Teacher's Criticism of Creationism Found Violative of Establishment Clause

In C.F. v. Capistrano Unified School District, (CD CA, May 1, 2009), a high school student and his parents brought suit against high school history teacher James Corbett alleging that Corbett violated the Establishment Clause by making repeated comments in class hostile to religion in general and Christianity in particular. The court found that many of the challenged statements did not mention religion, but merely took positions on issues that particular religious groups find offensive. Of several comments specifically mentioning religion, the court found only one of them violative of the Establishment Clause-- criticism of fellow teacher John Peloza who advocated creationism. Corbett said, in part: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." The court concluded there was no legitimate secular purpose in Corbett's characterization of Creationism as "superstitious nonsense," and that the characterization sent a message of disapproval of religion.

The court dismissed claims against the school district, and left for later adjudication the question of the remedy that would be granted against Corbett. Yesterday's Orange County Register and OC Weekly report on the decision.

Obama Will Sign Proclamation, But Not Host Ceremony, On National Day of Prayer

At yesterday's White House Press Briefing (full text), Press Secretary Robert Gibbs announced that on Thursday, May 7, the President will sign a Proclamation recognizing the day as National Day of Prayer. The announcement follows extensive speculation and uncertainty about the President's plans. (See prior posting.) Following up, CBN News reports that the White House will not hold any additional special ceremony marking the day. In taking this route, President Obama reverts to the practice of Presidents Reagan and George H.W. Bush, and moves away from the elaborate White House commemoration held each year during the George W. Bush administration.

The non-governmental National Day of Prayer Task Force (chaired by Shirley Dobson) has extensive events planned for the day, including a program on Capitol Hill from 9:00 a.m. to noon that will be webcast and broadcast on satellite TV channels.

Preliminary Injunction Permits School Posters Advertising See You At The Pole

In Gold v. Wilson County School Board of Education, (MD TN, May 1, 2009), a Tennessee federal district court judge issued a preliminary injunction barring Wilson County (TN)'s Lakeview Elementary School from enforcing a broadly written school speech policy to suppress religious references on posters made by students and parents to publicize "See You At the Pole" and National Day of Prayer events at the school. (See prior related posting.) In a previous lawsuit, a court found that Lakeview administrators and some of its teachers had violated the Establishment Clause by their involvement with the "Praying Parents" group at the school. (See prior posting.) Now, however, the court essentially concluded that school officials had over-reacted to that earlier decision.

Finding that the school had created a limited public forum in the school's lobby and hallway for community, educational, charitable, recreational, and similar groups to advertise events of interest to students, the court concluded:

Requiring the Plaintiffs to cover all religious speech on the posters under the guise of a reasonable time, place and manner restriction reflects a misunderstanding of law, with the result that the Defendants stifled religious speech, while the restrictions imposed to stifle the speech were neither reasonable nor viewpoint neutral....

The posters invite students and parents to attend the event advertised. By its name, it has a religious connotation, but no one is forced to attend or to engage in a religious exercise; no one is made to read the Bible or pray, and no one is bound to sit in attendance while other students or parents pray. No one is required to accept a religious tract or flyer advertising a religious event, pay attention to a poster, or listen to a religious message.... Mere receipt of an invitation to a religious activity does not rise to the level of support for, or participation in, religion or its exercise to create an Establishment Clause problem.

Today's Tennessean reports on the decision, as does a release from Alliance Defense Fund.

EEOC Gets Settlement In Suit Against Hospital That Refused Leave For Hajj

The EEOC announced this week that a Tennessee federal judge on Monday issued a two-year consent decree settling a religious discrimination lawsuit that the agency had filed against Nashville's Southern Hills Medical Center. The suit alleged that the hospital had refused to permit a Muslim employee to use earned vacation time for an extended leave to make his Pilgrimage to Mecca. It told employee Wali Telwar that instead he would have to resign his position and reapply. (See prior posting.) Under the settlement, Southern Hills will pay $70,000 in damages. The consent decree also enjoins the hospital from refusing to accommodate employees' sincerely held religious beliefs or retaliating against any employee for requesting a religious accommodation. Finally the decree imposes certain record-keeping, posting and reporting requirements in connection with religious accommodations.

