Rifqa Bary's Parents Want Ohio Social Services To Screen Daughter's Christmas Cards

The Jawa Report last week reprinted a motion filed at the beginning of December by attorneys for Rifqa Bary, the 17-year old convert to Christianity who fled her Ohio family and went to Florida, saying she was afraid her father would kill her because of her conversion. She is now back in foster care in Ohio. (See prior posting.) The motion, by Rifqa Bary's parents, asks the Franklin County Common Pleas Court to enjoin their daughter's attorneys "from passing messages of third parties directly to the minor child without the approval and supervision of Franklin County Children Services." It also seeks to have any cards now in the possession of Rifqa or her attorney turned over to social workers. The Memorandum in support of the motion cites to "hate filled" websites, that are encouraging messages to be sent to Rifqa, through her attorney, under the guise of sending her Christmas cards. It refers in particular to this posting by Atlas Shrugs asking its readers to "Show Rifqa she is not alone. Send her a Christmas card. Tell her you are praying for her." A hearing on the motion is scheduled for Dec. 22.

DC Circuit Hears Oral Arguments In Challege To Inaugural Oath and Prayers

Yesterday, the D.C. Circuit Court of Appeals heard oral arguments in Newdow v. Roberts. The case challenges the addition of "So help me God" in the oath administered to President Obama, as well as prayers offered by clergy as part of the inaugural ceremony. The district court dismissed the case for lack of standing. (See prior posting.) In yesterday's argument, according to Blog of the Legal Times, Michael Newdow argued that, as an atheist, he suffered stigmatic injury from the religious elements of the ceremony. He also argued that the claims are not moot since future inaugurals are also likely to use the "so help me God" phrase in the oath of office. The government argued that plaintiffs' claims are too generalized to grant standing. They largely watched the ceremony on television. Justice Department attorney Lowell Sturgill Jr. also argued that it is speculative as to whether future presidents-elect will want to use the "so help me God" phrase. Counsel for the Presidential Inaugural Committee, also a defendant, argued that the PIC, a non-governmental group, did not assist the clergy in the ceremony.

At the hearing, the DC Circuit opened with its usual cry: "God save the United States and this honorable court." Plaintiffs' emergency motion asking the court to eliminate the cry before arguments in this case was denied last week. (See prior posting.) In response, apparently Michael Newdow (and Bob Ritter of the American Humanists) absented themselves from the courtroom during the cry. (Comment by Bob Ritter.)

Florida Court Says No-Aid Claim Against Faith-Based Treatment Program Can Proceed

In Council for Secular Humanism, Inc. v. McNeil, (FL Ct. App., Dec. 15, 2009), a Florida state appellate court held that plaintiffs stated a valid claim under the "no-aid" provision of Florida's Constitution (Art. I, Sec. 3) when they challenged per diem payments by the state to two Christian ministries for prisoners placed in their faith-based substance abuse transitional housing programs. At issue were contracts with Lamb of God Ministries and Prisoners of Christ. However the court held that plaintiffs' lacked taxpayer standing to assert a related claim focusing on the performance and oversight of contracts with the ministries. The court also dismissed plaintiffs' challenge to the authority given prison chaplains in the process of placing inmates in substance abuse transitional program. Yesterday's Tampa (FL) Tribune reported on the decision.

Vietnam President Visits Pope; Church Order Seeks Return of Land

Last week, Vietnamese President Nguyen Minh Triet met in the Vatican with Pope Benedict XVI in talks that moved toward normalizing relations between Vietnam and the Holy See. (AFP). According to a separate AFP story yesterday, a few days before the meeting, a Catholic religious order in southern Vietnam asked communist authorities to stop construction on a city park that they say is on property that belongs to the Church. Sisters of Saint-Paul de Chartres asked the chairman of the Vinh Long provincial People's Committee to return land which allegedly had been developed in 1871 as a nunnery and orphanage. This is one of a number of land disputes (see prior posting) growing out of seizure of Catholic Church lands after the end of French colonial rule in 1954 and in the years after reunification of the North and South in 1975. The nuns of Saint-Paul de Chartes were arrested in 1977 and their church building were destroyed in 2003, according to their letter posted on the website of the Vietnam Episcopal Council.

D.C. Council Votes Final Passage of Gay Marriage Bill

Washington, D.C.'s City Council yesterday, by a vote of 11-2, gave final approval to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The bill, which permits same-sex marriages to be performed in D.C., now goes to Mayor Adrian A. Fenty, who, according to the Washington Post, is expected to sign the bill before Christmas. Congress then has 30 days to review the legislation and can block it only by a resolution passed by both houses of Congress and signed by the President. It appears unlikely that the law will be rejected through this route. The bill contains protections to assure that clergy can refuse to perform same-sex marriages and that religious organizations can refuse to provide goods, services, accommodations and facilities for same-sex marriages that violate their religious beliefs, except when those facilities are offered to the general public. A number of Christian clergy say they will continue to oppose the legislation. As previously reported, they have filed suit to force an initiative vote on a proposal to define marriages as only between a man and a woman. (See prior related posting.)

