6th Circuit Hears Oral Arguments In 10 Commandments Case

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments in ACLU v. Grayson County, Kentucky. In the case, a Kentucky federal district court, on Establishment Clause grounds, permanently enjoined a display of the Ten Commandments as part of a Foundations of American Law and Government Display in the Grayson County Courthouse. (See prior posting.) AP reported that the judges questioned counsel more than usual, as the two sides debated whether or not the county had a secular purpose for the display.

Hindu Group in RLUIPA Case Says Temple Size Is A Religious Necessity

AP reported yesterday that the Adhi Parasakthi Charitable, Medical, Educational and Cultural Society has recently filed a federal lawsuit against West Pikeland Township, Pennsylvania, challenging the Township's refusal to permit the group to build a Hindu Temple larger than 5,000 square feet on a 24.5 acre site in an area zoned residential and conservation. The group wants to build a 26,000-square-foot temple and a 9,000-square-foot auxiliary support building on the site in Chester Springs. Neighbors object. Some of them voiced concerns at the Township Supervisors meeting about a "mosque" and possible movement in of Hindus.

According to a report by Westpikeland.org, proceedings at the Zoning Hearing Board hearing last August revealed that while Hindu group has some 200 members, only about 20 live within 50 miles of the proposed Temple site. The group's attorney, Richard Lipow, says the size of the proposed Temple is dictated by religious considerations. Certain gods need to be a distance from others. The group says that the Township's zoning ordinances violate the Religious Land Use and Institutionalized Persons Act as well as the group's free exercise, free expression and assembly rights. [Thanks to Scott Mange for the lead.]

Markup of Hate Crimes Bill Begins, Amid Opposition By Some Christian Groups

Yesterday, the House Judiciary Committee began the mark-up of HR 1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009. Among other things, the bill will extend coverage to certain crimes committed because of a person's actual or perceived sexual orientation or gender identity. It will also increase assistance to state and local governments in fighting hate crimes. The Advocate reports that Republican Congressmen opposed to passage of the bill offered a large number of amendments, all of which were defeated. One amendment proposed adding "unborn child" to the definition of those against whom Hate Crimes might be perpetrated. Another amendment proposed adding "pregnant women." Rep. Steve King of Iowa suggested changing the bill's name to the "Local Law Enforcement Thought Crimes Prevention Act of 2009."

Some Christian groups are again this year raising the spectre that the bill, if enacted, would infringe the right of Christian ministers to oppose homosexuality. For example, Jeff King, president of International Christian Concern, called the bill "a backdoor tool from the far left and radical homosexuals to shut down legitimate free speech from Christians and others who oppose their lifestyle." ICC argued that the federal aiding and abetting statute (18 USC 2) could allow prosecution of those "who teach that homosexual behavior is sinful and that Islam is a false religion." A release issued by Americans United this week counters the argument, saying:

The bill penalizes assault and physical violence, not speech. In fact, the legislation makes it clear that free speech is protected. Section 10 states, "Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution."

UPDATE: CQ reports that on Thursday (4/23), the House Judiciary Committee approved the Hate Crimes bill by a vote of 15-12. The Committee defeated more than a dozen proposed Republican amendments to the bill.

"Defamation of Religion" and the Durban Review Conference Final Draft

JTA reports that delegates at the United Nations Durban Review Conference in Geneva this week surprisingly adopted the Conference final document on Tuesday, three days before the end of the conference. This move was apparently designed to prevent further debate and modification of the document, or perhaps to prevent further walkouts by delegates. The New York Times describes the action by Conference delegates a bit differently. It reports that while final adoption of the resolution will occur on Friday, on Tuesday the resolution was adopted by the committee that coordinates the conference so that it is no longer open to debate or amendment.

Particularly after the inflammatory speech on Monday by Iranian President Mahmoud Ahmadinejad, most of the press attention has been focused on the Conference's treatment of the Israeli-Palestinian issue. Here the Conference's final document is seen by the U.S. and some other countries as no improvement over Durban I because it "reaffirmed" the 2001 Durban Declaration. (Philadelpha Evening Bulletin.) Anne Bayefsky in the New York Daily News yesterday expanded on the anti-Israel elements of the Conference.

However, another issue of concern leading up to the conference has been efforts by Islamic states to get language into the final document barring "defamation of religion." That reference was removed in negotiations last month. (See prior posting.) The language remains out of the final document; but reference to "negative stereotyping of religions" remains in. This reference can be used by countries to prevent debate or criticism of religious ideas. (See press release from ARTICLE 19.) However the final document also strongly emphasizes the importance of freedom of expression.

