City Will Post "In God We Trust"

The Fortuna, California City Council on Monday voted 5-0 to post the national motto, "In God We Trust", in city council chambers. Members of the public expressed conflicting views on the proposal at the Council meeting. One argued that he should not be forced to recognize God, but another responded that a majority of people in the community believe in God and he was tired of having the minority telling him that he can't recognize his God in public. Yesterday's Humboldt (CA) Beacon reports that one of the Council members will come up with funding for the placard. Some 56 cities have joined a movement to post the motto. Council must still give final approval later this month.

Illinois Cancels Controversial Grant To Historic Church For Rebuilding

Chicago activist Rob Sherman reports that the Illinois Department of Commerce and Economic Opportunity notified (full text of letter) Pilgrim Baptist Church last month that it was terminating a grant promised to the church by former Governor Rod Blagojevich. The $1 million state grant was intended to help rebuild the historic Chicago church after it was severely damaged by fire in 2006. Last year, Sherman filed a lawsuit alleging that the grant violates the Establishment Clause as well as various provisions of the Illinois Constitution that effectively bar expenditures for religious purposes. (See prior posting.) The grant agreement limited the funds to use for secular purposes, but Sherman claimed that the state portion will still be identified with the church and that there were no effective limits on use of the funds after the two-year grant period.

New Hampshire Noise Law Challenged By Two Evangelists

Two Christian evangelists filed a federal lawsuit on Wednesday challenging the constitutionality of New Hampshire's statute banning loud and unreasonable noise in a public place, and the application of that statute by the Town of Hampton. The complaint (full text) in Frost v. Town of Hampton, (D NH, filed 10/7/2009), alleges that N.H. RSA 644:2(III)(a) is unconstitutionally vague and overbroad, and is used to improperly restrain any speech "that the government subjectively determines does not increase tourism in the Hampton Beach area." The two plaintiffs were arrested in August and charged with disorderly conduct after preaching near the beach boardwalk where a rock concert was being held. Those charges were dismissed. The lawsuit also claims false arrest in connection with that incident. Alliance Defense Fund issued a release announcing the lawsuit.

NY Finds That Restaurant Discriminated Against Falun Gong Patrons

Epoch Times reports on an Oct. 2 ruling by the New York State Division on Human Rights finding that the Lucky Joy restaurant in Flushing violated anti-discrimination laws when it refused service to two women and a young girl because one of them was wearing a Falun Gong T-shirt. (See prior posting.) Each of the three was awarded $7000 in damages. In addition the restaurant must display an anti-discrimination poster and create anti-discrimination training and procedures.

Catholic Archbishop Speaks Out On Government's Relationship With Catholics

CNA reports on an interesting speech delivered by Catholic Archbishop of Denver Charles J. Chaput yesterday at North Carolina's Belmont Abbey College where he was given the Envoy of the Year Award. He praised Belmont Abbey for its stand against the EEOC which has charged the college with gender discrimination for dropping coverage for contraceptive drugs from its health plan for employees. (See prior posting.) Contrasting anti-Catholic bigotry in early America with today, Chaput said:

Caesar wears a different suit. He has great media handlers. He bullies religion while he claims to respect it. He talks piously about the law and equality and tolerance and fairness. But he still confuses himself with God –and he still violates the rights of Catholic believers and institutions by intruding himself where he has no right to be....

It's one of the great ironies of the moment that tiny Belmont Abbey would have the courage to challenge Caesar over its right to be faithfully Catholic in its policies, while so many other American Catholics seem eager to give Caesar honors.

Earlier this week, Chaput published an article in the Italian newspaper Il Foglio criticizing Notre Dame University's award of an honorary degree to President Obama last Spring.

Hate Crimes Bill Included In Defense Authorization Conference Report Passed By House

It appears that the long battle to expand federal hate crimes legislation is about to succeed. (See prior posting.) The Conference Report on HR 2647, the 2010 Department of Defense Authorization Bill, included in the bill the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act. Yesterday the House of Representatives approved the Conference Report by a vote of 281-146. The Conference Report now goes to the Senate for its approval. President Obama has promised to sign the legislation.

