9th Circuit: Treating Montana Church As Political Committee Violates Speech Rights

In Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, (9th Cir., Feb. 25, 2009), the U.S. 9th Circuit Court of Appeals held unconstitutional the application of Montana's campaign finance laws to a Church that engaged in limited activities in support of a 2004 constitutional initiative banning same-sex marriage. The Church advertised and hosted a one-time screening of a video in support of the amendment and made petitions available in its foyer for signing. The state Commission on Political Practices held that the Church should have registered as an incidental political committee, and complied with reporting requirements. (See prior posting.) The 9th Circuit, however, held that

the designation of the Church as an "incidental committee" because of its one-time, in-kind "expenditures" of de minimis economic effect violates the Church's First Amendment free speech rights.

The court also held that the Commission's interpretation of "in-kind expenditures" is unconstitutionally vague. Judge Noonan concurring argued that the case should have been decided on Free Exercise grounds. (See prior related posting.) Yesterday's Great Falls (MT) Tribune reported on the decision.

Native Americans Need Amendment To Move Smudging Ceremony Back To Illinois

The Smoke Free Illinois Act that became effective January 1, 2008 broadly bans smoking in any building open to and used by the public. Smoking includes not just cigarettes and pipes, but also "carrying ... any kind of lighted ... weed, herbs, or any other lighted smoking equipment." The statute has no exemption for religious ceremonies. Yesterday the Hancock County (IL) Journal-Pilot reported that all of this has led a group of Native Americans to move their annual Standing Bear Winter Gathering from Illinois to Iowa. An important part of the Gathering is performing the "smudging ceremony." The ceremony involves holding a small bowl with a light amount of smoke coming out of it, and using a feather to guide the smoke over a person being ritually cleansed. Participants want Illinois to follow Iowa's example and enact an exemption from the no-smoking law for religious ceremonies. Spokesman Larry Cooper says that without the exemption, the law would also apply to incense used in Catholic and Hindu services.

SB 1685, creating an exemption for "smoking that is associated with a recognized religious ceremony, ritual, or activity," was introduced in the Illinois legislature on Feb. 19. So far it has only had its first reading in the state Senate.

Former AG Says Irish Charities Bill Mass Card Provision Is Unconstitutional

In Ireland, Sec. 99 of the Charities Bill 2007 bans the sale of any Mass card except pursuant to an arrangement with a bishop of the Church or a provincial of a religious order. The bill was recently passed by both Houses of Ireland's Oireachtas and earlier this week was sent to President Mary McAleese for her signature. According to today's Irish Times, former Attorney General John Rogers says the provision is an unconstitutional infringement of free exercise of religion protected by Article 44 of Ireland's Constitution.

Reactions To Summum Opinion Vary Widely

Reactions by religious groups to yesterday's Supreme Court decision in the Summum case are varied. Some groups, like Liberty Counsel, applauded the decision, saying: "This case means that the government will not be forced to include a display devoted to atheism every time it displays a Nativity scene." Becket Fund was pleased that the Court "recognized an important exception for invited 'private messages' installed on permanent public monuments."

Summum's attorney, Brian Barnard, has a different take on the case. He says the decision opens the way for him to amend the lawsuit to challenge the constitutionality of the 10 Commandments monument that is in Pioneer Park in Pleasant Grove City. (Salt Lake Tribune.) However the Keep the Commandments Coalition says: "This decision vindicates ... the tens of thousands of people who believed in preserving the public display of the timeless values of the Ten Commandments..." (Christian Newswire.)

Groups like the Interfaith Alliance were unhappy with the decision, saying that "it allows communities to favor one religious tradition over another." AJCongress essentially agrees. (JTA). However ADL, normally a supporter of church-state separation says: "The Court's appropriately narrow decision does not disturb the bedrock constitutional principle that government may not favor one religion over another." Finally, Legal Times praises Justice Alito for setting out (in a footnote) the full text of John Lennon's lyrics to the song "Imagine."

Developments On Anti-Semitism In Europe

This week brought two developments regarding anti-Semitism in Europe. According to JTA, British Prime Minister Gordon Brown became the first world leader to sign the London Declaration on Combating Anti-Semitism. The document was adopted last week by representatives of 40 countries at the first London Conference on Antisemitism. The Feb. 19 Jewish Chronicle reports on the Conference. Anti-Semitic incidents in Britain were at an all-time high in January in the wake of the conflict between Israel and Hamas in Gaza.

