U.S. Muslim Groups Express Increasing Suspicion of FBI Activities

A front-page article in today's New York Times reports on the increasing tensions in the U.S. between the FBI and Muslim organizations. A relationship that had been built beginning in 2001 has unraveled after FBI informers have infiltrated mosques to locate those who may be planning terrorist activity. Many Muslims are increasingly concerned that FBI informers may be everywhere, and are more hesitant to volunteer for Muslim charitable groups. Law enforcement officials are concerned that these suspicions may result in loss of an early-warning system against domestic terrorism that has been created.

Irish Court Upholds Regulation of Sale of Mass Cards

RTE News and IOL News report that a High Court judge in Ireland yesterday upheld the constitutionality of Section 99 of the 2007 Charities Act that bans the sale of any Mass card except pursuant to an arrangement with a bishop of the Church or a provincial of a religious order. (See prior posting.) The challenge was brought by Thomas McNally whose business sold 120,000 Mass cards each year under an agreement with a Polish priest in the West Indies until bishops intervened to withdraw approval. McNally paid the priest 3600 Euros per year to say three masses per month for those for whom the Mass cards were purchased. McNally argued that the Charities Act provision is an unconstitutional infringement of his free exercise of religion protected by Article 44 of Ireland's Constitution, and that it infringed the rights of those buying the cards to profess and practice their religion freely. The court concluded that McNally had not shown that in selling pre-signed Mass cards he was engaged in the profession or practice of his religion. The court also concluded that any favoritism to the Church over McNally's business did not constitute prejudicial discrimination.

Court Upholds Executed Prisoner's Religious Objection To Autopsy

In Nashville on Wednesday, a Davidson County, Tennessee, judge ruled that the state must honor the request of executed prisoner Cecil Johnson that no autopsy be performed on his body. According to yesterday's Tennessean, Chancellor Russell T. Perkins ruled that the state had not presented a compelling reason to reject the strong religious objections to an autopsy that Johnson expressed in a letter to the court before his execution by lethal injection. Johnson's wife promised to waive any right to sue the state over the method of execution if the state would forgo the autopsy.

Latino Elected Officials Using Jesus Poster To Encourage Census Participation

USA Today reported yesterday that the National Association of Latino Elected Officials is leading the drive to encourage Latinos to take part in next year's census through the use of a poster depicting Jesus. This will counter efforts by at least one other Latino group that is encouraging Hispanics to boycott the census to protest Congress' failure to liberalize immigration laws. Thousands of the new posters, most of them in Spanish, are targeted at Latino evangelicals. Rev. Miguel Rivera, chairman of the National Coalition of Latino Clergy and Christian Leaders, however, objects to the posters as "blasphemous" and a violation of separation of church and state. The Commerce Department says the government had no role in creating the posters and did not pay for them. The Leadership Conference on Civil Rights that has its own campaign to encourage everyone to be counted in the 2010 Census likes the posters and will produce versions of them in English, Korean, Creole and Vietnamese.

Several Governments Decide To Concede On Establishment Clause Challenges

In at least three recent cases, governmental bodies have decided to forgo the cost of defending against Establishment Clause challenges. In Lockland, Ohio (suburban Cincinnati) on Monday, officials took down a 10 Commandments sign that has been displayed for several years. Former Mayor Jim Brown paid $1000 of his own funds to put up the plastic replica, but when suit was filed against the village, attorneys advised the current mayor and council that they would not win. In the village, 100 yard signs display the 10 Commandments on private property to support the village's original decision. (Cincinnati Enquirer, 12/17).

In Wilkes-Barre, Pennsylvania, Luzerne County Commissioners took town a creche and a menorah from the courthouse lawn after receiving a letter from the ACLU and Americans United objecting to the display. The the county-owned nativity scene had been displayed for decades, and a menorah was added 20 years ago. The county currently has a budget crisis. (AP, 12/17).

Lake Local School Board (near Canton, Ohio) gave temporary approval (to be made permanent at the Board's January meeting) to change the school district's mission statement. The Board removed from the mission statement a reference to valuing a belief in God, but left in a reference to valuing religious freedom. The changes came after the Freedom from Religion Foundation threatened to sue, and attorney advised that the school district would lose. (Canton Repository, 12/15).

