Lawsuit Challenges Congress' Decision To Add Motto and Pledge To Capitol Visitor Center

The Freedom from Religion Foundation yesterday filed suit in federal district court in Wisconsin challenging Congress' directive to the Architect of the Capitol to engrave the motto "In God We Trust" and the Pledge of Allegiance in the Capitol Visitor Center. The complaint (full text) in Freedom from Religion Foundation, Inc. v. Ayers, (WD WI, filed 7/14/2009) alleges that the directive violates the Establishment Clause. An FFRF press release reports that the lawsuit was filed after both the House and Senate last week passed resolutions ordering the additions in response to threats by Sen. Jim DeMint last December to hold up the opening of the Visitor Center which he said failed to recognize the country's religious heritage. (See prior related posting.) AP also reports on the lawsuit.

Court Enjoins Community College's Sexual Harassment Policy As Overbroad

In Lopez v. Candaele, (CD CA, July 10, 2009), a California federal district court issued a preliminary injunction enjoining enforcement of Los Angeles Community College District’s Sexual Harassment Policy. The court found that the policy is overbroad, prohibiting a substantial amount of protected speech. The case grew out of a class presentation by plaintiff, in which he spoke about his religion-based opposition to same-sex marriage. His professor called him a "fascist bastard," cut his speech short, and did not enter a grade on his evaluation sheet. (See prior posting.) However ultimately plaintiff was awarded a grade of A in the course. Alliance Defense Fund issued a release applauding the ruling, saying: "Christian students shouldn't be penalized for expressing their beliefs at a public college."

Senate Appropriations Bill Has Security Funds For Non-Profits; Extends Religious Worker Program

Last Thursday, the U.S. Senate passed its version of H.R. 2892, the Homeland Security Appropriations Act. A conference committee was appointed to reconcile differences between the Senate version and the version the House has already passed. Two interesting provisions are included in the Senate bill:

As reported by JTA, Title III's appropriations for the State Homeland Security Grant Program [pg. 30 of PDF] includes $20 million to protect high-risk non-profit institutions, including religious institutions, against terrorist attack. The Senate version appropriates $5 million more than the House version did for nonprofits.

Title V, Sec. 571 [pg. 95 of PDF], extends the controversial Special Immigrant Nonminister Religious Worker Program until Sept. 30, 2012. However it requires USCIS to submit to the Senate and House Judiciary Committees by March 30, 2010 a report on the risks of fraud and noncompliance in the program and a detailed plan describing actions to be taken against those who do not comply with the conditions of their special visas-- followed by a progress report on action actually taken. (See prior related posting.) The House version of the Homeland Security Appropriations Act contains no provisions extending the Religious Worker Program that, under current law, expires this September.

Sikh Group Wants Governor To Veto Oregon Workplace Religious Freedom Act

Yesterday the Sikh American Legal Defense and Education Fund wrote Oregon Gov. Ted Kulongoski, asking him to veto the Oregon Workplace Religious Freedom Act (SB 786) which was passed by the state legislature several weeks ago. (Full text of letter.) The bill generally requires employers to reasonably accommodate employees' religious practices and observances. SALDEF's concern, however, is the provision in the bill that still allows public and charter schools to prohibit teachers from wearing religious dress while engaged in the performance of duties as a teacher. This presumably would allow school districts to ban Sikh teachers from wearing their religiously-mandated dastaars (turbans). (SALDEF release.) The letter urges the governor to "veto SB 786, as proposed, and ask the Oregon legislature to approve a version of the bill that honestly and comprehensively protects religious freedom in the workplace."

Texas Board of Education Panel Splits On Role of Religion In History Curriculum

The Wall Street Journal yesterday reported on the work of the Texas State Board of Education's panel of experts who are reviewing the state's social studies curriculum. The panel is evenly divided between social conservatives and more moderate or liberal in-state university faculty with expertise in education or social sciences. (See prior posting.) The full text of each panel member's review is available online. According to the Wall Street Journal's report:

[A] divide has opened over how central religious theology should be to the teaching of history. Three reviewers, appointed by social conservatives, have recommended revamping the K-12 curriculum to emphasize the roles of the Bible, the Christian faith and the civic virtue of religion in the study of American history.... "We're in an all-out moral and spiritual civil war for the soul of America, and the record of American history is right at the heart of it," said Rev. Peter Marshall....

The conservative reviewers say they believe that children must learn that America's founding principles are biblical. For instance, they say the separation of powers set forth in the Constitution stems from a scriptural understanding of man's fall and inherent sinfulness, or "radical depravity," which means he can be governed only by an intricate system of checks and balances. The curriculum, they say, should clearly present Christianity as an overall force for good -- and a key reason for American exceptionalism, the notion that the country stands above and apart.

