3rd Circuit: Trial Court Properly Refused To Interfere In State Civil Rights Probe

In Ocean Grove Camp Meeting Association v. Vespa-Papaleo, (3d Cir., July 15, 2009), the U.S. 3rd Circuit Court of Appeals said that the district court correctly applied the Younger abstention doctrine when it refused enjoin two related investigations by the New Jersey Division on Civil Rights. The investigations were undertaken after the Methodist Church's Ocean Grove Camp Meeting Association rejected requests to use its Boardwalk Pavilion for same-sex civil union ceremonies by two lesbian couples. (See prior posting.) Generally Younger prevents federal courts from interfering in pending state judicial or quasi-judicial proceedings when the parties will be able to raise their constitutional objections in the state proceedings. Since the state investigation related only to use of the chapel, the court remanded to the district court the broader request by the Association for a declaratory judgment relating to the use of the remainder of its property. A release by Alliance Defense Fund focuses on that portion of the decision. AP yesterday reported on the case. (See prior related posting.)

US Military Trains Afghan Army To Show Its Muslim Face To Locals

The Wall Street Journal yesterday reported on efforts by the U.S. military in Afghanistan to train the Afghan National Army to use religion to counter propaganda of the Taliban. Taliban fighters ride motorcycles through small villages telling locals that the Afghan army is led by godless Communists who are trying to rid the country of Islam. U.S. Army Capt. James Hill is training Afghan army mullah Lt. Col. Abdul Haq to counter this. He supplies Haq with prayer rugs to hand out in villages, installs loudspeakers so local residents can hear the call to prayer to soldiers on Afghan army bases, and encourages Afghan army personnel to mix with villagers to display their religious beliefs. Haq says: "The only way we can keep people from becoming Taliban is by promoting the Muslim nature of the Afghan National Army." [Thanks to ChristianFighterPilot.com for the lead.]

8th Circuit Upholds School's Literature Distribution Policy

In Roark v. South Iron R-1 School District, (8th Cir., July 16, 2009), the U.S. 8th Circuit Court of Appeals upheld a school district's policy on distribution of "printed material" in schools by outside organizations. The policy requires the organization to obtain advance approval, but approval will be given unless the material is libelous, obscene, or unlawful; advertises products or services; endorses a candidate; promotes alcohol, tobacco, drugs, or other illegal activity; or is likely to cause substantial disruption at the school. Distribution is limited to before and after school and lunch hour, and can take place only in front of the administrative offices or in a corner of the cafeteria.

Under a prior school policy, members of the Gideons were permitted to distribute Bibles in 5th grade classrooms during school hours. In a challenge to the policy, the district court entered a permanent injunction prohibiting any distribution of Bibles to elementary school children on school property during the school day. (See prior posting.) The Court of Appeals upheld the continuation of that injunction. The court then moved to consider whether to uphold the district court's declaratory judgment relating to the new policy. Chief Judge Loken, writing the primary opinion, said:

the Judgment neither enjoined the District from implementing the new policy nor declared that policy unconstitutional. Rather, it cross referenced an amended complaint seeking a declaration “that Defendants’ actions in instituting” the new policy violated the Establishment Clause. The precise import of the declaratory judgment is hopelessly obscure. Given its impact on the operations of a state governmental entity, this ambiguity alone requires reversal.

He then went on to also reject a facial Establishment Clause challenge to the new policy, finding that any major objection to it was obviated by the injunction that, as he read it, precluded the distribution of Bibles even under the new policy. Judge Beam concurring said he believes that the injunction only prohibits the earlier practice of distributing Bibles in classrooms. Judge Kyle concurred, saying that while he believes that the new literature distribution policy was passed for the purpose of promoting Christianity, he could concur because, in his view, "the portion of the court’s opinion discussing the new policy under Lemon is dicta...." Liberty Counsel yesterday issued a press release on the decision, as did Americans United.

Obama Nominates Jacqueline Berrien To Head EEOC

The White House announced yesterday that President Barack Obama has sent to the Senate the nomination of Jacqueline A. Berrien to chair the Equal Employment Opportunity Commission. Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF). The announcement was made just hours before Obama spoke at the NAACP's annual meeting. (New York Times.) According to a White House press release which details her background, Berrien is a graduate of Harvard Law School where she served as General Editor of the Harvard Civil Rights-Civil Liberties Law Review. The EEOC enforces the nation's employment discrimination laws, including laws banning religious discrimination in employment.

