Religion Clause

Wednesday, March 11, 2009

DC School Voucher Program Is Effectively Ended By Congress

It appears that Congress has effectively ended the school voucher program in the District of Columbia that has been popular with many parents. More than half of the students receiving vouchers attend religious-- mostly Roman Catholic-- schools. (See prior posting.) HR 1105, the Omnibus Appropriations Act of 2009, precludes use of funds after the 2009-2010 [corrected] school year for programs under the D.C. School Choice Incentive Act of 2003 unless the program is reauthorized by Congress and the District of Columbia approves the reauthorization. [at pg. 307-308 of bill.] The Omnibus Appropriations bill was approved by the Senate yesterday after previously being passed by the House. (New York Times). Originally Congress approved the D.C. voucher plan as a 5-year pilot program. According to a press release yesterday by Americans United detailing developments, it is unlikely that reauthorization and other conditions imposed by the Omnibus Appropriations Act for extending the D.C. voucher program will be met.

Yesterday, by a vote of 39-58, the Senate rejected an amendment offered by Sen. John ensign to eliminate these restrictions on the D.C. Opportunity Scholarship Program. Americans United had sent a letter (full text) to every Senator urging them to vote against the Ensign Amendment. It described the voucher program as ineffective in improving student achievement and says the program raises constitutional concerns.

Kazakhstan Court Reduces Sentence of Unification Church Missionary

In a case that has drawn the attention of international human rights groups, an appeals court in Kazakhstan has reduced the sentence of Unification Church missionary Liza Drenicheva from two years in prison to the two months she has already served. She must also pay a fine of $200 (US) and court costs of $800 (US). Today's Washington Times says that Drenicheva, who had been convicted of a "crime against peace and security of humankind" is now free to return home to Russia. The Unification Church says the woman was merely teaching its views on the doctrine of original sin when she was charged with claiming that certain groups were inferior based on their "tribal and class identity." The Unification Church is still considering an appeal in the case in order to establish the right of its missionaries to operate in the mostly-Muslim nation. Kazakhstan's treatment of minority religious groups has been an ongoing concern as the country prepares to chair the OSCE next year. (See prior related posting.)

Dutch Supreme Court Protects Criticism of a Religion From Group Insult Prosecution

In an important free speech decision Tuesday, the Supreme Court of Netherlands overturned the conviction of a man who had been charged under Article 137c of the Dutch criminal code with making offensive statements about Muslims. In 2004, after the murder by an Islamic extremist of filmmaker Theo van Gogh, defendant hung a poster in his window reading: "Stop the tumour that is Islam. Theo has died for us. Who will be next? Resist now! National Alliance, we will not bow down to Allah. Join now." The Supreme Court held that offensive statements about a religion do not constitute an insult to "a group of people according to their religion" as that term is used in Article 137c. Here is the Supreme Court's news release in Dutch describing the decision. NIS News and NRC Handelsblad both report on the case.

Drawing a fine line in an attempt to protect criticism of a religion, the Court said that Article 137c is not violated "even if that happens in such a way that the devotees feel their religious feelings are hurt." Criticism of behavior or opinions is not outlawed. Only a remark "explicitly" aimed at a group distinct from others based on its religion can be a group insult. The Court said that the same definitions will apply in the pending prosecution of Dutch politician Geert Wilders for inciting hatred and discrimination against Muslims and insulting Muslim worshippers. (See prior posting.)

Cert Filed In Case Challenging Non-Recognition of Christian Student Group

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Truth v. Kent School District. In the case, the 9th Circuit upheld the application of a Seattle, Washington school's rules against religious discrimination to Truth, a Bible study club. The organization was denied recognition as a student group because its charter limits membership to those who sign a statement of fundamentalist Christian faith. (See prior posting.) The cert petition raises issues of expressive association and of interpretation of the federal Equal Access Act. A press release by Alliance Defense Fund announced the filing of the appeal.

