Q&A On Faith Healing and the Law Posted

The Pew Forum on Monday posted a Q&A interview on Faith Healing and the Law featuring George Washington University Professor Robert W. Tuttle. Among other issues, Tuttle reflects on the Establishment Clause questions posed by state law exemptions from abuse and neglect statutes for those who rely on faith healing for their children.

Civil Rights Division Will Return To Traditional Agenda Without Ending Religious Discrimination Initiatives

Today's New York Times reports that U.S. Attorney General Eric Holder is pressing major changes in the Justice Department's Civil Rights Division by refocusing on its traditional role that emphasized racial discrimination cases. The Division will again focus on high-impact cases involving voting rights, housing, employment discrimination, bank lending and Congressional redistricting. This shift was widely expected when Holder's nomination was announced. The Bush administration had shifted Division resources to focus on issues such as religious discrimination and human trafficking. (See prior posting.) Holder does not plan to dismantle these efforts, but instead to hire enough additional attorneys to do everything.

Christian Groups May Not Intervene To Challenge Plan B Decision

A New York federal district court has denied a motion by three conservative Christian groups to intervene in a lawsuit in order to challenge a ruling by the court requiring the Food and Drug Administration to make Plan B emergency contraceptives available to 17-year olds without a prescription. (See prior posting.) The groups attempted to intervene after the FDA decided not to appeal the court's ruling. (Full text of Memorandum in Support of Motion to Intervene.) In Tummino v. Hamburg, (ED NY, Aug. 27, 2009), the court held that the groups lack standing to intervene, and that their motion to intervene was not timely filed. The court rejected arguments by Concerned Women for America, Christian Medical & Dental Associations, and Christian Pharmacists Fellowship International that they had suffered informational and procedural injuries, that the court's decision will force pharmacists to sell misbranded drugs, that they had third party standing and that the change in status of the prescription drug gave them standing. Finally, the court rejected intervenors' motion for an extension of time to appeal. LifeSite News yesterday reported on the decision, as did the New York Law Journal.

Court Says Injunction Request Is Moot In Suit Against History Teacher

In C. F. v. Capistrano Unified School District, 2009 U.S. Dist. LEXIS 76932 (CD CA, July 27, 2009), a California federal district court refused to grant injunctive and declaratory relief to a high school student and his parents in their suit against high school history teacher James Corbett. In an earlier decision (see prior posting), the court found that the teacher's statement in class characterizing Creationism as "superstitious nonsense" violated the Establishment Clause. However now the court concluded that the proposed injunction to bar Corbett from expressing any disapproval of religion while acting in his official capacity as a public school employee was overbroad. It also held that any request for a narrower injunction is moot since plaintiff is no longer in Corbett's class. Finally it concluded that a declaratory judgment would serve no useful purpose.

Former Miss California USA Sues Claiming Religious Discrimination

Former Miss California USA, Carrie Prejean, yesterday filed a lawsuit in a California state court against Miss California pageant officials accusing them of religious discrimination, as well as defamation , disclosure of private medical facts and intentional and negligent infliction of emotional distress. Prejean's title was taken away in June 2009, allegedly for breach of contract. The complaint (full text) in Prejean v. Lewis, (Los Angeles Superior Ct., filed 8/31/2009), alleges in part that defendants violated California's Unruh Civil righs Act (CA Civil Code Sec. 51) by conspiring to have Prejean dismissed as Miss California USA because she insisted on publicly expressing her religious beliefs opposing same-sex marriage. Entertainment Tonight reports on the lawsuit. (See prior related posting.)

Scotish Tribunal Asks European Court If Volunteer Is Covered By Discrimination Directive

In Scotland, a Glasgow employment tribunal has ruled that a case should be referred to the European Court of Justice for a preliminary determination of whether EU's employment discrimination directive applies to a volunteer. Today's Scotsman reports on the religious discrimination charges filed by Church of Scotland minister Mahboob Masih, who for six years co-hosted a radio show for Awaz FM on a voluntary basis. He was terminated after a show featuring a "lively" debate about religion and the views of a prominent Muslim speaker. He was directed to apologize on air, which he did. However he refused an additional demand that he go to a local mosque and offer a second apology.