State Agency Removes Website Links To "Open and Affirming" Churches

Connecticut's Department of Children and Families has removed from its website links to "open and affirming" churches-- i.e. churches that welcome gays, lesbians and persons who are bisexual and transgender. Yesterday's Hartford Courant reports that the links were removed after the Family Institute of Connecticut (FIC), a group that opposes same-sex marriage, threatened to sue. It claimed that placing the links on the state agency's website violates the Establishment Clause as well as parental rights. FIC also asked the Department to make sure that the organization training social workers on issues faced by GLBT youth does not provide information on "open and affirming" churches in its training sessions.

Washington Supreme Court Finds Permit Moratorium Violated Church's Rights

In City of Woodinville v. Northshore United Church of Christ, (WA Sup. Ct., July 16, 2009), the Washington state Supreme Court held that the city of Woodinville violated a church's free exercise rights protected By Art. I, Sec. 11 of the Washington Constitution when it refused to process the church's application for a temporary use permit so it could host a Tent City for the homeless for a period of 90 days. The city had placed a total moratorium on temporary use permits in the area in order to study the environmental effects of new development. Finding that the state constitution's free exercise protections are broader than those in the federal Constitution, the court said:

the City’s total moratorium placed a substantial burden on the Church. It prevented the Church from even applying for a permit. It gave the Church no alternatives.... The City failed to show that the moratorium was a narrow means for achieving a compelling goal. Therefore, the City’s action constituted a violation of article I, section 11 of our constitution.

The court also held that while the church had previously agreed that it would not host another Tent City without obtaining a use permit, under the unique circumstances of this case it was excused from performance of the agreement.

A concurring opinion by Justice Sanders (joined by Justice Chambers) argued that a city cannot constitutionally condition a church's use of its own property on its applying for a use permit. He also concluded that the city's action violated RLUIPA, so the church was entitled to recover damages and attorneys' fees. Yesterday's Merced (CA) Sun-Star reported on the decision.

South Africa's Constitutional Court Protects Widows In Polygamous Muslim Marriages

On Wednesday, South Africa's Constitutional Court held that all the wives in a polygamous Muslim marriage are entitled to claim a share of their husband's property when the husband dies without leaving a will. In Hassam v. Jacobs NO, (So. Afr. Const. Ct., July 15, 2009), the court was reviewing a lower court decision holding that section 1(4)(f) of the Intestate Succession Act was inconsistent with the Constitution to the extent that it makes provision for only one spouse in a Muslim marriage to be an heir. As described by a Media Summary released by the Court:

Nkabinde J writing for a unanimous Court confirmed the declaration of constitutional invalidity made by the High Court albeit in a slightly different manner. She held that the objective of the Act, which is to lessen the dependence of widows on family benevolence, would be frustrated if the continued exclusion of widows in polygynous Muslim marriages were to persist. Nkabinde J held further that the Act violates the applicant’s right to equality. The exclusion of women in the position of applicant from the protection of the Act unfairly discriminates against them on the grounds of religion, martial status and gender. This exclusion is not justifiable in a society guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.

In concluding, Nkabinde J held that the word "spouse" in the Act is not reasonably capable of being understood to include more than one spouse in the context of a polygynous marriage. To remedy the defect, the words "or spouses" are to be read-in after each use of the word "spouse" in the Act.

South Africa's Business Day reported on the decision.

Senate Passes Hate Crimes Bill As Amendment To Defense Authorization Act

On Thursday night, the U.S. Senate agreed to add the Matthew Shepard Hate Crimes Prevention Act as an amendment to the 2010 National Defense Authorization Act. First by a vote of 78-13, the Senate agreed to an amendment clarifying that the hate crime provisions should not be construed or applied to infringe on First Amendment rights. Then the Senate voted 63-28 to invoke cloture on the hate crimes bill. Voice vote passage immediately followed. (AP). (See prior related posting.)

UPDATE: Here is the text of the amendment, offered by Sen. Brownback and adopted by the Senate, intended to protect First Amendment rights:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes on any rights under the first amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to--
(1) plan or prepare for an act of physical violence; or
(2) incite an imminent act of physical violence against another.