This summer, Texas social studies teachers will draft the actual recommendations to the Board for curriculum changes. [Thanks to Rabbi Michael Simon for the lead.]

Issues of Religion Largely Absent From Second Day of Sotomayor Hearings

Yesterday, at the second day of hearings on the nomination of Judge Sonia Sotomayor as Associate Justice on the U.S. Supreme Court, religion, religious freedom and church-state issues received little attention either in questions posed to the nominee or in her answers. Don Byrd, who has been blogging live from the hearings, identifies three exchanges relating to religious issues. The full hearing transcripts are available via the Washington Post. Here are the relevant exchanges:

In questioning Sotomayor about her views on the Second Amendment, Sen. Orin Hatch asked: "OK. As I noted, the Supreme Court puts the Second Amendment in the same category as the First and the Fourth Amendments as pre-existing rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?" To which Sotomayor replied: "Those rights have been incorporated against the states. The states must comply with them."

Sen. Lindsey Graham, expressing his concern about expansive interpretations of the Constitution said: "And that gets us to the speeches. That broad provision of the Constitution that's taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on, and that's what drives us here, quite frankly.... [A] lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing...."

Sen Diane Feinstein, asking about the overruling of precedent, referred to the Hein case that denied a taxpayer standing to challenge spending by President Bush's faith-based office. She said: "In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedents without acknowledging that they were doing so. Scalia wrote in the Hein case ... 'Overruling prior precedent is a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive....'"

(See prior related posting.)

Evangelist Challenges University's Speech Policy

On Monday, a traveling Christian evangelist filed a federal lawsuit against Georgia Southern University, challenging its campus speech policy. The complaint (full text) in Bloedorn v. Grube, (SD GA, filed 7/13/2009), alleges that while the University has opened accessible areas on campus for outside speakers, it still requires application for a permit and reserves discretion to approve or disapprove any particular speaker. It also limits the length of the speaker's visit. Plaintiff Benjamin Bloedorn visits campuses 4 to 6 hours per day, for two or three days in a row to engage students in discussion about the existence of God and the teachings of Christianity. Bloedorn was arrested by a campus police officer after he insisted on speaking without applying for a permit. His lawsuit insists that the University's permit policy is an unconstitutional prior restraint on speech. Alliance Defense Fund announced the filing of the lawsuit.

Malaysian Police Investigate Reporter's Activities In Attending Mass Under False Pretenses

In Malaysia, where causing religious disharmony can be prosecuted as a crime, police are investigating two Muslim men who attended a Roman Catholic mass as part of an investigative article published in the Malay-language Al-Islam magazine. AP today reports that the article was intended to investigate rumors that Muslim teenagers were being converted to Christianity. The author found no evidence of this, but has created controversy by indicating in the article that he and a friend hid their Muslim identities when attending. They took communion and photographed their partially-eaten communion wafer. A police complaint was filed by a Catholic man, and Rev. Lawrence Andrew, the editor of the Catholic publication, the Herald, said the men had "insulted the Christians" by their actions.

Leahy To Introduce Hate Crimes Bill As Amendment To Defense Authorization Act

Sen. Patrick Leahy yesterday announced that he would introduce the Matthew Shepard Hate Crimes Prevention Act as a bipartisan amendment to the National Defense Authorization bill this week. Last year the Senate approved the measure as an amendment to the Defense Authorization Bill, but it was removed in conference after opposition from the Bush White House. (See prior posting.) The most controversial portion of the bill expands coverage of existing hate crimes legislation to cover crimes aimed at victims because of their sexual orientation, gender, gender identity or disability. It also expands the situations in which the federal government can prosecute hate crimes based on race, religion or national origin by eliminating the requirement that they involve certain federally protected activities. The bill also provides for federal assistance grants to state and local governments, allows the federal government to prosecute in certain cases where states have failed to do so, and expands the statistics on hate crimes that will be collected by the federal government. The House passed a similar hate crimes measure in April as a free-standing bill. (See prior posting.)

Issues of Religion Play Little Role In First Day of Sotomayor Hearings

Yesterday, the Senate Judiciary Committee held its first day of hearings on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. The day began with opening statements from each member of the Committee. Then the Senators from Sotomayor's home state of New York (Sens. Schumer and Gillibrand) introduced the nominee. The day's hearings closed with Sotomayor's opening statement. Issues of religion, religious freedom and church-state were not particularly prominent. The Washington Post has published the full text of all the statements. Here are the only references in them issues of religion:

Sen. Patrick Leahy:

Those who break barriers often face the added burden of overcoming prejudice.... The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism and charges that he was a "radical". The commentary at the time included questions about "the Jewish mind" and how "its operations are complicated by altruism." Likewise, the first Catholic nominee had to overcome the argument that "as a Catholic he would be dominated by the pope."

