2nd Circuit Dismisses Long-Running Lawsuit On Kindergartener's Religious Poster

In Peck v. Baldwinsville Central School District, (2nd Circuit, Oct. 26, 2009), the U.S. 2nd Circuit Court of Appeals dismissed a viewpoint discrimination lawsuit that has been in the courts for ten years. In the lawsuit, parents of a young student in a Baldwinsville, New York elementary school charged that a kindergarten teacher and a principal displayed their son's poster on environmental issues only after folding under a picture of Jesus on the poster so it was not visible. After numerous proceedings, the only remaining claim was a free speech claim for injunctive and declaratory relief against the school district, and the principal and superintendent in their official capacities. (See prior related posting.) The court held that mere past injury is not enough to justify injunctive or declaratory relief. Plaintiffs have not shown either a likelihood of future harm or an official policy involving regular violation of students' free speech rights. The court ordered the case dismissed for lack of subject-matter jurisdiction.

eBay Bans Auction Intended To Support Accused Killer of Abortion Doctor

The online auction site eBay has prohibited the use of its facilities by supporters of Scott Roeder, the alleged killer of Kansas City abortion doctor George Tiller. As reported by Sunday's Kansas City Star, Roeder's supporters planned to auction an Army of God manual, a prison cookbook compiled by an abortion clinic bomber, a bullhorn signed by an anti-abortion activist and three drawings autographed by Roeder. The proceeds were to be used for Roeder's defense in his first degree murder trial that begins in January. Apparently supporters hope to finance representation other than the public defenders who are now representing Roeder. Some supporters are urging him to assert a "necessity defense."

However the Cleveland Plain Dealer reported yesterday that eBay says the planned auction violates its policy against material that encourages illegal activity or promotes violence toward others. eBay says it will remove the items if they are posted for sale. Tiller's attorney wrote eBay arguing that any proceeds from the auction would come under Kansas' "Son of Sam" law that keeps those charged with crimes from profiting from their activities. Proceeds would instead go to the Kansas Crime Victims Compensation Board. Regina Dinwiddie, a Roeder supporter, complained that eBay is chilling their First Amendment rights.

11th Circuit: Challenge By Christian Group to University of Florida Rules Is Moot

In Beta Upsilon Chi Upsilon Chapter at the University of Florida v. Machen, (11th Cir., Oct. 27, 2009), the U.S. 11th Circuit Court of Appeals dismissed as moot a challenge by a Christian fraternity to the University of Florida's non-discrimination rules for student organizations. Originally BYX was denied recognition as a student organization because it limited membership to those who demonstrated "a credible profession of faith in Jesus Christ," including a literalist view of the Bible and sexual purity. BYX excludes from membership, non-Christians, Catholics and mainline Protestants. University policy prohibits registered student organizations from discriminating on various grounds, including religious beliefs. The district court denied a preliminary injunction. BYX appealed and the 11th Circuit ordered the University to grant recognition to the organization while the appeal was pending. (See prior posting.)

After oral arguments in the 11th Circuit, the University announced that it had changed its policy on recognition of student groups. It now allows religious organizations-- such as BYX-- to limit membership or leadership positions to students who share the religious beliefs of the organization. Over the objections of BYX, the court concluded that no live controversy remained. The Gainesville (FL) Sun reports on the decision.

Court Says New Hampshire Town's Zoning Refusal Violates RLUIPA

Yesterday's Keene (NH) Sentinel reports that a New Hampshire trial court judge has ruled that the Richmond, New Hampshire planning and zoning boards violated the federal Religious Land Use and Institutionalized Persons Act in dealing with the zoning application of a conservative Catholic church. St. Benedict Center applied to build a school and chapel on land it owned. The zoning and planning boards approved the proposal, but only if some 30 conditions were met. The court ruled that the town discriminated against St. Benedict's by attaching unattainable deadlines to some of the conditions. The court also concluded that Richmond's zoning laws effectively excluded houses of worship from the town. However the court dismissed the lawsuit's claim for damages against the individual board members, finding they were acting in a quasi-judicial capacity when they ruled on St. Benedict's zoning application. The claims against the boards themselves will now proceed to a jury trial for a determination of damages. St. Benedict is asking for $2 million in compensatory damages and up to $5.8 million in punitive damages.