Lawsuits Challenge Brooklyn Diocese Over Election Calls

In a press release issued yesterday, New York City Atheists says it is suing the Roman Catholic Diocese of Brooklyn and Bishop Nicholas DiMarzio charging that the Church made Robo-calls during the last election urging voters to cast their ballot for New York State Assemblyman Vito Lopez. The suit, which will be filed tomorrow, claims that the calls violated the Diocese's tax status as a non-profit organization. The complaint asks the court to order the Diocese to surrender its tax exempt status and retroactively pay back taxes. At the same time, a second lawsuit will be filed by a priest and a consortium of clergy sex-abuse survivors claiming that Diocese support for Lopez was a payback for Lopez's key opposition to legislation that would have provided a one-year window for bringing clergy sexual abuse cases as to which the statute of limitations had already expired. (See prior posting.) That suit also names Lopez as a defendant.

Evangelist Oral Roberts Dies

Evangelist Oral Roberts, died today at age 91. The New York Times called him "one of the most recognizable and controversial religious leaders of the 20th century." The Washington Post says "he helped create television evangelism and 'prosperity theology'." The New York Daily News described him as "an Oklahoma faith healer who built an enduring Pentecostal empire and became the first superstar televangelist." He founded Oral Roberts University in 1963.

Arkansas Court Allows Freethinkers Display Next To Capitol's Creche

Yesterday, an Arkansas federal district judge issued a preliminary injunction permitting the Arkansas Society of Freethinkers to place a secular display celebrating the winter solstice and "freethinkers" such as Albert Einstein, Bill Gates and Elanor Roosevelt on the grounds of the Arkansas Capitol near the Christian nativity scene that has been displayed there for more than 50 years. (See prior posting.) The order in Arkansas Society of Freethinkers v. Daniels, (ED AR, Dec. 14, 2009) (full text), indicates that a written opinion will follow. AP reports (via Law.com) that the 8-foot high display will contain an explanation of the solstice and photos of famous freethinkers.

Federal Executive Branch Employees Get Half Day Off On Christmas Eve

Last Friday, President Barack Obama signed an Executive Order (full text) giving employees of all Executive Branch departments and agencies a half day off on the afternoon of Christmas eve. Christmas Day is a legal public holiday under 5 USC Sec. 6103.

Senate Committee Approves Feldblum For EEOC

Last Thursday, the Senate Health, Education, Labor and Pensions Committee approved and sent to the full Senate the nomination of Chai R. Feldblum to be a commissioner on the Equal Employment Opportunity Commission. (Committee press release.) A coalition of conservative Christian groups are attempting to block Feldblum's nomination, concerned about her record as a gay rights activist and her pro-abortion record. (LifeNews, 12/13). A letter opposing the nomination, drafted by the Traditional Values Coalition, has attracted over 100 signers. (Charisma News 12/9). Here is Feldblum's statement at her confirmation hearings last month.

Dutch Court Says Public Transport Company Can Ban Employees From Wearing Religious Necklace

A district court in the Netherlands has ruled that Amsterdam's public transport company, GVB, can prohibit staff from wearing necklaces over their uniforms during working hours, even when a cross, as a religious symbol, is hanging on the necklace. NIS reports today that the suit, brought by an Egyptian Christian male tram conductor, claimed that the ban was discriminatory, especially since Muslim women conductors are allowed to wear headscarves. However the court said that there are other ways to wear a cross, such as on an armband or ring. Also the headscarves that employees are permitted to wear include the GVB logo, so can be seen as part of the uniform instead of a religious symbol.

Final Decision Denies Attorney Fees and Court Costs To High School Teacher

Yesterday's Orange County Register reports that a California federal district judge yesterday issued an opinion affirming an earlier tentative ruling, holding that high school student Chad Farnan is not liable for attorneys' fees incurred by his high school teacher in Farnan's suit against him. Farnan sued 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. In the current decision, the court concluded that Farnan's suit was not frivolous, baseless or vexatious, a prerequisite for defendant to obtain an award of attorneys fees under 42 USC Sec. 1988. (See prior posting.) The court also reversed an October ruling by the court clerk's office that awarded Corbett court costs. (See prior posting.) Both sides have already appealed the case to the 9th Circuit.

