Religion Clause

Wednesday, September 30, 2009

Prosecutors Seek To Offer Unusual Religious Analysis In Competency Trial

A federal judge in Utah is being asked to permit rather unusual testimony about religious beliefs in the third competency hearing for Brian David Mitchell who has been charged with the 2002 kidnapping in Salt Lake City, Utah of then 14-year old Elizabeth Smart. (Background). According to KSL-TV yesterday, prosecutors want a professor who is an expert in the analysis of scripture, and an investigator of the Ervil LeBaron polygamy cult decades ago, to testify to show that Mitchell's religious writings do not show that he is delusional and mentally ill. Mitchell wrote a book of scripture, "The Book of Immanuel David Isaiah," in which he suggests he has powers greater than God's. Psychiatric experts used that to show he was incompetent to stand trial. Now the prosecution wants to call their witnesses to show that Mitchell's religious writings were coherent when viewed in the proper cultural context. They resemble views in Ervil LeBaron's "Book of the New Covenant" in which he justified over two dozen killings in biblical language.

Amicus Brief Raises Opposition To UN Convention

Two cases before the U.S. Supreme Court this term, Graham v. Florida and Sulivan v. Florida, appear to have become vehicles for those filing amicus briefs to duel over the U.N.'s Convention on the Rights of the Child which conservative Christian groups fear the U.S. Senate may ratify. They claim the Convention would infringe parental rights. (See prior posting.) An amicus brief filed by Amnesty International (joined by 14 other groups) in the two cases involving life sentences without parole imposed on juveniles urges the court to apply the prohibitions of the Convention as a matter of customary international law. Yesterday, according to a press release from Parentalrights.org, 16 members of the U.S. House filed an amicus brief arguing that the Convention is not binding on the United States. Previously some twenty religious groups representing various faith traditions filed an amicus brief arguing that imposing life imprisonment without parole on juvenile offenders contravenes fundamental religious values.

High School Cheerleaders Cannot Carry Religious Banners On Field

Yesterday's Chattanooga (TN) Times Free Press reports on a new variation of the dispute over mixing of religion and high school football. In Fort Oglethorpe, Georgia, since 2003 Fort Oglethorpe High School cheerleaders have displayed religious banners that the football players crash through at the beginning of games. The banners urge fans and players to "commit to the Lord" and "take courage and do it." After a complaint from a local resident, the superintendent [corrected] prohibited the banners, agreeing that the display of Biblical verses on the football field violates the 1st Amendment. This led to a community rally in support of the cheerleaders and strong statements supporting them from Fort Oglethorpe Mayor Ronnie Cobb who said: "If it's offensive to anyone, let them go watch another football game. Nobody's forced to come there and nobody’s forced to read the signs." Meanwhile, an area outside the stadium has been set aside so the signs can be displayed there. Several of the players, upset by the ruling, protested by holding a team prayer after they took the field last week.

An attorney for the Christian Law Association has been advising those upset with the school's ruling on at least two alternative routes, according to Chattanoogan.com. Barbara J. Weller says that while the students may not continue to put Bible verses on the banners they have been making officially for the games, they can make other banners with Bible verses on them, as long as they make the banners at home and bring them to the games on their own, without the school's approval, permission or participation. She also says that the school should not be able to prohibit banners that merely used the words, "Power, Love, Self Discipline" without reference to the Bible verse that includes them.

UPDATE: At an Oct. 13 meeting, the Catoosa County School Board upheld the superintendent's ruling. (ABP).

Supporters of Sectarian Prayer Threaten Billboards Exposing Council Votes

Around the country, the Freedom from Religion Foundation has been challenging city councils that open their meetings with sectarian prayers, and city councils have been forced to consider whether to change their policies. Few of the debates have been as contentious as that in Lodi, California (see prior posting) where a vote will be taken tonight. Yesterday's Lodi News-Sentinel reports that in advance of the vote, Council has received a letter from Chaplain Gordon James Klingenschmitt, the founder of the Colorado-based "Pray In Jesus Name Project," threatening that if council eliminates invocations or requires them to be non-sectarian, he will purchase billboards on Interstate 5 and Highway 99 for one year listing each council member as "Against Jesus" or "For Jesus." Councilman Bob Johnson described as Klingenschmitt's threat as "blackmail" and "petty thuggery."