6th Circuit Rejects Discrimination Claim, But Finds Standing For Funding Challenge

In Pedreira v. Kentucky Baptist Homes For Children, Inc., (6th Cir., Aug. 31, 2009), the U.S. 6th Circuit Court of Appeals ruled on two separate groups of claims against KBHC, a faith-based agency providing residential treatment facilities and other services for abused and neglected children. It rejected an employment discrimination claim under the Kentucky Civil Rights Act brought brought by a Family Specialist who had been fired because she was a lesbian. The court said that plaintiff introduced no evidence to show how that constituted discrimination based on her religion.

The second group of claims were challenges under the Establishment Clause to the flow of state funds to KBHC. The court concluded that plaintiffs lacked standing as federal taxpayers to challenge the channeling of federal child care funds to KBHC by the state of Kentucky. It is not enough that the federal statutes merely failed to prohibit the unconstitutional use of these funds. However, the court held that plaintiffs do have standing as state taxpayers to challenge the $100 million of state funds paid to KBHC to care for children. Americans United issued a press release announcing the decision. (See prior related posting.)

Resignation of Scranton Bishops May Reflect Rejection of Anti-Obama Wing

At a press conference (video) yesterday, the Catholic diocese of Scranton, Pennsylvania announced that 63-year old Bishop Joseph F. Martino has resigned for health reasons. (Full text of Bishop Martino's statement.) Also retiring is 77-year old Auxiliary Bishop John M. Dougherty. Cardinal Justin F. Rigali, Archbishop of Philadelphia, was appointed by Pope Benedict XVI as temporary as Apostolic Administrator of the Scranton Diocese. (Full text of Cardinal Rigali's statement.)

Politics Daily yesterday posted an extensive analysis of the political implications of the resignations. Martino had become politically controversial during the 2008 election when he announced that vice-presidential candidate Joe Biden, a native of Scranton, would be denied communion because of his pro-choice views if he tried to receive communion at a church in the Scranton diocese. He also had a letter read during masses last October telling parishioners that voting for a pro-choice politician was equivalent to endorsing "homicide." Martino has also clashed with Catholic universities in his diocese and has irritated others with his abrasive style. The resignations may reflect growing dissatisfaction by fellow-bishops and the Pope with the anti-Obama rhetoric of some U.S. bishops.

Suit Challenging "40 Developmental Assets" Program Is Settled

Last October, a federal district court rejected an Establishment Clause challenge to the Cherry Creek, Colorado School District's "40 Developmental Assets" program. (See prior posting.) In a suit brought by Freedom from Religion Foundation, plaintiffs objected to one of the 40 positive behaviors that parents were encouraged to build in their children-- encouraging children to spend one or more hours per week in activities in a religious institution. Subsequently FFRF filed a new complaint, this time linking the 40 Developmental Assets to a Lutheran, scripture-based program. Yesterday FFRF announced that the lawsuit has been settled. (Full text of settlement agreement.) "Asset 19" in the program will be changed to read: "Intergenerational Activities – Young person spends one or more hours per week in activities with civic, social, governmental, scientific, educational, charitable, faith based or secular (non-religious) organizations."

3rd Circuit: Harassment Case Alleges Sexual Orientation, Not Religious, Discrimination

In Prowel v. Wise Business Forms, Inc., (3d Cir., Aug. 28, 2009), the U.S. 3rd Circuit Court of Appeals rejected a Title VII religious discrimination claim by plaintiff who alleged that his employer harassed him because he did not conform to his co-workers' religious beliefs. Plaintiff is a gay male, and, he alleged, several of his co-workers considered that contrary to being a good Christian. The court concluded that plaintiff was harassed not because of religion, but because of his sexual orientation. However the court allowed plaintiff, an effeminate male, to move ahead with his "gender stereotyping" claim. Plaintiff had adduced enough evidence to go to the jury on whether that, rather than his sexual orientation, was the reason for actions directed at him. Courthouse News Service yesterday reported on the decision.