Provisions That Kept Sex Offenders From Attending Church Held Unconstitutional

In State of North Carolina v. Demaio, (NC Super. Ct., Dec. 17, 2009), a Chatham County North Carolina trial court dismissed charges against two registered sex offenders who had been indicted for attending church at a congregation that also had a nursery for children on premises. Authorities claimed that this violated provisions barring registered sex offenders from being within 300 feet of an area intended primarily for the use, care or supervision of children, or on premises where children's programs are regularly scheduled. (NCGS 14-208.18(a)(2) and (3)).

The court held that these provisions impose an unconstitutionally broad infringement on associational rights. It concluded further that "there are a host of protected religious activities abridged by this statute which do not serve the compelling governmental interest." The court also decided that the provisions are unconstitutionally vague. Authorities could not agree on whether they barred a registered sex offender from being on the premises of a church when no children were actually present in the church. It was also unclear how the area from which the offender was banned was to be calculated. WRAL News reports on the decision. (See prior related posting.)

Mosque Sues To Challenge Rezoning Denial

Suburban Atlanta (GA) Dar-e Abbas Islamic center yesterday filed suit to challenge Lilburn, Georgia's denial of its request for rezoning of a tract of land and for a special use permit to build a mosque, gymnasium and related cemetery. The complaint (full text) in A.G.A. Islamic Organization, Inc. v. City of Lilburn, Georgia, (ND GA, filed 12/17/2009), points out that Shia Islam calls for the ability to bury the dead near their mosque and facing northeast, a requirement that is difficult to meet in many existing cemeteries. The lawsuit claims that a 5-acre requirement for houses of worship treats religious assemblies on less than equal terms in violation of RLUIPA and of the First Amendment. It also claims violation of various provisions of the Georgia state constitution. Yesterday's Atlanta Journal Constitution reports on the case.

6th Circuit Denies En Banc Rehearing In Faith-Based Funding Case

The Louisville (KY) Courier-Journal reports that the U.S. 6th Circuit Court of Appeals on Wednesday denied an en banc rehearing in Pedreira v. Kentucky Baptist Homes For Children, Inc. In August, a 3-judge panel of the 6th Circuit held that plaintiffs have standing as state taxpayers to maintain an Establishment Clause challenge to the $100 million of state funds paid to KBHC to care for children. (See prior posting.) KBHC says it plans to appeal to the U.S. Supreme Court. A KBHC spokesman added: "The ironic thing about this kind of taxpayer suit is that if the plaintiff prevailed in barring faith-based providers from providing these services, where the funding is subsidized by private donations, it would end up costing the taxpayers more."

Commentary: My Initial Reactions To the British Decision in the JFS Case

While I usually refrain from personal commentary on developments, what follows is my initial analysis of yesterday's JFS decision in Britian (--HMF):

Yesterday Britain's new Supreme Court issued a ruling on racial and religious discrimination (see prior posting) whose lessons are broader than so far has generally been suggested. The case involved JFS, a government-funded Jewish school which under British law, as a faith school, is allowed to favor members of the sponsor religion in admissions (but is barred from discriminating on racial grounds).

The nine justices, immersed in a framework in which "religion" is marked by issues of belief and practice, were in a sense bewildered by Jewish religious law that in effect insists that to be Jewish, one must be a member of the Jewish people, either by birth (one's mother was Jewish) or by choice. British law had no good pigeonhole into which to fit this notion of peoplehood. The best it could do was to treat it as "ethnicity," which for purposes of British law meant that a "racial" classification was involved. The Court found it simpler to reach that conclusion because of a 1983 House of Lords decision, Mandla v. Dowell Lee, which created a broad definition of ethnicity to protect a Sikh student who wished to enroll in a non-religious private school, but wanted a waiver of the uniform requirement so he could wear his religiously mandated turban.