Egyptian Court Reverses Al-Ahzar Ban On Niqab

ANSAmed yesterday reported that in Egypt, the Administrative Tribunal in Cairo has ruled unconstitutional a ban on women students wearing the niqab. The controversy began when in October, Egypt's top cleric, Mohammed Sayyed Tantawi, announced 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. (See prior posting.) Then Education Minister Yustri El Gamal banned the niqab in public schools. The court ruled that the ban violates personal and religious freedom guaranteed by Egypt's constitution. In 2006, Egypt's Council of State held that American University in Cairo could not ban women from wearing the niqab. (See prior posting.) A committee of the Supreme Administrative Court issued a similar ruling in 2007. (See prior posting.)

Unenforceable North Carolina Provision Barring Atheists From Office Is Focus of Attention [Corrected]

Yesterday's Asheville Citizen-Times reports on a story about a newly-elected Asheville, North Carolina councilman that has inexplicably been carried repeatedly by online media. Cecil Bothwell who took his oath as city councilman last week affirming, rather than swearing, to uphold the law, and not placing his hand on any sacred text, says he is an atheist, or at least a post-theist. All of this is rather unremarkable as is the fact that North Carolina's state constitution (Art. VI, Sec. 8) still has in it now clearly unenforceable language providing that any person "who shall deny the being of Almight God" is disqualified from holding public office. Ever since the U.S. Supreme Court's 1961 decision in Torcaso v. Watkins, it is clear that even though the state never got around to removing the provision from its constitution, it cannot be applied consistent with the U.S. Constitution.

Nevertheless, former Asheville NAACP President H.K. Edgerton, who is a Southern Heritage activist, has suggested that he might sue Bothwell. This news account and others (such as AP) then suggest that such a suit might tie Bothwell up in litigation for years:

But the federal protections don't necessarily spare atheist public officials from spending years defending themselves in court. Avowed atheist Herb Silverman won an eight-year court battle in 1997, when South Carolina's highest court granted him the right to be appointed as a notary despite the state's law.

Overlooked in this suggestion is the fact that Bothwell is in office, while the 1997 case, Silverman v. Campbell, involved a plaintiff who had been denied appointment to office and had to sue to obtain the appointment. The Silverman case specifically held that Art. VI, Sec. 2 of the South Carolina Constitution, a comparable provision requiring a belief in God to hold office, violates the U.S. Constitution.

NOTE: The original version of this posting inaccurately conflated North Carolina and South Carolina.

Rahm Emmanuel Lights National Menorah On Sunday

Yesterday, White House chief of Staff Rahm Emanuel lit the National Menorah on the Ellipse in front of the White House. The event was sponsored by Chabad. According to AP, Emanuel stood in a cherry picker that lifted him up to light the menorah in front of about 1000 onlookers. This is the 30th anniversary of the first National Menorah lighting, attended in 1979 by then-President Jimmy Carter. (Arutz Sheva). According to Chabad, the ceremony featured the U.S. Air Force Band and "The Three Cantors."

Russian Museum At Odds With Orthodox Church Over Loan of 14th Century Icon

Today's Moscow Times reports that officials at St. Petersburg's Russian Museum are distressed at the decision made by the Russian Republic's Culture Ministry last week to lend a fragile 14th century icon of the Virgin Mary in the Museum's collection to a newly-constructed church in an upscale gated community. The Alexander Nevsky Church has no relationship with the icon, but the Russian Orthodox Church generally believes that icons should serve their original purposes of being available to worshippers. This dispute over the icon, originally from a church in the town of Toropets, is part of a larger dispute between preservation experts and the Russian Orthodox Church over the use of culturally and religiously valuable objects. Visualrian has photos of the delivery of the icon to the church.

India's Parliament Given Proposal To End "Bigamy Through Conversion To Islam"