Parishioners Come Armed To Defend Pastor Who Prays For Obama's Death

In Tempe, Arizona yesterday, members of the Faithful Word Baptist Church came to services armed with guns after Pastor Steven Anderson said he and his congregation have received death threats. The threats came in response to a sermon by Anderson earlier this month titled "Why I Hate Barack Obama", in which Anderson said that he prays for Obama's death. (recording of sermon.) Yesterday Anderson says he wants this to occur by natural causes: "I don't want him to be a martyr, we don't need another holiday," he said. All of Anderson's recent sermons are on the church's website. ABC15 News today reports that Anderson yesterday welcomed his armed parishioners, saying that "guns are a great deterrent." The night after Anderson's Aug. 16 anti-Obama sermon, one of his parishioners, Christopher Broughton, carried an AR-15 semi-automatic assault rifle outside President Obama's speech to the VFW at the Phoenix Convention Center.

Paper Explores Different Takes on Rifqa Bary's Case In Florida

Yesterday's Orlando (FL) Sentinel carries a long article giving a different perspective on the family of Rifqa Bary, the 17-year old girl who fled her parents' home in Columbus, Ohio after converting from Islam to Christianity. The girl says her father threatened to kill her because she converted. A Florida court has ordered her into protective temporary foster care. (See prior posting.) Rifqa's father, Mohamed Bary, says that when school ended this year, Rifqa began spending all night online on Facebook, talking with evangelical Christians and withdrawing from her family and friends. He says some of these people turned her against her family. Those who know the Bary family say that 47-year old Mohamed Bary, a salesman of jewelry and Amway products, would never hurt his daughter. Rifqa's parents learned of her conversion a year ago. They discouraged her carrying a Bible to school, concerned that she would get in trouble for violating separation of church and state. Her father said he merely encouraged Rifqa to learn more about Islam.

Now today's Orlando Sentinel reports that the Bary case threatens to turn into an anti-Muslim campaign by some evangelical Christians. Rifqa's attorney, John Stemberger, exemplifies the rhetoric, saying: "My concern is she is literally a dead girl if she is sent back to Ohio. It's only a matter of time until she disappears into the night." At the same time, a Christian church in Gainsville posted a sign on its property reading: "Islam is of the Devil," and several children were sent home from school for wearing the same slogan on T-shirts. Imam Tariq Rasheed, director of the Islamic Center of Orlando, says this is a misrepresentation of Islam.

UPDATE: According to the Sept. 1 St. Petersburg Times, Rifqa Bary's attorney has released two documents. One is a memo (full text) arguing that the leaders of the Noor Islamic Cultural Center in Dublin, Ohio have links to terrorist organizations. A second is an affidavit from Rifqa (full text) indicating that her parents are actively involved in that mosque.

High School Band T-Shirt Pulled Back After Evolution Theme Draws Complaints

In Sedalia, Missouri, T-shirts promoting the Smith-Cotton High School band's fall program have been pulled back by school officials after complaints from some parents. Yesterday's Springfield (MO) News-Leader reports that the T-shirts feature an image of a monkey progressing through various stages of evolution to eventually become a human being. Each figure holds a brass musical instrument that also evolves, illustrating the band's theme "Brass Evolutions." Assistant Superintendent Brad Pollitt explained the recall by saying that the school district is required to remain neutral on matters of religion. "If the shirts had said 'Brass Resurrections' and had a picture of Jesus on the cross, we would have done the same thing," he said. Other parents were angry that the shirts had been removed. A report by the Sedalia Democrat includes a photo of the offending shirt.