French Court Convicts Scientology and Its French Leaders of Fraud

A Paris Criminal Court today convicted two French affiliates of the Church of Scientology of fraud upon the complaints of two women who claimed they were manipulated into buying products or enrolling in courses. AFP and the London Times report that fines totalling 600,000 Euros (around $900,000) were imposed on Scientology's Celebrity Centre and its bookshop in Paris. Scientology's French leader, Alain Rosenberg, was given a suspended two-year jail sentence and fined 30,000 Euros. Five other defendants were fined from 1,000 to 20,000 Euros on charges of fraud and the illegal practice of pharmacy. The court was unable to order Scientology dissolved because of a change in the law passed by Parliament in May that precluded dissolution as a punishment for fraudulent associations. (Background). The court also is requiring Scientology to publish the court's judgment in six newspapers and magazines in France and abroad. Judge Sophie-Helene Chateau said that a fine would be more effective punishment anyway, since a ban on the group might just drive them underground. According to the New York Times, the church, which calls the verdict "an Inquisition for modern times," says it will appeal

US Enjoined Temporarily From Moving On Terrorist Designation for Muslim Charity

In KindHearts for Charitable Humanitarian Development, Inc. v. Geithner, (ND OH, Oct. 26, 2009), an Ohio federal district court issued a preliminary injunction barring the U.S. Treasury's Office of Foreign Assets Control from moving ahead to designate Kindhearts, a Muslim charity, to be a "Specially Designated Global Terrorist" group. In an August decision (see prior posting) the court found that in blocking KindHearts' assets, OFIC violated the charity's constitutional and statutory rights. Government officials had not obtained a search warrant; had applied vague criteria and not give the charity adequate notice and opportunity to be heard; and blocked access to funds for KindHearts to use to pay its counsel. The order issued yesterday bars the U.S. from taking the next step in the designation process until the court rules on what remedy is appropriate for the violations already found. Today's Toledo Blade reports on the case.

Both Sides Appeal Suit Against History Teacher For Anti-Religious Remarks

Both sides have filed appeals with the 9th Circuit in C.F. v. Capistrano Unified School District, the case in which California high school student Chad Farnan and his parents sued history teacher James Corbett for making remarks hostile to religion. A California federal district court found that one of the teacher's comments-- calling Creationism "superstitious nonsense"-- violated the Establishment Clause. However, Farnan was denied any relief on the claims. (See prior posting.) Yesterday's Orange County Register reports that teacher Jame Corbett's appellate team includes nationally renowned constitutional scholar Erwin Chemerinsky who is dean of UC Irvine School of Law. Corbett's 4-person team will represent him pro bono.

First Nativity Scene Lawsuit of the 2009 Season Is Filed

In what appears to be the first battle in the "Christmas Wars" for the 2009 season, a federal lawsuit has been filed by a Warren, Michigan resident challenging the county's decision to end a 63-year old tradition of his family's displaying a privately-constructed and maintained Nativity Scene on the median of a road in the city. The complaint (full text) in Satawa v. Board of County Road Commissioners of Macomb County, (ED MI, filed 10/23/2009), alleges that the county's denial to plaintiff of a permit to set up the display is a content-based infringement on freedom of speech in a traditional public forum and a denial of equal protection. The county first raised an objection in 2008 after receiving a letter (full text) from the Freedom from Religion Foundation complaining that the display on public property violates the Establishment Clause. Plaintiff removed the display last year since he had not applied for a permit. This year he applied, and was denied a permit. In addition to his speech and equal protection claims, plaintiff charges that the denial violates the Establishment Clause because it lacks a valid secular purpose and has the primary effect of inhibiting religion.

A press release from the Thomas More Law Center, announcing the filing of the lawsuit, quotes the Center's president, Richard Thompson, who said:

Every Christmas holiday, militant atheists, acting like the Taliban, use the phrase 'separation of church and state,' — nowhere found in our constitution — as a means of intimidating municipalities and schools into removing expressions celebrating Christmas, a National Holiday.... However, the grand purpose of our Founding Fathers and the First Amendment was to protect religion, not eliminate it.... [S]ystematic exclusion of Christmas symbols during the holiday season is itself inconsistent with the Constitution.

