Air Force Investigating Commander's Promotion of Religious Website Video

Today's New York Times reports that the Air Force has begun an investigation into whether its policy on religious neutrality was breached when a commander sent an e-mail to thousands of personnel in her 501st Combat Support Wing in Europe urging them to view an inspirational video on Catholic website. The video promoted by Col. Kimberly Toney depicted the life story of a man born without arms or legs who says his faith in Jesus is what helped him overcome his physical limitations. Apparently some who visited the website were more offended by other items they found there, including one comparing President Obama's support for abortion rights to activities of Hitler.

Interim Guidelines adopted by the Air Force in 2006 provide that "leaders at every level bear a special responsibility to ensure their words and actions cannot reasonably be construed to be officially endorsing nor disapproving any faith belief or absence of belief.... [S]uperiors need to be sensitive to the potential that their personal expressions may appear [to subordinates] to be official..." (See prior related posting.)

UPDATE: As a comment to this posting indicates, the continuing authority of the Air Force's 2006 Guidelines is unclear. The Conference Committee Report for the 2007 Defense Appropriation Act directed the Air Force to rescind the policy and reinstate 1999 Guidelines on the chaplains' service. (See prior posting.) Shortly thereafter, the Air Force did issue new guidelines for chaplains, reflecting its 1999 policy. (See prior posting.) However those new guidelines do not explicitly mention repeal of the 2006 Interim Guidelines. Moreover the new Guidelines govern activities of chaplains, but do not mention responsibilities of commanders regarding endorsement of religion. Finally subsequently the Air Force's publication Air Force Call republished the 2006 Guidelines indicating that they are still in effect.

Appellate Court OK's Order To Remove Bible From Counsel's Table At Trial

A Texas state appellate court has upheld a trial court's order that a criminal defendant in a drug trial remove a Bible that he wanted to have on counsel's table in front of him. Defendant was still permitted to have the Bible nearby, but was required to place it in a less prominent location. In Alexander v. State of Texas, (TX Ct. App., March 11, 2009), the court emphasized that a trial court has inherent power to restrict displays that might detract from orderly proceedings focused on the issues to be tried. Further it concluded that absent a showing that defendant's religion in some way required him to display the Bible, there was no exercise of religion involved in merely having a book displayed to jurors.

Harassment Charges Held Nonjusticiable Under Establishment Clause

In Destfino v. Kennedy, 2009 U.S. Dist. LEXIS 18138 (ED CA, Jan. 8, 2009), plaintiffs filed a wide-ranging complaint against numerous defendants, including a church, alleging that defendants made fraudulent misrepresentations to induce plaintiffs to enter into home and auto loans in a debt elimination program. In part of its decision, a California federal district court dismissed as nonjusticiable allegations that defendants harassed certain of the plaintiffs-- including threatening to cut their son off from Church ministry participation-- when plaintiffs reported the fraud to church elders. Church elders told plaintiffs to remain silent about the charges. The court concluded that these allegations involve church governance and operations so that adjudicating them would violate the Establishment Clause.

Challenge To Inaugural Oath and Prayers Dismissed On Standing Grounds

Just prior to President Barack Obama's inauguration, the District Court for the District of Columbia refused to issue a preliminary injunction to prevent the Chief Justice from administering the oath of office using the phrase "so help me God" and also refused to preliminarily enjoin clergy delivering an invocation and benediction at the ceremony. (See prior posting.) Yesterday in Newdow v. Roberts, (D DC, March 12, 2009), the court dismissed the case entirely finding that plaintiffs lack standing. It concluded that "plaintiffs have failed to demonstrate that an injunction against any or all of the defendants could redress the harm alleged suffered by plaintiffs." The court also held that plaintiff Michael Newdow was precluded from litigating his standing to challenge clergy-led prayers at the inauguration because of his participation in prior litigation that unsuccessfully raised the same issue.