At the core of the JFS litigation was a dispute within the Jewish community between Orthodox Jews and Jews who belong to one of the more "liberal" branches of Judaism-- Conservative and Reform in the U.S. (Masorti, Liberal and Reform in Britain). Orthodox rabbis refuse to recognize conversions performed by rabbis from other movements. JFS stuck to the Orthodox position on this issue, and aggrieved parents who felt they were also Jewish went to the civil courts. The Court's decision requires Jewish schools to move to criteria of belief and practice to determine who is Jewish. What happens when a child from a Messianic Jewish family applies for admission? Will the courts again find themselves in the unenviable position of having to decide whether Messianics, who are considered non-Jewish by all streams of conventional Judaism, are Jews because they consider their beliefs to be Jewish? What about members of Humanistic Jewish synagogues who are Jewish by criteria of matrilineal descent, but whose beliefs focus on Jewish identity and culture, not on belief in God?

Second, this decision forces us again to consider what is meant by "race" and "religion." At least in the U.S., we are hesitant to treat race as a biological notion in reaction to our own historical anti-miscegination laws and racial criteria created in Nazi Germany. Instead, contemporary Americans treat race more as a cultural construct. The British courts were faced with a definition of Jewish identity that was at least largely biological. The majority of the Justices seemed unable to conclude that biological criteria could be anything other than racial.

Washington University Creates New Center on Religion & Politics

Washington University (St. Louis) yesterday announced the establishment of the John C. Danforth Center on Religion & Politics. The Center is funded by a $30 million endowment gift from the Danforth Foundation. John C. Danforth served as U.S. Senator from Missouri for 18 years. Speaking at the National Press Club yesterday, University Chancellor Mark S. Wrighton said that the new Center "will serve as an ideologically neutral place that will foster rigorous, unbiased scholarship and encourage conversations between diverse and even conflicting points of view." He said the Center will serve as abridge between the religious and political communities. A link to the Center's website has been added to the Religion Clause sidebar listings of Academic Centers.

Arizona County Jails Will Continue All-Day Christmas Music

According to a report yesterday from UPI, Maricopa County, Arizona, Sheriff Joe Arpaio will once again this year have Christmas and holiday tunes played all day long at all of the county's jails. Six lawsuits have been filed by prisoners who object to the music, alleging forced religious participation and cruel and unusual punishment. Four of the six cases have already been dismissed. The sheriff says he expects the other two to also be dismissed, though at least one survived a motion to dismiss in October. (See prior posting.) According to the facts in that case, the sheriff played "multicultural" holiday music ten hours per day. However the music was not piped into inmate's cells, so they could avoid it by remaining in their cells. Arpaio last year explained his policy: "People everywhere deserve a little Christmas cheer. Especially those incarcerated during the holiday season."

Pew Forum Issues New Study On Religious Restrictions Around the World

Pew Forum on Religion & Public Lifeyestereday released a 72-page report titled Global Restriction on Religion. It finds that 64 nations have high or very high restrictions on religion, affecting nearly 70% of the world's population. The report tracks both official government policies and hostile acts from private individuals, organizations and social groups. Actions by local officials were considered restrictions even if they were contrary to national policy, as long as national officials did not contravene them. The study finds that 75 countries limit proselytization, and 117 require religious groups to register with the government. Christianity Today also reports on the Pew findings.

Court Upholds Application of Clergy-Penitent Privilege For Confession To LDS Bishop

In State of Arizona v. Archibeque, (AZ Ct. App., Dec. 15, 2009), an Arizona appellate court held that the clergy-penitent privilege applies to a confession made by defendant, a member of the Church of Jesus Christ of Latter Day Saints, to his Bishop. It also held that the presence of defendant's wife during the confession, and his disclosures to her regarding his sexually touching his stepdaughter made prior to his confession, did not waive the privilege. The court held that the confession met the privilege requirements set out in A.R.S. § 13-4062(3). The title of "Bishop" is officially bestowed and recognized by the LDS Church. The confession was made in furtherance of the Church's repentance process, as part of the Bishop's official duties.

Religious Tolerance Is Dramatically Improved At Air Force Academy

An AP report yesterday says that religious tolerance has dramatically improved at the U.S. Air Force Academy. After extensive complaints, and even a lawsuit, charging Christian proselytizing of cadets, Academy superintendent, Air Force Lt. Gen. Michael Gould, says there has been a top down campaign to insure respect for beliefs of all cadets and a proactive attempt to accommodate all religions, as well as nonbelievers. A Cadet Interfaith Council meets regularly with chaplains to discuss issues. Even long-time critic Mikey Weinstein has praise for the new atmosphere at the Academy, saying that Gen Gould so far "has fixed everything." (See prior related posting.)