According to a release from the Senate Armed Services Committee, the hate crime provisions will (1) prohibit hate crimes based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person; (2) provide support for the criminal investigation and prosecution of hate crimes by State, local, and tribal law enforcement officials; and (3) prohibit attacks on United States service members based on their military service.

Yesterday's Los Angeles Times reports that 131 of the 146 "No" votes were from Republicans who object to the hate crimes legislation, despite language designed to protect religious speech and association. Conservative Christians have argued that the bill could be used to prosecute pastors for anti-gay sermons that are later connected to violence against gays. Here are the provisions in the Conference Report intended to deal with this issue (at pp. 1366-69):

SEC. 4710. RULE OF CONSTRUCTION.
For purposes of construing this division and the amendments made by this division the following shall apply:

(1) IN GENERAL.—Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

(2) VIOLENT ACTS.—This division applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim.

(3) CONSTRUCTION AND APPLICATION.—Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to—
(A) plan or prepare for an act of physical violence; or
(B) incite an imminent act of physical violence against another.

(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

(5) FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(6) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

SEC. 4711. GUIDELINES FOR HATE-CRIMES OFFENSES.
Section 249(a) of title 18, United States Code, as added by section 4707 of this Act, is amended by adding at the end the following:

"(4) GUIDELINES.—All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General, to be included in the United States Attorneys’ Manual that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person."

ADL issued a press release welcoming the House action and said the next step is training for law enforcement personnel and prosecutors about the new law. The Family Research Council issued a statement criticizing the legislation, calling it a "thought-crimes bill" and charging that it gives special rights based solely on sexual behavior.

Human Rights Lawyer In Egypt Sues To Stop "Hesba" Proponent

Egyptian human rights lawyer Naguib Gobraiel filed a lawsuit in Cairo on Wednesday against fellow-lawyer Nabih el Wahsh charging him with "ghawi shohra" or "seeking fame." The charges stem from el Wahsh's long history of bringing "Hesba" cases against intellectuals, artists, religious leaders and government ministers charging them with immorality or blasphemy. The doctrine of Hesbah allows any Mulim to take legal action against anyone seen as harming Islam. In Egypt, the doctrine also extends to actions seen as immoral or injurious to the country. UAE's The National yesterday reported that el Wahsh has filed nearly 1000 Hesbah cases in the past ten years. For example he recently filed suit attempting to get seven TV series removed from Egyptian and Arab stations during Ramadan for violating Islamic law and presenting immoral scenes. Most of el Wahsh's cases are dismissed by the prosecutor general before they get to court. However earlier this year he won a case stripping Egyptian nationality from anyone married to an Israeli. If Gobraiel's lawsuit is successful, it could lead to a fine being imposed on el Wahsh.

Recent Prisoner Free Exercise Cases

In McAlister v. Livingston, (5th Cir., Oct. 6, 2009), the U.S. 5th Circuit Court of Appeals remanded for trial a Wiccan inmate's claims under the 1st Amendment and RLUIPA, alleging that prison officials wrongly denied his requests for devotional items for in-cell and group use, and that Wiccan inmates are not allowed to meet to celebrate the eight Wiccan holy days or for group worship without the supervision of an approved volunteer.

In Brown v. Lindsay, 2009 U.S. Dist. LEXIS 91126 (MD PA, Oct. 1, 2009), a Pennsylvania federal district court dismissed a challenge by a Muslim inmate to the temporary removal from the sheves of the prison chapel's library for security reasons of certain books. Plaintiff had since been transferred to a different facility and the Bureau of Prisons has rejected the Standardized Chapel Library Project policy responsible for the removal of the books. (See prior related posting.)

In Hamilton v. Smith, 2009 U.S. Dist. LEXIS 91039 (ND NY, Sept. 30, 2009), a New York federal district court rejected an inmate's complaint that his free exercise rights and his rights under RLUIPA were violated when the prison refused to provide him meals that met both his religious tenets and his medical needs for a low-sodium, low-cholesterol diet. The magistrate's recommendation is at 2009 U.S. Dist. LEXIS 91032 (Jan. 13, 2009).