Meanwhile, in France 80-year old cartoonist Maurice Sinet (known as Siné) was acquitted Tuesday by a French court in Lyon on charges of inciting racial hatred against Jews. The charges In a controversial move last year, Siné was fired from the satirical weekly Charlie Hebdo over an article in which he wrote that Jean Sarkozy, son of French president Nicolas Sarkozy, "would go far in life" as a result of marrying a Jewish heiress and converting to Judaism. The International League Against Racism and Anti-Semitism then pressed criminal charges. JTA reports that the Lyon court based its acquittal on the right to "freedom of expression on religious sentiments," saying that an opinion that is shocking does not necessarily incite racial hatred. (See prior related posting.)

Supreme Court Says Utah City Is Not Required To Place Summum Monument In Park

The U.S. Supreme Court today handed down its decision in the major religion case on this term's docket. In Pleasant Grove City, Utah v. Summum, (Sup. Ct., Feb. 25, 2009), the Court ruled unanimously that a Utah city can refuse to allow a religious group, Summum, to put up a monument containing its "Seven Aphorisms" in a public park, even though a 10 Commandments monument and other monuments are already there. The city limits monuments to either those directly related to the city's history or those donated by groups with longstanding ties to the community.

Justice Alito wrote the Court's opinion, which was joined by all justices except Justice Souter. Four concurring opinions were also filed. Justice Alito wrote:

although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

Justice Alito made it clear however that there are still some constraints on government speech, such as the Establishment Clause.

Justice Stevens' short concurrence (joined by Justice Ginsburg) expresses doubt about some of the Court's earlier "government speech" cases. He says that today's decision does "not give the government free license to communicate offensive or partisan messages" that violate the Establishment or Equal Protection clauses. Justice Scalia's short concurrence (joined by Justice Thomas) emphasizes that the park's existing 10 Commandments monument does not violate the Establishment Clause under existing precedent. He writes: "The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire."

Justice Breyer, also writing a short concurrence, says that the "government speech" doctrine needs to be seen as "a rule of thumb, not a rigid category." He looks at whether the city has imposed a disproportionate burden on Summum's freedom of expression. Justice Souter wrote a separate opinion "concurring in the judgment." He rejects the majority's categorical classification of permanent monuments as government speech. He urges that, instead, the Court should ask "whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land."

The decision reverses a ruling by the 10th Circuit in the case below. (See prior posting.) The New York Times reports on today's decision. [Thanks to Joel Sogol for being the first to report this on Religionlaw listserv.]

Presidential Events Around the Country Are Being Opened by Vetted Prayers

In a little-noticed development, President Barack Obama's town halls and speaking events around the country are being opened with invocations from invited clergy. Yesterday's U.S. News & World Report says that in an unprecedented move, the White House is not only asking clergy who are recommended by local politicians to deliver opening prayers, but is requiring vetting of the text with the White House Office of Public Liaison before it is delivered. The practice has so far not engendered controversy because the prayer is delivered before the President arrives at the event, and before cable television begins its coverage.

At least three recent events have followed this pattern: a town hall in Elkhart, Indiana; a speech in Ft. Myers, Florida on the stimulus bill; and an appearance near Phoenix (AZ) to unveil the mortgage bailout plan. At the Phoenix event, the invocation was delivered by a member of the Tohono O'odham Nation. He was required to depart from the Native American practice of improvised prayer, writing his text in advance so it could be e-mailed to the White House. Barry W. Lynn, executive director of Americans United, complained: "The only thing worse than having these prayers in the first place is to have them vetted, because it entangles the White House in core theological matters."

Wiccan Prison Chaplain Loses Equal Protection and Retaliation Claims

In McCollum v. California, 2009 U.S. Dist. LEXIS 13580 (ND CA, Feb. 23, 2009), a volunteer Wiccan prison chaplain claimed that the California Department of Corrections and Rehabilitation has not given him the same access to prisoners and facilities as it gives to chaplains of other faiths, and that it retaliated against him because of his complaints about the treatment of Wiccans in California prisons. The court held that plaintiff had not shown sufficient evidence of disparate treatment to support his equal protection claim. Nor had he proven that the temporary suspension of his volunteer privileges or the failure to hire him for a position for which he applied were because of his exercise of 1st Amendment rights. (See prior related posting.)

Rights Group Charges Continued Religious Infringements At Guantanamo

The Center for Constitutional Rights on Monday released a report titled Conditions of Confinement at Guantanamo: Still in Violation of the Law. The report focuses on conditions during January and February of 2009, saying in part:

The men detained at Guantánamo continue to suffer from religious humiliation and the inability to engage in religious practices. Continued religious abuses include the invasion of privacy and unnecessary forced nudity, the denial of the right to pray communally, and the deprivation of a Muslim Chaplain.

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.