Tuesday, March 10, 2009

Israeli Traffic Court Says Hebrew Birthday Can Count

Arutz Sheva reported last week on an interesting Traffic Court decision in the Israeli city of Nazareth. Under Israeli law, drivers under the age of 21 may carry no more than two passengers. Chaim Frankel was stopped for a random check and charged with violating this law because he had four passengers in his car. In court, Frankel defended on the ground that he was already 21 years old according to the date on the Hebrew calendar. The court agreed. All government communications and documents in Israel use both the Hebrew and Gregorian dates. [Thanks to Religion and State In Israel for the lead.]

New Survey of U.S. Religious Identification Released

Trinity College has released its American Religious Identification Survey 2008. The study, based on questions posed to over 54,000 individuals in English and Spanish, revealed that the number of adults identifying themselves as Christian has slipped to 76% (down 10% since 1990). The sharpest decline has been in Mainline churches, while 34% of the population says they are Evangelical Christians. 25.1% are Catholic. 1.4% are Mormon. Those identifying as having no religious preference has grown to 15% (from 8.2% in 1990). 1.2% of the population identified themselves as Jewish by religion (while a larger number considered themselves ethnically Jewish). This was down from 1.8% in 1990. The Muslim population has risen from 0.3% in 1990 to 0.6% in 2008. Meanwhile, Buddhists account for 0.5% of the population. USA Today and CNN both reported yesterday on the survey. [Thanks to Scott Mange for the lead.]

California Civil Court Asked To Confirm Bet Din's Ruling On Torah Scrolls

Yesterday's Los Angeles Times reports on an unusual suit filed in Los Angeles Superior Court in which the widow of an Orthodox rabbi is asking a civil court to confirm an award by a Jewish religious tribunal. A hearing is scheduled for April 3. The case, Pauker vs. Ohana, involves the attempt since 2002 by the widow of Rabbi Norman Pauker to recover four Torah scrolls that she says were loaned for two years by her husband to his former assistant, Rabbi Samuel Ohana. The 73-year old Ohana, says that Rabbi Pauker gave the Torahs outright to him for his congregation after Pauker's synagogue closed. The bet din (Jewish religious court) apparently credited the validity of a handwritten agreement reflecting a loan of the scrolls and ordered them returned within 30 days. Ohana says his signature was pasted onto the agreement by someone else. He has now appealed to a higher religious court in Jerusalem. Since both parties had signed an agreement to abide by the bet din's ruling, however, Pauker disputes the jurisdiction of the Jerusalem court.

India's Prime Minister Says No Right To Criticize Other Religions

India's Prime Minister Manmohan Singh, speaking today to a group of Muslim girls on the occasion of Milad-un-Nabi ("Birth of the Prophet"), made an interesting assertion about the scope of free speech in the country. Press Trust of India reports that he said: "Our Constitution gives full freedom to the people to practice any religion of their choice, but it does not give anyone the license to criticize or run down other religions." India's Constitution, Art. 19, protects freedom of speech and expression.

City Hearing on Anti-Discrimination Law Generates Religious Arguments

The Kalamazoo (MI) Gazette reports on a hearing held last night by a subcommittee of the Kalamazoo City Commission on a proposed ordinance that would ban discrimination on the basis of sexual orientation. Originally City Commission adopted the ordinance in December, but a month later rescinded it pending further consideration, after petitions protesting the law were submitted. Both sides at yesterday's hearing attended by nearly 200 people invoked religious arguments. Opponents said that the ordinance would victimize religious groups and would discriminate against those whose religious beliefs teach that homosexuality is wrong. Supporting the ordinance, Rev. Matthew Laney, pastor of First Congregational Church, said: "We firmly believe these peoples' orientations are fully compatible with the godly life. They are part of God's diverse creation and God does not make mistakes."