According to DNA, last Thursday the Law Commission of India forwarded to Parliament its August 2009 report titled Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect to Supreme Court Rulings. The report suggests amending the Hindu Marriage Act of 1955 and various other marriage statutes to bar a person who was married as a non-Muslim from marrying again even after converting to Islam, unless the first marriage is dissolved or declared null and void. Muslim and Christian groups are both critical of the proposal. They oppose government interference of any kind in a person's right to choose his or her religion.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill, The Ballot, the Bimah, and the Tax Code, (CCAR Journal: The Reform Jewish Quarterly, Forthcoming).
• Jose Antonio Seoane, The Boundaries of the Medical Conscientious Objection - About the Refusal of a Blood Transfusion by a Jehovah’s Witness, (InDret, Vol. 4, 2009).
• Lyman P. Q. Johnson, Re-Enchanting the Corporation, William & Mary Business Law Review, Forthcoming).
• Frederick Schauer, Social Epistemology, Holocaust Denial, and the Post-Millian Calculus, (Regulating Hate Speech: Context, Content, and Remedies, Michael Herz & Peter Molnar, eds., Cambridge University Press, 2010).
• Stephen G. Gilles, Roe's Life-or-Health Exception: Self-Defense or Relative-Safety?,(Notre Dame Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Symposium. International Protection of Religious Freedom: National Implementation. Articles by Zhuo Xinping, Denise Meyerson, Gennadiy Druzenko, Evaldo Xavier Gomes, Guillermo Garc¡a-Montufar Sarmiento, Daniel Alegre Porras, Sergio Gonzalez Sandoval, Octavio Lo Prete and Jorge Precht Pizarro. 2009 BYU Law Review 513-704.
• Symposium: Law and Religion. Lecture by Cardinal Roger Mahony. Articles by Robert J. Delahunty, Chad Marzen, Kevin Pybas and Lael Daniel Weinberger. 86 University of Detroit Mercy Law Review 603-766 (2009).
• Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 Pennsylvania Journal of Constitutional Law 1 (2008).

Recent Prisoner Free Exercise Cases

On Nov. 30, the U.S. Supreme Court denied certiorari in Chavis v. Fischer, Docket No. 09-7079 (Order List). In the case the U.S. 2nd Circuit Court of Appeals dismissed an inmate's claim that his free exercise rights were infringed when he was required to work on Sundays. (See prior posting.)

In Desimone v. Bartow, 2009 U.S. App. LEXIS 26687 (7th Cir., Dec. 8, 2009), the 7th Circuit rejected an inmate's free exercise and RLUIPA claims, finding that he did not establish a substantial burden on his free exercise of religion. Plaintiff complained that authorities had confiscated his encoded journals that he believed allowed him to maintain a separate realm of thought to conform to the teachings of Yahwism.

In Allen v. Passaic County Jail, 2009 U.S. Dist. LEXIS 113560 (ED PA, Dec. 4, 2009), a Pennsylvania federal district court refused to dismiss a former inmate's claim that his free exercise rights were violated when, because of jail overcrowding, he was unable to attend religious services.

In Hamilton v. Hernandez, 2009 U.S. Dist. LEXIS 113140 (ND CA, Nov. 19, 2009), a California federal district court dismissed an inmate's claims that prison authorities interfered with his practice of his House of Yahweh religion by placing him in a cell with an inmate that did not observe the same religion, by on occasion refusing to release him from his cell to attend Sabbath services, by interfering with House of Yahweh Sabbath services, by failing to provide him a religious diet, and by her infringements and retaliatory action.

In Stewart v. Klein, 2009 U.S. Dist. LEXIS 113040 (D AZ, Nov. 19, 2009), an Arizona federal district court refused to overturn a jury's verdict rejecting an inmate's claim that his free exercise of religion was substantially burdened by receiving meals containing meat and egg products. and that defendant, the kitchen manager, should have corrected the problem.

In Garrison v. Michigan Department of Corrections, 2009 U.S. Dist. LEXIS 114719 (ED MI, Dec. 9, 2009), a Michigan federal district court accepted most of a federal magistrate judge's recommendations (2009 U.S. Dist. LEXIS 114640, Oct. 16, 2009), and dismissed objections to various restrictions imposed by prison officials on plaintiffs' Native American Traditional Spiritual Ways religious ceremonies.

Chirstian Leaders Broadly Oppose Uganda's Proposed Anti-Homosexuality Bill

In the wake of a report issued last month by Political Research Associates charging U.S. conservatives with using churches in Africa to promote homophobia on that continent (see prior posting), USA Today reports that last week 75 Christian leaders from a variety of backgrounds signed a Statement (originally released 12/7) denouncing the Anti-Homosexuality Act of 2009 (full text) currently under consideration by the Parliament of Uganda. (Release by Faith in Life.) The Statement said in part:

Regardless of the diverse theological views of our religious traditions regarding the morality of homosexuality, in our churches, communities and families, we seek to embrace our gay and lesbian brothers and sisters as God's children worthy of respect and love.

Subsequently two other influential leaders came out with statements against the legislation-- Pastor Rick Warren (USA Today report; Warren' statement (12/10)) and Archbishop of Canterbury, Rowan Williams (Ekklesia 12/12.)

Bloomberg News (12/9) reports that a revised version of the bill will drop the death penalty (imposed for "Aggravated Homosexuality") and life imprisonment for gays-- provisions that had particularly generated religious opposition. The revised bill reportedly will also encourage counseling to encourage changes in sexual orientation.