In what appears to be the final version of the Outcome Document that was adopted (March 17 draft from UN Watch), here is the relevant language:

10. Recognizes with deep concern the negative stereotyping of religions and the global rise in the number of incidents of racial or religious intolerance and violence, including Islamophobia, anti-Semitism, Christianophobia and anti-Arabism;
　
11. Reaffirms that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law, as well as the dissemination of ideas based on racial superiority and hatred and acts of violence and incitement to such acts, and that these prohibitions are consistent with freedom of opinion and expression;....

55. Reaffirms the positive role that the exercise of the right to freedom of opinion and expression, as well as the full respect for the freedom to seek, receive and impart information can play in combating racism, racial discrimination, xenophobia and related intolerance;
　
56. Stresses that the right to freedom of opinion and expression constitutes one of the essential foundations of a democratic, pluralistic society, since it ensures access to a multitude of ideas and views;

Another press release this week from the UK free speech group, ARTICLE 19, decrying the boycotting of the Conference by some countries, describes the Document's language on free expression in more upbeat terms than many other rights groups might be willing to do:

Months of negotiation have resulted in a draft Outcome Document that reaffirms the essential role of freedom of expression and freedom of information while omitting any reference to "defamation of religions", a concept rejected by free speech activists because it protects belief systems against criticisms or jokes and is incompatible with international human rights law. The Document's current language acknowledges the primacy of the individual as rights holder rather than religion.

According to Mr. Moataz El Fegiery, Executive Director of Cairo Institute for Human Rights, "The replacement of 'defamation of religion' with language protecting an individual's freedom of belief represents a significant acknowledgment by the international community that international law does not recognise this concept; and that it should not be used by the United Nations."

Amended Complaint Protests Second Song Given To 3rd Graders In Florida School

Last week, a Florida federal district court issued a preliminary injunction on Establishment Clause grounds barring Webster Elementary School in St. Johns County, Florida from directing students to rehearse or perform the Diamond Rio band's song, "In God We Still Trust." (See prior posting.) On Tuesday, an amended complaint was filed in the case charging that five days after the issuance of the preliminary injunction, the music teacher at Webster began to teach another "sectarian" song, again to third-graders. This one is titled "Chatter With the Angels." According to yesterday's St. Augustine Record, the amended complaint charges that directing students to perform "Chatter" constitutes retaliation against plaintiffs for having brought the suit challenging "In God We Still Trust." The amended complaint seeks a preliminary injunction barring introduction of this song until the court can rule on the merits of plaintiffs' objections.

In an updated report this morning, the St. Augustine Record says that Chatter With the Angels, an African-American spiritual, is in an approved textbook used throughout the state, and the song has been on the state's approved teaching list for over 20 years. School district officials say the song will not be sung again until the court makes a ruling. Here, via YouTube, is a performance of "Chatter With the Angels" by a Bridgeport (CT) Children's Choir.

NY Murder Trial, Pevaded By Religion, Ends with Convictions

The New York Times on Monday reported on the conclusion of a Queens (NY) murder trial that has torn apart the small local community of Bukharian Jews. The two defendants were sentenced to life in prison without parole. One defendant, Dr. Mazoltuv Borukhova was charged with hiring the other defendant, Mikhail Mallayev, to murder her estranged husband, Dr. Daniel Malikov, after a court awarded temporary custody of their daughter to Malikov. The murder took place on a playground in front of the 4 year old daughter. As reflected in a New York Times article last month, the defendants' religion has been a pervasive theme in the background of the trial:

Both Dr. Borukhova and Mr. Mallayev told the police that they would never be involved in anything illegal because of their religious beliefs. Dr. Borukhova's relatives sit every day in the second row of State Supreme Court, murmuring prayers from books printed in Russian and Hebrew. Dr. Malakov’s relatives occasionally hiss at them across the aisle.

Covering their hair in accordance with religious rules for married women, Dr. Borukhova’s sisters wear bouffant wigs that became an issue when prosecutors claimed that an eyewitness saw one sister at the murder scene..... Mr. Mallayev wore a black leather skullcap and matching jacket early in the trial, but switched to a more staid look: a suit and a velvet yarmulke bearing the Star of David. Earlier, he refused on religious grounds to shave his beard to appear in a lineup, finally agreeing to a shave with an electric razor.

The defendants' Sabbath observance became the center of another controversy as the judge attempted to assure that the trial would end and the jury would return a verdict before his previously scheduled vacation was to begin. In order to avoid court appearances on the Sabbath, defendants' counsel ended up having only overnight to prepare his summation, while the prosecution ended up with the weekend to prepare theirs.

