10th Circuit Rejects Valedictorian's Challenge To Limits On Her Religious Remarks

In Corder v. Lewis Palmer School District No. 38, (10th Cir., May 29, 2009), the U.S. 10th Circuit Court of Appeals rejected constitutional claims brought by a high school valedictorian who delivered remarks at a high school's graduation ceremony encouraging students to accept Jesus Christ. Her short remarks were part of brief speeches by 15 co-valedictorians. Erica Corder had presented a different version of the speech in advance to the principal. She was forced to publicly apologize a few days later in order to receive her diploma. Finding that her remarks were school-sponsored and bore the imprimatur of the school, the court rejected Corder's free speech, free exercise, equal protection, and state statutory challenges. It held that the school was entitled to exercise editorial control over the speech. The decision affirms the district court's dismissal of the case. (See prior posting.) AP yesterday reported on the decision.

Texas Senate Rejects Creationist As Chairman of State Board of Education

The Texas state Senate on Thursday rejected the governor's nomination of Republican Don McLeroy to be chairman of the State Board of Education, according to yesterday's Dallas Morning News. McLeroy is currently serving as chairman under an interim appointment. A two-thirds majority was required to approve the nomination, and the vote was one short--19-11 to confirm. McLeroy-- who believes in creationism and who does not believe global warming is taking place-- has been criticized for trying to promote his religious views on curricular issues. McLeroy denies that he has pressed his views in the consideration of education policy. McLeroy supporter Sen. Steve Ogden accused Democrats of applying a religious test in rejecting the nomination. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Court Says City Unconstitutionally Applied Law To Restrict Street Preacher

In Netherland v. City of Zachary, Louisiana, (MD LA, May 27, 2009), in a case on remand from the 5th Circuit (see prior posting), a Louisiana federal district court held that a city's disturbing the peace ordinance was unconstitutional as applied to defendant's religious speech. John Netherland was threatened with arrest for his loud preaching, standing on a public easement near the parking lot of the Sidelines Grill yelling at customers. The court held that the city's enforcement against Netherland was content-based and did not reflect a compelling interest. The court also held that the suppression of Netherland's ability to evangelize in a public forum infringed his free exercise rights.

Challenge To National Day of Prayer Survives Dismissal Motion

In Freedom From Religion Foundation, Inc. v. Obama, (WD WI, May 26, 2009), a Wisconsin federal district court refused to dismiss on the pleadings a challenge to the constitutionality of the National Day of Prayer. The court said that defendants' arguments are better raised in a summary judgment motion once the record is developed further. Plaintiffs have sufficiently pleaded standing by alleging they were exposed to unwelcome religious speech, and sufficiently pleaded an Establishment Clause violation by alleging that defendants' conduct has the purpose and effect of advancing religion. FFRF yesterday issued a press release on the decision, which includes links to all the pleadings in the case.

6th Circuit Upholds Inclusion of Churches In Detroit's Renovation Funding

In American Atheists, Inc. v. City of Detroit Downtown Development Authority, (6th Cir., May 28, 2009), the U.S. 6th Circuit Court of Appeals held that the Establishment Clause (as well as the parallel provision in the Michigan Constitution) was not violated by including churches in a program that used city funds to pay part of the cost of refurbishing downtown buildings and parking lots. The redevelopment program was designed to enhance the visual appearance of the downtown Detroit in preparation for hosting the 2005 Major League Baseball All-Star Game and the 2006 NFL Superbowl. As the court put it: "Detroit sought to fix up its downtown, not to establish a religion."

The trial court had upheld most of the grants, but invalidated those used for signs and for covering stained-glass windows. (See prior posting.) The 6th Circuit found all the grants valid. The Court of Appeals began its 32-page opinion by finding that plaintiffs had taxpayer standing to bring the lawsuit, distinguishing standing of municipal taxpayers from that of state and federal taxpayers. Moving to the merits, the court held that the Detroit program was neutral and did not have the primary effect of advancing religion. Including churches along with dozens of secular entities would not be seen as an endorsement of their religious views. [Thanks to Brian D. Wassom for the lead.]