Two days prior to the decision, plaintiffs submitted a motion seeking to file an Amended Complaint (full text of complaint) adding 230 individual plaintiffs and adding the U.S. Secret Service and the U.S. Marshalls Office as defendants. The court's opinion dismissing the case said in a footnote that while it was not yet formally ruling on that motion: "the additional plaintiffs are similarly situated to the current plaintiffs, and the speculative nature about what will occur at the next two Inaugural ceremonies lacks any persuasive value." Bob Ritter, co-counsel for plaintiffs, says that an appeal of the dismissal order is planned. See press materials from Appignani Humanist Legal Center. [Thanks to Bob Ritter for the lead.]

Arizona Appellate Court Upholds Corporate Scholarship Tax Credits

In a 2-1 decision in Green v. Garriott, (AZ Ct. App., March 12, 2009), an Arizona state court of appeals has rejected state and federal constitutional challenges to the state's income tax credit for scholarship contributions from corporations. Contributions are made to non-profit school tuition organizations that use the funds for scholarships to nonpublic schools. 70% of the scholarships are awarded through religious STO's. Rejecting a federal Establishment Clause challenge, the majority said that:

Given the neutrality of the statute, and the multiple layers of private choice that stand between the legislature’s decision to provide a corporate tax credit and the eventual acceptance of scholarship funds by sectarian schools, we do not believe the Establishment Clause has been violated.

The court also rejected the argument that the tax credit violates state constitutional provisions prohibiting the laying of taxes or appropriation of public money to aid any private or religious school. Finally the court rejected the argument that the tax credit violates the state's responsibility , set out in the Arizona Enabling Act, to maintain a system of public schools.

Dissenting in part, Judge Kessler argued that the tax credit raises Establishment Clause problems because "the record raises questions as to the tax program's secular purpose, that Arizona tax scheme is not neutral with respect to religion and does not provide benefits directly to a wide spectrum of individuals defined without reference to religion." He explains:

The statutory scheme does not limit either the STOs or the recipient private schools from discriminating on the basis of religion on who will receive tuition scholarships from the tax credits. Indeed, the complaint alleges both the STOs and the recipient schools do and will discriminate on the basis of religion....

§ 43-1183 has an aggregate annual limit of tax credits. Thus, it is possible ... to have several corporations use the entire aggregate tax credit in any year ... to fund scholarships to one STO, which will only fund schools of one religious denomination....

The Arizona Capitol Times reports on the decision.

Georgia House Passes Bill Permitting Adoption of Embryo

According to a press release by Georgia Right to Life, yesterday the Georgia state House of Representatives pased by a vote of 96-66 and sent on to the Senate the Option of Adoption Act (HB 388). The Act deals with excess embryos created through in vitro fertilization procedures. It provides procedures for legal transfer of such embryos to other women for implantation. The bill not only confirms that the person giving birth to the transferred embryo will be considered the legal parent, but also allows formal adoption of the embryo before birth. The bill appears to permit expedited adoption of the embryo by the "recipient intended parent" even before the embryo is transplanted into the woman's womb. Clarke Forsythe, senior counsel of Americans United for Life, said: "This bill is very timely given the need to humanize the embryonic human at a time when at the federal level embryonic stem cell research is being promoted."

Pope Apologizes For His Outreach To Holocaust Denier

In a letter (full text) to Catholic bishops described by a Vatican spokesman as an "unusual document worthy of great attention" (Zenit), Pope Benedict XVI has essentially apologized for the confusion created by his lifting of the excommunication of Holocaust-denying Lefebvrite Bishop Richard Williamson. (See prior posting.) In an admission that may reflect generational divides as much as anything else, Benedict said:

I have been told that consulting the information available on the internet would have made it possible to perceive the problem early on. I have learned the lesson that in the future in the Holy See we will have to pay greater attention to that source of news.

Much of the Pope's letter focused on his distress over the fact that his action "momentarily upset peace between Christians and Jews, as well as peace within the Church." Then, in a surprisngly candid statement, he continued:

I was saddened by the fact that even Catholics who, after all, might have had a better knowledge of the situation, thought they had to attack me with open hostility. Precisely for this reason I thank all the more our Jewish friends, who quickly helped to clear up the misunderstanding and to restore the atmosphere of friendship and trust which -- as in the days of Pope John Paul II -- has also existed throughout my pontificate and, thank God, continues to exist.