In Fetzer v. McDonough, 2009 U.S. Dist. LEXIS 91063 (ND FL, Sept. 29, 2009), a Florida federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91074 (June 26, 2009)) and rejected an inmate's free exercise, equal protection and due process challenges to the Florida Department of Corrections discontinuance of its Jewish Dietary Accommodation Program.

In Bey v. Caruso, 2009 U.S. Dist. LEXIS 90314 (ED MI, Sept. 30, 2009), a Michigan federal district court rejected a magistrate's evidentiary ruling (2009 U.S. Dist. LEXIS 90323 (Feb. 27, 2009)) and held that material questions of fact remained for trial in a suit by an inmate, a member of the Moorish Science Temple of America, who wanted prison officials to use his religious name in prison documents.

In Smith v. Stoley, 2009 U.S. Dist. LEXIS 91142 (WD MI, Sept. 30, 2009), a Michigan federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91456 (July 21, 2009)) and dismissed claims by a Wiccan prisoner who wanted to possess a number of items for religious rituals, such as a knife, a crystal ball, candles, incense and a senser, and wanted to cover his cell window in order to perform certain Wiccan rituals naked.

In Crump v. McBurney, 2009 U.S. Dist. LEXIS 90693 (WD MI, Sept. 30, 2009) a Michigan federal district court adopted the recommendations of a magistrate judge (2009 U.S. Dist. LEXIS 91403 (June 11, 2009)) and rejected a RLUIPA claim by a prisoner who was wrongly removed from the prison's kosher food program for 39 days. Under prison rules, inmates could be suspended from the program if they purchased non-kosher food from the prison commissary. A guard had claimed that cough drops ordered by the inmate violated this restriction, but was later overruled when the warden ruled that these were personal care items, not food.

Philadelphia Couple Charged In Faith Healing Death of 2-Year Old Son

In Philadelphia (PA), Herbert and Catherine Schaible have been charged with involuntary manslaughter, conspiracy to commit involuntary manslaughter and endangering the welfare of a child in the death of their 2-year old son from bacterial pneumonia. According to the Philadelphia Inquirer and the Philadelphia Daily News, at a preliminary hearing yesterday a municipal court judge bound the parents over for trial. The parents, members of the First Century Gospel Church, do not believe in seeking medical care. Instead they prayed over their sick son for ten days, and when he did not improve they called their pastor to also pray with them. Herbert Schaible, who has only a 9th grade education, is a teacher at the Church's school. His wife also dropped out of school after the 9th grade. The couple's attorneys argued that the Schaibles merely thought that their son had a bad cold or the flu.

Wisconsin Parents Sentenced In Daughter's Faith-Healing Death

Yesterday's New York Times reports that Dale and Leilani Neumann, who were convicted this summer of second-degree reckless homicide in the 2008 death of their 11-year old daughter Kara, were sentenced by a Wisconsin judge on Tuesday. The parents were ordered to spend 30 days in jail each year for the next six years and were placed on 10 years' probation. Prosecutors had asked for a 3-year sentence. The Neumanns failed to obtain medical treatment for their daughter's diabetes. Instead they and other relatives and friends prayed for Kara as her health deteriorated. She finally went into a coma. (See prior postings 1, 2. )

Court Says Diocesan Assets Belong To ECUSA Loyalists

In Calvary Episcopal Church v. Duncan, (PA Com. Pl, Oct. 6, 2009), a Pennsylvania trial court ruled that under a 2005 settlement agreement, some $15 million in church endowments, bank accounts, and other resources are property of the Pittsburgh Episcopal diocese that remains affiliated with the Episcopal Church USA. The court said that the language of the settlement is "clear and unambiguous" that these assets do not belong to the congregations that broke away and affiliated with the Anglican Province of the Southern Cone. The ruling did not deal with questions of properties titled in the names of individual parishes. In a statement after the ruling was handed down, leaders of the diocese that remained with ECUSA said: "We must now focus on reconciliation and welcoming back anyone who wants to return to our Episcopal Diocese." In a pastoral letter , Archbishop Robert Duncan, leader of the break-away group, emphasized that the decision only affected diocesan assets, and not parish properties or funds. He said that the court's decision violates assurances that the issue of which group is the "true diocese" was not part of this case. Yesterday's Pittsburgh Post-Gazette reports on the decision.

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.]