Court Rejects Copyright Suit Claiming Infringement In Use of Judas Iscariot Trial

In Porto v. Guirgis, (SDNY, Sept. 28, 2009), a New York federal district court rejected a claim by author Michael Porto (also known as "Guy Michaels") that Guirgis' play "The Last Days of Judas Iscariot" violates the copyrights for Porto's novel "Judas on Appeal." Both works involved a fictional trial of Judas Iscariot in which the issue is whether Judas should be admitted to paradise. The novel has the trial before a fictional World Court of Religion held in the Federal Courthouse in New York's Foley Square, while the play has the trial before a fictional judge in Purgatory. The court said:

The trials depicted in the two works are dramatically different in substance, setting, plot, theme, language, and the overall thrust and feel of the works. Stripped of unprotectible elements—such as the biblical characters and biblical story—the works are not substantially similar.

Courthouse News Service reported on the decision yesterday.

German Court Says School Must Provide Prayer Space For Muslim Student

In the first ruling of its kind in Germany, the Berlin administrative court has ruled that Diesterweg High School in Berlin-Wedding must allow a Muslim student known in the litigation as Yunus M. to pray 10 minutes each day in a separate classroom. Deutsche Welle reported yesterday that freedom of religion guarantees required this accommodation which the court saw as not disturbing school operations. Berlin's Education Senate says it fears that the ruling will lead to the creation of "islands of belief" in the schools, and the chairman of Berlin-Wedding's parents' board said she fears that the ruling will further lessen Muslim students' willingness to integrate into the school.

Tuesday, September 29, 2009

New York Appellate Court Voids Church Election of New Pastor and Trustees

Trustees of Gallilee Pentecostal Church, Inc. v. Williams, (NY App. Div., Sept. 22, 2009), is a case in which plaintiffs sought a declaration as to who are the legal trustees and members of the Gallilee Pentecostal Church in Poughkeepsie, New York. In 1983 when the Church was formed, its articles named six trustees. Despite provisions in the articles and in the New York Religious Corporations Law calling for annual elections, no election of trustees was ever held. Now only two of the original six trustees are alive. In 2006, at the instigation of Frances J. Williams, some 30 people, allegedly members of the church, were notified of a meeting. 17 showed up and purported to elect Williams as pastor and as a trustee, and also purported to elect Barbara Williams-Mahmood as another trustee.

Plaintiffs, who objected to Williams as pastor, sued challenging the validity of the 2006 meeting. The appellate court agreed with their challenge, finding that defendants failed to prove who were church members entitled to vote at the meeting. The court declared that the two remaining original trustees were the only valid trustees. It went on to enjoin Williams and his supporters from exercising any authority or control over church property. [Thanks to Y.Y. Landa for the lead.]

Court Rejects Interlocutory Appeal In Minnesota Charter School Case

In ACLU of Minnesota v. Tarek Ibn Ziyad Acadamy, 2009 U.S. Dist. LEXIS 88425 (D MN. Sept. 24, 2009), a Minnesota federal district court denied a motion by the sponsor of a controversial charter school to certify an interlocutory appeal of a decision handed down by the court in July. In that decision (see prior posting) the court held that the ACLU had taxpayer standing to bring an Establishment Clause challenge to funding of the school by the state and that plaintiff had sufficiently pleaded the elements of a "state action" by the sponsor, Islamic Relief. The ACLU charges that the charter school promotes Islam. In denying the motion, the court concluded that there is no substantial ground for difference of opinion on the issue of taxpayer standing and that questions as to state action are primarily factual ones that do raise appropriate issues for appeal.

