Court Rejects RLUIPA and Other Challenges To Refusal To Rezone

In Elijah Group v. City of Leon Valley, 2009 U.S. Dist. LEXIS 92249 (WD TX, Oct. 2, 2009), a Texas federal magistrate judge recommended dismissing challenges under various provisions of RLUIPA, the 1st and 14th Amendments and the Texas Religious Freedom Restoration Act to a zoning ordinance of the City of Leon Valley, Texas. A church building that had been operating under a special use permit was foreclosed on by a bank and the building was leased by the bank to a different church which originally had wanted to buy the property. The sale was not finalized because the city had changed its zoning law to totally preclude church assemblies as a permitted use in areas zoned for "retail" use, and had refused the bank's request to rezone the area. The magistrate concluded that nothing requires the city to change its zoning Master Plan and rezone property just because the applicant is a church. He said: "Nothing in the RLUIPA or case law suggests a church is unreasonably limited just because it is excluded from a zoning district it prefers." Otherwise a zoning law would be required to permit churches everywhere.

Court Rejects Free Exercise Challenge To Financial Aid Form

In Runge v. Barton, 2009 U.S. Dist. LEXIS 92139 (D SC, Oct. 2, 2009), [Magistrate's Report at 2009 U.S. Dist. LEXIS 92138 (Aug. 28 2009)], a South Carolina federal district court rejected a somewhat rambling free exercise claim by plaintiff, father of three college students, who objected to the The College of Charleston's financial aid application process. In order to apply for financial aid, applicants must submit the federal FAFSA form to the U.S. Department of Education. Students under 24 are classified as dependents for purposes of this form, and to determine parents' financial ability they must submit copies of income tax returns. Plaintiff objected to being "forced to participate in a financial aid application" for his adult children "that supports a secular government education program that is religiously repugnant" to him.

Supreme Court Hears Arguments In War Memorial Cross Case [Revised]

The Washington Post and the Los Angeles Times report on today's oral arguments before the U.S. Supreme Court in Salazar v. Buono. At issue is the question of whether Congress' transfer to the VFW of the Sunrise Rock Cross, located in the Mojave Preserve war memorial in California, eliminated Establishment Clause problems that might otherwise exist with government display of a religious symbol. The arguments involved extensive questions from the Justices, and a number of the questions focused on the exact procedural posture of the case. There were also questions about the broader underlying Establishment Clause issue. In addition, the government had raised a standing issue, and there was some questioning about whether it was appropriate to still raise standing at this stage of the litigation. (See prior posting.) The Supreme Court has posted the full transcript of the oral arguments on its website. All the briefs filed in the case are also available online.

Court Rejects Murder Appeal Challenging Prosecutor's Wearing Of Cross

In People v. Morris, (CA 3d Dist. Ct. App., Oct. 5, 2009), a California state appellate court refused to overturn a murder conviction of James Morris (also known as "Ultimate Evil") for his part in killing a 3-year old. On appeal, he complained (among other claims) that during trial the prosecutor wore what the trial court described as "a very thin, metallic cross measuring about an inch by one-half inch on a delicate chain." The court of appeals concluded that this did not compromise Morris' right to a fair trial, nor did it constitute an Establishment Clause violation or inject religion into the trial. Distinguishing this from cases in which attorneys wore clerical collars, the appellate court relied on factual findings by the trial court that the cross was small and barely noticeable, and could be construed equally as a fashion statement or a religious symbol.

New 10 Commandments Case In Ohio Village

A new Ten Commandments lawsuit has been filed-- this time challenging a display outside Lockland, Ohio's town hall. Yesterday's Cincinnati Enquirer reports that the federal lawsuit was filed last month by Christopher Knecht who has also had various other run-ins with both his neighbors and local police. His lawsuit claims that the village is corrupt and ignores basic state laws for "theological principles." Knecht seeks an order requiring this and any future displays of "religious fables and myths" to be removed. He also asks for $500,000 in punitive damages.

Wisconsin Court Refuses To Expand Tax Exemption of Parsonages

Wisconsin's tax statute exempts church property "used for housing for pastors and their ordained assistants, members of religious orders and communities, and ordained teachers." In Wauwatosa Avenue United Methodist Church v. City of Wauwatosa, (WI Ct. App., Oct. 6, 2009), a Wisconsin state appellate court held that this statute does not create an exemption for the residence of a church custodian. The court rejected the church's argument that the statutory list of exemptions should be extended to cover the church-owned residence of anyone who is "integral to the functioning of the church." The State Bar of Wisconsin has posted a comprehensive summary of the case.

