9th Circuit Finds Chinese Christian Refugee Has Fear of Political Persecution

In Li v. Holder, (9th Cir., March 23, 2009), the U.S. 9th Circuit Court of Appeals held that the Board of Immigration Appeals wrongly rejected an application for asylum by Xun Li, a former member of a Christian house church in China who had come to the U.S. after Chinese police questioned him, beat him and sent him to a labor camp. The action was taken against Li because he had given shelter to two North Korean Christians who had fled to China. The court concluded that this created a presumption that Li had a well-founded fear he would suffer persecution on account of his political opinion if he returned to China. It disagreed with the Immigration Judge's conclusion that Li merely faced legitimate prosecution in China since no Chinese law banned giving assistance to illegal aliens. In a 31-page opinion, the court explained:

Li refused to obey the nebulous, unwritten policy that undocumented North Korean refugees should receive no aid from Chinese citizens, rather than leaving the refugees to starve, abject and unsheltered, or reporting them to the government to face repatriation and possible execution. Li was motivated by a moral obligation to protect and ease the suffering of the refugees... Though Li did not explicitly state his political disagreement with the policy until he was detained and interrogated, his actions clearly indicated his opposition before that point. One who is persecuted for protesting with lawful deeds is just as worthy of asylum under our laws as one who protested with words.... Thus, Li's defiance of his government's unofficial policy gives rise to an inference that the ensuing attacks and beatings were on account of his political opinion, particularly when no other logical explanation for the attacks exists....

Concluding that Li had been subjected to political persecution, the court did not need to reach his claim of religious persecution, even though Chinese police had also questioned Li about his church affiliation. The court remanded the case for a determination of whether changed country conditions rebut the presumption of fear of future persecution. National Law Journal reports on the decision. [Thanks to Alliance Alert for the lead.]

Episcopal Priest Designated Chief Judge of U.S. Court of Federal Claims

On Monday, the White House announced that President Obama has designated U.S. Court of Federal Claims Judge Emily C. Hewitt to serve as Chief Judge of the court. The promotion took effect on March 11. Episcopal Life reports that Hewitt is an Episcopal priest. She was one of the eleven women ordained to the priesthood in 1974 in contravention of then-prevailing Church doctrine that only permitted men to be ordained. In 1977, the General Convention and the House of Bishops opened the priesthood to women and provided for Hewitt and others to be recognized. Hewitt is a graduate of Cornell University, Union Theological Seminary and Harvard Law School.

White House Announces This Year's Easter Egg Roll

The White House on Monday announced details of this year's White House Easter Egg Roll. For the first time, tickets will be distributed online instead of in advance so that more families and children from around the country can gain admittance. This year's theme will encourage youth to lead healthy and active lives. The event, on Monday April 13, will be open to children age 10 and under and will offer a day of sports, cooking classes, musical performances, and storytelling as well as the traditional Easter egg roll.

Court Tells FDA To Reconsider "Plan B" Restrictions

In Tummino v. Torti, (ED NY, March 29, 2009), a New York federal district court ordered the U.S. Food and Drug Administration to reconsider the restrictions it previously placed on distribution of "Plan B", an emergency contraceptive. Under FDA rules adopted in 2006 (FDA's Q&A), women 18 and over may obtain the drug without a prescription, but only upon showing identification to a pharmacist. It is available only by prescription to women 17 and under. The court concluded that the FDA's decision-making on the drug had departed from normal procedures, was motivated by political considerations, and was not the result of reasoned and good-faith agency decision making. (See 2005 GAO Report.) The court also ordered that within 30 days the FDA modify its rules to make Plan B available to 17-year olds on the same non-prescription basis that it is now available to those 18 and over. Reuters reports on the decision.

A press release from Pharmacists for Life International in reaction to the ruling said: "Hundreds of women have had serious side effects from Plan B as it has killed millions of preborn babies." The Family Research Council complained that: "This ruling jeopardizes girls' health and the ability of parents to care for their daughters' physical and emotional well-being." However Advocates for Youth applauded the decision, saying that it gives the FDA a chance to "ensure that science, not ideology, dictates all future decisions."

British Court To Hear Challenge to Ban On Hindu Funeral Pyres

In Britain, a high court today begins a 3-day hearing in a challenge by an elderly Hindu man to Newcastle's ban on open-air cremations. Both the Guardian and the Telegraph report on the test case brought by the founder of the Anglo-Asian Friendship Society. Davender Ghai asserts that if Britain's 1902 Cremation Act is read to ban outdoor cremations, it violates the European Convention on Human Rights. Ghai claims that Newcastle's City Council discriminated against him on the basis of race and religion when it denied his request that, upon his death, he be cremated on a funeral pyre as required by Hindu tradition. Justice secretary Jack Straw supports the city, arguing that the restrictions are justified by public health and safety. (See prior related posting.)

