Religion Clause

Tuesday, May 19, 2009

Federal Lawsuit By Jews for Jesus Seeks To Enjoing Park Permit Regulations

Following a state court ruling earlier this year dismissing criminal charges against "Jews for Jesus" missionary Susan Mendelson who was arrested for violating park rules in distributing literature in Burns Park in the Town of Oyster Bay, New York (see prior posting), a federal court lawsuit seeking to enjoin further enforcement of the Town's permit regulations has been filed. The challenged code and regulations require a permit to distribute leaflets in Town parks. Mendelson refused to limit her distribution to a fixed table location in the park as authorities demanded. The complaint (full text) in Jews for Jesus, Inc. v. Town of Oyster Bay, (ED NY, filed 5/7/2009), alleges that Town of Oyster Bay Code § 168-16 and Regulations promulgated under it, as well as the town's actions against her, violate the 1st and 14th amendments as well as the free speech provisions of New York's constitution. The complaint also seeks a declaratory judgment. An Alliance Defense Fund release yeaterday announced the filing of the lawsuit.

Oklahoma Governor Signs 10 Commandments Bill

The Tulsa World reports that Oklahoma Governor Brad Henry on Monday signed House Bill 1330 [Word .doc] that authorizes placement of a Ten Commandments monument on the State Capitol grounds. The new law may well invite litigation. Anticipating that, the drafters specified that the Oklahoma monument-- which will be paid for by private funds-- should have the same text as the monument on the Texas State Capitol grounds that was upheld against an Establishment Clause attack in a 2005 U.S. Supreme Court decision, Van Orden v. Perry. (See prior posting.)

Indian Christians Applaud Results of Parliamentary Elections

Last weekend's Parliamentary elections in India resulted in the Indian National Congress, leading a secular alliance, winning the largest number of seats. (Wall Street Journal analysis). (Official results.) According to UCAN, Christian groups are elated. The All India Christian Council applauded the electorate's "consummate and decisive" rejection of divisive and sectarian political forces. Christians had feared that that National Democratic Alliance, led by the pro-Hindu BJP (Bharatiya Janata Party), would win. BJP is the political arm of right wing Hindu groups that want to create a Hindu theocracy in India.

Monday, May 18, 2009

Supreme Court Rejects Discrimination Claim By Muslim For His Post- 9/11 Arrest

Today in Ashcroft v. Iqbal, (Sup. Ct., May 18, 2009), the U.S. Supreme Court reversed the 2nd Circuit and rejected 1st and 5th Amendment Bivens claims brought by a Pakistani-Muslim who was arrested in the U.S. in the wake of the September 11 attacks. The complaint alleged that the former U.S. Attorney General and the former Director of the FBI subjected Iqbal to harsh conditions of confinement as a person of high interest because of his race, religion and national origin. In a 5-4 decision written by Justice Kennedy, the majority concluded that Iqbal's complaint failed to state sufficient facts to support a claim for purposeful discrimination:

Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.... [T]o state a claim ... respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral,investigative reason but for the purpose of discriminating on account of race, religion, or national origin....

The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.

Justices Souter, Stevens, Breyer and Ginsburg dissented. SCOTUS Wiki has links to all the briefs that were filed in the case. The New York Times reports on today's decision. (See prior related posting.)

Magazine Discloses Rumsfeld Embellished Top Secret Reports To Bush With Bible Quotes

GQ yesterday published a long article critical of former Secretary of Defense Donald Rumsfeld. One of the things it disclosed for the first time was Rumsfeld's practice of often placing Biblical verses on the cover sheet of the top secret Worldwide Intelligence Update delivered daily to President George W. Bush and a few top military leaders. Here is GQ's slide show of a number of the cover sheets that carry Biblical quotes to embellish images from the previous day's battle front. GQ explained the origin of the cover sheets:

These cover sheets were the brainchild of Major General Glen Shaffer, a director for intelligence serving both the Joint Chiefs of Staff and the secretary of defense. In the days before the Iraq war, Shaffer’s staff had created humorous covers in an attempt to alleviate the stress of preparing for battle. Then, as the body counting began, Shaffer, a Christian, deemed the biblical passages more suitable. Several others in the Pentagon disagreed. At least one Muslim analyst in the building had been greatly offended; others privately worried that if these covers were leaked during a war conducted in an Islamic nation, the fallout—as one Pentagon staffer would later say—"would be as bad as Abu Ghraib."