Russian Authorities Allow Rescheduling of Matriculation Exams By Jewish Students

The Jewish holiday of Shavuot begins this evening. In Russia, after intervention by President Dmitry Medvedev, the Minister of Education has ruled that Jewish students may postpone their taking of the national matriculation exams which were scheduled for tomorrow in conflict with the holiday. Chabad.org News yesterday reported that in a letter to Russian Chief Rabbi Berel Lazar, Educational Minister Andrei Aleksandrovitch Forsenko, citing the Russian Constitution, said that students in the Ohr Avner Chabad network of Jewish day schools and Jewish children in public schools can take their exams up to June 17.

Court Refuses To Dismiss Establishment Clause Challenge To AIG Bailout

In Murray v. Geithner, (ED MI, May 26, 2009), a Michigan federal district court refused to dismiss a taxpayer's Establishment Clause challenge to the federal government's expenditure of $40 billion under the Emergency Economic Stabilization Act to rescue the giant insurance company, AIG. AIG is the market leader in Sharia-compliant financing. The lawsuit argues that use of federal bailout funds to finance "Sharia-based Islamic religious activities" is unconstitutional. Initially the court held that plaintiff has standing to bring the Establishment Clause challenge, relying in large part on the Supreme Court's 1988 decision in Bowen v. Kendrick. On the merits of the claim, the court held:

[T]he fact that AIG is largely a secular entity is not dispositive. "The question in an as-applied challenge is not whether the entity is of a religious character, but how it spends its grant."... In this case, the United States government has a majority interest in AIG. AIG utilizes consolidated financing whereby all funds flow through a single port to support all of its activities, including Sharia-compliant financing. Pursuant to the ESSA, the government has injected AIG with tens of billions of dollars without restricting or tracking how this considerable sum of money is spent.... [A]fter the government acquired a majority interest in AIG... [it] co-sponsored a forum entitled "Islamic Financing 101." These facts, taken together, raise a question of whether the Government's involvement with AIG has created the effect of promoting religion and sufficiently raise Plaintiff's claim beyond the speculative level, warranting dismissal inappropriate at this stage in the proceedings.

The Thomas More Law Center which filed the lawsuit issued a press release summarizing the decision. (See prior related posting.)

Alberta Assembly Set To Pass Parental Rights Provisions

According to yesterday's Edmonton (AB) Journal, after debate extending into the early hours of Wednesday morning, Alberta's Legislative Assembly approved on its second reading Bill 44, the Human Rights, Citizenship and Multiculturalism Amendment Act, 2009. The bill, which adds sexual orientation to the province's anti-discrimination law and makes certain other changes, has attracted much attention because of the parental rights provisions that were also added to it. Under these provisions, a school must provide notice to parents whenever a class or program will be dealing primarily and explicitly with religion, sexuality or sexual orientation, so the parent can request his or her child be excused from class or not participate. The provision does not apply to merely incidental or indirect references to religion, religious themes, human sexuality or sexual orientation in a course. The bill is expected to pass its third and final reading in the Legislative Assembly today.

Theology Professor Named As US Ambassador To Vatican

Yesterday, the White House announced the names of 12 individuals that President Obama intends to nominate as ambassadors. (Boston Globe.) Included is Miguel H. Díaz as Ambassador to the Holy See. Dr. Díaz is a Professor of Theology at St. John's University and the College of Saint Benedict in Minnesota. He previously taught at Barry University, the University of Dayton and the University of Notre Dame, and served as Academic Dean at St. Vincent de Paul Regional Seminary in Boynton Beach, Florida. AP reports that Diaz, a Cuban-American, was a member of the Obama campaign's Catholic advisory board. He was also one of 26 Catholics who signed a statement supporting the nomination of Kathleen Sebelius as Health and Human Services Secretary. Conservative Catholics had criticized Sebelius' support for abortion rights. Yesterday's London Guardian has more on the appointment, on Diaz' reaction to it, and on the reaction of others to his choice. The question of who would be appointed ambassador to the Vatican has been the subject of some contention, as reportedly the Vatican previously rejected three other possibilities. (See prior posting.)

Holy Land Foundation Defendants Sentenced

A Justice Department press release yesterday announced that a Dallas federal district judge has sentenced the Holy Land Foundation for Relief and Development and five of the Muslim charity's leaders who had been found guilty by a federal jury last November on charges of providing material support to Hamas. Hamas is a designated foreign terrorist organization. Two of the convicted defendants were each sentenced to 65 years in prison. The others were sentenced to 15 and 20 years. The court also reaffirmed the jury's prior verdict that the Foundation and the 5 guilty defendants were liable to forfeit the $12.4 million they had funneled to Hamas. (Background via OMB Watch.) (See prior related posting.)

