Recent Articles of Interest

From SSRN:

• Calvin R. Massey, Church Schisms, Church Property, and Civil Authority, (March 26, 2009).


• Harry G. Hutchison, Putting the World Back Together? Recovering Faithful Citizenship in a Postmodern Age, (George Mason Law & Economics Research Paper No. 09-21 , March 25, 2009).


• Ali Khan, Jurodynamics of Islamic Law, (Rutgers Law Review, Vol. 61, No. 2, 2009).


• Albert H.Y. Chen, Three Political Confucianisms and Half a Century, (March 22, 2009).

From SmartCILP:

• Alan E. Garfield, Finding Shared Values In a Diverse Society: Lessons From the Intelligent Design Community, 33 Vermont Law Review 225-281 (2008).


• Jay Alan Sekulow & Erik M. Zimmerman, Pleasant Grove City v. Summum: Upholding the Government's Authority to Craft Its Own Message Through Privately Donated or Funded Monuments, Memorials, and Artwork, 3 Charleston Law Review 175-204 (2009).


• Lecture. The Bible and American Law. Lecture by Herbert W. Titus; responses by Jeffrey C. Tuomala and Michael J. DeBoer; responses by Herbert W. Titus, 2 Liberty University Law Review, 305-417 (2008).


• Symposium. The Supreme Court's Hands-Off Approach to Religious Doctrine. [Table of contents]. Introduction by Samuel J. Levine; articles by Christopher L. Eisgruber & Lawrence G. Sager, Richard W. Garnett, Andrew Koppelman, Bernadette Meyler and Kent Greenawalt, 84 Notre Dame Law Review 793-928 (2009). [Links are to full text of articles.]


• The Future of Law, Religion, and the Family. A 25th Anniversary Symposium. [Table of contents.] Foreword by Leah Ward Sears; Articles by Enola G. Aird, Stephen L. Carter, Don S. Browning, Margaret Brinig and Jean Bethke Elshtain, afterword by John Witte, Jr. 58 Emory Law Journal 1-102 (2008). [Links are to full text of articles.]

Controversy Continues Over Notre Dame's Commencement Invitation To Obama

Notre Dame University's invitation to President Barack Obama to speak at commencement and receive an honorary degree continues to generate controversy. In addition to Bishop John D'Arcy of the Diocese of Fort Wayne-South Bend who previously announced his opposition (see prior posting), now two other bishops have issued strong statements opposing the invitation. Bishop Thomas J. Olmstead of Phoenix wrote Notre Dame President Rev. John Jenkins on Wednesday saying that the invitation "is a public act of disobedience to the Bishops of the United States." (Full text of letter; CNA report.) On Friday, Bishop Gregory Aymond of Austin (TX) wrote in his diocese newsletter that "it is very clear that in this case the University of Notre Dame does not live up to its Catholic identity." (Full text of letter; LifeSite News report.)

A lengthy AP report yesterday quotes a number of individuals connected with Notre Dame who support the invitation, pointing out that the University has a tradition of inviting newely-elected U.S. Presidents from both parties as commencement speakers. Inviting the first African-American U.S. President has special significance because of the long record of former Notre Dame president Theodore Hesburgh in the civil rights movement.

Meanwhile, at another Catholic college, St. Vincent College in Latrobe, Pennsylvania, U.S. Senator Robert Casey has cancelled his commencement address scheduled for May 9. While Casey offered no explanation, LifeSite News reported last week that Casey was strongly criticized by Bishop Joseph Martino of Scranton for his recent vote against an amendment to restore the Mexico City Policy-- a policy that denied foreign aid funds to family planning groups that engaged in abortion counselling. (See prior posting.)

Suit Challenges Cross In California City Park

Yesterday's Visalia (CA) Times-Delta reports on a lawsuit filed two weeks ago by a former resident of Porterville, California challenging the constitutionality of a 20-foot high redwood cross in a Porterville city park. The cross was placed in the park in 1965 by the local Rotary Club with the city's permission. A plaque below the cross reads: "Dedicated as a Spiritual Inspiration to All." Plaintiff Patrick Greene has a history of filing Establishment Clause challenges to governmentally sponsored religious displays and activities in various cities. Porterville residents express surprise that anyone would sue over the cross that a past-president of Rotary who helped install it describes as merely an unobtrusive symbol in a quiet grassy corner. [Thanks to Scott Mange for the lead.]

Church Sues Over Fee Schedule For Use of Village Meeting Room

In Michigan, a church has filed suit in federal district court against the village of Fife Lake challenging the rental fee schedule imposed by the village for use of a meeting room in its Municipal Building. The complaint (full text) in Forest Area Bible Church v. Village of Fife Lake Council, (WD MI, filed 3/24/2009) alleges that the village allows community organizations and service groups to use the meeting room without charge, but charges a rental fee to private non-profit groups such as the church. The suit alleges that this discriminatory treatment violates plaintiff's 1st and 14th Amendment rights. An Alliance Defense Fund release on Friday announced the filing of the suit.