Section 10 of the Hate Crimes Prevention Act also contains other provisions on construction of the Act and free expression.

Article Profiles Activities of Child Evangelism Fellowship

The August issue of Harper's magazine carries a long article by by Rachel Aviv titled Like I Was Jesus: How To Bring a Nine Year Old To Christ. It explores the work of Child Evangelism Fellowship, the group that won an important Supreme Court victory in 2001 in Good News Club v. Milford Central School . The case gave CEF's after-school Bible group, the Good News Club, the right to equal access with secular groups to use of school premises after school hours. Aviv's article focuses largely on CEF's summer work in a poor neighborhood in Connecticut, where teenage missionaries bring children to Christ through a week-long Bible club conducted in a neighborhood park near their housing project. Aviv also visits a camp at which teenage missionaries are trained, among other things, in how to use the "EvangeCube"-- a plastic toy that tells the Gospel story in pictures.

Discussing the aftermath of the Supreme court's Good News Club case, Aviv reports:

Since the ruling, the Fellowship, funded by donations, has engaged in more than twenty follow-up suits against schools that refused to comply with the Milford decision. Hundreds of other cases not directly involving the Fellowship have cited the ruling, leading to a level of church-state entanglement that had been prohibited for decades. Meanwhile, the number of Good News Clubs in public schools has quietly and steadily swelled. The ministry held 1,155 after-school clubs in 2000; in 2007, there were 3,956, reaching 137,361 children. Jaimie Fales, the Fellowship’s spokesperson, says that she still hears people complaining about the good old days before "they took God out of the schools. I have to remind them, ‘Hey, listen, you can have prayer in public schools! You can have the Bible in public schools! That’s just complaining. We can do it. We just got to get up and actually do it! The Supreme Court flung the doors wide open.’"

[Thanks to the article's author for sending the PDF.]

Minister's Editorial Is Not Basis For Revoking His Probation

A Michigan appellate court, while upholding the conviction of Rev. Edward Pinkney for paying voters $5 apiece to vote in an election for the recall of a city commissioner and for possessing absentee ballots, reversed the lower court's revocation of Pinkney's probation. As a condition of probation, the trial court had required that Pinkney refrain from "any assaultive, abusive, defamatory, demeaning, harassing, violent, threatening, or intimidating behavior, including the use, through any electronic or print media under [his] care, custody or control, of the mail, e-mail or internet."

Shortly after the trial court denied Pinkney's request for a new trial, he wrote an editorial for a Chicago monthly newspaper charging the judge who denied his motion with being a racist, and said he was "dumb" and "corrupt." One paragraph in the editorial, paraphrasing several verses from Deuteronomy, said:

Judge Butzbaugh, it shall come to pass; if thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed [sic] shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

In People of the State of Michigan v. Pinkney, (MI Ct. App., July 14, 2009), the state court of appeals held that revoking Pinkney's probation for writing the editorial was improper. It held:

To the extent that the prohibition of defamatory and demeaning behavior impinges on defendant’s first amendment rights, the prohibition was not proper, as it was not directly related to defendant’s rehabilitation or to the protection of the public.

The court concluded that it need not decide whether the paraphrase of Biblical verses violated the parole condition barring threatening behavior. It said:

Plaintiff agrees that the paraphrase of Deuteronomy 28 "is not defensible as anything other that [sic] hyperbole" and that the paraphrase could not serve as a lawful basis for revoking defendant’s probation.

AP yesterday reported on the decision. An ACLU press release on the decision contains links to several briefs supporting Pinkey's position that were filed in the case.

Sotomayor Questioned About Her Free Exercise Jurisprudence

Finally yesterday, in the third day of Judiciary Committee hearings on the confirmation of Judge Sonia Sotomayor as Associate Justice of the United States Supreme Court, one Senator asked her a question about her decisions on religious freedom. Here, from the full transcript, is the relevant exchange between her and Sen. Benjamin Cardin (D-MD):

CARDIN: Well, let me conclude on one other case that you ruled on, where I also agree with your decision. That's the Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a district court summary judgment finding in favor of the Muslim inmate who was denied by prison officials access to his religious meals marking the end of Ramadan.

You held that the inmate's fundamental rights were violated and that the opinions of the department of correction and religious authorities cannot trump the plaintiff's sincere and religious beliefs.