Sen. Jeff Sessions:

Do I want a judge that allows his or her social, political, or religious views to change the outcome? Or, do I want a judge that impartially applies the law to the facts, and fairly rules on the merits, without bias or prejudice?

Sen. Chuck Schumer (discussing cases Sotomayor has decided):

And she upheld the First Amendment right of a prisoner to wear religious beads under his uniform.

Sen. Benjamin Cardin:

My grandparents came to America more than 100 years ago. I am convinced that they came to America not only for greater economic opportunities, but because of the ideals expressed in our Constitution, especially the First Amendment guaranteeing religious freedom.

My grandparents wanted their children to grow up in a country where they would be able to practice their Jewish faith and fully participate in their community and government. My father, one of their sons, became a lawyer, state legislator, circuit court judge and President of his synagogue. And now his son serves in the U.S. Senate.

While our Founding Fathers made freedom of religion a priority, equal protection for all races took longer to achieve.... I remember with great sadness how discrimination was not only condoned but, more often than not, actually encouraged against Blacks, Jews, Catholics, and other minorities in the community. There were neighborhoods that my parents warned me to avoid for fear of my safety because I was Jewish. The local movie theater denied admission to African Americans. Community swimming pools had signs that said "No Jews, No Blacks Allowed." Even Baltimore's amusement parks and sports clubs were segregated by race.

Sen Dick Durbin:

Your mother worked two jobs so she could afford to send you and your brothers to Catholic schools, and you earned scholarships to Princeton and Yale.

Senator Kirsten Gillibrand's introduction of Sotomayor included a quote from Justice Scalia that he "grew up with people of all religious and ethnic backgrounds."

Judge Sotomayor in her opening statement made no mention of religion, religious freedom or church-state issues.

An opinion piece from today's Wall Street Journal asks: "Why was Samuel Alito's Catholicism so much more discussed than Sonia Sotomayor's?"

FCC Change In TV Rules Impacts Many Church Wireless Microphone Systems

According to an ABP report yesterday, many churches will be surprised to learn that they have been affected by the Federal Communications Commission's decision requiring television stations, as of June 12, to end analog broadcasts. As part of the conversion, all stations were required to move to channels 2 through 51-- something made possible by the improved efficiency of digital transmissions. That allowed the FCC to also reallocate the 700 MHz wireless spectrum that had previously been used primarily for UHF channels 52 through 69. The lower half of the 700 MHz band was auctioned off to various telecommunications companies, while the upper half was reserved for a public safety network to be used by law enforcement, fire and safety forces and municipalities. (Background from Wikipedia.)

The problem is that many church sound systems operate in the 700 MHz range. That means that there may well be interference in some locations. Also these churches are apparently acting illegally in continuing to operate their systems. As explained in a posting last year on Geeks&God, the FCC adopted rules in late 2008 to allow the unlicensed use of "white spaces" between TV stations below 698 MHz. (FCC News Release, Nov. 4, 2008). However as of Feb. 17, 2009, wireless microphones using higher frequencies were to cease operating. Manufacturers no longer sell wireless microphone systems in the 700 MHz range and they offer discounts to churches that trade in their old systems for new ones in permitted ranges.

Groups Oppose Expansion of Virginia Islamic Saudi Academy

The Fairfax County, Virginia Board of Supervisors held a public hearing yesterday on the proposed expansion of the campus of the Islamic Saudi Academy. The controversial college and preparatory school has close ties with the Saudi government. Fox News reported yesterday that a coalition of around ten groups oppose the expansion. The spokesman for one of those groups, James Lafferty, chairman of the Virginia Anti-Shariah Task Force (VAST), says as to his group's opposition: "We're opposed to the operation of the Islamic Saudi Academy because it teaches and practices Shariah law. Shariah law is anti-constitutional and we feel that it is the ultimate improper land use here in the state where the Constitution was created." Others object because one of the Academy's graduates was convicted of joining Al Qaeda and plotting to assassinate President Bush, while another was arrested for boarding a plane carrying a kitchen knife. (See prior related posting.)

