Religion Clause

Thursday, August 27, 2009

New York Releases 2008 Hate Crime Statistics

Last week, New York's Division of Criminal Justice Services released its 2008 report on hate crimes in the state. (Full text of report.) It identified 596 instances, involving 610 victims. Two-thirds were crimes against persons (particularly assault and intimidation), while one-third were property crimes. 43% of the crimes were motivated by race/ethnicity/national origin, while 37% were motivated by religious bias. 31.4% of the victims were targeted in anti-Jewish incidents; 24.8% in anti-Black incidents; and 14.8% in anti-male homosexual incidents. Yesterday's Hudson Valley Times Herald-Record reported on the newly released statistics.

Court Says No Establishment Clause Violation By Orthodox Jewish School Board Majority

In Incantalupo v. Lawrence Union Free School District, (ED NY, Aug. 24, 2009), a New York federal district judge issued an unusually strong opinion rejecting an Establishment Clause challenge to the Lawrence (NY) School Board's consolidation plan that would close one of the district's school buildings. Plaintiffs claim that the Orthodox Jewish majority on the school board took actions to favor Orthodox Jewish families who send their children to private religious schools rather than the public schools administered by the Board. (See prior posting.) In denying a preliminary injunction the court concluded that "plaintiffs have zero chance of success on the merits." The court additionally completely dismissed the complaint for failure to state a claim. It concluded that the School Board's actions have both a secular purpose and effect. The court wrote in part:

Plaintiffs’ contend, the Defendants’plan to sell a school and keep taxes low somehow establishes Orthodox Judaism as Lawrence’s official religion. This argument is completely frivolous....

Plaintiffs essentially complain about low taxes, alleging that these low taxes enable Orthodox Jews residing in Lawrence to afford parochial schools. But if, as in Mueller, tax deductions targeted at private education survive Constitutional muster, then untargeted lower taxes – which help individuals afford everything from parochial education to groceries to vacations – obviously must.....

[U]nder Plaintiffs' reasoning, no claim would lie against political conservatives who ideologically disfavor spending on public schools, or retirees who have no children in the public school system and want lower taxes to boost their discretionary income. Rather, Plaintiffs believe that the School Board’s actions are problematic entirely because the School Board members are Orthodox Jews who are motivated, in part, to help other Orthodox Jews pay yeshiva tuition by lowering their tax burden. In short, Plaintiffs seek to deny Orthodox Jews political rights possessed by every other group in the United States: the right to mobilize in support of religiously neutral government policies, and then have those policies enacted through normal democratic processes. And Plaintiffs seek to do so because, Plaintiffs allege, the School Board's religiously neutral government actions are motivated by the Jewish faith, instead of anti-tax sentiment generally.

Plaintiffs thus ask this Court to discriminate against Orthodox Jews by finding that lower taxes and smaller government are unconstitutional because many of the tax cut’s beneficiaries would choose to allocate their tax savings to Jewish education rather than secular pursuits. But if the First Amendment means anything, it is that the Government cannot prohibit individuals from spending their own money to fulfill the obligations of their religious faith.

Yesterday, both Newsday and Long Island's Jewish Star reported on the decision. [Thanks to both Benjamin Wolf and Joel Katz (Relig. & State in Israel) for leads.]

Bangladesh Court Orders Police To Investigate Fatwa and Village Arbitration

Bangladesh's High Court has issued a directive to police to investigate extra-judicial punishments that are being meted out by village mullahs as self-appointed arbitrators who pronounce fatwas. Dhaka's Daily Star today says that poor women have often been the victims of the so-called fatwa and village arbitration. Some have been ruthlessly whipped. The paper applauds the court for attempting to end the practice, which the paper calls an exploitation of religious sentiments of simple people.

Florida Standardized Test Dates Conflict With Holidays In 2011

The Miami Herald yesterday reported that when Florida's legislature in 2008 moved the dates for the Florida Comprehensive Assessment Test later in the year to give students more time to prepare, they failed to consider possible conflicts with religious holidays. Now it appears that the dates mandated for the 2011 tests for math, reading and science overlap with Passover and Easter. Officials are concerned because some Jewish students stay out of school for religious reasons for some of the days of Passover, and for Christian students, some of the tests will fall on Good Friday. For all students, holiday activities may mean disruptions in schedules that make for less than ideal testing conditions for the important achievement tests. Schools are looking at various options, such as extending testing dates or closing on Good Friday.

