religious marriages to be civilly registered within four weeks of being performed. Warsi, herself a Muslim, is pressing for this reform in order to stop Muslim men from taking more than one wife. Currently some Muslim men get around the British ban on polygamy by marrying a first wife in a registered, civil law ceremony and then taking additional wives only in an unregistered religious service. UAE's The National today reports on Warsi's complaint that "cultural sensitivity" is preventing the government from taking action against the increasing incidence of polygamy in Britain. Manzoor Moghal, chairman of the Muslim Forum, however, argues that British Muslims should be able to continue their religious and cultural practices without governmental interference.