Lawsuit In Egypt Seeks To Rescind Prize Given To Controversial Writer

In Egypt, supporters of the Muslim Brotherhood have filed a lawsuit seeking to have the Ministry of Culture's State Award of Merit in Social Sciences withdrawn from author Sayed al-Qimni. Al Arabiya today reports that opponents object that: "His works deride Islam and he is skeptical about the message of Prophet Mohamed." Lawyer Nabih al-Wahsh who filed the suit has also called for impeachment of the Minister of Culture Farouk Hosni for approving the choice of Qimni. Previously a court ruled against attempts to ban Qimni's book Rab Haza al-Zaman (A God of this Age) by those who claimed it contained apostasy. Quimni has argued that Islam is a political system rather than a religion.

Russian Orthodox Church Gets New Power To Preview Duma Legislation

The Moscow Times reported last week that the Russian Orthodox Church will now be consulted in advance by United Russia deputies in the lower house of legislature so it can preview all legislation that will be considered by the State Duma. The agreement came after Russian Orthodox Patriarch Kirill conferred with two senior United Russia deputies over the Duma's ratification in May of the European Social Charter. Approval was required as part of Russia's membership in the Council of Europe. Krill objects to interpretations of provisions in the document that require public schools to offer sex education and require the creation of juvenile justice systems aimed at deterring youth from committing crimes. (Case Law Fact Sheet). Krill believes that parents, not the government, should be responsible for sex education and for discipline of their children.

World Football Regulator Warns Brazil's Team Over Religious Slogans On T-Shirts

FIFA, world football's governing body, has sent a warning letter to the Brazilian football federation after their players wore T-shirts with Christian slogans during the finals of the Confederations Cup last month. Apparently the T-shirts were under their jerseys, and were displayed after the game in victory photos. Yesterday's London Mail reports that most members of the Brazilian team are Pentecostalists with strong Christian beliefs. FIFA's Laws of the Game set out an interpretation of Law 4:

Players must not reveal undergarments showing slogans or advertising. The basic compulsory equipment must not have any political, religious or personal statements. A player removing his jersey or shirt to reveal slogans or advertising will be sanctioned by the competition organiser. The team of a player whose basic compulsory equipment has political, religious or personal slogans or statements will be sanctioned by the competition organiser or by FIFA.

[Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Amos N. Guiora, Religious Extremism: A Fundamental Danger, (South Texas Law Review, Vol. 50, No. 743, 2009).

From SmartCILP and elsewhere;

• Casey Luskin, Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the teaching of Biological Origins, 32 Hamline Law Review 1 (2009).
• Don Ellinghausen, Jr., "In Standing Is the Preservation of His World": Justice Scalia and the Varieties of Natural-Religious Experience, 16 Missouri Environmental Law & Policy Review 474-520 (2009).
• Kent Greenawalt, The Rule of Law and the Exemption Strategy, 30 Cardozo Law Review 1513-1534 (2009); Marci A. Hamilton, A Response to Professor Greenawalt, 30 Cardozo Law Review 1535-1543 (2009).
• Andrew P. Morriss & Benjamin D. Cramer, Disestablishing Environmentalism, 39 Environmental Law 309-396 (2009).
• David M. Smolin, The Civil War As a War of Religion: A Cautionary Tale of Enslavement and Emancipation, 39 Cumberland Law Review 187-237 (2008-2009).
• Manisuli Ssenyonjo, Limits On the Freedom To Manifest One's Religion In Educational Institutions in Uganda and the United Kingdom [Abstract], 7 I.Con: International Journal of Constitutional Law 275-305 (2009).
• Religion in the Workplace. [Full text of all articles.] Foreword by Fouad A. Riad; articles by Kenneth D. Wald, Lorne Sossin, Francois Gaudu, Achim Seifert, Nurhan Sural, Mark Freedland, Lucy Vickers and William W. Van Alstyne; afterword by Alain Supiot. 30 Comparative Labor Law & Policy Journal 465-653 (2009).

Catholic Chaplains Complain About California's Proposed Lethal Injection Protocol

On June 30, the California Department of Rehabilitation and Corrections held a hearing on its Proposed Regulations on lethal injections (full text). Executions in California were suspended in 2006 after a federal district court in Morales v. Hickman raised questions about whether California's protocol for executions created too great a risk of extreme pain. Media coverage immediately after the June DRC hearings indicated that much of the testimony focused on broad opposition to capital punishment. (Los Angeles Times.) However on Friday, Tidings carried an article outlining a narrower objection to the proposed new regulations raised by Catholic prison chaplains.

The proposed regulations require that 45 days before execution:

3349.3.1(e) The Chaplain shall:
(1) Interview the inmate to assess the inmate’s spiritual and emotional well-being.
(2) Determine the inmate’s religious preferences and needs, next of kin, funeral or other requests, attitudes or thoughts on death and dying, and note any observations regarding the inmate’s emotional stability such as acceptance of the sentence of death.
(3) Formulate these observations into a written report and submit it to the Warden within sufficient time to meet the Warden’s 20-day report deadline.