Senate Confirms Thomas Perez As Assistant AG For Civil Rights

The U.S. Senate yesterday, by a vote of 72-22, confirmed Thomas E. Perez as Assistant Attorney General for the Civil Rights Division of the Department of Justice. Attorney General Holder issued a statement welcoming Perez back to the Justice Department where he worked from 1988- 1999. (See prior related posting.)

Arizona Hotel Sued For Religious Discrimination In Employment

The Yuma (AZ) Sun reported yesterday that the EEOC has filed suit against the operator of the Oak Tree Inn in Yuma, Arizona charging religious discrimination. The lawsuit claims that employees were threatened with reprisals if they did not engage in a particular prayer ceremony reflecting the beliefs of their supervisor.

Supreme Court Denies Review In Several Religion-Related Cases

The U.S. Supreme Court yesterday denied certiorari in a number of cases involving church-state and religious liberty issues. (Order List.) Among the cases which the court decided not to review were:

Choose Life Illinois, Inc. v. White (Docket No. 08-1283). In the case, the U.S. 7th Circuit Court of Appeals upheld the refusal of the Illinois Secretary of State to issue a special "Choose Life" license plate after proponents obtained the requisite number of signatures requesting it. (See prior posting.)

Frazier v. Smith, (Docket No. 08-1351). In the case, the 11th Circuit upheld the constitutionality of a Florida statute requiring schools to excuse a student from reciting the Pledge of Allegiance only upon written request of the student's parent, regardless of the student's desires. (See prior posting.)

Rector of St. James Parish v. Episcopal Diocese of Los Angeles (Docket No. 08-1579). In the case, the California Supreme Court held that building and property of the St. James Parish in Newport Beach belongs to the Episcopal Church, not the parish, once the parish broke away and affiliated with the more conservative Anglican Church of Uganda. (See prior posting.)

Arkansas Annual Conference of the African Methodist Episcopal Church, Inc., v. New Direction Praise and Worship Center, Inc. (Docket No. 08-1352). The Arkansas Supreme Court's January 2009 opinion in the case applied neutral principles of law to find that church property belonged to a break-away congregation.

O'Bryan v. Holy See (Docket No. 08-1384). The 6th Circuit decision below dealt with when the Foreign Sovereign Immunities Act allowed civil suits against the Vatican in U.S. courts. (See prior posting.)

Sklar v. Commissioner of Internal Revenue (08-9180). In the case, U.S. 9th rejected a claim by parents that they should be able to deduct for income tax purposes a portion of the tuition and fees paid to their children's Orthodox Jewish day schools. (See prior posting.)

Katz v. Mabus (Docket No. 08-1434). The 3rd Circuit's opinion below rejected religious discrimination claims by plaintiff, a civilian employee, against the U.S. Navy.

St. John's United Church of Christ v. FAA (Docket No. 08-1447). In the opinion below, the D.C Circuit denied standing to various religious communities to bring a RFRA challenge to the relocation of a cemetery that was necessary to complete expansion of Chicago's O'Hare airport.

Also, in Roman Catholic Diocesan Corp. v. New York Times (Docket No. 09-246), the full court denied a stay of an order issued in May by the Connecticut Supreme Court requiring release of some 12,600 pages of documents filed in 23 cases alleging sexual abuse by Roman Catholic clergy. (See prior posting.)

[Thanks to SCOTUS Blog and Josh Gerstein at Politico for some of the leads.]

TSA Says Sukkot Items OK On Planes

The Jewish holiday of Sukkot began last Friday night. The Transportation Security Administration notified its airport screeners last week that travellers are allowed to carry onto planes the traditional lulav and etrog that are used as part of the observance of the holiday. The TSA notice read in part:

Observant Jewish travelers may carry four plants – a palm branch, myrtle twigs, willow twigs, and a citron – in airports and through security checkpoints. These plants are religious articles and may be carried either separately or as a bundle. Jewish travelers may be observed in prayer, shaking the bundle of plants in six directions. The workforce should note that TSA’s screening procedures do not prohibit the carrying of such agricultural items through the airport or security checkpoints, or on airplanes.