TRO Lets Parochial School Musician Into Public School Band

Yesterday a Pennsylvania federal district court granted a temporary restraining order allowing Alexander Trefelner, an eighth grade saxaphone player, to remain in the Burrell (PA) High School band, even though Trefelner will be a student at St. Joseph Catholic High School. Yesterday's Pittsburgh Post-Gazette reported that after a two-hour hearing, the court ruled that school district policy "appears ... to be a burden on the free exercise of religion." The district, as required by state statute, allows charter, cyber- or home-schooled students to participate in public school extracurricular activities even though they are not enrolled full time in district schools. However neither the statute nor the district's policy extends to students enrolled in private or religious schools. Federal district judge Joy Conti concluded that allowing Trefelner to participate is not likely to create increased costs or administrative burdens for the school. (See prior related posting.)

Kentucky's Required Display of Findings On God Violate Establishment Clause

In American Atheists, Inc. v. Commonwealth of Kentucky, (Franklin KY Cir. Ct., Aug. 26, 2009), a Kentucky trial judge struck down a provision in state law requiring the state Department of Homeland Security to promote and display specified findings of the state legislature. The findings include a statement that: "The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God...." The court concluded that the requirement that these findings be included in agency training and educational material and displayed on a sign at the entrance to the state's Emergency Operations Center violates the federal Establishment Clause and Sec. 5 of the Kentucky Constitution. It said:

The nature of this statute is much more than an acknowledgement that people have historically looked to God for protection. The statute pronounces very plainly that current citizens of the Commonwealth cannot be safe, neither now nor in the future, without the aid of Almighty God.... Effectively the General Assembly has created an official government position on God.

McClatchy Newspapers and the Louisville Courier Journal reported on the decision, as did a release from American Atheists.

UPDATE: The Louisville Courier-Journal reports that on Sept. 4 the state filed a notice of appeal in the case as well as a motion to stay enforcement of the trial court's ruling pending appeal.

Wednesday, August 26, 2009

Sen. Ted Kennedy Dies; Remembering His Views On Religion In Public Life

Sen. Edward M. Kennedy died last night of brain cancer. (AP). President Obama eulogized him, calling him "the greatest United States Senator of our time." (Full text of President's statement.) Sen. Kennedy was a strong supporter of religious freedom and church-state separation. His speech, titled Faith, Truth and Tolerance in America, delivered at Liberty University in 1983, was an eloquent expression of the role of religion in public life. Here are some excerpts:

I am an American and a Catholic; I love my country and treasure my faith. But I do not assume that my conception of patriotism or policy is invariably correct, or that my convictions about religion should command any greater respect than any other faith in this pluralistic society. I believe there surely is such a thing as truth, but who among us can claim a monopoly on it? There are those who do, and their own words testify to their intolerance....

But in saying that, we cannot and should not turn aside from a deeper and more pressing question -- which is whether and how religion should influence government.... The separation of church and state can sometimes be frustrating for women and men of religious faith. They may be tempted to misuse government in order to impose a value which they cannot persuade others to accept. But once we succumb to that temptation, we step onto a slippery slope where everyone’s freedom is at risk. Those who favor censorship should recall that one of the first books ever burned was the first English translation of the Bible.....

The real transgression occurs when religion wants government to tell citizens how to live uniquely personal parts of their lives.... But there are other questions which are inherently public in nature, which we must decide together as a nation, and where religion and religious values can and should speak to our common conscience..... There must be standards for the exercise of such leadership, so that the obligations of belief will not be debased into an opportunity for mere political advantage. But to take a stand at all when a question is both properly public and truly moral is to stand in a long and honored tradition.....

First, we must respect the integrity of religion itself. People of conscience should be careful how they deal in the word of their Lord. In our own history, religion has been falsely invoked to sanction prejudice -- even slavery -- to condemn labor unions and public spending for the poor.....
Religious values cannot be excluded from every public issue; but not every public issue involves religious values.... Second, we must respect the independent judgments of conscience. Those who proclaim moral and religious values can offer counsel, but they should not casually treat a position on a public issue as a test of fealty to faith.... Third, in applying religious values, we must respect the integrity of public debate. In that debate, faith is no substitute for facts..... Fourth, and finally, we must respect the motives of those who exercise their right to disagree.....

In short, I hope for an America where neither "fundamentalist" nor "humanist" will be a dirty word, but a fair description of the different ways in which people of goodwill look at life and into their own souls.

[Thanks to Blog from the Capitol for a link to the speech.]

3rd Circuit Dismisses Abortion Protesters' Bid To Stand On Handicapped Ramp

On Monday, the U.S. 3rd Circuit Court of Appeals rejected a free exercise claim by protesters who sought access to a handicapped entrance ramp outside an abortion clinic in York, Pennsylvania. The protesters claimed that their Christian religious beliefs required them to share their pro-life views with others. In McTernan v. City of York, (3d Cir., Aug. 24, 2009), concluding that the access ramp was a non-public forum, the court held that it was reasonable to require the protesters to stay on the sidewalk next to the ramp. Their presence on the ramp impairs access to the clinic, while walking instead alongside the ramp still gives them access to everyone entering the clinic. The court dismissed plaintiffs' complaint finding that the regulation at issue is a neutral rule of general applicability. In an earlier decision, the 3rd Circuit had remanded for trial free expression claims regarding a restriction on protests elsewhere near the clinic. (See prior posting.)