Souter Announces Retirement From Supreme Court; Here Are His Religion Decisions

U.S. Supreme Court Associate Justice David Souter sent a letter to President Obama today informing him that he plans to retire at the end of the Court term this year. President Obama delivered a statement (full text) in the White House briefing room praising Souter's service on the court. The Washington Post reports on developments.

Here is a list (with links) of the majority, concurring and dissenting opinions on church-state, religious freedom and religious discrimination issues that Justice Souter has written during his 19 years on the Court.

Majority opinions:

• McCreary County v. ACLU, 545 U.S. 844 (2005).
• Edelman v. Lynchburg College, 535 U.S. 106 (2002).
• Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994).

Concurrences:

• Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
• Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995).
• Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
• International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992).
• Lee v. Weisman, 505 U.S. 577 (1992).

Dissents:

• Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007).
• Van Orden v. Perry, 545 U.S. 677 (2005).
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
• Good News Club v. Milford Central School, 533 U.S. 98 (2001).
• Mitchell v. Helms, 530 U.S. 793 (2000).
• Agostini v. Felton, 521 U.S. 203 (1997).
• Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).

(Please let me know of any omissions in the list.) [Updated.] [Thanks to Ed Elfrink and Kevin Pybas for additions.]

USCIRF Issues 2009 Report On Religious Freedom Concerns In Various Countries

The U.S. Commission on International Religious Freedom today issued its 2009 Annual Report. The 274-page document issued under the 1998 International Religious Freedom Act recommends that the President designate 13 countries as "countries of particular concern"-- those where violations of religious freedom are the greatest. Eight of those countries are already designated CPC's by the State Department: Burma, North Korea, Eritrea, Iran, China, Saudi Arabia, Sudan, and Uzbekistan. (See prior related posting.) USCIRF recommends adding: Iraq, Nigeria, Pakistan, Turkmenistan and Vietnam.

The Report also places eleven countries on its "Watch List": Afghanistan, Belarus, Cuba, Egypt, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela. (Today's Wall Street Journal carries an op-ed on the growing anti-Semitism in Venezuela.) The Commission calls for close monitoring of Bangladesh, Kazakhstan and Sri Lanka, and says it will issue a report on India later this year after a visit there by USCIRF members.

The USCIRF Report also discusses the role of the OSCE and the United Nations in religious freedom issues and discusses a move by the Organization of the Islamic Conference in the U.N. to limit free speech through banning "defamation of religions." Finally the Report discusses continuing problems in the U.S. policy of expedited removal for asylum seekers. [Thanks to Tom Carter for the lead.]

UN Official Surveys Religious Freedom In Macedonia

United Nations Special Rapporteur on freedom of religion or belief, Asma Jahangir, has concluded a 5-day visit to Macedonia, according to a report yesterday by UN News Centre. Her statement (full text) issued in a press release at the end of the visit says in part:

The Constitution provides that religious communities and groups are separate from the state and equal before the law. The Government therefore has a delicate role to play.... It ... has to stay even-handed in granting official status to all communities and yet protect the rights of all individuals, whether they are theistic, atheistic or non-theistic believers. A number of my interlocutors pointed to the perception that the two biggest registered religious communities in the country wield considerable political influence and are able to make inroads to the Constitutional concept of separation of state and religion.

I was encouraged by the reforms made in the 2007 Law on Religious Communities and Religious Groups. It is in line with international human rights standards; however, the implementation of the law has so far not been streamlined, for example with regard to registration issues....

Ms. Jahangir expressed astonishment at Macedonians' reaction to a recent court decision striking down teaching of religion in the school classroom. She also expressed concern about reports of incitement to racial or religious hatred.

Blogger Sues Police Over Revelation of Identity To Church

ABP reported yesterday on a lawsuit filed against Jacksonville, Florida police and state prosecutors by a blogger whose identity was revealed to his church by defendants who opened a criminal investigation into the blog at the request of church leaders. As explained in an earlier ABP story, Tom Rich began an anonymous blog in 2007 on which he raised concerns about Mac Brunson, pastor of First Baptist Church in Jacksonville. Police officer Robert Hinson, who is also on Pastor Brunson's security detail, opened an investigation in order to be able to subpoena Google and Comcast to discover the owner of the blog. After Hinson told church officials that the blogger was Tom Rich, the church issued trespass warnings against Rich and his wife, barring them from church premises. Rich's lawsuit seeks damages exceeding $15,000 for alleged violations of his 1st Amendment speech and free exercise rights and for violation of the Establishment Clause.