Obama Will Speak At Notre Dame; Some Catholics Protest

On Friday, the White House announced that President Barack Obama will be the commencement speaker at three universities this spring. One of those is Notre Dame. A press release from Notre Dame indicated that the President will also be awarded an honorary doctor of laws degree. LifeSite News reported yesterday that since the announcement, Notre Dame has been deluged with criticism from those who believe the invitation should be withdrawn because of Obama's pro-abortion positions. Notre Dame President Fr. John Jenkins says that the honorary degree "is not intended to condone or endorse his position on specific issues regarding life." Jenkins also commented: "You cannot change the world if you shun the people you want to persuade, and if you cannot persuade them show respect for them and listen to them."

The Cardinal Newman Society, however, is circulating an online petition that calls it "an outrage and a scandal that ... one of the premier Catholic universities in the United States, would bestow such an honor on President Obama given his clear support for policies and laws that directly contradict fundamental Catholic teachings on life and marriage." As of Monday evening, the CNS website said that there were over 46,000 signers on the petition. [Thanks to PewSitter for the lead.]

UPDATE: Bishop John D'Arcy of the Diocese of Fort Wayne-South Bend (where Notre Dame is located) says he will refuse to attend Notre Dame's commencement in protest of President Obama's policies on stem cell research and abortion. (Munice (IN) Star Press.) [Thanks to Scott Mange for the lead.]

Christian Baptism Center Dedicated In Jordan

In the largely Muslim nation of Jordan last week, Baptist leaders and other dignitaries attended a dedication of a new evangelical Christian baptism center located by the Jordan River near the site it is believed Jesus was baptized. The site, which is operated as a national park, was promised to the Baptist World Alliance by Jordan's King Abdullah II during a 2007 meeting. Associated Baptist Press reported yesterday that among those speaking at the dedication was former British prime minister Tony Blair, who is now a special envoy to the Middle East for the UN, EU, US and Russia.

Cert. Denied In "Understanding Evolution" Website Case

Today the U.S. Supreme Court denied certiorari in Caldwell v. Caldwell, (Docket No. 08-858). (Order List.) In the case, the U.S. 9th Circuit Court of Appeals dismissed for lack of standing plaintiff's Establishment Clause challenge to certain content on an "Understanding Evolution" website created and maintained by the University of California Museum of Paleontology and funded in part by the National Science Foundation. Plaintiff objected to statements on the website declaring that evolution and religion are not incompatible. (See prior posting.)

On-Campus Released Time Program Enjoined

In H.S. v. Huntington County Community School Corp., 2009 U.S. Dist. LEXIS 22488 (ND IN, March 19, 2009), an Indiana federal district court accepted a magistrate's recommendation and issued a preliminary injunction barring released-time religious classes on school property during school instructional time. At issue was the released time program at Horace Mann Elementary School in Huntington County (IN). Religious classes there were offered in a trailer owned by a church organization. The trailer was driven to the school and parked in its parking lot. School officials claimed that there is no reasonable way to park the trailer off premises and conduct the released time program in its current time allotment.

After concluding that plaintiff, a parent of a Horace Mann student, has standing, the court went on to find that plaintiff is likely to succeed on the merits of her Establishment Clause claim. In reaching that conclusion, the court relied largely on Supreme court decisions in McCollum v. Board of Education and Lemon v. Kurtzman. The school argued that for safety purposes, the trailer needed to be located on campus. The court agreed that while this was an appropriate secular motivation, nevertheless the arrangement would be seen by a reasonable observer as an unconstitutional endorsement of religious doctrine.

In Jews for Jesus Challenge, Revised Oyster Bay Permit Rules Held Invalid

In People v. Mendelson, (NY Nassau Co. Dist. Ct., March 19, 2009), a New York state trial court dismissed criminal charges brought against a "Jews for Jesus" missionary for distributing literature at a concert in an Oyster Bay (NY) park without obtaining a permit. She refused to accept a permit that would limit her to a fixed table, and insisted on circulating among concertgoers to speak with them. The court held that the town's revised permit requirements (see prior posting), drafted in response to the invalidation of the town's earlier rules (see prior posting), are unconstitutional. The court found the regulations overly broad because, on their face, they are not limited to demonstrations and activities during special events, "but apply to any person, at any time, anywhere in a Town Park or recreational facility." The court said that if the regulations are amended to apply only to special event and demonstration days, they would be upheld. It refused however to accept as sufficient representations by the town's Parks Commissioner that the broadly drafted regulations would in fact be applied only in those circumstances. A release by Alliance Defense Fund discusses the decision.

Recent Articles and Books of Interest

From SSRN:

• Robert Eli Rosen, Samson the Judge: Religion and Violence in Milton's SAMSON AGONISTES, University of Miami Legal Studies Research Paper No. 2009-09, March 6, 2009).