Space Shuttle Carries Relic From Historic Christian Missionary Aviation Episode

The U.S. space shuttle Discovery docked with the international space station yesterday, bringing equipment, food and new laboratory equipment. (Reuters.) While a great deal of attention has been given to the new treadmill (named after Comedy Central television host Stephen Colbert) which was on board Discovery, less attention has been given to another item taken along on the trip. According to World Mag, Astronaut Patrick Forrester convinced NASA to allow him to bring along the battery box from the Piper AP-14 flown by Christian missionary pilot Nate Saint, who was murdered along with 4 others by Waodani (Huaorani) Indians in Ecuador in 1956. (Background.) Forrester hopes this will renew interest in mission aviation. Last week, American Atheists issued a statement objecting to use of taxpayer funds in this manner. Its president, Dr. Ed Bruckner said: "NASA is a scientific and exploratory agency that is funded by taxpayers. Its mission should not include religious grandstanding, or efforts to use outer space as a pulpit for religion."

Muslim Man Complains Probation Service In Britain Refuses Religious Accommodation

In Birmingham, England, a Muslim man-- once active in the Conservative Party-- is objecting to the way he is being treated by the West Midlands Probation Service. Yesterday's Birmingham Mail reports that 43-year old Gulfram Khan was sentenced to a total of 270 hours of community service on two separate charges. One involved his racially insulting an Irish policeman who Khan says discriminated against his family. The second conviction stems from Khan's losing his temper at a civil court judge presiding over a financial management hearing. Khan is supposed to perform 8 hours of unpaid work each Wednesday through December. He asked, however, for a two-hour break in his community service schedule during Ramadan, fearing that his fasting would leave him unable to work the full time. His request was refused, and Khan now says that the Probation Service is prejudiced against Muslims.

Recent Articles and Book of Interest

From SSRN:

• Brian Michael McCall, The Architecture of Law: Building Law on a Solid Foundation the Eternal and Natural Laws, (August 26, 2009).
• Bernadette A. Meyler, Commerce in Religion, (Notre Dame Law Review, Vol. 84, No. 2, 2008).
• Bernadette A. Meyler, Summum and the Establishment Clause, (Northwestern University Law Review Colloquy, Vol 104, p. 95, 2009).

Recent Book:

• Timothy J. Mockaitis, The Seal: A Priest's Story (2009), interview with author at Zenit.

Minnesota Investigating Use Of Lease Aid Funds By Charter School

Yesterday's Minneapolis Star Tribune reports that, in its latest encounter with the Tarek ibn Ziyad Academy, the Minnesota Department of Education is investigating whether the charter school improperly used state funds to subsidize mosques on its two campuses. TiZA has received a total of $2.23 million since 2003 under the state's lease aid program that is designed to help state charter schools rent adequate facilities. For over a year the state has been looking into questions of whether the school has violated constitutional requirements for religious neutrality. (See prior posting.)

Recent Prisoner Free Exercise Cases

In McBride v. Frank, 2009 U.S. Dist. LEXIS 74284 (ED WI, Aug. 21, 2009), a Wisconsin federal district court held that an inmate was barred from relitigating his claim that his free exercise rights were violated by a denial of religious materials while in segregation. He had lost on this claim in prior litigation.

In Washington v. Adams, 2009 U.S. Dist. LEXIS 74355 (ED CA, Aug. 21, 2009), a California federal magistrate judge recommended that an inmate's habeas petition be dismissed. His claim that he was denied his free exercise rights when he was not allowed to change his name is merely a challenge to conditions of confinement for which habeas corpus is not available.

In Tribesman v. California Correctional Peace Officers Association, 2009 U.S. Dist. LEXIS 74734 (CD CA, Aug. 21, 2009), a California federal magistrate judge recommended dismissal of an inmate's claim that his free exercise rights were infringed when he not allowed to attend his grandmother's funeral. It also dismissed more general free exercise claims against a correctional officer's association finding that it was not involved in determining how Native American prisoners would be treated. However the magistrate recommended that plaintiff be allowed to file an amended petition against one of the prison chaplains who allegedly denied Native Americans supplies for their sweat lodge ceremony.

In Wakefield v. Tilton, 2009 U.S. Dist. LEXIS 75391 (ED CA, Aug. 25, 2009), a California federal magistrate judge recommended dismissal of an inmate's claim that by denying his request for daily showers, the prison's Protestant chaplain violated his free exercise rights. Plaintiff claimed this was a requirement of his Seventh Day Adventist religion.