Malta Court Interprets Ban On Vilifying Catholic Church

Section 163 of Malta's Criminal Code outlaws publicly vilifying the Roman Catholic Apostolic religion (the country's official religion), or those connected with it. The Police v. Rokku Abdilla, (Ct. Cr. App., Oct. 23, 2009), a decision handed down last week by Malta's Court of Criminal Appeal, interprets this provision. Here is a summary of the holding from the Judiciary of Malta's website:

The mere fact of dressing up as nun, even if for carnival, but without wearing any religious symbol, cannot reasonably be considered as amounting to public vilification of the Roman Catholic Religion, or of those belonging to such religion, or of its ministers, or of anything which forms the object of, or is consecrated to, or is necessarily destined for Roman Catholic worship. However, if the wearing of such a habit were accompanied with such circumstances of fact, words or gestures which objectively amount to vilification, then there would be an offence in terms of article 163.

Here is the full text of the decision in Maltese.

High School Football Fans Fill Stands With Biblical Verses

The New York Times reported yesterday that high school football fans in a Georgia town have found a way to respond to the school district's ending the practice of cheerleaders carrying banners with Biblical quotations onto the field. As previously reported, Fort Oglethorpe High School, concerned about potential litigation, ended the 8-year old tradition of the players breaking through paper banners painted by cheerleaders with New Testament verses. Cheerleaders switched to banners carrying secular slogans." But now, fans calling themselves "Warriors for Christ" (a take-off on the team's name), have filled the stands with their own signs carrying Biblical verses, along with others reading "You Can't Silence Us" and "Living Faith Outloud." The fans have also held large rallies and sold more than 1,600 T-shirts carrying passages from Deuteronomy and Timothy. Also at last week's game, led by students, the team prayed on the 50 yard line before play began. The team captain shouted "In Jesus Name!" as players broke out of a huddle. The Times commented: "the backlash demonstrates the difficulty of separating church and state in communities, especially in the South, where many prefer the two merged."

State Department Releases 2009 Report On International Religious Freedom

The State Department yesterday submitted to Congress its 2009 Report on International Religious Freedom as required by Section 102(b) of the International Religious Freedom Act of 1998. At a press conference announcing release of the report Secretary of State Clinton (full text of remarks) said in part:

The President has emphasized that faith should bring us together, and this year's report has a special focus on efforts to promote interfaith dialogue and tolerance..... I obviously believe that our country has been strengthened by its long tradition of religious pluralism. From the largest denominations to the very smallest congregations, American religious bodies and faith-based organizations have helped to create a more just and compassionate society. Now, some claim that the best way to protect the freedom of religion is to implement so-called anti-defamation policies that would restrict freedom of expression and the freedom of religion. I strongly disagree. The United States will always seek to counter negative stereotypes of individuals based on their religion and will stand against discrimination and persecution.....

Based on our own experience, we are convinced that the best antidote to intolerance is not the defamation of religion’s approach of banning and punishing offensive speech, but rather, a combination of robust legal protections against discrimination and hate crimes, proactive government outreach to minority religious groups, and the vigorous defense of both freedom of religion and expression.

After Secretary Clinton's remarks, Assistant Secretary of State Michael S. Posner answered extensive questions from the press (full text of press conference). Posner clarified that information in the report being released would be used over the next few months to make judgments on which countries should remain on, be taken off or be added to the list of "countries of particular concern"(CPC) -- those with particularly problematic religious freedom records. This report did not make those designations.

The U.S. Helsinki Commission issued a release praising the State Department's report. The U.S. Commission on International Religious Freedom was more critical, issuing a statement urging the Obama administration to take stronger steps than it has so far. USCIRF Chairman Leonard Leo said: "Both Democratic and Republican administrations have underutilized the 'country of particular concern' designation." He emphasized differences between USCIRF and the State Department, and called for stronger action than in the past against Saudi Arabia, Pakistan and Vietnam.