School Excuses Atheist Student From Reading Bible As Literature

Newton, Massachusetts school officials have decided that 15-year old high school student Jack Summers will be excused from reading parts of the Bible that were assigned in a sophomore literature course that includes Dickens' A Tale of Two Cities, Antigone and works by Shakespeare. While no one seems to suggest that the use of excerpts from the Bible in the course to teach students about Western cultural traditions and literary allusions poses any church-state problem, Summers refused to read the handouts and failed two quizzes on them. According to yesterday's Wicked Local Newton, at that point, after first suggesting that Summers read summarized versions of the assignment from the Bible, the school's principal and teachers relented, dropped the student's failing quiz scores and said Summers could complete a final project that did not use the Bible. The student who is an atheist says he is not opposed to learning about world religions outside of school, but says he does not want to read what people believe to be the true word of God. [Thanks to Scott Mange for the lead.]

Full 9th Circuit Hears Oral Arguments In Establishment Clause Challenge To San Francisco Resolution

The U.S. 9th Circuit Court of Appeals yesterday en banc heard oral arguments in Catholic League for Religious and Civil and Rights v. City and County of San Francisco. (Audio recording of full arguments.) In June, a 3-judge panel of the 9th Circuit rejected an Establishment Clause challenge to a strongly worded resolution passed by San Francisco's Board of Supervisors. The resolution criticized a directive from Catholic Cardinal William Levada instructing Catholic social service agencies to not place children in need of adoption with same-sex couples. (See prior posting.) The San Francisco Chronicle reports on yesterday's oral arguments which focused on whether the resolution was an unconstitutional governmental attack on Catholicism, or a justifiable resolution of disapproval of a group that opposed the city's policy on equality for gays and lesbians.

New Mexico Court Upholds Human Rights Agency's Finding Against Photographer

In Elane Photography, LLC v. Willock, (NM Dist. Ct., Dec. 11, 2009), a New Mexico trial court held that a limited liability company owned by a husband and wife and operating a photography business violated New Mexico's Human Rights Act when owner-photographer Elaine Huguenin refused to photograph a same-sex commitment ceremony. Upholding finding by the state's Human Rights Commission (see prior posting), the court concluded that the company was a public accommodation that discriminated on the basis of sexual orientation. It held that application of the HRA did not violate Huguenin's freedom of expression because she is merely a conduit for her client's message in the photos. Huguenin had argued that enforcement of the HRA here forced her to convey a message that a marital relationship can exist between two individuals of the same sex.

The court also concluded that enforcement did not infringe Hugenin's free exercise of religion. Huguenin argued that this forced her to attend a religious ceremony that violates her conscience. The court held however that the HRA is a neutral law of general applicability. Finally the court rejected a claim under the New Mexico Religious Freedom Restoration Act. Alliance Defense Fund announced yesterday that it will appeal the decision. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Britain's Supreme Court Holds Jewish School's Application of Halachic Criteria Is Racial Discrimination

In an important decision today, the Supreme Court of the United Kingdom held that the admissions policy of a government-funded Jewish school violates the prohibitions on racial discrimination in Britain's Race Relations Act 1976. In R (on the application of E) v. Governing Body of JFS, (UKSC, Dec. 16, 2009), the Court held 5-4 that applying the traditional Orthodox Jewish (halachic) definition of who is a Jew, requiring descent from a Jewish mother or conversion according to Orthodox Jewish law-- amounts to "direct discrimination" under the relevant statutory provisions. Two other justices concluded that the admissions decision amounts to "indirect discrimination" under the 1976 Act, and that the school had failed to demonstrate that its policy was proportionate. Following the British pattern of separate opinions from each Justice, the case involves nine opinions spanning 92 pages.

The case grew out of competition for admission to JFS, a premier Jewish school. When the school was oversubscribed, preference was given to students who were considered Jewish by the Office of the Chief Rabbi. The suit was filed by parents of a student who was not considered Jewish because his mother was converted to Judaism by a non-Orthodox rabbi-- reflecting an internal disagreement among various branches of Judaism. A press release issued by the Court summarized the opinions in part as follows:

The judgments of the Court should not be read as criticising the admissions policy of JFS on moral grounds or suggesting that any party to the case could be considered 'racist' in the commonly understood, pejorative, sense.....