But the Pentagon’s top officials were apparently unconcerned about the effect such a disclosure might have on the conduct of the war or on Bush’s public standing. When colleagues complained to Shaffer that including a religious message with an intelligence briefing seemed inappropriate, Shaffer politely informed them that the practice would continue, because "my seniors"—JCS chairman Richard Myers, Rumsfeld, and the commander in chief himself—appreciated the cover pages.

[Thanks to Scott Mange for the lead.]

UPDATE: New York Times coverage this morning of the CQ article quotes former Pentagon officials as saying that they doubted President Bush regularly saw the Pentagon briefing, which was less complete than his daily intelligence briefing. One former Pentagon spokesman said while he had no recollection of the Biblical quotes, he doubted that Rumsfeld would have tolerated them or used them to influence the White House.

Catholic High School Sues San Diego Under RLUIPA

Yesterday's San Diego Union Tribune reports that a California Catholic girl's high school, Academy of Our Lady of Peace, has filed a RLUIPA lawsuit in federal court. It challenges the the refusal by San Diego's City Council to permit it to demolish three homes near campus in order to construct a new classroom building and parking structure. Here is the school's overview of its proposed modernization project.

Coney Island Amphteater Foes Invoke Law Protecting Nearby Religious Institutions

In Brooklyn, New York, opponents of a proposed $64 million amphitheater project in Coney Island's Asser Levy Park plan to use a city law designed to protect religious congregations to fight the project. Yesterday's New York Daily News and YourNabe last week report that opponents are invoking New York City's law prohibiting amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. An Orthodox synagogue, Sea Breeze Jewish Center, which is 300 feet from the park, has services every day. Already police do not issue sound permits for the park for Friday and Saturday nights because of larger services at the synagogue on the Sabbath. But up to now synagogue members have not complained about concerts on other nights in the park's existing band shell. Both Sea Breze and nearby Temple Beth Abraham say that concerts at the new facility will in fact disrupt their services. Borough President Marty Markowitz argues that the new project will turn the park into a prime venue for summertime entertainment. Opponents of the project, however, are gathering signatures on a petition and say they will take Markowitz to court. [Thanks to Steven Sholk and to Joel Katz (Relig. & State In Israel) for the lead.]

Turkish Protesters Want Country To Remain Secular

In Ankara, Turkey yesterday, according to Reuters, some 20,000 protesters marched, calling for the resignation of Prime Minister Tayyip Erdogan. The demonstrators, carrying banners reading "Secular Turkey will stay secular," object to what they believe is Erdogan's moves to make Turkey more Islamic. Protesters were also concerned with the government's handling of the economy.

New York Court Confirms Israeli Arbitral Award In Etrog Dispute

In Schwartzman v. Harlap, (ED NY, April 13, 2009), a New York federal district court granted a petition to confirm a foreign arbitral award in a dispute between an etrog grower and the grower's exclusive distributor. An etrog (citron) is a fruit used in the worship services by Jews on the holiday of Sukkot. Last week's Jewish Press summarized the case (which had been brought under Chap. 2 of the Federal Arbitration Act):

The case concerned Yaakov Charlop, founder of the popular Esrog Warehouse in Queens who had contracted to purchase esrogim from Betzalel Schwartzman, who represents the renowned Schwartzman Esrogim grown in Israel. Charlop withheld payment of $66,000 because he claimed that the esrogim were of substandard quality.... [,]that he was supposed to be the exclusive distributor of Schwartzman esrogim in the United States and that Betzalel Schwartzman, proprietor, had sold esrogim to other dealers here, thus violating the agreement.