The Pope's letter went on to emphasize that the issue underlying the Church's split with the Society of St. Pius X that ordained Williamson and others is the need for Catholics to accept the pronouncements of Vatican II. He said: "The Church's teaching authority cannot be frozen in the year 1962..."

Moving to assure that Catholic-Jewish relations would continue on a positive note, the Pope met with a delegation from the Chief Rabbinate of Israel and the Holy See Commission for Religious Relations With the Jews. At the meeting, he spoke forcefully of the importance of continued Catholic-Jewish dialogue. (Zenit.) After the meeting, Shear-Yashuv Cohen, the chief rabbi of Haifa, said that the dispute between Jewish leaders and the Pope that followed the Williamson affair is now over. (Zenit.) An AP story (via Institute for Religion and Public Policy) also reports on the Pope's letter.

Saudi Academy In Virginia Makes Some Improvements In Textbooks

Since 2007, the U.S. Commission on International Religious Freedom has been highly critical of the textbooks used by the Islamic Saudi Academy in Fairfax, Virginia. The 900-student school with close ties to the Saudi government operates in a former high school building leased from Fairfax County. It has been charged with using textbooks containing passages that incite religious intolerance and violence. (See prior postings 1, 2.) In response to U.S. criticism, last year the school developed new texts for all grades. Yesterday the AP reported on its review of those new books, concluding:

While the Islamic Saudi Academy deleted some of the most contentious passages from the texts, ... enough sensitive material remains to fuel critics who claim the books show intolerance toward those who do not follow strict interpretations of Islam.

Court OK's Most of Land Seller's Challenges To Muslim Group Zoning Denial

In Moxley v. Town of Walkersville, (D MD, March 6, 2009), plaintiffs alleged that their proposed sale of land to the Ahmadiyya Movement of Islam, Inc. was blocked by government officials and private citizens in concerted actions motivated by anti-Muslim hostility. The 17-count lawsuit alleges violations of RLUIPA, the federal Fair Housing Act and Maryland constitutional, statutory and common law. At issue was Walkersville's denial of a special exception to permit the land to be used for a mosque, a residence for the imam and for an annual 3-day religious event.

In the case, the court dismissed a few of the claims but permitted plaintiffs to proceed with others. The court held that the Town of Walkersville has governmental immunity as to certain of the state law damage claims. It held that RLUIPA claims may not be brought against individual government officials in their personal capacity. The court however refused to dismiss claims at this point against various city officials who had asserted legislative immunity for their challenged acts. It refused to dismiss charges of conspiracy between public officials and private citizens to violate plaintiffs' civil rights in violation of 42 USC 1983 and 1985(3). The court also rejected various qualified immunity defenses. Yesterday the Gaithersburg (MD) Gazette reported on the decision.

UPDATE: An Aug. 27, 2009 AP report says that a settlement has been reached in the case. Terms of the settlement were not disclosed.

Archbishop Criticzes HHS Nominee Sebelius For Her Pro-Choice Views

Catholic Action yesterday published an interview with Kansas City Archbishop Joseph Naumann on his actions regarding Kansas Gov. Kathleen Sebelius, a Catholic who has long supported abortion rights. Sebelius is President Obama's nominee to serve as Secretary of Health and Human Services. Last year Naumann wrote Sebelius asking her not to receive Holy Communion. He says he made the letter public because he was "concerned about others being misled by her presenting herself as a faithful Catholic while holding positions that were completely contrary to our teaching on the sanctity of human life." Commenting on Sebelius' nomination to head HHS, Naumann said:

this just elevates to the national level another Catholic who is inconsistent in the practice of her faith. Now she is joining Vice President Biden, Speaker Pelosi and a whole raft of others in the senate and congress which I think are sending very confusing messages. It certainly is not a reason to rejoice to have yet another Catholic, in a prominent national position, sending a very confusing message to her fellow Catholics by her position on abortion.