Top Egyptian Cleric Will Ban Niqab At al-Azhar

Egypt's top cleric, Mohammed Sayyed Tantawi, plans to ban women wearing the full face veil from entering any of the schools of Sunni Islam's premier institute of learning, al-Azhar. AP reported yesterday that the decision is part of the government's security campaign to restrict increasingly open manifestations of ultraconservative Islam in Egypt. al-Azhar's scholars agree that the niqab is not a religious requirement. Some critics say, however, that it is unlikely that a ban would be enforced.

Tennessee ACLU Issues New Guide On Religion In Schools

ACLU of Tennessee last week sent 137 public school superintendents across the state its new guide: Know Your Rights: Religion in Public Schools – A Guide for Administrators and Teachers. The ACLU's press release also linked to the letter that was part of the mailing to school districts. Packed into the new 4-page guide is the ACLU's interpretition of the state of the law relating to school prayer (in class, at graduation, at sporting events, board meetings and elsewhere), to the pledge of alliegance, distribtuion of Gideon Bibles, equal access rules, holiday celebrations and "See You At the Pole" events.

Saudi King Removes Cleric Who Challenged New University's Liberalized Policies

Last month, Saudi Arabia's King Abdullah University for Science and Technology (KAUST) was dedicated. (See prior posting.) Long the dream of King Abdullah, KAUST is a co-educational graduate university, freed somewhat from the religious influences that dominate in other Saudi universities. Nipping a challenge to the University in the bud, Sunday King Abdullah issued a royal decree removing Sheikh Saad al Shethri from the Council of Senior Islamic Scholars, according to UAE's The National. Shethri, a young university professor who was just appointed to the Council this year, drew criticism from liberal media after his recent appearance on al Majad Islamic TV. In that appearance he questioned the appropriateness of co-education at KAUST and called for a Sharia committee to monitor the KAUST curriculum for its compatibility Islamic law.

UN Human Rights Council Passes Compromise Resolution On Freedom of Expression

CNS News reports that on Friday the United Nations Human Rights Council unanimously adopted a compromise resolution on freedom of opinion and expression that had been proposed by the United States and Egypt. (Full text of Oct. 12 version accessible from this page) [updated]. The resolution omits the controversial term "defamation of religion," which the Organization of the Islamic Conference had pushed through in resolutions adopted in previous years. (See prior posting.) Instead it included a paragraph that each side has chosen to interpret differently. In the relevant language in the resolution [updated], the Council:

Reaffirms ... the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including ... the intrinsically linked rights to freedom of thought, conscience and religion....

Also expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their obligations under international human rights law, to address and combat such incidents

CNS News reports on the varying interpretations of and reactions to the compromise language:

Speaking on behalf of the European Union, French representative Jean-Baptiste Mattei said the language about stereotyping referred to the stereotyping of individuals, not religions, ideologies or abstract values. Human rights laws do not and should not protect belief systems, he said, stressing that the E.U. continued to reject the concept of defamation of religion.

But Pakistan’s Zamir Akram, speaking for the OIC, used the terms "negative stereotyping" and "defamation of religions" interchangeably, and said the phenomenon affected not only individuals but also religions and belief systems.

Article 19, a free speech organization, called the vote on the resolution a breakthrough, given the tensions that have marked discussions on the issue at the U.N.’s human rights bodies. Executive director Agnes Callamard noted in particular the omission of the term "defamation of religion," although she said "religious stereotyping" was a vague concept that suggested that religions and religious ideas and symbols, rather than religious adherents, may be protected by international human rights law.

The Becket Fund for Religious Liberty, a leading opponent of the religious "defamation" push, said the resolution passed Friday was a step in the right direction but still contained problematic language. "This resolution will be seen as a victory if it is the death knell for the concept of 'defamation of religions,'" said advocacy officer L. Bennett Graham. "But if it continues to provide international cover for overbroad anti-blasphemy laws around the world, it will only exacerbate the problem."

Some however had a less sanguine view of the compromise language, such as this article from The Weekly Standard, and this somewhat less strident but still negative reaction from Eugene Volokh.

Christian Conservatives Opposing Feldblum's Nomination To EEOC

An article today by Bill Berkowitz at BuzzFlash says that Christian conservatives are mounting a campaign to oppose confirmation of Chai R. Feldblum who has been nominated to the EEOC by President Obama. (See prior posting.) Feldblum is the first openly gay or lesbian person to be nominated for the EEOC. An article on the Traditional Values Coalition website opposing Feldblum is titled: "If You Hate America You Have a Lawyer — Chai Feldblum." Feldblum, a professor at Georgetown Law School, founded the Moral Values Project, dedicated to making a moral case for sexual and gender equity.