British Jewish Schools Implement New Admissions Criteria Ordered By Court

Today's London Guardian reports on changes in admission policy made by Britain's publicly-funded Jewish schools after a Court of Appeal decision in June held that using the traditional Orthodox Jewish definition of who is Jewish amounts to impermissible racial discrimination instead of a permissible religious criterion. (See prior posting.) The article focuses particularly on the Jewish Free School, which it describes as "vast, in size and in reputation", and which was the school involved in the lawsuit. Now Jewish schools have introduced a "point system" to measure religious practice. Attending synagogue twice a month in addition to festivals earns a child three points. Formal Jewish education is worth one point. Voluntary work in a charity is worth one point. JFS requires three points to be considered a priority applicant. Meanwhile synagogues have seen a spike in attendance as families rush to earn points before the admissions deadline passes. The shift to assessing religious practice is consistent with criteria used by publicly-funded Christian and Muslim schools in Britain. The case is on appeal to Britain's new Supreme Court. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

Monday, September 28, 2009

Christian Group Creates "Adopt a Liberal" Initiative

Liberty Counsel (a Christian advocacy group) has begun a "prayer in action" initiative it calls "Adopt a Liberal." It is hoping to change the minds of political leaders it sees as "misguided". The initiative calls on participants to pick one of the eleven liberals on Liberty Counsel's list, or to choose some other liberal leader, and then:

Pray earnestly and intensely for them! Pray that the Lord would move upon them and cause them to be the kind of leaders who will encourage others to lead "a quiet and peaceable life in all godliness and reverence." We encourage you to seek the Lord's guidance on how to pray for your liberal(s), always allowing Him to temper your prayer with His love and mercy....
Please pray daily for the liberal(s) of your choice, so each can become a good influence on our Nation's culture. Prayer is powerful! It allows God to change the minds of those for whom we are praying. In fact, we fully expect that many of our adoptees will "graduate" from this prayer program with vivid testimonies of God having changed their lives and worldviews!

Woman's Caning Sentence Upheld On Appeal In Malaysia

In Malaysia, apparently a controversial sentence of a Muslim woman for drinking alcohol is back on track. Last month Kartika Sari Dewi Shukarno became the first woman to be sentenced under the country's Islamic law to caning for drinking alcohol. When she defiantly asked that her punishment be carried out in public, the sentence was delayed because of Ramadan and to allow for a government appeal after objections from activists. (See prior posting.) Now, according to AP, the chief Shariah judge of Pahang state has ruled that the lower court acted in accordance with law. It is now up to the Pahang Islamic Religious Department to carry out the largely symbolic caning.

Victoria Government Agrees To Broad Religious Exemptions In Discrimination Law

In the Australian state of Victoria, the attorney general has pre-empted a parliamentary committee and has announced an agreement with religious groups (including churches, schools, hospitals and welfare services) that will modify current law but still grant them broad exemptions from anti-discrimination prohibitions. According to The Age yesterday, the compromise permits religious groups to discriminate in employment and the furnishing of services on the basis of sex, sexuality, marital and parental status and gender identity, so long as they demonstrate how the discrimination relates to their religious doctrines. Thus conservative religious schools can refuse to hire single mothers or gays even for non-teaching positions, and Islamic groups can refuse to employ Christians. However religious groups will be barred from discriminating on the basis of race, disability, age, physical features, political beliefs or activity, or breastfeeding.

2010 National Religious Moot Court Announced

George Washington University Law School has announced the 2010 National Religious Freedom Moot Court to be held February 5-6, 2010 in Washington, DC. This year's problem involves free exercise issues in decisions of a local police department to regulate the activities and the dress of a police officer. The competition is open to students from ABA-accredited law schools. Registration extends until November 6, 2009.