Then ten days before execution:

3349.3.3(f) The Chaplain shall deliver a written report to the Warden regarding the emotional state of mind of the inmate. These observations shall be limited to contacts made within three days preceding preparation of the report.

Chaplains are concerned that these requirement may call for them to reveal information received in confidence from the prisoner which currently is protected by the clergy-penitent privilege.

Rights Group Says Arrest By Saudi Religious Police Led To Honor Killing

In Saudi Arabia, the Society for Defending Women’s Rights says that the country's religious police, the Commission for the Promotion of Virtue and Prevention of Vice, are ultimately responsible for the "honor killing" of two sisters by their brother. Qatar's The Peninsula reported yesterday that Society claimed religious police sparked the anger of the women's brother by arresting the women, ages 19 and 21, for mixing with unrelated males. Police put them in a Riyadh women's shelter. Their brother shot them, in the presence of their father, when the left the shelter on July 5. The Society called for the government to charge the brother with murder, and also to bring charges against the religious police involved in the case.

British House of Lords Keeps Free Speech Defense To Inciting Hatred Against Gays

In Britain last Thursday, the House of Lords, by a vote of 186-133, deleted from the proposed Coroners and Justice Bill section 61 which would have done away with a statutory free speech defense to the crime of inciting homophobic hatred. The defense is found in the Criminal Justice and Immigration Act 2008 which outlaws inciting hatred on the ground of sexual orientation, but goes on to provide:

In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.

The Labour government had proposed elimination of the defense, but Lord Waddington, former Conservative party Home Secretary, proposed an amendment to retain it which was the subject of Thursday's vote. The House of Lords has posted the full text of the debate on the amendment. The Independent and BBC News both reported on the House of Lords action.

Recent Prisoner Free Exercise Cases

In Isom v. Lowe, 2009 U.S. Dist. LEXIS 56922 (MD PA, July 6, 2009), a Pennsylvania federal district court held that prison officials were justified in taking a Muslim prisoner off the "Common Fare" diet after it was found that he was purchasing and consuming regular items from the Commissary that do not comply with the "Common Fare" diet.

In Riley v. Doe, 2009 U.S. Dist. LEXIS 56406 (MD TN, July 2, 2009), a Tennessee federal district court rejected a complaint that prisoners of the Christian Identity faith are not permitted to meet for group worship. The denial stemmed merely from the mistaken belief by the prison director of religious services that Christian Identity was classified as a Security Threat Group.

In Miska v. Middle River Regional Jail, 2009 U.S. Dist. LEXIS 56661 (WD VA, July 2, 2009), a Virginia federal district court rejected an inmate's complaint that his free exercise rights were violated when he was prevented from attending Communion and Confession one time while in segregated confinement.

In Caldwell v. Folino, 2009 U.S. Dist. LEXIS 56838 (WD PA, July 1, 2009), a Pennsylvania federal magistrate judge concluded that an inmate's free exercise rights were not violated when corrections officers searched his medicine bag and made disparaging comments about its contents.

In Mayo v. Briggs, 2009 U.S. Dist. LEXIS 57378 (ED VA, July 6, 2009), a Virginia federal district court adopted a magistrate's recommendations and dismissed an inmate's lawsuit for damages and a change in the jail's policy. Plaintiff claimed that authorities refused to permit him to attend Muslim Jumah services. The refusal was based on plaintiff's identifying himself as Christian, not Muslim, when he arrived at the jail.

In Mayne v. State, 2009 U.S. Dist. LEXIS 57678 (D NJ, July 7, 2009), a New Jersey federal district court permitted plaintiff to proceed with his complaint that while under house arrest and electronic monitoring, his parole officer refused to permit him to attend Catholic religious services.

In Thomas v. Little, 2009 U.S. Dist. LEXIS 57568 (WD TN, July 6, 2009), a Tennessee federal district court dismissed claims by an inmate that his free exercise rights, and his rights under RLUIPA were infringed by prison policy that allows Muslim inmates to buy prayer oil only from a single approved supplier.

In Anderson v. Harron, 2009 U.S. Dist. LEXIS 57986 (D NJ, July 7, 2009), a New Jersey federal district court rejected an inmate's complaint that his rights under the 1st Amendment and RLUIPA were infringed when he was temporarily removed from the jail's Ramadan meal program. The court also rejected his complaint that the jail did not facilitate weekly group Jumah prayers among the Muslim prisoners.