Virginia Warden Retires Amid Charges of Denying Prisoners Religious Services

AP reported yesterday that Barbara Wheeler, warden at Virginia's Fluvanna Correctional Center for Women, is retiring amid allegations that she segregated masculine-looking lesbians, and that she placed excessive restrictions on inmates' access to religious services. State Sen. Frank Ruff says he is concerned about allegations that lists of inmates who may attend religious services were not adequately updated, that inmates were turned away from church services to punish them for infractions such as their hair being too long, and that all lay chaplain visits to the prison were stopped. Fluvanna is Virginia's largest women's prison, housing some 1,200 inmates.

Concerns About Religious Profiling for Security Arise Again After Flight 253

The foiled Christmas Day bombing attempt aboard a Northwest Airlines flight approaching Detroit has raised the spectre of profiling of Muslim travellers for added airport screening. Today's London Express reports that Prof. Anthony Glees, director of Buckingham University's Centre for Security and Intelligence Studies, called that move an "obvious and rational" method to deter Islamic terrorists from striking British targets, while, at the same time, reducing lines at airport security gates for others. A spokesman for the Muslim Council of Britain said: "The actions of one misguided individual should not tarnish the reputation of the majority. We will let terrorists win if bigotry is allowed to flourish."

According to TPM, over the week end, Rep. Peter King (R-NY), Ranking Member of the House Homeland Security Committee, said on Fox News:

I think there are situations like this where we are afraid of being accused of profiling. The fact is while the overwhelming majority of Muslims are outstanding people, on the other hand 100% of the Islamic terrorists are Muslims, and that is our main enemy today. So while we should not be profiling people because of their religion, at the same time we should not be bending over backwards to somehow keep them off a list.

A press release yesterday from the Council on American-Islamic Relations urged authorities to avoid ethnic and religious profiling.

LAPD, Citing Discrimination, Ends Affiliation of Its Youth Program With Scouts

Since 1962, the Los Angeles (CA) Police Department has operated a program to give youth interested in law enforcement an opportunity to assist the LAPD with certain tasks. Now, according to yesterday's Edge, the LAPD is restructuring the program to end its affiliation with the Boy Scouts Learning for Life Explorer Program. Because the Boy Scouts exclude gays, atheists and agnostics, the Police Commission has decided that affiliation with them conflicts with the city's non-discrimination policy. Police Commissioner Robert Salzman says the new program that begins Jan. 1 will be as good or better than the old one.

Interview With Appellee In Famous Flag Salute Case Is Published

First Amendment Center today publised an account of its recent interview with Marie Snodgrass-- the former Marie Barnett. Marie and her sister were the appellees in the famous 1943 U.S. Supreme Court case of West Virginia State Board of Education v. Barnette that invalidated a West Virginia statute requiring students to stand and recite the Pledge of Allegiance. As a Jehovah's Witness, the girls' father believed that saluting the flag was tantamount to worshipping graven images. When the Barnett sisters-- then 8 and 9 years old-- refused to salute the flag, their grade school teacher was understanding, but the principal was not. He sent them home, and eventually the girls were expelled from school. In a 6-3 decision, the Supreme court decided in the girls favor. In a famous passage, Justice Robert Jackson wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The article is part of a series of Interviews with Principals in Supreme Court First Amendment Cases.

Top 10 Church-State, Religious Liberty Developments In 2009

Here are my nominations for the 2009 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. The choices are based on the long-range implications of the developments on legal doctrines and on future of relations between government and religion. Some of this year's top picks continue trends selected last year. (2008 Top 10.) Others reflect new concerns. I am sure that some readers will disagree with the picks, so I invite your comments. Most of these developments were reflected in a number of Religion Clause postings over the year. Links are to representative posts on the issue.

1. U.S. Catholic bishops are at increasing odds with President Obama over abortion. Very public disputes, sometimes splitting the Catholic community, erupted over Notre Dame's award of an honorary degree to Obama and over the USCCB's insistence on strict language in health care reform bills to limit abortion coverage.

2. Conservative Christian groups mount extensive but unsuccessful attempt to prevent passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

3. The Freedom From Religion Foundation becomes a major player in pressing for church-state separation by challenging a wide variety of practices, from sectarian prayers at city council meetings, to the tax code's parsonage allowance, to engravings at the U.S. Capitol Visitor Center.

4. The Rifqa Bary case requires Florida and Ohio courts to become involved in run-away teenager's claim that her Muslim father threatens her life because of her conversion to Christianity.

5. U.S. Supreme Court rules that a Utah city can refuse to allow the religious group, Summum, to put up a monument containing its "Seven Aphorisms" in a public park, even though a 10 Commandments monument and other monuments are already there.

6. Britain's new Supreme Court holds that a Jewish school's admissions policy using the traditional Orthodox definition of who is a Jew amounts to ethnic, and therefore racial, discrimination.