Saudi Religious Police Will Add Human Rights Unit

ANI reports today that Saudi Arabia's religious police, the Commission for the Promotion of Virtue and the Prevention of Vice, is setting up a new human rights unit to deal with human rights "in accord with just Islamic principles and international rights treaties." This is part of a broader restructuring of the Commission. However human rights activists call the move a hypocritical attempt to deal with the Commission's tarnished image and increased scrutiny of it by human rights organizations.

Military Critic Sues Former Chaplain Alleging Threats

Today's Dallas Morning News reports on a lawsuit filed by Mikey Weinstein, founder of the Military Religious Freedom Foundation, against former Navy chaplain Gordon Klingenschmitt, Jim Ammerman and Ammerman's Chaplaincy of Full Gospel Churches. Weinstein says that they are conspiring to encourage violence against him. The complaint (full text) in Weinstein v. Ammerman, (Dallas Co. TX Dist. Ct., filed 9/23/2009), alleges that Klingenschmitt, on behalf of Ammerman and CFGC, is using "imprecatory prayers" -- Biblical code-- to urge his followers to commit acts of violence against Weinstein. It claims that CFGC "is a front for anti-government extremists" who fear the U.S. is planning to turn its sovereignty over to the United Nations. The lawsuit seeks damages and an injunction, alleging violation of Texas Penal Code Sec. 22.07 that bans terroristic threats, and also alleging intentional infliction of emotional distress.

American Evangelist Turned Away From Britain Over Visa Problem

Britain has changed its rules on the entry of religious workers into the country, and the change last week prevented American evangelist Benny Hinn from entering to conduct his annual three-day "Fire Conference and Miracle Service." Yesterday's Times Online reports that Border Agency officials turned Hinn's private jet away at two different airports because he did not have a "letter of sponsorship" from a church as required by the Tier 5- Temporary Workers- Religious Workers requirements that came into effect last November. Thousands had come to London for Hinn's mission at the ExCeL exhibition centre, and were surprised when he did not appear. According to a posting on the Benny Hinn Ministry website, Hinn did end up addressing the conference via satellite link. It blames the problem on British lawyers who did not properly interpret Britain's new visa requirements. Plans are under way for Hinn to obtain a visa and return to Britain. [Thanks to Scott Mange for the lead.]

Recent Articles, Book and Video of Interest

From SSRN:

• C. Scott Pryor, Principled Pluralism and Contract Remedies, (McGeorge Law Review, Vol. 40, No. 3, 2009).
• Lyman P. Q. Johnson, Counter-Narrative in Corporate Law: Saints and Sinners, Apostles and Epistles, (Michigan State Law Review, Forthcoming).
• Dana Brakman Reiser, Charity Law’s Essentials, (Brooklyn Law School, Legal Studies Paper No. 167, Sept. 28, 2009).

From SmartCILP and elsewhere:

• Nehaluddin Ahmad, The Modern Concept of Secularism and Islamic Jurisprudence: A Comparative Analysis, 15 Annual Survey Of International & Comparative Law 75-105 (2009).
• Paul Horwitz, Demographics and Distrust: the Eleventh Circuit on Graduation Prayer in Adler v. Duval County, 63 University of Miami Law Review 835-892 (2009).
• Symposium: Constitutionalism and Secularism in an Age of Religious Revival: The Challenge of Global and Local Fundamentalisms, 30 Cardozo Law Review 2331- 2896 (June 2009).
  

Recent Book:

• Steven H. Shiffrin, The Religious Left and Church-State Relations, (Princeton Univ. Press, 2009).

New Video:

• Citizens United Productions, Rediscovering God in America II: Our Heritage, (2009), reviewed in CNS News.

Native Hawaiian Cultural Practitioners Challenge Land Management Plan

In Hawaii, a group of Native Hawaiian cultural practitioners, conservationists and others have filed suit in state court seeking to force the state's Board of Land and Natural Resources to grant them a hearing to challenge the Mauna Kea Comprehensive Management Plan that was adopted in April. Big Island Video News reported Friday that the lawsuit claims Hawaiian law has recognized the role of Native Hawaiians in protecting natural and cultural resources. Plaintiffs argue that Mauna Kea, an inactive volcano, is a religious temple, human burial ground, and a site for the study of traditional Hawaiian techniques in navigation and astronomy.