The Washington-based Institute for Religion & Public Policy issued a release that applauded Secretary Clinton's statements but strongly criticized the Obama Administration for not yet appointing an Ambassador at Large for International Religious Freedom. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Furor In Britain Following BBC Appearance of BNP Party Leader

BBC News yesterday reported that many in Britain are outraged over the appearance last week on BBC One's Question Time of British National Party leader Nick Griffin. The BNP limits its membership to members of Caucasian British ethnic groups and has been outspokenly anti-Muslim. It is under court order to change its constitution to eliminate discrimination on the basis of race or religion. (See prior posting.) Griffin complained that the BBC program should not have been held in London because "it is no longer a British city" due to its level of immigrants. Former Archbishop of Canterbury Lord Carey urged Christians to "stand shoulder to shoulder" in rejecting the BNP, after BNP's Griffin referred to "Christian Britain" during his BBC appearance. BNP says 3,000 people registered to join the party during and after the broadcast. The broadcast had a record audience of 8 million viewers.

Demonstrations In Kabul In Reaction To Rumor Over Desecration of Quran

The London Telegraph reports that in Afghanistan's capital of Kabul yesterday, hundreds of demonstrators burned President Obama in effigy in reaction to rumors that U.S. troops had burned a copy of the Quran last week during a raid in Wardak province. One banner displayed by the demonstrators read: "No to Democracy. We just want Islam."A spokesperson for coalition forces said that an investigation showed that the reports were false, and were propaganda being circulated by the Taliban.

Recent Prisoner Free Excercise Cases

In Niemczynski v. Arpaio, 2009 U.S. Dist. LEXIS 97786 (D AZ, Oct. 8, 2009), an Arizona federal district court refused to dismiss a former jail inmate's claim that his free exercise rights were violated when the sheriff ordered Christian Christmas music to be played continuously for over 10 hours per day.

In Joseph v. Fischer, 2009 U.S. Dist. LEXIS 96952 (SD NY, Oct. 8, 2009), a New York federal dstrict court held that personal involvement of a defendant in the alleged substantial burden of plaintiff's exercise of religion is a prerequisite to stating a claim under RLUIPA, and that an official's denial of a grievance alleging a constitutional deprivation, without more, does not amount to personal involvement. Plaintiff's grievance concerned seizure of his religious material.

In Turner-Bey v. Indiana Department of Corrections, 2009 U.S. Dist. LEXIS 97219 (ND IN, Oct. 10, 2009), an Indiana federal district judge held that a Muslim inmate's free exercise rights were not violated by a single incident of authorities inadvertently including pork ham on the Halal diet trays.

In Menefield v. Cate, 2009 U.S. Dist. LEXIS 96447 (ED CA, Oct. 5, 2009), a California federal district judge issued a preliminary injunction requiring prison authorities to give a Muslim prisoner access to the prison's kosher diet pending the state's decision on implementing a Halal alternative.

Recent Articles and Books Of Interest

From SSRN:

• Victor C. Romero, Of Hope and Humility: Christian Realism, Immigration Reform and Executive Leadership, (Penn State Legal Studies Research Paper No. 17-2009, Oct. 23, 2009).
• Ira C. Lupu & Robert W. Tuttle, Same-Sex Family Equality and Religious Freedom, (Northwestern Journal of Law and Social Policy, Forthcoming).
• Eric G. Andersen, Religion and Social Welfare in the United States: The Case of Charitable Choice, (The Review of Faith & International Affairs, Vol. 7, No. 3, 2009).

From SmartCILP and elsewhere:

• Barbara Shapiro, Changing Language, Unchanging Standard: From 'Satisfied Conscience' to 'Moral Certainty' and Beyond 'Reasonable Doubt', 17 Cardozo Journal of International & Comparative Law 261-279 (2009).
• Barbara E. Wall, Ethical Considerations for a New Jurisprudence: A Catholic Social Thought Perspective, 11 Barry Law Review 77-93 (2008).
• Samuel W. Calhoun, Getting the Framers Wrong: A Response to Professor Geoffrey Stone, 57 UCLA Law Review Discourse 1 (2009).
• Geoffrey R. Stone, The Perils of Religious Passion: A Response to Professor Samuel Calhoun, 57 UCLA Law Review Discourse 15 (2009).