Federal Lawsuit Challenges Prop 8; Some Gay-rights Activists Question Strategy

The New York Times reports that at a news conference yesterday, David Boies and Theodore Olson-- attorneys best known as opponents in the Bush v. Gore litigation in 2000-- announced that they are jointly representing two couples who have filed a lawsuit in federal district court in San Francisco challenging California's Proposition 8 on federal constitutional grounds. The complaint (full text) in Perry v. Schwarzenegger, (ND CA, filed 5/22/2009), asks the court to enter a declaratory judgment and to enjoin enforcement or application of Proposition 8, arguing that it violates the due process and equal protection clauses of the U.S. Constitution. The complaint alleges that "California relegates same-sex unions to the separate-but-unequal institution of domestic partnership."

A number of gay rights activists criticized the filing of the lawsuit, arguing that it could backfire strategically. Yesterday's Examiner says these critics fear that the current Supreme Court would rule against the challenge, and that this would then undermine attempts to get state courts to protect gay marriage under state constitutions. These critics point to another case moving through the federal courts challenging the federal Defense of Marriage Act, which they say is a better first step toward getting federal courts to protect same-sex marriage.

Negotiators On FLDS Land Trust Still Have Not Reached Agreement

Negotiations which have been ongoing for some time on reshaping the $114 million trust holding land of the FLDS Church still have not resolved many of the outstanding issues. (See prior posting.) In 2005, after allegations of mismanagement against FLDS leader Warren Jeffs, a Utah state court appointed a special trustee to take control of the United Effort Plan Trust and reform it to provide for secular management of the property owned by the polygamous FLDS sect. Originally the trust was set up to hold the land and homes of Fundamentalist LDS Church members in Colorado City, AZ and Hildale, UT in accordance with its Holy United Order tenets that call for the sharing of assets by all church members. Yesterday the parties met with Judge Denise Lindberg to report on the progress of their negotiations which are supposed to be concluded by June 15.

According to yesterday's Houston Chronicle, current negotiations are focusing on proposals to create a neutral housing board to deal with claims, and to set aside undeveloped lots for former members who were either excommunicated or left the church voluntarily. Apparently the parties are close to agreement on access to parks, use of a cemetery and payment of outstanding bills. However, Arizona Assistant Attorney General Bill Richards said current proposals raise constitutional and trust law problems and do not meet the court's standards for secular management of the trust. Utah Attorney General Mark Shurtleff is more concerned about reaching an agreement. He says otherwise there will be year of litigation.

AU Asks IRS To Review 501(c)(3) Status of Liberty University

Americans United announced yesterday that it has written the Internal Revenue Service (full text of letter) asking it to review the tax-exempt status of Liberty University. The request pointed to the University's recent denial of recognition to a Democratic Party club formed by a group of students, while recognizing a Republican organization on campus. AU argued that recognized political clubs, funded from student fees, often work on behalf of candidates. Permitting only a Republican club effectively gives Republican candidates an in-kind contribution not made available to Democrats. (See prior related posting.)

Hate Crimes Bill Opponents Invoke "Pedophile Protection" In New Campaign

Now that the U.S. House of Representatives has passed the Local Law Enforcement Hate Crimes Prevention Act (see prior posting), some conservative religious groups are using new scare tactics to oppose passage in the Senate. World Net Daily reported yesterday on a letter-writing campaign organized by Janet Porter, head of the Faith2Action Christian ministry, that argues the bill would protect pedophiles. This notion was stoked by rather outlandish statements made recently on a radio broadcast by Texas Rep. Louis Gohmert. Relying on a statement made during the House debate by Rep. Alcee Hastings, opponents of the legislation say that the term "sexual orientation" in the bill includes "547 forms of sexual deviancies listed by the American Psychiatric Association."

Organizers online offer, for $10.95, to FedEx a letter to every Senator over the name of an individual urging a filibuster of S.909, the Senate version of the bill. The form letter reads in part: "This bill would more appropriately be called 'The Pedophile Protection Act.' The evidence for this extraordinary statement comes directly from debate in the House, when a simple amendment to exempt pedophiles from the protections offered by the bill were rejected."