7. Courts around the country decide disputes over ownership of property after numerous conservative Episcopal parishes move to Anglican affiliations.

8. South Carolina's attempt to issue state-sponsored "I Believe" license plates is ruled a violation of the Establishment Clause.

9. France convicts Scientology and its leaders of fraud while German court limits tactics of German government against Scientology.

10. A Utah trial court rejects a settlement proposed by Utah's Attorney General in the complicated attempt to reform the FLDS United Effort Plan Trust, while the estate of a deceased leader of the polygamous FLDS Church seeks control of the $120 million trust.

There are at least two other Top 10 lists published this month on religion related stories. You may find it interesting to compare their picks, many of which differ a good deal from mine, though they were using somewhat different criteria. They are Don Byrds' Top 10 Religious Liberty Stories of 2009; and Religion Newswriters Top 10 Religion Stories.

UPDATE: Politics Daily has also published an interesting list of Top 10 Religion/ Politics Stories of '09.

Pending Lawsuit Challenges Favoritism To Catholic School In Use of City Athletic Fields

AP yesterday reported on a lawsuit filed in October in federal district court in Rhode Island claiming that the Pawtucket Office of Parks and Recreation is showing favoritism toward religious schools. The complaint (full text) in Rogers v. Mulholland, (D RI, filed 10/14/2009), alleges that giving exclusive after-school use of two particular public athletic fields for practice by Catholic Saint Raphael's Academy, instead of allowing public schools to also use them, violates the Establishment Clause as well as the due process and equal protection clauses of both the U.S. and Rhode Island constitutions. St. Raphael's Academy is the alma mater of a number of influential city and state officials. An ACLU news release issued when the suit was filed indicates that the city has no written policies on issuing permits to use city athletic fields, leaving the decision in the total discretion of the city's superintendent of parks. [Thanks to Scott Mange for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Todd E. Pettys, Sodom's Shadow: The Uncertain Line between Public and Private Morality, (December 26, 2009).


• Neil James Foster, Freedom of Religion and Discrimination - Two Important UK Cases, (December 23, 2009).


• Legal Studies Research Paper Series, University of Wisconsin, No Altars: An Introduction to Islamic Family Law in US Courts, (December 16, 2009).

From SmartCILP:

• Symposium: The Natural Law in Protestant Political and Legal Thought. Articles by J. Daryl Charles, Michael DeBoer, Daniel R. Heimbach, Michael V. Hernandez, H. Wayne House, Mark Liederbach, Donald R. McConnell, Gilbert C. Meilaender, John Warwick Montgomery, Peter Judson Richards, Joe M. Sprinkle, Max L. Stackhouse, David VanDrunen and Ronald J. Wright. 2 Liberty University Law Review 607-995 (2008).


• Fr. Evaldo Xavier Gomez, Church-State Relations from a Catholic Perspective: General Considerations on Nicolas Sarkozy's New Concept of Laicite Positive, 48 Journal of Catholic Legal Studies 201-217 (2009).


• Piero A. Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 Journal of Catholic Legal Studies 269-301 (2009).

Recent and Forthcoming Books:

• David A. J. Richards, Fundamentalism in American Religion and Law : Obama's Challenge to Patriarchy's Threat to Democracy, (Cambridge University Press, Feb. 2010).


• Donald L. Drakeman, Church, State, and Original Intent, (Cambridge University Press, Nov. 2009).

U.S. Missionary Crosses Into North Korea, Complicating Diplomacy

Robert Park, a Korean-American missionary from Arizona has likely complicated U.S. negotiations with North Korea by illegally crossing into North Korea carrying a letter addressed to the country's ruler Kim Jong-il. Park is seeking release of the 160,000 political prisoners held are in concentration camps. Yesterday's New York Times reported that Park crossed into North Korea from China on Christmas Day by way of a frozen river near the North Korean city of Hoeryong. He repeatedly shouted in Korean: "I am an American citizen. I am coming here to deliver God's love. God loves you." Park says he will not leave until North Korea shuts down its camps. He wants to become a martyr. In a videotape he left, he said he does not want President Obama to buy his freedom.

UPDATE: North Korea announced on Dec. 29 that it has custody of an American who crossed into the country illegally on Christmas Eve. Apparently this is Robert Park, whose uncle says this is good news because it means Park was not executed. (CP).

Catholic Church Says Historic Designation of Building Infringes Its Rights

The Roman Catholic Diocese of Springfield, Massachusetts says that its First Amendment rights are threatened by the city's move to declare Our Lady of Hope Church an historic district. The Springfield Republican reports today that a final vote on the proposal, already approved by the Historical Commission and by a preliminary vote in City Council, is scheduled for Tuesday. The Italian Renaissance style church will close Dec. 31, as the parish is being merged. However some members petitioned for the historic designation to save the distinctive building erected by Irish immigrants in 1925. The diocese says the designation will make it more difficult to sell or redevelop the building, and questions whether one building alone can be declared an historic district. If the designation is approved, no changes to the exterior of the building could be made without Historical Commission approval.