10th Circuit Refuses Release Pending Appeal of Marijuana Church Founders

In United States v. Quaintance, (10th Cir., March 3, 2009), the U.S. 10th Circuit Court of Appeals denied a request by Mary and Danuel Quaintance-- founders of the Church of Cognizance-- for release from prison pending appeal of their convictions for allegedly religious use of marijuana. The Church teaches the use of marijuana as a central tenet. The trial court concluded that defendants' beliefs did not qualify as a religion and were not sincere. At that point, the Quaintances plead guilty, conditioned on the right to appeal their Religious Freedom Restoration Act defense. (See prior posting.) 18 U.S.C. § 3143(b)(1)(B) calls for defendants' release only if their appeal raises a substantial question of law or fact on which they are likely to prevail. The Court of Appeals concluded that this standard was not met.

Court Says Religious Tattoo Was Relevant In Penalty Phase of Murder Trial

In Robles v. Quarterman, 2009 U.S. Dist. LEXIS 17126 (SD TX, March 6, 2009), a Texas federal district court rejected a convicted murderer's free exercise challenge to evidence introduced in the penalty phase of his state court trial. The prosecution introduced into evidence defendant's tattoo that depicted a demon eating Christ's brain. The prosecutor also made reference to the tattoo in closing argument in the penalty hearing. The court concluded that this was permissible since the tattoo was relevant to a material issue, the defendant's violent character and the likelihood that he would commit future acts of criminal violence.

10th Circuit Hears Arguments In Utah Highway Patrol Cross Case

The U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in American Atheists, Inc. v. Duncan. (AP). The case involves an Establishment Clause challenge to crosses placed on public property by the Utah Highway Patrol Association to memorialize state Highway Patrol officers who died in the line of duty. The district court rejected the challenge, holding that the cross can be seen as a secular symbol of death and burial. (See prior posting.) The Becket Fund issued a press release describing oral argument:

During the argument, the judges expressed concern about whether Utah's policy would prevent troopers' families from displaying the symbols of other religions such as Stars of David.... The court also expressed interest in how this case tests the boundaries of the Supreme Court's recent decision in Pleasant Grove City v. Summum. Summum set the standard for deciding when permanent monuments are government speech, and when they are private speech. Two of the three judges in the original Summum panel are hearing this appeal, and the lawyer for Summum is also the lawyer for American Atheists.

The appellate brief filed by American Atheists, Inc. is available on Westlaw at 2008 WL 3285457. Westlaw also links to all the other briefs filed in the case. The brief filed for the Utah Highway Patrol Association, and several amicus briefs supporting their position, are linked from this ADF press release.

Saudi Court Sentences Elderly Widow To Prison and Lashes For Meeting With Men

Saudi Arabia's Commission for the Promotion of Virtue and Prevention of Vice and local Saudi courts are again under attack for their strict enforcement of Islamic law. CNN and the London Telegraph yesterday reported on the conviction of a 75-year old widow who was charged by religious police with meeting in her home with two unrelated 24-year old men-- one of whom was her deceased husband's nephew. They were bringing her several loaves of bread. Syrian-born Khamisa Sawadi has been supported by neighbors since her husband's death. She was sentenced to 40 lashes, four months imprisonment and deportation from the Kingdom for mingling with men who are not immediate relatives. The two men were also sentenced to prison terms and lashes. Sawadi had unsuccessfully argued that her husband's nephew was considered her son under Islamic law because she had nursed him as an infant. Sawadi's lawyer, Abdel Rahman al-Lahem, says he will to appeal the conviction.

Monday, March 09, 2009

President Reverses Policy on Federal Funding of Stem Cell Research

Today President Barack Obama signed an Executive Order (full text ) lifting the ban on federal funding for embryonic stem cell research. In remarks (full text) delivered before signing the Order, the President referred to the religious debate that has surrounded the issue:

[I]n recent years, when it comes to stem cell research, rather than furthering discovery, our government has forced what I believe is a false choice between sound science and moral values. In this case, I believe the two are not inconsistent. As a person of faith, I believe we are called to care for each other and work to ease human suffering. I believe we have been given the capacity and will to pursue this research – and the humanity and conscience to do so responsibly.
It is a difficult and delicate balance. Many thoughtful and decent people are conflicted about, or strongly oppose, this research. I understand their concerns, and we must respect their point of view.