Wrongful Death Case Against Jehovah's Witnesses In Canada Dismissed In Part

Hughes v. Brady, (Alb. Ct. App., May 25, 2009), is a wrongful death action by the father of Bethany Hughes. Bethany died at age 17 of leukemia. In the case, the Alberta [Canada] Court of Appeals held that Bethany's father may not introduce new evidence against the Watchtower Society or its lawyers in his suit for damages. Following her Jehovah's Witness beliefs, Bethany refused blood transfusions until she was made a ward of the state. The court affirmed the decision of the court below to dismiss claims that defendants had deceived Bethany and that Watchtower lawyers who advised her had a conflict of interest. In part the court found no causal connection between their actions and Bethany's death had been shown. However the appellate court agreed with the lower court that the case could proceed on certain other claims relating to informed consent, trespass and negligence. Yesterday's Calgary Herald reports on the decision.

Religious Protesters of Gun Store Acquitted

In Philadelphia (PA), a municipal court judge has acquitted 12 religious activists on trespass and disorderly conduct charges. AP reported yesterday that the protesters were arrested after they refused to leave Colosimo's Gun Center and blocked the store entrance sidewalk outside. The judge said prosecutors had failed to prove the charges beyond a reasonable doubt.

UPDATE: The Centre Daily Times has a more extensive report on yesterday's acquittals. Defendants, including several ministers, were part of a group called Heeding God's Call, which is attempting to involve faith groups in the gun-control movement. It chose Colosimo's for its protest because of its record for selling guns later used in crimes.

UPDATE2: A Philadelphia Inquirer columnist on Wednesday published a lengthy account of the activities of the anti-gun violence group, the record of the gun store chosen and the arguments made by the defense at trial.

AU Asks County To Assure Homeless Shelter Does Not Pressure Residents Into Prayer

Yesterday's LaCrosse (WI) Tribune reports that Americans United has written LaCrosse County, Wisconsin, complaining that residents of the Salvation Army homeless shelter, funded by the county, are being pressured into attending religious services. Salvation Army gets $50,000 per year in public funds to offer the emergency housing. A Salvation Army official says residents are merely invited to join in services, and are not required to attend. AU wants the county to set up a monitoring system to make sure that coercion is not being used. County and Salvation Army officials will meet next month on the matter. Apparently county officials are willing to monitor activities to meet AU's objections.

California High Court Upholds Proposition 8, But Validates Pre-Prop 8 Marriages

The California Supreme Court today in Strauss v. Horton, (CA Sup. Ct., May 26, 2009), rejected a challenge to voters' approval of Proposition 8, thereby upholding the California constitutional amendment barring same-sex marriage. In a 6-1 decision, the court held that Proposition 8 was an "amendment" and not a "revision" of the state constitution, and therefore properly approved in an initiative process. However same-sex marriages entered into before the effective date of Proposition 8 will remain valid.

The majority opinion by Chief Justice George held that: Proposition 8 merely "carves out a narrow and limited exception" to privacy, due process and equal protection provision in the state constitution, "reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."

Justices Kennard and Werdegar each wrote a concurring opinion. Justice Kennard also joined the majority opinion while Justice Werdegar only agreed with the result, but rejected much of the majority's analysis. Justice Moreno dissented arguing that Proposition 8 is a "revision" of the Constitution because it "strikes at the core of the promise of equality that underlies our California Constitution" by requiring discrimination on the basis of a suspect classification. The Court has also issued a press release describing the opinions. The New York Times reports on the decision.

Sotomayor Is High Court Pick; Here Are Her Religion Decisions

President Obama has nominated Second Circuit Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court. (New York Times). If confirmed by the Senate, Sotomayor will be the first Hispanic to serve on the high court. Sotomayor has served on the Second Circuit since 1998. She served as a federal district court judge in the Southern District of New York from 1992 to 1998. Here is an overview of her judicial views on free exercise, establishment clause and other religion issues. She wrote more on the issue as a district court judge than she has on the 2nd Circuit.

On the Second Circuit, Sotomayor wrote an important dissent in one case

• Hankins v. Lyght, (2006): In an age discrimination challenge by a Methodist clergyman, Judge Winter writing for the majority held that RFRA is properly applied to an Age Discrimination in Employment Act claim. Judge Sotomayor dissented contending that RFRA does not apply to disputes between private parties and that the ADEA does not govern disputes between religious entities and their spiritual leaders.