In a handwritten agreement ... Rabbi Eliezer Stern, a respected scholar and head of the Belzer Beth Din in Bnei Brak, was specified ... as the designated Rav to whom each side would bring any disagreements.... Charlop claims now that he was unaware at that time that Rabbi Stern was also to serve as the ... kosher certifier of the esrogim.

The case was heard in Israel at the Belzer Beth Din... [which] decided against Charlop and ordered him to pay $66,000 to Schwartzman. Charlop felt that the Beth Din had a conflict of interest... [that] predisposed the Beth Din to be partial to Schwartzman.... Charlop then brought the disagreement to Federal Court in the United States, where ... Judge Cogan ruled against dismissing the Beth Din decision, writing that, "Respondent cannot use this court to obtain a second bite of the esrog."

[Thanks to Joel Kaatz (Relig. & State In Israel) for the lead.]

Sunday, May 17, 2009

Obama Speaks At Notre Dame Over Objections of Pro-Lifers

As I post this, President Obama is delivering his address at the University of Notre Dame's graduation, and receiving an honorary degree. In his speech (full text as prepared for delivery) he addressed both the controversy over his receiving an honorary degree and the broader abortion controversy in the United States. On the honorary degree, he quipped, comparing himself to former Notre Dame president Father Theodore Hesburgh who was in attendance and who holds the record for the most honorary degrees ever awarded to one person:

I want to thank you for this honorary degree. I know it has not been without controversy. I don't know if you're aware of this, but these honorary degrees are apparently pretty hard to come by. So far I'm only 1 for 2 as President. Father Hesburgh is 150 for 150.

On the broader abortion issue, he said:

Maybe we won't agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions.

So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."

Understand - I do not suggest that the debate surrounding abortion can or should go away. No matter how much we may want to fudge it - indeed, while we know that the views of most Americans on the subject are complex and even contradictory - the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.

Passionate protests preceded Obama's speech. On Friday, WNDU reported that seven pro-life protesters-- including former Presidential candidate Alan Keyes-- were arrested when they insisted on bringing their protest onto campus. Also last week, the group Stop Obama Notre Dame issued a press release quoting the words of the honorary degree, and then quoting John Paul II, contending that this demonstrates "that Notre Dame has contradicted Church teaching by her words and actions." However in introducing Obama, Notre Dame President Rev. John Jenkins had profuse praise for Obama, and for his willingness to speak despite the controversy over his appearance.

Census Will Reach Out To Amish Community

Today's Wisconsin State Journal reports that among the special effors being made by federal census officials to make sure that next year's head count is accurate is outreach to the Amish community. Historically the Amish have not been counted accurately. A Census Bureau spokesperson said that the Bureau hopes to include Wisconsin Amish in a partnership program that uses local volunteers to create "complete count committees." The committees, using local business, education and faith-based groups, help spread the word about the importance of responding to the census. The Wisconsin Amish population is currently estimated to be 15,525.

Judge Says Defendant Nun Can Wear Habit During Her Jury Trial

A Kane County, Illinois judge has ruled that Sister Marie Marot can wear her religious habit when she stands trial on a traffic ticket on Monday. Friday's Arlington Heights (IL) Daily Herald reports that the 24-year old nun is charged with disobeying a traffic control device in connection with a 2007 auto accident in which she drove her van through a traffic light and struck a smaller car car whose 16-year old back-seat passenger was killed in the crash. Prosecutors argued that Marot's religious garb might prejudice the jury in her favor, but defense attorneys say that her religious beliefs require her to wear the habit-- a tunic and veil.

UPDATE: On May 19, a jury found Sister Marie Marot not guilty. (Sun Times News Group.)

Developments In Two Episcopal Church Claims To Property of Breakaway Parishes

In Pennsylvania, the Episcopal Church has filed a complaint (as Plaintiff-in-Intervention) in an ongoing lawsuit, seeking a declaratory judgment that it, rather than the break-away diocese that has affiliated with the Anglican Province of the Southern Cone, is the proper authority to control the real and personal property of the Diocese of Pittsburgh. The complaint-in-intervention (full text) in Calvary Episcopal Church v. Right Reverend Robert William Duncan, (PA Com. Pl., filed 5/12/2009), also asks for an order requiring breakaway Bishop Robert Duncan and his followers to vacate the property of the Pittsburgh diocese and to furnish an accounting. A report by Virtue Online on Friday describes the lawsuit from the perspective of the breakaway diocese.