Just before sentencing, Mallayev told the judge he did not kill anyone, saying: "I live by the Ten Commandments." During sentencing, Justice Robert J. Hanophy quoted both the New Testament and Confucius.

Suit Challenges Use of Church For High School Graduation

Americans United yesterday announced that it has filed a lawsuit in a Wisconsin federal court seeking to enjoin the Elmbrook (WI) School District from holding graduation ceremonies for its two high schools in Elmbrook Church (or any other religious venue) unless all religious symbols visible to attendees, both inside and outside the church, are covered or removed. The complaint in Does v. Elmbrook Joint Common School District No. 21, (ED WI, filed 4/22/2009) (full text), alleges that the district has held high school graduation in the sanctuary of Elmbrook Church for nearly a decade. A 15 to 20 foot high cross towers above the graduates during the ceremony. (Photo.) The Church has made a policy decision that it will not cover the cross during the ceremonies, wishing to rent out its facilities for use without compromising the Church's identity. The Memorandum In Support of Plaintiffs' Motion for Preliminary Injunction (full text) argues that the use of the Church for graduation ceremonies under a large cross is a manifest violation of the Establishment Clause.

German Parents Challenge Sex Education Module in European Human Rights Court

Earlier this week in Germany, the parents of an 11 year old girl filed an Application (full text) with the European Court of Human Rights challenging a fine of 120 Euros imposed on them by a German court for their refusal to send their daughter to school for four days during which a module on sexual abuse prevention was being taught. The classes focused on a stage play titled "My Body Is Mine". The parents, Eduard and Elisabeth Elscheit allege that the play and classes infringed their ability to instill Christian ethics in their daughter Franziska. They argue that the classes encourage children to become sexually active by teaching them to follow their inner feelings on sexuality. The parents contend that Protocol 1, Art. 2 of the European Convention for the Protection of Human Rights protects their right to educate their children according to their own religious and philosophical beliefs. Alliance Defense Fund, which is representing the parents, issued a release on Tuesday announcing the appeal.

Miss California's Comments On Gay Marriage Create Controversy

Last Sunday night, Miss North Carolina, Kristen Dalton, was crowned Miss USA. (ABC News). However much of the attention since then has been focuses on runner-up, Miss California-- Carrie Prejean. The consensus seems to be that Prejean lost the top spot because of an answer about gay marriage that she gave in response to a question by, Perez Hilton, one of the judges. Prejean said: "I think it's great Americans are able to choose one or the other.... [I]n my country, in my family I think that I believe that a marriage should be between a man and a woman. No offense to anybody there, but that's how I was raised and that's how I think it should be, between a man and a woman." (ABC News).

The fallout continues. Fox News published an article Tuesday exploring whether Prejean had a cause of action for religious discrimination. And others injected the incident into the battle in Congress over enactment of the Local Law Enforcement Hate Crimes Prevention Act of 2009 (HR 1913) which has again been introduced into Congress. As reported by the Washington Post, an e-mail sent on Monday to supporters by Gary Bauer of American Values said that the incident: "should be a wake-up call to men and women of faith and everyone who cherishes freedom of speech and religious liberty. The backlash to (Miss California's) commonsense comments demonstrates the naked intolerance of the militant homosexual movement . . . And if it gets its way in Congress, comments like (hers) may someday be considered a 'hate crime.'" David Waters, in a Washington Post blog, also reflects on the entire series of events.

9th Circuit Says Arizona Scholarship Tax Credits Likely Violate Establishment Clause

In Winn v. Arizona Christian School Tuition Organization, (9th Cir., April 21, 2009), the U.S. 9th Circuit Court of Appeals reversed an Arizona federal district court's dismissal of a lawsuit challenging Arizona's scholarship tax credit program. The Court of Appeals held that plaintiffs have taxpayer standing. It went on to conclude that plaintiffs' allegations state a claim that Arizona's program as applied violates the Establishment Clause. Arizona grants a tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations." STO's in turn award private school scholarships to children. In practice, 85% of contributed funds are available only for scholarships to religious schools.

The court wrote at length distinguishing Arizona's plan from the school voucher program upheld by the U.S. Supreme Court in the Zelman case. Here, while taxpayers have a choice of which STO's they will support, parents' choices are constrained by taxpayers' decisions of which STO's to fund. The state has delegated discretion to taxpayers that is used to create incentives for parents to send their children to religious schools. (See prior related posting.) Phoenix's East Valley Tribune reports on the decision.