RLUIPA Decision On Church Zoning Appealed By County To 10th Circuit

According to the Longmont Times-Call, the Boulder (CO) County Commission voted yesterday to direct the county attorney's office and its special counsel to file an appeal with the 10th Circuit in Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County, Colorado. In the case, the Colorado federal district court found that there was sufficient evidence to support the jury's finding that the county violated the equal terms, substantial burden and unreasonable limitations provisions of the Religious Land Use and Institutionalized Persons Act in denying the church's special use application. (See prior posting.)

ACLU Suit Challenges Zoning Limits On Church Use For Homeless Shelter

The ACLU of Pennsylvania announced yesterday that it has filed a federal lawsuit against North Coventry Township (PA) on behalf of Shenkel United Church of Christ challenging the township's refusal to permit the church to use its building to provide shelter to the homeless for a one month period. The church wished to take part in the "One Night at a Time Program" sponsored by Ministries at Main Street, but Township officials claimed that using the church building as a temporary homeless shelter would violate the Township's zoning law and building code. The complaint (full text) in Shenkel United Church of Christ v. North Coventry Township, (ED PA, filed 4/30/09), alleges that the township violated the church's rights under RLUIPA, the free exercise clause and the Pennsylvania Religious Freedom Protection Act. It contends that "Providing temporary, emergency shelter for people in need is a core religious ministry for Shenkel UCC."

Justice Department Settles Lakewood, NJ Housing Discrimination Case

In a press release yesterday, the U.S. Department of Justice announced a settlement in a discrimination lawsuit filed against the owner, manager and former manager of Cottage Manor Apartments in Lakewood, New Jersey. The Department of Housing and Urban Development, on behalf of tenants, charged that defendants engaged in discrimination on the basis of religion, race and national origin. According to the press release:

The defendants transferred or attempted to transfer Hispanic and African American tenants from their apartments located in its most desirable building to make room for Orthodox Jews whom they courted as new tenants from 2002 to 2004. The defendants then assigned the non-Jewish tenants to less desirable apartments in the rear of the property, which had fewer amenities and were less well maintained than the most desirable building at the front of the property. The defendants charged the incoming Jewish tenants less rent than they did to non-Jewish tenants for apartments of similar size.

The settlement, which still requires court approval, calls for defendants to pay $170,000 to identified discrimination victims and a $30,000 civil penalty to the government. (See prior related posting.) [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

Britain To Require Sex Ed In Schools, But With Modifications For Faith Schools

On Monday, Britain's Department for Children, Schools and Families published a 56-page report titled Independent Review of the Proposal to Make Personal, Social, Health and Economic(PSHE) Education Statutory. As reported Tuesday by the Independent and the Guardian, the report-- whose recommendations have been accepted by Children's Secretary Ed Balls-- concludes that sex education should become a compulsory subject in both primary and secondary schools. However faith schools will be allowed to supplement materials with information regarding their religious beliefs that, for example, sex outside marriage, homosexuality or contraception is wrong. Pink News yesterday reported that a letter to Secretary Balls from the Pink Triangle Trust contends that if faith schools are allowed to tell students that under their religious views homosexual relationships are morally wrong, this will inevitably lead to an increase in anti-gay bullying. [Thanks to Tips-Q for the lead.]

3rd Circuit Rules On Constitutional Claims By 3 Abortion Protesters

On Monday, the U.S. 3rd Circuit Court of Appeals issued decisions in three related lawsuits brought by abortion protesters who regularly confront women outside a York, Pennsylvania Planned Parenthood Clinic to dissuade them from entering the clinic and having an abortion. Three separate plaintiffs sued the city and various police officials claiming violation of their free exercise and free speech rights when police officers restricted their access to a street adjacent to the Clinic. Two of the plaintiffs also asserted that their arrests outside the Clinic violated their 14th Amendment rights. Each of the cases arose in somewhat different factual contexts.