But after much discussion, debate and reflection, the proper course has become clear. The majority of Americans – from across the political spectrum, and of all backgrounds and beliefs – have come to a consensus that we should pursue this research. That the potential it offers is great, and with proper guidelines and strict oversight, the perils can be avoided.

The President added some assurances:

We will develop strict guidelines, which we will rigorously enforce, because we cannot ever tolerate misuse or abuse. And we will ensure that our government never opens the door to the use of cloning for human reproduction. It is dangerous, profoundly wrong, and has no place in our society, or any society.

Reactions from religious groups, which came quickly after news of plans for today's Executive Order became known on Friday, varied. The Interfaith Alliance called the decision "good news for science and religion," saying that "the ban instituted by President Bush was based on the views of a select group of faiths rather then on sound science." JTA reports that Jewish groups also praised Obama's decision, focusing on the importance in Judaism of saving lives. The Vatican on the other hand strongly condemned the policy reversal. The International Herald Tribune quotes from an article in Saturday's L'Osservatore Romano which called embryonic stem cell research "deeply immoral." The Family Research Council issued a statement on Friday calling the move by the President "yet another deadly executive order."

UPDATE: The White House List of Attendees at the President's signing of the Stem Cell Executive Order and Scientific Integrity Presidential Memorandum includes seven religious leaders: (1) Maureen Shea, Episcopal Church USA Director of Government Relations; (2) James Winkler, United Methodist Church Secretary of the General Board of Church and Society; (3) Rabbi Steve Gutow, Jewish Council for Public Affairs; (4) Rev. Welton Gaddy, Interfaith Alliance; (5) Nancy Ratzan, National Council of Jewish Women; (6) Nathan Diament, Union of Orthodox Jewish Congregations; (7) Rabbi David Saperstein, Religious Action Center for Reform Judaism.

Former Catholic Schools Try To Still Teach Values As Public Charter Schools

Today's New York Times reports on the effort to maintain Catholic values in seven Washington, D.C. parochial schools that converted to publicly funded charter schools this year. Instead of opening each day with the Lord's Prayer, students recite the school's honor code. Much of the curriculum focuses around 10 core values. Many students and teachers however still miss religion classes, references to scripture and the crosses that used to hang in classrooms.

Connecticut Bill Would Reform Financial Management of Catholic Parishes

In Connecticut, the Catholic Church is strongly criticizing a bill introduced in the state legislature last week to reform oversight of finances in Catholic parishes. Yesterday's Stamford (CT) Advocate reports that Raised Bill No. 1098 (full text) was introduced in response to the conviction of a Darien (CT) priest who stole $1.4 million in donations over several years. Under the proposed bill, any Catholic parish organized as a religious corporation would be required to elect a lay board of between 7 and 13 members to manage and oversee its financial affairs. A nominee of the bishop or archbishop will serve as an ex-officio member of each parish board. The bill provides, however, that it shall not be construed to limit the power of the bishop or pastor in matters pertaining exclusively to religious tenets and practices. Complaining that the bill is an atttempt to interfere in the internal affairs of the Church, a statement by the Diocese of Bridgeport says in part:

This bill violates the First Amendment of the United States Constitution. It forces a radical reorganization of the legal, financial, and administrative structure of our parishes. This is contrary to the Apostolic nature of the Catholic Church because it disconnects parishes from their Pastors and their Bishop.... This bill, moreover, is a thinly-veiled attempt to silence the Catholic Church on the important issues of the day, such as same-sex marriage.

UPDATE: The Meriden (CT) Record and The Hour reported Tuesday that the bill has been withdrawn from consideration for this legislative session while constitutional issues surrounding laws currently governing religious groups are reviewed. Tuesday's scheduled hearing on the bill was cancelled.

UPDATE 2: Here is the full text of a letter sent by 12 prominent law professors challenging the constitutionality of the bill before it was withdrawn.