From SmartCILP:

• Celine Abramschmitt, The Same-Sex Marriage Prohibition: Religious Morality, Social Science, and the Establishment Clause, 3 Florida International University Law Review 113-186 (2007).
• Mark W. Cordes, Religion as Speech: The Growing Role of Free Speech Jurisprudence in Protecting Religious Liberty, 38 Southwestern Law Review 235-286 (2008).
• Jay Michaelson, Chaos, Law, and God: The Religious Meanings of Homosexuality, 15 Michigan Journal of Gender & Law 41-119 (2008).
• Yuval Sinai, The Doctrine of Affirmative Defense in Civil Cases--Between Common Law and Jewish Law, 34 North Carolina Journal of International Law & Commercial Regulation 111-178 (2008).

Recent Books:

• Thomas F. Farr, World of Faith and Freedom: Why International Religious Liberty is Vital to American National Security, (Oxford Univ. Press, 2008).
• David Novak, In Defense of Religious Liberty, (ISI Books, 2009).
• Stephen Spector, Evangelicals and Israel: The Story of American Christian Zionism, (Oxford Univ. Press, Nov. 2008).

Suit Challenges Religious Lyrics Planned For School Assembly

Today's St. Augustine (FL) Record reports on a lawsuit filed last week in federal district court in Florida complaining about an attempt by teachers to include the Diamond Rio band's song "In God We Still Trust" in a public school's third-grade end-of-year assembly. Initially teachers told students that if they objected to practicing the song, they could be excused, but they would be excluded from the entire performance. However after a complaint from a parent, the district quickly removed the song completely from the program. The song (full lyrics reprinted in article) includes the following:

And when we pledge allegiance; There's no doubt where we stand;
There's no separation; We're one nation under him....
Now there are those among us; Who want to push him out
And erase his name from everything; This country's all about....
Now it's time for all believers; To make our voices heard...

In a statement responding to the lawsuit, the district said: "It is never our intention to offend anyone, and, like any other complaint, we responded quickly and appropriately.... This is obviously someone again using the school system (as well as taxpayers' money to defend the lawsuit) for their own personal agenda. Unfortunately, this is not unusual and distracts us from our mission." Meanwhile, in a court filing opposing plaintiffs' motion for a preliminary injunction, the district argued that "unlike school sponsored or endorsed prayer, school sponsored religious songs are not de facto violations of the First Amendment." [Thanks to Larry Mundinger for the lead.]

Religious Divide Growing In Israel's Army

Today's New York Times carries an article titled A Religious War In Israel's Army. It focuses on the growing influence of religious nationalists, many from the settler movement, in an Army that has traditionally been dominated by secular kibbutzniks. Many officers in the elite Golani Brigade are graduates of right-wing military preparatory academies. One soldier says that during the Gaza operation, the rabbinate distributed literature suggesting that the Army was engaged in a religious war against non-Jews for the holy land. Presently the military's chief rabbi, Brig. Gen. Avichai Rontzki, is a West Bank settler. Philosophy professor Moshe Halbertal, a member of the religious left and co-author of the military code of ethics, says that the debate in Israel is not just between religious and secular Jews, but also among religious Jews. It centers on the sanctity of land versus life; the relationship between messianism and Zionism; and the place of non-Jews in a sovereign Jewish state. (See prior related posting.)

Free Exercise Challenge To Marijuana Control Rejected

In Gover v. United States, 2009 U.S. Dist. LEXIS 22331 (WD AK, March 19, 2009), a pro se plaintiff sued then-President, George W. Bush, as well as the United States, making broad allegations of unjust policies and directives. In particular plaintiff sought to have marijuana removed from coverage under the Controlled Substances Act. The court found plaintiff lacks standing to assert most of his claims. The only claim of particularized injury was a freedom of religion assertion. Here, however, plaintiff failed to allege a substantial burden on his religious exercise. Plaintiff's complaint asserted merely that he is prevented from experiencing the "inadvertent" spiritual side effects of medicinal use of marijuana.

Recent Prisoner Free Exercise Cases

In Grimes v. Tilton, 2009 U.S. Dist. LEXIS 20183 (SD CA, March 12, 2009), a prisoner alleged that the denial of his religiously-motivated request for vegetarian diet violated his rights under RLUIPA and the equal protection clause. A California federal district court, while dismissing certain of plaintiff's claims, allowed him to move ahead on his claims for damages against various of the defendants.

In Blake v. Rubenstein, 2009 U.S. Dist. LEXIS 22073 (SD WV, March 17, 2009), a West Virginia federal district court accepted a magistrate's recommendations and refused to issue a preliminary injunction requiring plaintiffs' meals to be prepared in prison by fellow members of the Hare Krishna faith. The court said: "any ongoing burden on their religious freedom is not pressing, especially in light of the multitude of significant modifications that would be necessitated by the grant of an injunction, such as changes in the manner by which the kitchen is staffed and meals are prepared."