Two Days of Negotiations Start Over Reform of FLDS Land Ownership

According to AP, today in Salt Lake City, Utah, two days of meetings begin between all the parties to try to reach an agreement on how to finally deal with FLDS Church property owned by the United Effort Plan Trust. In 2005, Utah appointed a special trustee to modify the trust and provide for secular management of the property owned by the polygamous FLDS sect. The trustee, Bruce Wisan, has been moving toward eventually conveying the land to FLDS members (and former members) in private ownership. FLDS members, however, say that their religious beliefs call for sharing of the land by those who adhere to Church teachings. The Utah Attorney General's office has drafted an initial proposal that it has shown to Wisan and to the Colorado attorney general's office, but not to the FLDS negotiators. (See prior related posting.)

UPDATE: The Salt Lake Tribune reported on Thursday that there are some signs of compromise in the negotiations. The major issues are how to allow FLDS members and those who left or never belonged to FLDS to live together. There are also questions of how to manage common areas such as a park, cemetery and health clinic, and how to pay the UEP trust's debts. One proposal under discussion is a 5-person board made up of 2 FLDS members, 2 non-members and a neutral to deal with housing claims.

Turkmenistan Court Imposes 2 Years Suspended On Conscientious Objector

Forum 18 reported Monday that in Turkmenistan, a two-year suspended sentence has been imposed on a conscientious objector who refused compulsory military service. Zafar Abdullaev, a Jehovah's Witness, was charged with violating Article 219, Part 1 of the Criminal Code. The UN Special Rapporteur on Freedom of Religion or Belief has called on Turkmenistan to create an alternative civilian service option for conscientious objectors. Shirin Akhmedova, Director Turkmenistan's National Institute for Democracy and Human Rights, however, says that conscientious objectors can already serve in medical or construction units within the army. Some however, do not find this option religiously acceptable.

Pastor Sues Broadcaster For Stopping His Religious Activities At CNN Building

In Atlanta (GA), pastor Dick Christensen has filed suit against CNN, Turner Broadcasting and a security guard for false imprisonment, assault and battery, and violating his free speech and free exercise of religion rights. According to WSBTV News yesterday, in December 2008 Christensen and others were proselytizing, carrying banners and handing out Christian literature in front of the CNN headquarters building. A CNN security guard told Christensen he was on CNN property and should move. Christensen insisted he was on a public sidewalk. CNN guards placed Christensen on the ground, handcuffed him and held him in CNN offices for two hours or so before releasing him. CNN says it does not agree with Christensen's version of events. Christensen says that CNN is "hostile to the Christian message."

Judge Orders FBI To Turn Documents On Surveillance of Muslims Over to Court

The ACLU of Southern California yesterday won a preliminary victory in a Freedom of Information Act lawsuit it filed in 2007 on behalf of 11 Muslim American leaders, mosques and local organizations who are seeking information on FBI monitoring of themselves and other groups. (See prior related posting.) USA Today and an ACLU press release report on the order issued by a California federal district judge requiring the FBI to turn some 100 documents over to the court so it can decide whether they should be publicly released. The court also ordered the FBI to conduct a search in its offices nationwide for any records of electronic surveillance of the Council on American-Islamic Relations of Greater Los Angeles and its executive director. The ACLU charges that the FBI is targeting Muslims in southern California for surveillance based on their religion.

Christian Leaders In Australian Town Oppose Construction of Muslim School

In Camden, Australia, a town around 40 miles southwest of Sydney, a group of Christian leaders have joined together to oppose approval of plans for a Muslim school to be built by the Quranic Society. Last May, Camden Council voted unanimously to reject the school's plans. The Quranic Society has now reduced the size of its proposed school and has taken its case to the Land and Environment Court. Today's Sydney Morning Herald reports that a letter from the Christian group was read in court yesterday. It said in part: "Our concern is the Quranic Society inevitably advocates a political ideological position that is incompatible with the Australian way of life. This includes promoting Quranic law as being superior to national laws and regarding followers of any rival religion as inevitably at enmity with it."

Pakistani Court Overturns Two Blasphemy Convicitions

Compass Direct News reported yesterday that two elderly Christian men convicted of blasphemy in Pakistan have had their convictions overturned by a high court in Lahore. Last Thursday the court reversed the 10-year sentences of 67-year old James Masih and 72-year old Buta Masih who had been accused of burning pages from the Quran. They were also charged with terrorism- related offenses of creating fear and panic. The men say that the charges were fabricated as part of a dispute over land that a Muslim neighbor wanted James Masih to sell. Police arrested the two men in October 2006 as a group of 500 Muslims who had heard rumors of the Quran burning tried to kill the men. They men have already served over two years of their terms.