Judge Sotomayor wrote the court's opinion in 3 other religion-related cases on the 2nd Circuit:

• United States v. Reimer, (2004)(citizenship revocation of Nazi collaborator);
• Ford v. McGinnis, (2003) (prisoner free exercise);
• Salahuddin v. Mead, (1999) (prisoner free exercise).

Sotomayor was on the 2nd Circuit panel that decided a number of other religion-related cases, many of which were either prisoner or immigration cases. Three that involved other types of religion issues in which Sotomayor joined the court's opinion were:

• Friedman v. Clarkstown Central School District, 75 Fed. Appx. 815 (2003) [LEXIS link] (religious objection to required immunization);
• Fifth Ave. Presbyterian Church v. City of New York, (2002) (use of church grounds as homeless shelter);
• Rosario v. Does 1 to 10, 36 Fed. Appx. 25 (2002) [LEXIS link] (teacher dismissed for introducing religious material in classroom).
• [UPDATE] Related opinions in Okwedy v. Molinari (1, 2) (Staten Island Borough president complains to billboard company about display of Biblical verses condmning homosexual behavior.) (Discussed at Volokh Conspiracy.)

Sotomayor wrote more extensively on religion clause matters as a federal district judge. Here is a survey of her religion opinions while on the Southern District of New York:

• Mehdi v. United States Postal Service, 988 F. Supp. 721 (1997) [LEXIS link] (rejecting claim by Muslim plaintiffs that post offices must include crescent and star along with Christmas and Hanukkah decorations);
• Moore v. Kennedy, 1996 U.S. Dist. LEXIS 11474 (1996) (prisoner free exercise);
• Miller v. New York State Department of Labor, 1996 U.S. Dist. LEXIS 11067 (1996) (employment discrimination);
• Utkor v. McElroy, 930 F. Supp. 881 (1996) [LEXIS link] (immigration asylum);
• DiNapoli v. DiNapoli, 1995 U.S. Dist. LEXIS 13778 (1995) (accusations against sibling, member of religious order, growing out of estate administration).
• Rodriguez v. Coughlin, 1994 U.S. Dist. LEXIS 5832 (1994) and Campos v. Coughlin, 854 F. Supp. 194 (1994) [LEXIS link] (preliminary injunction allowing Santeria prisoners to wear religious beads).
• Flamer v. City of White Plains, 841 F. Supp. 1365 (1993) [LEXIS link] (enjoining city from preventing rabbi's placing of menorah in city park during Hanukkah).
  

UPDATE: Here is the White House press release and blog posting on the nomination. Here is the full text of the President's remarks on his choice. Orin Kerr on Volokh Conspiracy points out that if Sotomayor is confirmed, six of the nine Justices will be Catholic. Two are Jewish and Justice John Paul Stevens will be the only Protestant remaining on the Court. (Background data.)

UPDATE 2: The Wall Street Journal on Wednesday posted an interesting interview with Prof. Douglas Kmiec on how Judge Sotomayor's Catholic upbringing may have affected her judicial performance and decisions.

Minnesota Boy's Mother Returns Him For Cancer Treatment

AP reports that 13-year old Daniel Hauser with his mother Colleen returned to Minnesota yesterday, after Daniel's father Anthony urged them to come home. Daniel Hauser, who has Hodgkin's lymphoma, had objected to treatment on religious grounds, and his mother fled with him after a Minnesota court overruled the objections and ordered her and her husband to obtain a new X-ray and select an oncologist for Daniel. The X-ray revealed that a tumor in Daniel's chest had grown. (See prior posting.) The arrest warrant that had been issued for Daniel's mother was lifted after their voluntary return. The FBI believe that Daniel and his mother may have been heading for one of the many alternative cancer clinics in northern Mexico. Daniel is now being evaluated at a hospital in the Twin Cities, according to the Hausers' attorney. CNN reports that while Daniel's mother intends to urge the court to permit alternative cancer treatment, she will allow her son to undergo chemotherapy if that is ordered.

UPDATE: The St. Paul Pioneer Press reports that at a May 26 hearing, a Brwon County judge retruned custody of Daniel Hauser to his parents after the parents agreed to drop their objections to his receiving chemotherapy.