Subjective Chill On High Schooler's Expression Does Not Create Standing

Last week, an Illinois federal district court handed down another decision in the long running challenge to rules in a suburban Chicago high school that were invoked to prevent a student, Alexander Nuxoll, from wearing a T-shirt and button carrying the slogan "Be Happy, Not Gay." (See prior posting.) In Zamecnik v. Indian Prairie School District #204 Board of Education, 2009 U.S. Dist. LEXIS 23548 (ND IL, March 24, 2009), the court held that Nuxoll has standing to continue to pursue this claim. However he lacks standing to assert added claims that he wishes to "bring his bible to school, distribute cards with bible verses during non-instructional time, and discuss his religious beliefs critical of homosexual behavior with classmates during non-instructional time." There was no showing that Nuxoll ever attempted to carry out such activities or that officials ever interfered with them. It is not enough to allege subjective chilling of expression based merely on the fact that existing rules could be interpreted to prohibit these activities.

Fish and Wildlife Service Is Investigating Illegal Eagle Feather Sales

Yesterday's Bismark (ND) Tribune reports on a number of indictments that have come out of a broad investigation by the U.S. Fish and Wildlife Service of individuals who are illegally buying, selling and receiving eagle feathers. The investigation covers 16 states and the U.S. Pacific Island Territories. The Oregonian reported on Friday that Reginald D. Akeen, one of the men arrested as a result of these investigations, has pleaded not guilty in an Oregon federal district court to charges of violating the Migratory Bird Treaty Act. Akeen, a member of the Kiowa tribe from Oklahoma, was arrested March 12 in Albuquerque, N.M., on charges that he illegally sold feathers as he traveled to various pow wow's in the West. Demand for eagle feathers for use in Native American religious ceremonies is high.

Recent Prisoner Free Exercise Cases and Developments

In Smith v. Frank, 2009 U.S. Dist. LEXIS 22848 (ED WI, March 20, 2009), a Wisconsin federal district court rejected a Native American inmate's claim that his rights under RLUIPA were violated when a eagle feather he possessed was confiscated and eventually inadvertently destroyed.

In Spence v. Frank, 2009 U.S. Dist. LEXIS 23095 (ED WI, March 23, 2009), a Wisconsin federal district court rejected an inmate's RLUIPA claim, finding that he was not punished because he called his social worker by her spiritual name, Morning Dove, but rather was punished because he wrote her letters telling her that he loved her and calling her "Smurf".

In Colquitt v. Ellegood, 2009 U.S. Dist. LEXIS 23305 (MD FL, March 20, 2009), a Florida federal magistrate judge rejected an inmate's claim that his free exercise rights were violated when the copy of a Quran furnished to him in jail had too small print and the jail rejected a larger print version purchased for the inmate by his wife and mailed from Amazon.com.

In Taylor v. Grannis, 2009 U.S. Dist. LEXIS 23311 (ND CA, March 12, 2009), a California federal district court permitted an inmate to move ahead with claims under RLUIPA that he was improperly denied permission to have tobacco products for a religious ceremony.

The Maryland Daily Record reported last week that Maryland prisons plan to begin offering kosher meals to observant Jewish prisoners. The program will start in time for Passover next month. Two cases are currently in the courts claiming that Maryland officials had refused to accommodate prisoners' requests for kosher diets.

USCIRF Reveals Previously Secret State Department Action On Religious Liberty Violators

Rather odd developments in implementing the International Religious Freedom Act were reported yesterday in a press release from the U.S. Commission on International Religious Freedom. Under the statute enacted in 1998, by May 1 each year USCIRF is to submit a report on religious freedom in various countries around the world to the State Department, the President and Congress. Then, taking into account USCIRF's recommendations, by September 1 each year the State Department is to submit an Annual Report on International Religious Freedom to Congress. The Act also requires the President to annually designate the worst violators of religious freedom to be "countries of Particular concern"(CPC) and to take any of a number of actions against those countries, unless he grants a waiver.

Despite the call for annual designations, the Bush administration, while submitting annual reports, had not updated its CPC list since 2006. Last September, USCIRF criticized the State Department for not having updated its designations. (See prior posting.) Now it turns out that just before leaving office, the Bush administration did take action to redesignate the same 8 countries as it had placed on its CPC list in 2006. On January 16, the administration named Burma, Eritrea, Iran, North Korea, the People's Republic of China, Saudi Arabia, Sudan, and Uzbekistan, but, as in the past, gave waivers to Saudi Arabia and Uzbekistan.