Recent Books:

• Bethany Moreton, To Serve God and Wal-Mart, (Harvard University Press, May 2009).
• Amos Guiora, Freedom from Religion, (Oxford University Press, Oct. 2009).
• Vincent Phillip Muñoz, God and the Founders - Madison, Washington, and Jefferson, (Cambridge University Press, 2009), reviewed by South Bend Tribune.

Court Orders Deacons To Turn Church Control Back To Pastor

In Pike County, Alabama, a state trial court judge has issued a temporary injunction ordering two deacons of Troy, Alabama's New Mount Pleasant Baptist Church to turn the keys to the church and church documents over to the pastor and a majority of the congregation, and to refrain from interfering with church services. According to last Thursday's Troy Messenger, the deacons were upset that the pastor was disclosing financial information to the congregation outside the once-a-year business meeting. So they essentially took over the church. The court, however, ruled that a majority vote of the congregation controlled. The deacons-- one of whom had served in that capacity for 67 years-- had argued that the supposed majority were inactive members, and that there were only 15 members who actively attend and pay their tithes.

High School Teacher Found To Be Prevailing Party For Court Costs Recovery

The clerk's office in federal district court in Santa Anna, California has determined that nearly $20,000 in court costs should be borne by high school student Chad Farnan who sued his high school history teacher James Corbett, the school district and the teachers' union over anti-Christian remarks made by Corbett. While the court found that one statement by Corbett amounted to a violation of the Establishment Clause, it held that Corbett was not liable for damages because he was entitled to qualified immunity. (See prior posting.) That led the clerk's office to decide that Corbett was the prevailing party entitled to receive an award of court costs. The fees are to be paid by Advocates for Faith & Freedom, a Christian legal group that represented Farnan pro-bono. The school district and teachers' union, whose attorneys also represented Corbett, now plan to file a motion to recover over $378,000 in attorneys' fees. Reporting these developments, the Orange County Register says that Farnan's attorney now plans to ask the judge to review the ruling on court costs.

Islamic Group Still Pressing For International Ban On Insulting Religions

Despite the United Nations Human Rights Council's recent adoption of a compromise resolution on freedom of opinion and expression (see prior posting), the Organization of the Islamic Conference and the African Group are pressing for much more robust protections against publications that insult or negatively stereotype religion and religious ideas. According to Nigeria's Vanguard on Friday, these groups have asked the Human Rights Council's Ad Hoc Committee for the Elaboration of Complementary Standards to develop:

"new binding normative standards relating to religious ideas, objects and positions while incorporating contemporary issues" such as "defamation of religions, religious personalities, holy books, scriptures and symbols"; "provocative portrayals of objects of religious veneration as a malicious violation of the spirit of tolerance"; "prohibition of the publication of gratuitously offensive attacks on matters regarded as sacred by the followers of any religion and ; "abuse of the right to freedom of expression in the context of racio-religious profiling".

A group of NGO's has written to the U.N. committee objecting to these proposals, saying that they threaten freedom of expression and the protection of equality.

U.S. Army For First Time Allows Sikh To Serve While Wearing Turban

According to a press release Friday from the Sikh Coalition, for the first time in 23 years the U.S. Army has agreed to allow as Sikh physician, Captain Kamaljeet Singh Kalsi, to wear his religiously-mandated turban and long hair while serving on active duty. The decision does not represent a change in Arny policy, but instead a waiver granted at this point only to Capt. Kalsi. According to Stars and Stripes, if Kalsi is transferred to another command or deploys, he will be required to apply for another waiver from the Army’s uniform policy. The Sikh Coalition has been pressing for a broader change in Army policy and the Army has indicated a willingness to review its policy that excludes Sikhs. (See prior posting.)

Houston Sued Over City Council Prayer Policy

KTRK-TV News Friday reported that a lawsuit has been filed against the city of Houston, Texas challenging the constitutionality of its opening its city council meetings with a prayer. Invocations are offered either by Council members or invited clergy of various religious faiths. According to 39online.com, City Councilwoman Anne Clutterbuck was also named as a defendant. She often opens Council sessions with the Lord's Prayer. Plaintiff in the lawsuit is Kay Staley who sued and in 2007 obtained removal of a monument displaying the King James Bible at the Harris County (TX) courthouse. (See prior posting.)