Sunday, September 27, 2009

China Issues New Report on Its Ethnic Policy-- Claims Religious Freedom

The Chinese government today issued a White Paper titled China's Ethnic Policy and Common Prosperity and Development of All Ethnic Groups. The Xinhua news agency carries a series of reports on the White Paper. Summarizing the report's findings on religious freedom, Xinhua says:

Freedom of religious belief in China means that every citizen has the freedom to believe or not to believe in any religion," said the white paper issued by the Information office of the State Council.... [A]ll normal religious activities, including those of ethnic minorities, are protected by law.... Venues for religious activities are found all over China, basically satisfying the needs of religious believers.... [T]he Chinese government also helps religious groups build seminaries to train clergymen of ethnic minorities, subsidizes the repairs of some religious venues in minority areas, and gives allowances to poor religious believers of ethnic minorities, according to the white paper.

The White Paper comes in the wake of a letter earlier this month (full text) from two members of the U.S. House of Representatives to Jon Huntsman, the new U.S. ambassador to China, raising concerns about reported plans by China to take new steps against "house churches" leading up to the Oct. 1 marking of the 60th anniversary of Communist Party rule in China. (Christian Post, Sept. 10.)

Illinois Supreme Court Says Limitiations Extension Cannot Be Applied Retroactively

In Doe v. Diocese of Dallas, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court refused to apply retroactively a 2003 amendment to Illinois law extending the statute of limitations in civil actions alleging child sexual abuse. The suit was filed by plaintiff who had been abused by a Catholic priest when he was 14 years old. However under prior law, the statute of limitations had run on his claim before the 2003 amendments took effect. The court concluded that even though the legislature had intended for the amended statute of limitations to apply retroactively: "once a claim is time barred, it cannot be revived through subsequent legislative action without offending the due process protections of our state's constitution." Friday's Belleville (IL) News-Democrat reported on the decision.

Recent Prisoner Free Exercise Cases

In May v. Donneli, 2009 U.S. Dist. LEXIS 85495 (ND NY, Aug. 25, 2009), a New York federal magistrate judge held that merely a loss of a few pounds was insufficient physical injury to justify a claim for compensatory damages under the Prison Litigation Reform Act that precludes compensatory damages for emotional injury unaccompanied by physical injury. In the case, a prisoner asserted that for seven days of Ramadan he was precluded from breaking the fast with blessed food. The court also held that a damage claim under the NY Corrections Law had to be brought in the state court of claims.

In Davis v. Hightower, 2009 U.S. Dist. LEXIS 85505 (ND FL, July 13, 2009), a federal magistrate judge recommended rejection of a Wiccan inmate's claim that his free exercise rights were infringed when authorities confiscated 9 "religious healing stones" from his property which he used to help heal his peptic ulcer.

Mauwee v. Donat, 2009 U.S. Dist. LEXIS 86148 (D NV, Sept. 18, 2009), involved claims that prison officials desecrated the prison's sweat lodge area by allowing non-Indians to use it. A Nevada federal district court concluded that damage claims are not permitted under RLUIPA and that plaintiffs' claim for equitable relief was precluded by qualified immunity. It also concluded that objections to changes in sweat lodge procedures were now moot since those changes had been rescinded. The magistrate's recommended findings in the case are at 2009 U.S. Dist. LEXIS 86141 (May 28, 2009).

In Kinney v. Curtin, 2009 U.S. Dist. LEXIS 86225 (WD MI, July 29, 2009), and in Thomas v. Bergh, 2009 U.S. Dist. LEXIS 86893 (WD MI, Aug. 21, 2009), a Michigan federal magistrate judge recommended that the court uphold decisions to deny plaintiffs participation in their prison's kosher food program because plaintiff had not shown that his beliefs were sincerely held.

In Parks v. Smith, 2009 U.S. Dist. LEXIS 87147 (ND NY, Sept. 23, 2009), a New York federal district court accepted most of the magistrate's recommendations (2009 U.S. Dist. LEXIS 87210, Aug. 17, 2009) allowing a Jehovah's Witness inmate to move ahead with his claim that authorities violated his free exercise rights and his rights under RLUIPA when they disciplined him for attempting to mail a photograph of himself in a meditation pose to a company for use in a personal ad. Prison authorities claim that the pose is in fact a gang signal. The court rejected the magistrate's holding that plaintiff's free exercise and retaliation claims were duplicative. He might be able to show retaliation based on religion even if he did not succeed in his claim that his rights were infringed when authorities classified his meditation pose as a gang signal.