... Unfortunately, I think that anyone this president appoints is not going to be someone who is sensitive to the sanctity of human life. That is an unfortunate consequence of the choice of the American people in the last election.

Supreme Court's Asylum Decision Important For Victims of Religious Persecution

Last week the U.S. Supreme Court decided Negusie v. Holder, (Sup. Ct., March 3, 2009). It held the provision in U.S. immigration law that denies asylum to anyone who assisted in persecution of others does not necessarily apply to those whose assistance was coerced. A release from the Becket Fund praising the decision points out that it has important implications for victims of religious persecution. Becket Fund's amicus brief in the case argued: "Authoritarian governments around the world and throughout history have forced religious people to participate in the persecution of fellow believers in order to violate their own consciences. The reason is simple: conscience is a threat to tyranny."

Afghanistan Supreme Court Upholds 20-Year Blasphemy Sentence

Today's International Herald Tribune reports that Afghanistan's Supreme Court last month upheld a 20-year prison sentence for blasphemy imposed on an Afghan university student for distributing an article about the role of women in Islam. Originally 24-year old Parwiz Kambakhsh was sentenced to death, but after international protests (see prior posting) an appeals court imposed the reduced sentence that has now been confirmed by the Supreme Court.

Iran's Attorney General Reaffirms Ban On Baha'is

Iran Press Watch yesterday posted an English translation of a recently-published letter from Iran's Attorney General, Ayatollah Qorban-Ali Dorri-Najafabadi, to the country's Minister of Intelligence, Muhseni-Azheh'i. The lengthy undated letter lays out the basis for the banning of the Baha'i faith in Iran. Here are some excerpts:

Acceptance of multiplicity and diversity in a society is among its instruments of liberty - including freedom of thought and decision.... On this basis, various [political] parties and groups may function legally as long as they do not violate the principles of independence, liberty, national unity, Islamic provisions, and the fundamental laws of the Islamic Republic....

Religious minorities are defined and delineated in the luminous religious law [of the Shiites] and the nation’s Constitution, and except for those enumerated in Articles 12 and 13, no others are permitted to be active....

In consideration of the aforesaid, and the methods, history and record of the political-intelligence organization Baha'ism, they are not among the political parties or legal associations that are licensed for activity, nor are they listed among the divine religions, nor do they meet the definition of religious minorities.

[S]aid organization [i.e. the Baha'i community] has been directly in touch with foreign enemies of the people of Iran, and they have long-established and firm connections with the Zionist regime [Israel]. Moreover, they ... carry out propaganda, teaching, socio-economics, educational, and humanitarian activities, thereby collecting information, penetrating and undermining the foundations of the people’s beliefs.

Therefore, in accordance with policies and instructions previously issued by the Islamic Revolutionary Attorney General ... which prohibited every form of activity by the aforementioned movement [i.e. the Baha'i Faith], once again the same prohibition is promulgated.

EEOC Data Shows Rise In Religious Discrimination Complaints

The U.S. Equal Employment Opportunity Commission yesterday released its enforcement and litigation statistics for the fiscal year ending Sept. 30, 2008. They show an overall 15% rise in workplace discrimination complaints from the prior year. The number of religious discrimination complaints went up 13.6%, from 2,880 in 2007 to 3,273 in 2008. (Charge statistics.) The detailed data on religion-based charges shows that the EEOC found no reasonable cause in 62.5% of the religious discrimination cases. Non-litigation settlements resulted in payment of $7.5 million in damages during FY 2008.

Religious Groups Oppose Proposed NY Limitations Extension For Absue Cases

Today's New York Times reports that Catholic and Orthodox Jewish groups are lobbying hard against a proposed bill that would extend the statute of limitations for filing of civil child sexual abuse cases. The bill, A2596 and S2568, which now has a good chance of passing, would give a one-time one year window for victims to file no matter how long ago the abuse occurred, and then would extend the limitations period to ten years after the victim turns 18. (Background). Catholic Church leaders, who say the bill is designed to bankrupt the Church, are leading the opposition. Recently though they have been joined by leaders of Hasidic and Sephardic Jewish institutions in Brooklyn which may face similar abuse claims. Opponents claim that memories are unreliable as to decades-old events. They also complain that the bill applies only to religious and private institutions, while leaving victims of abuse by public school teachers with a very short statute of limitations-- 90 days after turning 18. [Thanks to Steven H. Sholk for the lead.]