The puzzling part of this, however, is that according to USCIRF, while the designation was made, "the list was not made available until this week, when the Obama State Department released the list in response to a U.S. Commission on International Religious Freedom (USCIRF) inquiry." Now the State Department’s website also reports the January redesignation on a page titled Frequently Asked Questions: IRF Report and Countries of Particular Concern.

Court Upholds Texas Pledge Containing "Under God"

In Croft v. Perry, (ND TX, March 26, 2009), a Texas federal district court has rejected an Establishment Clause challenge to the Texas Pledge of Allegiance. The Pledge, recited in public schools, reads: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." (The disputed language was added to the Pledge in 2007. See prior posting.) Texas laws permits students to opt out of reciting the pledge. In the suit brought by parents of school children, the court found a secular legislative purpose and concluded that the pledge did not amount to an endorsement of religion. The court added: "simply asserting that the Texas pledge contains a religious phrase does not transform the Texas pledge from a voluntary patriotic act into a compulsory religious prayer." A press release from Texas Attorney General Gregg Abbott discusses the decision, as does a report in today's Dallas Morning news. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

New Hampshire AG Releases More Clergy Abuse Files

In New Hampshire, Attorney General Kelly A. Ayotte's office has released files on dozens of sexual abuse allegations against Catholic clergy. Most of the charges relate to incidents decades ago, but some claim abuse as recently as 2000. The files disclose the identities of 27 members of the clergy who had not previously been publicly named. Thursday's New York Times reports that the files contain significant information on the communications between the Diocese of Manchester and prosecutors after the clergy sex abuse scandal erupted in 2002. In a 2002 settlement, the Diocese agreed to annual audits by the state’s Attorney General.

Final Texas Science Curriculum Standards Are Adopted

There is a good deal of disagreement on the who won in the final version of the Texas science curriculum standards that were adopted by the State Board of Education on Friday by a vote of 13-2, after numerous amendments were approved. Today’s Dallas Morning News, New Scientist and Wall Street Journal all report on various aspects of the Board’s meeting. As expected, the Board affirmed a vote earlier this week not to go back to former language that would call on students to analyze the "strength and weaknesses" of scientific theories. (See prior posting.) In 8-7 votes, the Board deleted two sections that would have required high school biology classes to examine the "sufficiency or insufficiency" of common ancestry and natural selection of species.

However, the Board inserted other provisions that critics see as a wedge to introduce Creationism or Intelligent Design into the curriculum. Biology students are to “analyze and evaluate scientific explanations” on the complexity of cells as well as data on the “sudden appearance and stasis and the sequential groups in the fossil record." The Earth Science curriculum that was adopted calls for students to learn that there are "differing theories" on the "origin and history of the universe."

These changes will affect the review of textbooks by the Board in two years. Texas is such a large purchaser of books, that publishers often tailor the books they offer nationally to Texas standards.

Pastor's Suit Challenging Arrest For Gay Pride Protest Is Settled

According to Thursday's Wichita (KA) Eagle, a settlement has been reached in a federal lawsuit that was filed last year by a pastor who was arrested for preaching and distributing literature on a sidewalk near a park where a Gay Pride event was being held. (See prior posting.) A consent decree handed down this week stipulates that the city violated Pastor Mark Holick’s 1st and 14th Amendment rights, and awards him $11,700 in damages and $2,500 in attorneys’ fees. Wichita’s city attorney says that the officers who arrested Holick mistakenly thought the sidewalk was part of the park where the event was being held.

Proposed Armenian Religion Law Passses First Reading

Forum 18 reported earlier this week on proposed amendments to Armenia’s Religion Law and a proposed new Armenian Criminal Code provision containing fairly broad restrictions on proselytizing. The proposed laws passed their first reading in Parliament March 19, but further action will be delayed while the laws are reviewed by the Council of Europe's Venice Commission and the OSCE. The new Religion Law will require 500 adult citizens as members to register a religious community. (This is down from 1000 that appeared in the first draft of the proposal, but is an increase over the 200 that is found in current law.) The proposed law also recognizes "the exclusive mission of the Armenian Apostolic Holy Church as the National Church in the spiritual life of the Armenian people…" This is similar to language in 2005 amendments to the country’s Constitution. Religions that "exercise or try to exercise control over members' personal life, awareness, health, and ownership" are banned by another provision in the draft law.

NY Budget Cuts Will Delay Speedy Autopsies Needed By Muslims and Jews

New York City’s Chief Medical Examiner says planned state budget cuts will force extensive staff reductions which, in turn, will have a particular impact on observant Muslims and Jews. They may be unable to obtain the rapid autopsies that are necessary to meet their religious requirements for speedy burial. CBS 2 News reported Thursday that the Medical Examiner’s office faces cuts of $18 million.