In Strope v. McKune, 2009 U.S. Dist. LEXIS 86886 (D KS, Sept. 22, 2009) and Strope v. Cummings, 2009 U.S. Dist. LEXIS 86885 (D KS, Sept. 22, 2009), a Kansas federal district court rejected claims that Assembly of Yahweh inmates were not given adequate time for worship. It also rejected claims that certain foods served to those on the kosher diet were routinely spoiled, and that other foods were not included. UPDATE: The 10th Circuit affirmed (June 11, 2010).

In Shepard v. Peryam, 2009 U.S. Dist. LEXIS 87189 (SD FL, Aug. 20, 2009), a Florida federal magistrate judge recommended that the court reject claims by a Muslim pre-trial detainee that he was denied religious services, prayer beads, a prayer rug, a Kufi (prayer cap), and a Kosher diet.

In Floyd v. Leslie, 2009 U.S. Dist. LEXIS 87758 (ND IN, Sept. 23, 2009), and Indiana federal district court allowed an inmate to move ahead with his complaint that a prison officer denied him access to Satanist religious material that belonged to him, but the court dismissed plaintiff's claim against the prison's chaplain.

In Jenkins v. Vail, 2009 U.S. Dist. LEXIS 87730 (ED WA, Aug. 31, 2009), a federal district court (rejecting a magistrate's recommendations, 2009 U.S. Dist. LEXIS 87769, July 22, 2009) refused to grant a preliminary injunction to a Muslim inmate who would not participate in work or educational programming on the ground that his sincerely held religious beliefs prevent him from supporting a non-Islamic government.

Moorish American Corrections Officers Can Move Ahead With Discrimination Allegations

Bey v. City of New York, 2009 U.S. Dist. LEXIS 87793 (SDNY, Sept. 9, 2009), is a lawsuit brought by a group of former New York City correction officers who were members of the Moorish American faith which teaches that Moors are exempt from taxation. They were terminated from their positions after hearings at which it was found that they had submitted false documents claiming to be tax exempt. They then sued, arguing that others of different faiths who had submitted false tax forms received less severe discipline. The court allowed certain of the plaintiffs to move ahead with equal protection and Establishment Clause claims, finding that "there remains a triable issue of fact as to whether Defendants' explanation for Plaintiffs' harsher treatment - that they persisted in their assertion of tax exempt status and failed to take affirmative steps to repay their taxes - is pretextual and whether, in fact, the Moors were singled out for harsher treatment based on their religion."

Saturday, September 26, 2009

Guardian Ad Litem Has Immunity As To Comments On Mother's Religious Views

In Wood v. Epley, 2009 U.S. Dist. LEXIS 87490 (SD OH, Sept. 9, 2009), an Ohio federal magistrate judge recommended dismissing as frivolous a lawsuit brought by Kyra Wood seeking $40 million in damages from an attorney who was appointed guardian ad litem by a state juvenile court to represent the interests of her daughter. Wood alleged that she was deprived of her free exercise rights because of unflattering comments the guardian ad litem made to the court about her religious expression. The court said that the guardian ad litem has absolute immunity from liability growing out of his testimony as to what he believes are in the best interest of the Wood's daughter.

Christian Group Complains About Ganesh Statue At Calgary Zoo

In Canada, the publicly funded Calgary Zoo some two years ago put up a statue of the Hindu deity Ganesh-- a figure with an elephant head-- near the zoo's elephant display. An anonymous donor supplied funds for the statue in memory of her late father who worked and travelled extensively in Asia. According to yesterday's Calgary Herald, Concerned Christians Canada wrote the zoo this week complaining about the statue. The letter (full text) said: "The zoo is not a place of religious indoctrination, it is supposed to be a safe family environment free of religious icons and selective religious partiality." A zoo spokesman, however, says that the statue is a cultural symbol that shows the tie between the elephants and Asian culture. [Thanks to Scott Mange for the lead.]