The freedom of religion is one of the basic principles in our Constitution, as I said in my opening comments. It was one of the reasons why my grandparents came to America. The freedom of religion, expression is truly a fundamental American right.
Please share with us your philosophy as to -- maybe it's a wrong use of terms -- but the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right in our Constitution.

SOTOMAYOR: I don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the -- the state from establishing a religion, and that we have freedom of expression in speech, as well.

Those freedoms are central to our Constitution. The Ford case, as others that I had rendered in this area, recognize the importance of that in terms of one's consideration of actions that are being taken to restrict it in a particular circumstance.

Speaking further is difficult to do. Again, because of the role of a judge, to say it's important, that it's fundamental, and it's legal and common meaning is always looked at in the context of a particular case. What's the state doing?

In the Ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue, OK?

And what I was doing was applying very important Supreme Court precedent that said, it's the subjective belief of the individual. Is it really motivated by a religious belief?

It's one of the reasons we recognize conscientious objectors, because we're asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual's religious belief and then look at what the state is doing in light of that. So that was what the issue was in Ford.

Also yesterday, Sen. Jeff Sessions entered into the record a letter (full text) from Richard Land, President of the Southern Baptist Convention's Ethics & Religious Liberty Commission, opposing Sotomayor's confirmation.

The Washington Post has transcripts of the questioning of Sotomayor by each of the Senators on the Judiciary Committee.

Ohio Church Groups Say They Will Try To Block Newly Authorized Slot Machines

After a long political battle, the Ohio legislature on Monday passed a balanced budget (H.B. 1) by authorizing the Governor to permit installation of slot machines (video lottery terminals "VLTs") at Ohio's seven race tracks. The slots are projected to bring in $933 million in revenue to the state. (Columbus Dispatch). Gov. Ted Strickland, an ordained Methodist minister, is expected to sign the bill. However, according to a Columbus Dispatch report yesterday, groups such as the Ohio Council of Churches and the anti-gambling task force of the United Methodist Church [background] say they will take legal action and launch a grass-roots campaign, to prevent moving ahead with the VLTs. They want the state to instead raise taxes to more directly fund the state's budget deficit. They say that the VLT's violate Art. 15, Sec. 6 of the Ohio Constitution that allows only the state lottery whose funds are to be used to support education. The Dispatch yesterday also published a Q&A setting out the official position on the legality of the slot machine plan and details of its proposed operation.

Suit Charges Military Contractor With Refusing To Accommodate Wearing of Hijab

In Houston (TX), a federal lawsuit charging religious discrimination has been filed against K.B.R., Inc. (the former Kellogg Brown & Root). The company is particularly known for its extensive work in Iraq under contracts with the military. The complaint (full text) in Tounkara v. K.B.R., Inc. (SD TX, filed 7/13/2009), alleges that K.B.R. violated Title VII of the 1964 Civil Rights Act by "failing to make a reasonable, religious accommodation to allow the plaintiff to wear her hijab (headscarf) in observance of her Muslim faith during her hours of employment." According to a sharply critical report by the Houston Press, Karen Tounkara, a Muslim, was hired by K.B.R. through a nursing agency to help prep its workers who were going to Iraq. K.B.R. informed Tounkara it had a policy that no employee can wear a head covering at work. It told her that she could wear her headscarf up to the company's gates, and could put it back on when she left.

Court Upholds University's Facilities Use Policy

In Rock for Life- UMBC v. Hrabowski, (D MD, July 8, 2009), a Maryland federal district court rejected claims by a student anti-abortion group that its 1st and 14th Amendment rights were violated by university restrictions on the location of a display sponsored by the group. The challenge to the University of Maryland, Baltimore County Policy on Facilities Use was filed after disputes over where on campus for the group's "Genocide Awareness" photo mural exhibit could be set up. During the course of the litigation, the University modified its policy. This led the court to dismiss as moot plaintiff's facial challenge to the Policy. The court then moved to plaintiff's "as applied" challenge. Using standards applicable to a limited public forum, the court rejected plaintiff's 1st Amendment claim. The court concluded that the University's actions under its regulations were narrowly tailored, content-neutral time, place and manner restrictions, motivated by safety, security and traffic-flow concerns. The court also rejected plaintiff's equal protection claims.

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.)