White House Plans For National Day of Prayer Are Uncertain

Federal law (36 USC 119) designates the first Thursday in May as National Day of Prayer, though a pending federal lawsuit is challenging the constitutionality of that statute. (See prior posting.) A Religion News Service article published yesterday reports that there is a good deal of uncertainty over whether the White House will host an official observance of the event this year. The Bush White House during its eight years had marked the day with a ceremony in the East Room attended by a range of religious leaders. The National Day of Prayer Task Force headed by Shirley Dobson is planning its own event, as in past years. However this year it is scheduling its ceremony on Capitol Hill in the morning-- the time when the White House event, with Dobson and others in attendance, had traditionally been held. Brian Toon, vice chair of the Task Force, says this year the White House has not been in touch with them about its plans. Joshua DuBois, executive director of the White House Office of Faith-based and Neighborhood Partnerships, said on Sunday that it is "too early to talk about the planning" for the National Day of Prayer.

UPDATE: On April 21, the Interfaith Alliance and Jews on First sent a letter to President Obama (full text) requesting that he issue a Proclamation calling for a National Day of Prayer and Reflection that is inclusive of all religious traditions as well as of those professing no religion. The letter says that "several years ago, the National Day of Prayer was taken over by a group of religious exclusivists led by Shirley Dobson of Focus on the Family."

Historian Discusses Early School Bible Reading Case

On April 1, the Ohio Supreme Court hosted an hour-long Forum on "The Cincinnati Bible War Case of 1873," with a presentation by Notre Dame historian Linda Przybyszewski. A video of the full presentation is online. The Court's press release on the Forum summarizes the history:

Amid the increasing diversity and pluralism of the post-Civil War era, the Cincinnati public schools were faced with a growing Catholic population unhappy that their children were instructed with the protestant version of the Bible. The school board’s solution to remove all bibles from the classroom erupted into a raging national controversy over the relationship between religion and government. In 1873, the Ohio Supreme Court put an end to the Cincinnati Bible War, upholding the board’s decision to end Bible reading in its schools.

The Ohio Supreme Court decision at the center of this discussion is Board of Education v. Minor, 23 Ohio St. 211 (OH Sup. Ct., 1873) [LEXIS link to full opinion]. The opinion is full of surprisingly 21st-century sounding defenses of church-state separation and protection of minority religions. The following is an example, but a full reading of the opinion is well worth the time:

Counsel say that to withdraw all religious instruction from the schools would be to put them under the control of "infidel sects." This is by no means so. To teach the doctrines of infidelity, and thereby teach that Christianity is false, is one thing; and to give no instructions on the subject is quite another thing. The only fair and impartial method, where serious objection is made, is to let each sect give its own instructions, elsewhere than in the state schools, where of necessity all are to meet; and to put disputed doctrines of religion among other subjects of instruction, for there are many others, which can more conveniently, satisfactorily, and safely be taught elsewhere.

Notre Dame Alums Call For Contribution Boycott Over Obama Invitation

A group of Notre Dame alumni, protesting University's invitation to President Barack Obama to speak at graduation and receive an honorary degree, are now calling for Father John Jenkins to be replaced as president of the University. Zenit reports that a "Replace Jenkins" website, objecting to Obama's "well known commitment to abortion in the broadest possible context" says that "Father Jenkins' decision to honor President Obama directly violates the 2004 US Conference of Catholic Bishops’ directive on Catholics in Political Life and is offensive to all Catholics." The website call on alums to sign a petition pledging to withhold contributions until Jenkins is replaced. The website says that supporters can instead contribute directly to pro-life organizations at the university, and that these amounts will be credited by Notre Dame to the alum's eligibility for the football lottery. (See prior related posting.)

Court Denies Tax Exemption For Property Leased To Summer Camp

A New York trial court has denied an exemption for 2006-08 property taxes for 130 acres of land in Pomona, New York owned by Congregation Rabbinical College of Tartikov, according to a report last week by the Lower Hudson Journal News. The court ruled that the Rabbinical College's profit from leasing the land to a summer camp makes the undeveloped property unconnected to the Rabbinical College's other activities. The Village of Pomona has already granted an exemption for 2009 taxes, but will consider revoking it for future years. A discrimination suit against Pomona is pending in federal court over the Villae of Pomona's refusal to permit the Rabbinical College to build facilities on 30 acres of its land. (See prior posting.)

UPDATE: The text of the court's decision in Congregation Rabbinical Coll. of Tartikov, Inc. v Town of Ramapo, (NY Sup. Ct., April 15, 2009), is now available online.