Vietnam Court Rejects Appeal of Catholic Demonstrators

In Vietnam, a court has rejected an appeal by eight Roman Catholics who had been convicted and given suspended sentences, probation and, in one case, merely a warning, after engaging in demonstrations in Hanoi last year. AP reported Friday on the appeal of the convictions for disturbing public order and damaging property growing out of a prayer vigil seeking return of land once owned by Thai Ha Church in Hanoi. Defendants say their activities were protected speech. Government authorities contend that the land was turned over to the city, and have since turned it into a park. (See prior related posting.)

NY High Court Rejects Claim By Woman Against Priest With Whom She Had Affair

In Doe v Roman Catholic Diocese of Rochester, (NY Ct. App., March 26, 2009), New York's high court dismissed a lawsuit by a woman (identified only as Jane Doe) against Father Peter DeBellis, a Catholic priest who Doe consulted for counselling. The suit by Doe and her husband alleged that Doe began a sexual relationship with DeBellis that lasted for more than three years. The relationship and the counselling continued despite repeated complaints to the Diocese by Doe's husband, who is also a plaintiff in the lawsuit. Plaintiffs brought a breach of fiduciary duty claim against Father DeBellis, and claims for negligent supervision and retention against the Diocese. Relying on a case it decided last year (see prior posting), the court held:

The complaint ... falls short of what is necessary to state a claim for breach of fiduciary duty. The bare allegation that Jane Doe was "a vulnerable congregant" is insufficient to establish that plaintiff was particularly susceptible to Father DeBellis's influence. Nor does the complaint provide any other allegations to show that the parties had a relationship characterized by control and dominance. Plaintiffs' claims for negligent supervision and retention against the Diocese likewise fail.

Newsday yesterday reported on the decision.

Sen. Grassley May Subpoena Records of One or Two Televangelists

BNA's Daily Report for Executives [subscription required] today reports that Sen. Charles Grassley says he may subpoena records from those televangelists who have failed to cooperate with him in his investigation of their financial dealings. In 2007, Grassley began an investigation of possible abuse of tax-exempt status by six high-profile "prosperity gospel" ministers. Grassley says that he has received complete information from two ministries and more limited cooperation from two others. Kenneth Copeland Ministries says it will cooperate only if an investigation is carried out by the IRS through a church tax inquiry. Creflo and Taffi Dollar of World Changers Church International and Creflo Dollar Ministries have refused to provide any of the requested data. (See prior related posting.)

Award of Rabbinical Court Vacated For Non-Disclosure of Relationship To A Party

In Matter of Beth Jacob Teachers Seminary Inc. v Le'Bunos, (NY Kings Co. Sup. Ct., March 24, 2009), a New York trial court took the unusual step of vacating an arbitration award made by a Rabbinical Court (bet din) on the ground that the arbitrator failed to disclose facts that may support an inference of bias. Two religious organizations that were parties to a lease agreed to submit a dispute over the scope of the lease to the Rabbinical Court of Tzedek Umishpot. Unknown to the lessee, an employee of the lessor was married to Rabbi Yerachmiel Barash who served as secretary and clerk to the Rabbinical Court. This information surfaced when at a Rabbinical Court hearing, Rabbi Barash-- at the urging of one of the Rabbis on the arbitration panel-- telephoned his wife to obtain verification of certain rental date information. [Thanks to Y.Y. Landa for the lead.]

Archbishop Talks About Obligations of Catholics In the Public Square

The Pew Forum last week published a long interview with Denver Archbishop Charles Chaput on the political obligations of Catholics. Chaput, author of the recent book Render Unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life, says in the interview:

we Catholics serve Caesar best when we serve God first, and that means living our Catholic beliefs vigorously, faithfully and without apologies at home and in the public, at work and in the voting booth. We can’t ignore the sufferings of the poor or the homeless or undocumented immigrants and then claim to be good Catholics. We also can’t ignore the killing of unborn children without struggling to end that daily homicide – not just through supportive social policies, but by changing the law.

[Thanks to Brad Pardee via Religionlaw for the lead.]

Belarus Appeals Court Rejects Challenge To Religious Registration Law

Forum 18 yesterday reported on a March 2 decision by the Supreme Court of Belarus that rejected a constitutional attack on the country's religion law. The law requires registration of religious groups. (The Supreme Court is not the highest court in Belarus. The highest court for constitutional interpretations is the Constitutional Court.) In the appeal, brought by a Pentecostal pastor who had been fined the equivalent of $149 (US) for leading an unregistered congregation, the court's Vice-chairman Valeri Kalinkovich rejected arguments that the registration provisions violate the religious freedom protections found in Articles 23 and 31 of the Belarus Constitution and in Art. 18, Part 3 of the International Covenant on Civil and Political Rights.