Meanwhile in California, an Orange County Superior Court judge has refused to impose sanctions for filing a frivolous claim on St. James Church, which disaffiliated from the Episcopal Diocese of Los Angeles in 2004. Steadfast in Faith reports that the case began as suit by the Episcopal Diocese against St. James and two other breakaway parishes. (Timeline.) They in turn filed anti-SLAPP motions, which were denied by the California Supreme Court. (See prior posting.) The Episcopal Diocese sought sanctions arguing that the anti-SLAPP motions were frivolous. St. James has filed a petition for certiorari with the U.S. Supreme Court in the underlying lawsuit. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Burton v. Clark, 2009 U.S. Dist. LEXIS 39330 (ED CA, April 23, 2009), a California federal magistrate judge dismissed a Jewish prisoner's challenges to his being removed from a kosher diet plan and being placed instead on a Religious Vegetarian diet. The court also rejected plaintiff's claim that he was prevented from attending religious services.

In Farrakhan v. Johnson, 2009 U.S. Dist. LEXIS 40342 (ED VA, May 13, 2009), a Virginia federal district court rejected an inmate's free exercise and equal protection claims that he was denied a religious diet, was forced to eat while fasting and was forced to clean and relieve himself in view of female officers. The court held that he had not shown that his claims are rooted in his religious beliefs.

In Evans v. Albany County Correctional Facility, 2009 U.S. Dist. LEXIS 40630 (ND NY, May 14, 2009), a New York federal district court rejected a Rastafarian prisoner's claim that his receiving the "wrong meals" a number of times (instead of his vegetarian diet) violated his free exercise rights. UPDATE: The magistrate's recommendation in the case is at 2009 U.S. Dist. LEXIS 45983 (ND NY, Jan. 30, 2009).

In Maier v. Swanson, 2009 U.S. Dist. LEXIS 40822 (D MT, May 14, 2009), a Montana federal district court accepted a magistrate's recommendation to dismiss plaintiff's claim that his free exercise and equal protection rights and his rights under RLUIPA were infringed when prison authorities denied him tarot cards in administrative segregation.

Saturday, May 16, 2009

Voucher Supporters Want New Law In Arizona

In March, the Arizona Supreme Court held that two school voucher programs-- one for children with disabilities and the other for children in foster care-- violate the state constitutional prohibition on appropriating public money in aid of any private or sectarian school. (See prior posting.) According to a report by AP yesterday, now voucher supporters are seeking a special session of the Arizona legislature to pass new legislation. The proposal would create individual and corporate tax credits for donations to tuition grants for disabled and foster children attending private schools. However, the 9th Circuit recently also held that Arizona's existing scholarship tax credit program violates the Establishment Clause. (See prior posting.)

9th Circuit Stays Proceedings In Boy Scouts Case Pending High Court Actions

Yesterday in Barnes-Wallace v. City of San Diego, (9th Cir., May 15, 2009), the U.S. 9th Circuit Court of Appeals issued an order staying further proceedings in the long -running case that challenges the constitutionality of San Diego's leasing of city property at nominal rents to the Boy Scouts. The 9th Circuit issued the stay pending the final determination of a petition for certiorari pending with the US Supreme Court in the case and pending a decision by the Supreme Court in Buono v. Salazar, another religion case it is scheduled to hear next term. Most recently in Barnes-Wallace, the California Supreme Court denied the 9th Circuit's request that it decide three questions of law certified to it in the case. [Thanks to Bob Ritter for the lead.]