In Webb v. Smartwood, 2009 U.S. Dist. LEXIS 75283 (WD MO, June 15, 2009), a Missouri federal magistrate judge rejected free exercise claims by plaintiff who was in custody of the state Department of Mental Health. Plaintiff alleged that administering of the psychiatric drug Ativan to him violated his free exercise rights, but the court found that this claim was not supported by the evidence. Plaintiff failed to show that his alleged belief in Scientology was sincere.

In Pogue v. Woodford, 2009 U.S. Dist. LEXIS 75943 (ED CA, Aug. 26, 2009), a California federal magistrate judge recommended that most of the numerous claims by a Muslim prisoner that his religious practices were infringed (access to Jumu'ah services, lack of an imam, grooming, prayer oil, single cell status) be dismissed, but allowed him to move ahead on a claim for injunctive relief to obtain the prison's kosher diet while plans for a halal diet are being implemented.

In Scott v. Crites, (TX Ct. App., Aug. 26, 2009), a Texas state appellate court affirmed dismissal of a Native American prisoner's challenge to authorities' search of his medicine bag. Plaintiff failed to argue that prison policies on medicine bags substantially burdened his exercise of religion.

In Bailey v. Ozmint, 2009 U.S. Dist. LEXIS 76651 (D SC, July 27, 2009), a South Carolina federal magistrate judge recommended that a Muslim inmate's challenge to prison grooming regulations be dismissed.

Ted Kennedy Laid To Rest; His Complex Relationship With Catholic Church Is Explored

A funeral mass (background) was recited yesterday for Sen. Edward M. Kennedy (Boston Herald), with Cardinal Sean P. O’Malley, archbishop of Boston, in attendance (Boston Globe). Kennedy has been described by Tim Rutten in the Los Angeles Times as "America's most famous Catholic politician and its most visible link to the bonds of identity and solidarity that have for so long joined Catholics to the Democratic Party." President Obama delivered a eulogy (full text) at the funeral mass, held at the Basilica of Our Lady of Perpetual Help in Boston. As Kennedy was buried, the media carried a number of stories about his complicated relationship with the Catholic Church. Kennedy's support for abortion rights and same-sex marriage has drawn strong criticism from many Catholic leaders, and some pro-life advocates have argued that his stance on abortion should have disqualified him from having a public Catholic funeral mass. (Lifesite News).

At Kennedy's burial service at Arlington National Cemetery, retired Washington Cardinal Theodore McCarrick read long excerpts from a letter that Kennedy sent to Pope Benedict XVI last month and from the Pope's response. (Politics Daily.) The letter from Kennedy, hand delivered by President Obama during his July meeting with the Pope, asked the Pontiff to pray for the Senator's health. In the letter, Kennedy also reiterated his commitment to health care reform and said he believes in conscience protection for Catholics in the health care field. The Pope's response through a senior Vatican official, two weeks later, expressed the Pontiff's concern for Kennedy and said in part: "His Holiness prays that in the days ahead you may be sustained in faith and hope, and granted the precious grace of joyful surrender to the will of God our merciful Father." Meanwhile Time Magazine notes while the Vatican's official newspaper L'Osservatore Romano has reported on Kennedy's death, noticeably absent is a statement directly from the Pope.

EEOC Says Meatpacker Should Have Adjusted Break Times For Muslim Workers

According to an announcement on Friday by CAIR-Chicago, the U.S. Equal Employment Opportunity Commission has concluded that Swift Co. violated Title VII of the 1964 Civil Rights Act when it refused to accommodate a request by Somali Muslim employees at its Grand Island, Nebraska meatpacking plant for adjustments in their break schedules. The employees wanted breaks timed so they could perform their daily prayers. The EEOC also concluded that Swift’s supervisors "subjected Somali Muslim Employees to unlawful harassment, disparate treatment, and discrimination in terms and conditions of employment based on their religion, national origin, race, and color."