Court Asks For Further Briefing On Praying Employees' Free Exercise Claim

In Shatkin v. University of Texas at Arlington, 2009 U.S. Dist. LEXIS 18018 (ND TX, March 10, 2009), two former employees asserted free speech and free exercise claims after they were fired by the University of Texas for inappropriate conduct. At issue was plaintiffs' praying for a co-employee who they said was "demonically oppressed" by going to that employee's cubicle after work on a day the employee was not there to pray and dab olive oil on the cubicle doorway. The court rejected plaintiffs' free expression claims, finding that as public employees they were protected only for speech made as citizens on a matter of public concern. As to plaintiffs' free exercise claim, the court asked plaintiffs for additional briefing on whether the Pickering test that controls public employee speech also applies to public employees' free exercise claims as contended by defendants. (See prior related posting.)

Minnesota Will Offer First State-Run Shariah-Compliant Home Sales

An editorial in Investor's Business Daily yesterday says that the state of Minnesota is about to become the first to offer a state-run Shariah-compliant home lending program. The Minnesota Housing Finance Agency will buy homes with tax funds and then resell them to Muslim buyers in installment sales at a higher price (in lieu of charging interest). MHFA has posted on its website the Murabaha Agreement that will be used in such sales. The IBD editorial calls for the ACLU or someone else to challenge the state program as a violation of the Establishment Clause.

Turkish Magazine Forced To Scrap Cover Story On Darwin

The deputy head of Turkey's Scientific and Technological Research Council (TUBITAK) apparently pressured the editor of the organization's popular magazine, Science and Technology, to remove this month's planned cover story honoring Charles Darwin on his 200th birthday. Media indicate that the journal's editor was also removed. AFP reported yesterday that the censorship was apparently undertaken by religiously motivated personnel who the government has favored for appointments to senior positions at TUBITAK. Turkish Muslims generally oppose teaching of Darwin's ideas on evolution. State Minister Mehmet Aydin, who oversees TUBITAK, however criticized the suppression of the article, even though he believes that evolution is a "mistaken" theory. [Thanks to Jack Shattuck for the lead.]

Federal Appellate Courts Hear Oral Arguments In Two Cases of Interest

Two cases of interest were argued in federal appeals courts yesterday. The 10th Circuit Court of Appeals heard arguments in Corder v. Lewis Palmer School District No. 38. In the case, a Colorado federal district court below upheld the actions of a high school principal who, in 2006, forced a student graduation speaker to apologize for including unauthorized religious material in her 30-second portion of a joint graduation speech. (See prior posting.) Liberty Counsel, which represents the student appealing the case, issued a press release about the oral argument.

The 6th Circuit heard arguments in Pedreira v. Kentucky Baptist Homes For Children, Inc. In the case below, a Kentucky federal district court dismissed on standing grounds a state taxpayer's Establishment Clause challenge to Kentucky's payment for placement of children in a home that operates a religious-based program. (See prior posting.) USA Today reported on the oral arguments.

9th Circuit Hears Arguments In CLS Challenge To Hastings Law School Rules

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral argument in Christian Legal Society v. Kane. A recording of the full oral argument is available online. In the case, a California federal district court below held that Hastings Law School may apply its policy against discrimination on the basis of religion and sexual orientation to a student religious group seeking formal recognition. (See prior posting.) All the briefs and other litigation documents are available from the Christian Legal Society website. [Thanks to The Center Blog for the lead.]

UPDATE: National Law Journal reports that Judge Kozinski's questioning focused on whether the case was controlled by the court's earlier decision in Truth v. Kent School District-- in which a cert petition has just been filed. (See prior posting.)