Catholic Group Says Austalian Abortion Law Violates International Treaty

Last October, the Australian state of Victoria passed the Abortion Law Reform Act of 2008. Section 8 of the Act provides that

If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—
(a) inform the woman that the practitioner has a conscientious objection to abortion; and
(b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

Melbourne's The Age yesterday reports that Catholic Health Australia is calling on the federal Attorney General to declare the provision in violation of the International Covenant on Civil and Political Rights. An interpretive Comment (Par. 3) to the Covenant provides that "No one can be compelled to reveal his thoughts or adherence to a religion or belief." Attorney-General Robert McClelland so far has refused to take any action, but some senators from his own party are calling on him to reconsider.

Illinois Senate Committee Tables Proposed Change In Moment of Silence Law

As previously reported, an appeal is pending in the U.S. 7th Circuit Court of Appeals in a case which found Illinois' current moment of silence law an unconstitutional violation of the Establishment Clause. Last month, Sen. Kimberly Lightford, sponsor of the original bill, introduced an amendment to make the provision more clearly neutral and less likely to be seen as supporting prayer as the preferred alternative during the moment of silence. (Full Text of SB1658.) A Chicago Tribune column reports on the state Senate's Education Committee hearing on the amendment held last Thursday. When Lightford indicated that the proposal would likely moot the pending appeal, the Committee tabled the bill in the middle of a roll call vote, preferring to wait to see how the court rules. Eric Zorn's Tribune column says this demonstrates that proponents are motivated by the desire to encourage prayer.

Sunday, March 08, 2009

Recent Prisoner Free Exercise Cases

In Smithback v. Crain, (5th Cir., March 5, 2009), the U.S. 5th Circuit Court of Appeals held that a prisoner's religious exercise was not substantially burdened by a prison rule that prohibits drawings or messages-- including religious ones-- on the outside of envelopes being mailed from prison.

In Strope v. Cummings, 2009 U.S. Dist. LEXIS 15720 (D KS, Feb. 26, 2009), a Kansas federal district court found no substantial burden under the 1st Amendment or RLUIPA on an inmate's free exercise rights, rejecting allegations relating to religious call outs, the amount of time for Sabbath services and the quality of kosher food. In a related decision involving the same prisoner, in Strope v. McKune, 2009 U.S. Dist. LEXIS 15730 (D KS, Feb. 27, 2009), the same court rejected a related complaint regarding the availability and quality of kosher food.

In Plater v. Superintendent, Cayuga Correctional Facility, 2009 U.S. Dist. LEXIS 16225 (ND NY, March 2, 2009), a New York federal district court held that in a prisoner's challenge to denial of good time credit for failing to complete the prison's alcohol and substance abuse program, the prisoner had procedurally defaulted on his First Amendment challenge to the program. Also his challenge was vague and conclusory.

In Gresham v. Granholm, 2009 U.S. Dist. LEXIS 16092 (WD MI, Feb. 25, 2009), a Michigan federal district court rejected a prisoner's challenge to the prison's no-smoking rule. Plaintiff alleged that his right to practice his religion of white witchcraft was infringed by the rule. The court also rejected plaintiff's equal protection and 8th Amendment claims.

In Proverb v. O'Mara, 2009 U.S. Dist. LEXIS 16078 (D NH, Feb. 13, 2009), a New Hampshire federal magistrate judge, recommending dismissal of an inmate's free exercise claim, held that attendance at Bible study groups was not essential to the exercise of plaintiff's religious beliefs where no other denial of access to religious programming, services, or materials was claimed. Plaintiff had been denied access to Bible study classes for several months. Among plaintiff's numerous other claims, the court permitted him to move ahead with a challenge to a correctional officer's actions in forcing plaintiff to repeatedly state "I love Black people."

In Nickles v. Taylor, 2009 U.S. Dist. LEXIS 16832 (D NJ, March 4, 2009), a New Jersey federal district court dismissed plaintiff's challenge to the practice of furnishing Muslim inmates vegetarian meals, but not Halal meals containing meat. The court however said plaintiff could reopen the case if he is able to supplement his pleadings to demonstrate that his claim is not controlled by a prior 3rd Circuit decision on which the court relied.