Catholic Magazine Publishes Reflections On the Obama-Notre Dame Controversy

The new issue of America magazine carries two articles reflecting on the controversy earlier this year surrounding Notre Dame's awarding of an honorary degree to President Barack Obama. (See prior posting.) One article is by John M. D’Arcy, bishop of Fort Wayne-South Bend, where Notre Dame is located. He writes in part:

The diocesan bishop must ask whether a Catholic institution compromises its obligation to give public witness by placing prestige over truth. The bishop must be concerned that Catholic institutions do not succumb to the secular culture, making decisions that appear to many, including ordinary Catholics, as a surrender to a culture opposed to the truth about life and love.

The second article, from John R. Quinn, archbishop emeritus of San Francisco, takes a different tack. He argues that a strategy of refusing to award an honorary degree to the President "undermines the church's transcendent role in the American political order." He continues:

[T]he Obama controversy, in concert with a series of candidate-related condemnations during the 2008 election, has communicated several false and unintended messages to much of American society..... 1. The message that the Catholic bishops of the United States function as partisan political actors in American life. ...2. The message that the bishops are ratifying the "culture war mentality," which corrodes debate both in American politics and in the internal life of the church.... 3. The message that the bishops are effectively indifferent to all grave evils other than abortion.... 4. The message that the bishops are insensitive to the heritage and the continuing existence of racism in America.

[Thanks to Mirror of Justice for the lead.]

Washington State Bans All Holiday Displays Inside Capitol Building

As reported by the Everett (WA) Herald, the state of Washington's Department of General Administration last week adopted a new interim policy (full text) on the use of public areas of the Capitol. Earlier this year, the state began rule making proceedings to avoid the confusion that resulted last year from numerous competing requests to put up holiday displays. (See prior posting.) A Questions & Answers sheet also issued last week by the Department clarifies the interim policy's impact:

Q: Will you allow displays and exhibits?

The interim policy does not allow the public to place displays and exhibits in the public areas of the capitol buildings, regardless of content. However, subject to reasonable time, place and manner restrictions, you may be permitted to place displays outside on the capitol grounds.

Q: Will you permit a Nativity scene in the Legislative Building during the holiday season?

No. General Administration has turned down a request for a Nativity display inside the Legislative Building for December 2009.

Q: Will you permit an atheist display in the Legislative Building during the holiday
season?

No. General Administration has turned down a request for an atheist display inside the Legislative Building for December 2009.

Q: Will there be a holiday tree at the Legislative Building this year?

Yes. The holiday tree will continue as a General Administration activity.

[Thanks to Blog from the Capitol for the lead.]

Mosques Will Aid Malaysian State Officials In Syariah Enforcement

In Malaysia, the Selangor Islamic Religious Department (Jais) has issued authority letters to more than 370 mosques authorizing 4 leaders in each mosque to aid the government in enforcing the Selangor Syariah Crimes Enactment 1995. Yesterday's Malay Mail reports that the mosque officials were given authority to note information about any Muslim found drinking alcohol in public and to hand them over to police or religious enforcement officers. Datuk Dr Hassan Ali, the Selangor executive councillor in charge of religion, said that mosque officials will soon be given the additional power to arrest Muslims for selling and storing alcoholic beverages, and for being "disrespectful" during Ramadan.

Suit Will Charge Judge With Improperly Requiring Removal of Hijab

The Detroit News reports that the Michigan chapter of CAIR today will file suit against Wayne County Circuit Judge J. William Callahan. The suit will claim that the judge ordered a Muslim woman, Raneen Albaghdady, to remove her headscarf (hijab) during a hearing on her application to change her name. CAIR says that this violated her free exercise rights. Unlike a prior case in Detroit, here the woman's face was fully visible. YouTube has a video of part of the exchange between the judge and Albaghdady.

Paper Surveys Scope of Tax Exemptions for Church Property

Sunday's Rochester (NY) Democrat & Chronicle carries a lengthy investigative report on tax exemptions for local property held for religious use. It says that in 2008, the value of properties exempted from taxes for religious purposes in Monroe Count (NY) was almost $756 million. This includes not only church buildings, but parsonages (some of which are very expensive) and vacant land held for future religious use. Even church-owned property used for profit-making purposes remains exempt so long as the profits are reinvested in furthering the church and its ministries. [Thanks to Steven H. Sholk for the lead.]