In McTernan v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court concluded that the burden placed on McTernan delivering his religiously motivated message was not pursuant to a neutral and generally applicable regulation since Clinic personnel, clients and escorts were permitted access to the street. Thus the restriction was subject to a strict scrutiny analysis. The court remanded the case for trial for a jury to determine whether the restriction served a "compelling" governmental interest and was narrowly tailored. The court also remanded McTernan's speech claim for trial. It held that police directives as to speech create potentials for arbitrary enforcement and are subject to heightened scrutiny. It held that factual questions remain as to whether the police restrictions were "narrowly tailored" to further the government's "significant" interest in traffic safety. The court however dismissed certain of McTernan's claims asserting municipal liability.

In Snell v. City of York, Pennsylvania, (3d Cir, April 27, 2009), the court found that no reasonable jury could find that the free exercise restrictions placed on plaintiff were "generally applicable", but remanded for trial on whether there was a "compelling" governmental interest in the restrictions. It remanded his free speech claim for trial on whether police restrictions were "narrowly tailored." The court also remanded Snell's 4th Amendment claim for a jury to decide whether there was probable cause for his disorderly conduct arrest, but rejected his excessive force claim. The court dismissed certain of Snell's claims asserting municipal liability.

In Holman v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court found that plaintiff failed to demonstrate that any restriction had been placed on his free speech or free exercise rights. The court also found no 4th Amendment violations in Holman's arrest for trespass and affirmed the trial court's grant of summary judgment for defendants.

Alliance Defense Fund issued a release discussing two of the cases. (See prior related posting.)

Obama's First 100 Days Performance On Religion and Faith Is Assessed

Yesterday's flood of coverage on President Obama's first 100 Days included at least two assessments of the President's handling of matters of faith and religion. US News & World Report says:

In his first 100 days in office, President Obama has sought a bold new role for faith in the White House, which aides say is aimed largely at dialing down the decades-old culture wars. Without changing his party's liberal stances on social issues like abortion, for example, Obama is nonetheless attempting to reach out to religious conservatives by pledging to work toward reducing demand for abortion.... So far, the project has blunted the Christian right's usual criticism of Democratic administrations .... But it has also alienated some traditionally Democratic constituencies, from advocates for strict church-state separation to the gay rights movement.

Obama's most substantive move on religion so far has been launching his own version of Bush's faith-based initiative office, tasked with helping religious groups get federal dollars for social service projects for the needy.

Americans United used the occasion to issue a "report card" on Obama's handling of church-state issues. It awarded the President an "A" on opposition to theocracy and judicial appointments. Obama received an "A-" on tax aid to religious schools and administration appointments. He received an "Incomplete" on his faith-based initiative.

Senate Judiciary Hearing Held On Nominees for Civil Rights Division, Judgeships

Yesterday, the U.S. Senate Judiciary Committee held a hearing on three nominees (webcast of hearing):

• Thomas E. Perez, to be Assistant Attorney General, Civil Rights Division, Department of Justice. (See prior posting.)
• David F. Hamilton, to be United States Circuit Judge for the Seventh Circuit. (See prior posting.)
• Andre M. Davis, to be United States Circuit Judge for the Fourth Circuit. (See prior posting.)

CQ reports that the most controversial of the nominations is that of David Hamilton. Apparently, this is because as a federal district court judge, Hamilton wrote two decisions holding that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violated the Establishment Clause. (See prior postings 1, 2.) Republicans boycotted the first Judiciary Committee hearing on Hamilton on April 1, claiming that Democrats were moving too quickly on it. Only one Republican (Oklahoma's Tom Coburn) was in attendance yesterday.

Britain's New Equality Bill Published and Introduced Into Commons

Last Friday, Britain's long-awaited Equality Bill was introduced into the House of Commons, and the bill was published on Monday. (Shoosmiths). Plans for the bill were first announced in the Queen's speech to Parliament last December. (See prior posting). It is designed to place a new equality duty on public bodies, and to consolidate nine existing anti-discrimination laws into one Equality Bill. The Government Equalities Office has posted a web page with links to the full text of the bill and extensive additional information on the proposal. The government's Equality Impact Assessment says in part:

Including religion or belief in the new Equality Duty will require public authorities to consider how to eliminate discrimination, advance equality of opportunity and foster good relations for people of different religions or beliefs. This could result in health and social care providers analysing different levels of use of their services between different communities and taking positive steps to ensure access to services and better outcomes. This might, for example, particularly help Muslim women of Bangladeshi and Pakistani origin who have significantly poorer maternal and child health outcomes and are significantly less likely to access ante-natal services, partly because they are concerned they will be unable to receive services from women.