5th Circuit Upholds Christian School's Exclusion From Public School League

In Cornerstone Christian Schools v. University Interscholasitc League, (5th Cir., March 20, 2009), the U.S. 5th Circuit Court of Appeals dismissed a lawsuit by a high schooler and his parents who claim that their free exercise, equal protection, and due process rights were infringed when UIL denied Cornerstone Christian Schools an opportunity to apply for league membership. (The court held that the school itself lacks standing to pursue the claims.) UIL is an association of Texas public and charter schools that organizes interscholastic athletic and academic competitions.

The court said: "Although clothed in free exercise and due process claims, this lawsuit is fundamentally about J.F.'s right to participate in interscholastic competition." Quoting an earlier decision, it said that courts are "not super referees over high school athletic programs." It found that the rule at issue does not unduly burden free exercise rights or the parents' due process right to control the education of their children. Finally the court held that UIL's rule "does not violate equal protection of the laws based either on its distinction between public and nonpublic schools or its purported distinction between nonpublic schools of differing sizes." Yesterday's El Paso Times reported on the decision. (See prior related posting.) [Thanks to Eugene Volokh via Religionlaw for the lead.]

Settlement Terms Disclosed In "Universal Love and Music" RLUIPA Suit

The terms of a previously confidential settlement agreement in a RLUIPA lawsuit have now become public with the filing of the 12-page settlement in a Pennsylvania federal court. The suit also raised 1st Amendment claims. The Church of Universal Love and Music sued Fayette County, Pennsylvania which had denied it zoning permission to continue to use property in an agricultural area for religious concerts. The county zoning board claimed that Church founder William Pritts was operating a music business, not a church. (See prior posting.) Yesterday's Pittsburgh Post-Gazette says that under the settlement, the Church will host no more than 6 weekend events and 6 Saturday-only events each year, with a maximum crowd size of 1,500 at each event. Programs may not start before noon and must end by 11 p.m. Pritts also agreed to various requirements for security, parking, camping and bathroom facilities, and a ban on any public nudity. The county will also pay Pritts $75,000 in damages.

County Creates Unusual Policy On Opening Prayers

The Accomack County (VA) Board of Supervisors voted 5-4 on Wednesday to change its policy on the type of prayer that would open their meetings. The Salisbury (MD) Times explained the unusual arrangement that the Supervisors agreed upon as a way to hopefully insulate themselves from a costly lawsuit. Up until 2006, the Board's parliamentarian Rev. Donald Broad was its informal chaplain, opening each meeting with a prayer. Once he retired, the Board began to open meetings with a prayer said by one or another of its members. Apparently many of these were sectarian in nature, and this led some members to ask attorney Mark Taylor for advice. Taylor suggested several options, including having a prayer by a Board of Supervisors chaplain. Adapting that advice, the Supervisors voted that from now on, sessions would be opened by reading one of the prayers that had been offered previously by parliamentarian-chaplain Broad. One citizen attending the meeting complained about the decision, saying that the way to pray is from the heart, not off of a piece of paper.

Malaysian Bar Group Threatened With Suit Over Use of Word "Allah"

The Malaysian Bar, the organization that represents some 12,000 lawyers in Malaysia, recently posted a poll on its website asking lawyers to vote on whether the use of the word "Allah" is restricted to a particular group in Malaysia and whether non-Muslim religious publications should be allowed to use the term to refer to God. The poll came in the wake of a dispute between the government and a newspaper, the Catholic Herald, that used the term in its Malay language edition. (See prior posting.) Channel News Asia reported yesterday that the Islamic religious council in the state of Selangor has now threatened to sue the bar association for misuse of the word "Allah" on its website. Religious council head Mohamad Adzib Mohamad Isa said: "The issue raised in the polls can threaten the sensitivity of Muslims."

Texas Bill Would Exempt Creation Institue Among Others From State Licensing

Fox News reported earlier this week that a Texas state legislator has introduced HB 2800 that would exempt private, non-profit educational institutions that do not accept state funding from the authority of the Texas' Higher Education Coordinating Board. Currently Texas Education Code, Sec. 61.304, requires all private post-secondary educational institutions to obtain a certificate of authority form the Board before they can award degrees. The proposed bill was introduced by State Rep. Leo Berman after The Institute for Creation Research (ICR )was denied a certificate of authority to grant Master of Science degrees. ICR focuses on Biblical creationism. Berman says that creationism is as scientific as evolution and should be given equal treatment in the educational community. A spokesman for the Higher Education Coordinating Board said that the proposal would "open the doors of Texas to predatory institutions." [Thanks to Scott Mange for the lead.]