Tuesday, August 25, 2009

Florida Governor's Western Wall Notes Seem To Work So Far

Florida Governor Charlie Crist told a group of real estate agents that when he visited Israel as part of a trade mission in 2007, he placed a note in the Western Wall in Jerusalem asking God to protect Florida from storms. No major hurricanes hit Florida that year. So when Florida state Sen. Nan Rich traveled to Israel in 2008, he asked her to do the same thing, and earlier this year Crist asked a friend who was traveling to Israel to put in a note for this year. So far this year, for the third consecutive year, no major storms have hit the state. JTA reported yesterday that Crist doesn't take credit for the lack of hurricanes. He says: "I leave that to God."

Some Claims Against Archdiocese In Clergy Abuse Case Can Proceed

Goebel v. Johnston, 2009 U.S. Dist. LEXIS 74242 (ED MO, Aug. 21, 2009), is a clergy sexual abuse case which was removed to federal court on diversity of citizenship grounds. This opinion involves rulings on motions by the Archdiocese of St. Louis to dismiss various claims against it that are part of the lawsuit. The court held that permitting plaintiff's negligent hiring, retention and supervision claims to proceed would not violate either the Establishment Clause or Free Exercise Clause of the 1st Amendment. In reaching this conclusions, the court said it must perform its own constitutional analysis. Defendants had argued that the court was required to dismiss because in a prior case the Missouri Supreme Court had held that the federal constitution precludes such claims. The court however dismissed plaintiff's breach of fiduciary duty claim finding that Missouri law does not recognize a cause of action for breach of fiduciary duties in a sexual abuse cases against clergy.

UPDATE: The court has issued an almost identical opinion in a similar abuse case brought by a different plaintiff. Perry v. Johnston, 2009 U.S. Dist. LEXIS 74706 (ED MO, Aug. 24, 2009).

Some Claims Dismissed In Sikh's Employment Discrimination Case Against IRS

In Tagore v. United States, 2009 U.S. Dist. LEXIS 74235 (SD TX, Aug. 21, 2009), a Texas federal district court dismissed a portion of the claims brought by a former Internal Revenue Service employee who was fired after she insisted on wearing her kirpan-- a ceremonial dagger worn by Sikhs-- in a Houston federal office building. The court held that plaintiff's Title VII employment discrimination claims preempt her claims under the Religious Freedom Restoration Act based on the same facts. It also held that the only proper defendant in her Title VII case is the Secretary of the Treasury. This leaves the Title VII claim plus a claim under RFRA against the Department of Homeland Security and its employees to move forward to trial. (See prior related posting.)

Utah Judge Orders Sale of Supposed Temple Site By FLDS Trust

In a state trial court in Utah yesterday, Judge Denise Lindberg issued an order for the sale of Berry Knoll Farm by the United Effort Plan Trust which holds property that belonged to the FLDS Church. FLDS Church members, many in polygamous relationships, as well as some who are no longer members, live on the land. The Merced (CA) Sun-Star reports that the controversial order was issued because the trust-- now under court supervision-- has nearly $3 million in debt with no income stream to provide for payment. The order gave court-appointed special fiduciary Bruce Wisan authority to seek bids and complete the sale. Traditional FLDS members oppose the sale because they believe Berry Knoll is a sacred site on which a future temple is to be built. (Background.) Last month, the same court rejected a settlement proposed by Utah's Attorney General in the complicated attempt to reform the UEP Trust. (See prior posting.)

Monday, August 24, 2009

School Girls In Gaza Must Wear Traditional Arab Dress

Both Haaretz and YNet News report today that authorities in the Gaza Strip are insisting that girls in government-run schools wear traditional Arab clothing to class. Girls not wearing the ghalabia (in dark blue) and a white head covering will be sent home. This continues a trend toward imposing Islamic norms in Gaza (see prior posting), though one official said that the move was aimed at easing parents' financial situation. Authorities also will only allow women to teach at girls' schools and men to teach at boys' schools. Some 250,000 students attend government schools, while 200,000 attend United Nations run schools. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Wisconsin Bishops Object To State's Mandate of Contraceptive Coverage In Health Policies

The Wisconsin Catholic Conference has issued a statement (full text) objecting to provisions in the state's new Budget Bill requiring health insurance providers to include contraceptive services as part of any plan coverage. The statement by the bishops says in part: "This mandate will compel Catholic dioceses, parishes, and other agencies that buy health insurance to pay for a medical service that Catholic teaching holds to be gravely immoral." CNA reported yesterday that only dioceses or Catholic agencies that are self-insured will not be covered by the mandate. The La Crosse and Superior dioceses are among those that self-insure. [Thanks to Pew Sitter for the lead.]