House Passes Hate Crimes Prevention Act

Yesterday, the U.S. House of Representatives, by a vote of 249-175, passed and sent on to the Senate HR 1913, the Local Law Enforcement Hate Crimes Prevention Act. The bill makes a number of changes in federal law. It expands federal support for local prosecutors investigating hate crimes and expands the definition of hate crimes to include attacks targeted at individuals because of their gender, sexual orientation, gender identity, or disability. It also expands the circumstances in which attacks motivated by an individual's race, color, religion, or national origin are treated as a federal hate crime. Reuters reports on the House action. The bill has been particularly controversial among some conservative Christian groups who claim that it threatens pastors who preach against homosexuality. (See prior posting.)

California High Court Will Not Hear Appeal On Expulsion Of Lesbian Students

The San Francisco Chronicle reports that the California Supreme Court, over the dissent of Justice Kathryn Mickle Werdegar, has refused to review the court of appeals decision in Doe v. California Lutheran High School Association. In the case, brought by two students who were expelled from a Lutheran high school because of their lesbian relationship, the court of appeals held that a private religious high school is not a "business enterprise" and therefore is not subject to the Unruh Civil Rights Act. (See prior posting.)

Suspended Proselytizing Lawyer Sues Charging Conspiracy

Yesterday's West Virginia Record reports on a lawsuit filed last month in state circuit court by suspended lawyer David Harless against a prominent Charleston (WV) lawyer, Scott Segal. (The West Virginia Record last month detailed background on the case and on the suspension of Harless who has been diagnosed with bipolar disorder.) State Supreme Court Justice Robin Davis is Segal's wife. Harless' lawsuit claims that Segal, Davis and others have conspired to keep his law license suspended because of a note regarding religion he left at Segal's office. Segal, who is Jewish, says that Harless has been trying to convert him and several other Jewish lawyers in the area to Christianity, using threatening approaches. Segal's defense will include testimony from numerous members of the Jewish community who have felt threatened by Harless. Now, in a pre-emptive move, Segal has filed a motion to disqualify Kanawha Circuit Judge Louis Bloom from hearing the case. Bloom is also Jewish, and Segal fears that if Harless loses at trial, he will use Bloom's religion on appeal to claim a Jewish conspiracy is responsible.

UPDATE: The May 7 West Virginia Record reports that Judge Bloom said, in a letter to the state's chief justice, that while he does not believe his religion is grounds for recusal, nevertheless he will recuse himself on the ground that both parties to the case are lawyers who have appeared before him in the past, and are likely to in the future.

UPDATE 2: The May 12 West Virginia Record reports that Circuit Judge Alan D. Moats has been appointed by the state Supreme Court to preside over the trial.

New Hampshire Senate Passes Same-Sex Marriage Bill Different From House Version

Yesterday, the New Hampshire Senate passed by a vote of 13-11 a bill authorizing same-sex marriage in the state. The House also approved a same-sex marriage bill last month, but differences between the Senate and House versions mean that the bill must now go back to the House for its approval. HB436, as amended by the Senate, provides:

Any person who otherwise meets the eligibility requirements of this chapter may marry any other eligible person regardless of gender. Each party to a marriage shall be designated "bride," "groom," or "spouse."

The bill also provides that a marriage may be solemnized either in a civil ceremony or a religious ceremony, and that neither clergy nor civil officials shall be required to officiate at any civil of religious marriage ceremony that would violate their free exercise of religion. Baptist Press reports that the Senate amendment clearly recognizing a difference between religious and civil ceremonies convinced Senate Judiciary Committee Chairwoman Deborah Reynolds to vote for the bill in the full Senate after opposing it in committee.

Under the bill, previous civil unions will be recognized as marriages in the state. AP reports that New Hampshire Governor John Lynch has said that the crucial issue is providing the same rights and protections to same-sex couples as to others, and that the state's existing civil unions law does that. Thus it is unclear whether the Governor will sign the same-sex marriage bill even if both houses agree on it.