In determining whether there is direct discrimination on grounds of ethnic origins for the purposes of the 1976 Act, the court must determine, as a question of fact, whether the victim’s ethnic origins are the factual criterion that determined the decision made by the discriminator.... If so, the motive for the discrimination and/or the reason why the discriminator considered the victim’s ethnic origins significant is irrelevant....

To treat an individual less favourably on the ground that he lacks certain prescribed ethnic origins constitutes direct discrimination.... [T]he factual criterion that determined the refusal to admit M to JFS is clear: the fact that he is not descended in the matrilineal line from a woman recognised by the OCR as Jewish.... The crucial question to be determined is whether this requirement is properly characterised as referring to M’s ethnic origins....

The test applied by JFS focuses upon the ethnicity of the women from whom M is descended.... There can be no doubt that the Jewish people are an ethnic group
within the meaning of the 1976 Act. While JFS and the OCR would have overlooked this fact if M's mother had herself undergone an approved course of Orthodox conversion, this could not alter the fundamental nature of the test being applied. If M’s mother herself was of the requisite ethnic origins in her matrilineal line no conversion requirement would be imposed.....

[T]reating an individual less favourably because of his ancestry ignores his unique characteristics and attributes and fails to respect his autonomy and individuality.... It might be said that the policy adopted by JFS and the OCR was based on both ethnic grounds and grounds of religion, in that the reason for the application of a test based upon ethnic origins was the conviction that such a criterion was dictated by Jewish religious law. The fact that the rule adopted was of a religious character cannot obscure or alter the fact that the content of the rule itself applies a test of ethnicity....

It is not clear that the practice-based test adopted by JFS following the Court of Appeal's judgment will result in JFS being required to admit children who are not regarded by Jewish by one or more of the established Jewish movements.... It may be arguable that an explicit exemption should be provided from the provisions of the
1976 Act in order to allow Jewish faith schools to grant priority in admissions on the basis of matrilineal descent; if so, formulating such an exemption is unquestionably a matter for Parliament.

The New York Times reports on the decision, saying that it will affect both publicly funded and private Jewish schools in Britain, and may affect Sikh and Muslim schools as well. (See prior related posting.) [Thanks to Rabbi Michael Simon and Steve Sheinberg for leads on this case.]

Quebec Issues New Policy Against Homophobia

In Canada last Friday, Quebec's Minister of Justice released the first-ever Quebec Policy Against Homophobia. The new 40-page policy document follows up on a report issued in 2007 (background). Key principles set out in the new policy include elimination of discrimination and respect for the dignity and differences of sexual minority members. It calls for government to be a leader in this regard, and also points to "the responsibility and commitment of all institutional and social players, and of the general public, to combat homophobia." Xtra.ca says that the Justice Minister is expected to appoint a committee to implement the policy next month. LifeSite News, reporting on the new policy, quotes Georges Buscemi, president of Campaign Quebec-Vie, who is concerned about the potential impact of the new policy on religious freedom. He predicted:

They're going to try for the longest possible to just use social pressure and increasingly isolate the recalcitrant entities and institutions.... It's going to lead to ostracizing different churches that have doctrinal oppositions to homosexual behaviour.... [W]e won't see overt sanctions, overt punitive measures, for a while. But those will come eventually.

UK Court of Appeal: No Discrimination In Requring Official To Register Civil Partnerships

In Ladele v. London Borough of Islington, (EWCA, Dec. 15, 2009), the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal (see prior posting) that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing to register same-sex civil partnerships. Lillian Ladelle argued that requiring her to "facilitate the formation of a union which [she] sincerely believe[d] was contrary to God's law" violated her rights under the Employment Equality (Religion or Belief) Regulations 2003. The Court of Appeal, however, concluded unanimously that:

Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele's refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington's Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington's employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele's refusal was causing offence to at least two of her gay colleagues; Ms Ladele's objection was based on her view of marriage, which was not a core part of her religion; and Islington's requirement in no way prevented her from worshipping as she wished....

Ms Ladele's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community

Today's London Mail reports on the decision.