Court Rejects Teenager's Religious Objection To Cancer Treatment

After a hearing, in a lengthy opinion a Minnesota trial court has issued an order overriding the free exercise objections of 13-year old Daniel Hauser and his parents to Daniel’s receiving chemotherapy for Hodgkin’s lymphoma. The court also rejected his parents’ due process parental rights objections. The court found that Daniel does not understand his medical situation and lacks the ability to give informed consent as to medical procedures. The court concludes that the state has a compelling interest in seeing that Daniel obtains appropriate treatment. The court set the next hearing in the case for May 19, and ordered the parents in the meantime to get a chest X-ray for Daniel and select an oncologist for him. In In re Welfare of Child of Colleen Hauser and Anthony Hauser, (MN Dist Ct., May 14, 2009), the court found:

The family has a genuine and strong belief in the benefits of holistic medicine and, specifically, in Nemenhah. Nemenhah is based upon Native American healing practices. Daniel is deemed to be a “medicine man” by Nemenhah and does not wish to receive any additional chemotherapy.

Daniel Hauser is an extremely polite and pleasant young man. While he is 13 years of age, Daniel is unable to read. He does not know what the term "elder" means, although he claims to be one. He knows he is a medicine man under Nemenhah teachings, but is unable to identify how he became a medicine man or what teachings he has had to master to become one. He believes in the principle of "do no harm" and attributes his belief to Nemenhah teachings.

The court's website provides links to pleadings and partial transcripts from the hearing. AP reports on the decision. (See prior related posting.) [Thanks to Scott Mange and David Waddilove for the lead.]

Friday, May 15, 2009

Radical Group Sued By Church Under Little-Known Federal Provision

Alliance Defense Fund on Wednesday announced the filing of an interesting lawsuit in federal district court in Michigan. The Freedom of Access To Clinic Entrances Act, 18 USC Sec. 248, in addition to protecting abortion clinics, contains a little-known provision banning forcible obstruction or intimidation of anyone exercising the First Amendment right of religious freedom at a place of religious worship. The complaint (full text) in Mount Hope Church v. Bash Back!, (WD MI, filed 5/13/2009), relying on these provisions (as well as common law trespass), seeks an injunction and damages against a self-described "Radical Trans/Queer" group, Bash Back!, that engaged in a protest, infiltration and disruption of the Church's service in November 2008.

New Hampshire Governor Will Sign Same-Sex Marriage Bill Only If New Religious Protections Are Added

New Hampshire's Governor John Lynch yesterday released a statement saying that despite his personal views on the subject, he will sign the same-sex marriage legislation passed by the state legislature last week only if legislators first amend it to provide more protections for religious institutions. Otherwise he will veto it. NECN News has posted both a transcript and a video of his statement, which says in part:

... I understand, the very real feelings of same-sex couples that ... a civil law that differentiates between their committed relationships and those of heterosexual couples undermines both their dignity and the legitimacy of their families. I have also heard, and I understand, the concerns of our citizens who have equally deep feelings and genuine religious beliefs about marriage. They fear that this legislation would interfere with the ability of religious groups to freely practice their faiths.

Throughout history, our society's views of civil rights have constantly evolved and expanded. New Hampshire's great tradition has always been to come down on the side of individual liberties and protections. That is what I believe we must do today. But ... we must act to protect both the liberty of same-sex couples and religious liberty. In their current form, I do not believe these bills accomplish those goals.

The Legislature took an important step by clearly differentiating between civil and religious marriage, and protecting religious groups from having to participate in marriage ceremonies that violate their fundamental religious beliefs. But the role of marriage in many faiths extends beyond the actual marriage ceremony.... [T]he laws of other states, including Vermont and Connecticut, ... go further in protecting religious institutions.... This morning, I met with House and Senate leaders, and the sponsors of this legislation, and gave them language that will provide additional protections to religious institutions. This new language will provide the strongest and clearest protections for religious institutions and associations, and for the individuals working with such institutions. It will make clear that they cannot be forced to act in ways that violate their deeply held religious principles.

If the legislature passes this language, I will sign the same-sex marriage bill into law. If the legislature doesn't pass these provisions, I will veto it.

(See prior related posting.)