Recent Prisoner Free Exercise Cases

In In re Taylor, (Cal. 1st App., Dec. 21, 2009), a California state appellate court held that RLUIPA claims may be brought in state court, and that a habeas proceeding may be used to raise the claim. On the merits, however, the court rejected an inmate's claim that prison rules limiting him to purchasing no more than 4 ounces of religious oils each three months imposed a substantial burden on his free exercise of religion. Any burden is also justified by the state's compelling interest in safe management of its maximum security prisons.

In Oliverez v. Albitre, 2009 U.S. Dist. LEXIS 118555 (ED CA, Dec. 2, 2009), a California federal magistrate judge allowed an inmate to move ahead with his free exercise claim that the prison's
Native American Spiritual Leader failed to provide him with the prayer oil he ordered.

No "Necessity" Defense In Trial of Accused Killer of Abortion Doctor

On Tuesday, a state trial court judge in Wichita, Kansas, held that Scott Roeder, the accused murderer of abortion doctor George Tiller, will not be permitted to assert the defense of "necessity" at his trial that will begin next month. Yesterday's Christian Post reported that the judge said while he might permit Roeder to argue that he believed he was saving the lives of fetuses, he will not permit Roeder to assert the defense that he broke the law to prevent a greater harm.

Court Rejects Free Exercise Defense To Bald Eagle Act Prosecution

In United States v. Bertucci, 2009 U.S. Dist. LEXIS 119228 (D NE, Dec. 22, 2009), a Nebraska federal district court accepted the recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 119230, Nov. 25, 2009) and denied a motion to dismiss charges under the Bald and Golden Eagle Protection Act that had been brought against defendant. Defendant, a member of the Omaha Tribe and the Native American Church, claimed that the charges violated his free exercise rights under the Religious Freedom Restoration Act. Without a permit, he killed two bald eagles to use in a feathering ceremony for his children that he wished to conduct while his grandfather was still alive. Eagle parts are available to members of recognized tribes from the National Eagle Repository. The court held:

[T]he repository and permit processes, while arguably inconvenient, do not impose a substantial burden on the defendant's right to practice his religion. The evidence established that a tribal member would have to wait ninety days to six months for delivery of feathers from the repository. This moderate delay does not deny the defendant a reasonable opportunity to practice his religion. Alternatively, the court finds that even if the Eagle Protection Act imposed a substantial burden, the government has met its burden to show that the repository and permit process are the least restrictive means to further the government's compelling interest in protecting and preserving the bald eagle population.

Catholic Hospitals Group Differs With Bishops On Senate Health Insurance Language

The New York Times reported yesterday that a Dec. 17 statement (full text) by the Catholic Health Association, which represents hundreds of Catholic hospitals across the country, apparently signals a split with the U.S. Conference of Catholic Bishops on the abortion language in the U.S. Senate's version of the health reform bill. (See prior posting.) The statement, issued before the final language of the bill was released, said that the hospital group was "increasingly confident that Senator Casey's language can achieve the objective of no federal funding for abortion." Scholars say the difference reflects differing views on whether "remote cooperation" was permissible in order to achieve a moral imperative of health insurance for millions of more Americans.

UPDATE: Catholic Health Association has told CNS 12/28 that the New York Times is wrong. There is not a split between CHS and the Bishops.

Federal Court Enjoins Illinois Hike In Fees For Lobbyists, Partly on Establishment Clause Grounds

In American Civil Liberties Union of Illinois v. White, 2009 U.S. Dist. LEXIS 119476 (ND IL, Dec. 23, 2009), an Illinois federal district court issued a temporary restraining order and preliminary injunction against enforcement of Illinois amended Lobbyist Registration Act. At issue were large increases in registration fees that were scheduled to go into effect January 1. ACLU alleged that the portion of the registration fee diverted to the Illinois General Fund and other amounts in excess of the cost of administering the statute are an unconstitutional tax on speech. It also claimed that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination as well as a violation of the Establishment Clause. (See prior posting.) Finding that the federal Tax Injunction Act does not divest the court of jurisdiction over the suit, the court held that the ACLU had demonstrated a reasonable likelihood of success on the merits:

[T]he ACLU has proffered figures derived from public records showing that the LRF has run an approximately $ 100,000 surplus for the last two fiscal years, during which the Secretary collected lobbyist registration fees one-third as large as the fees authorized in the Amended Act. .... These surpluses suggest that the Secretary may be unable to show that the three-fold increase in the lobbyist registration fee adequately relates to the costs of administering the Amended Act....

Moreover, on its face the statute appears to privilege religious over non-religious speech. The ACLU is therefore also likely to prevail on its claim that the Amended Act's exemptions for religious organizations and the newsmedia impermissibly discriminate against the ACLU based on the content of its speech. Indeed, by only exempting religious speakers who are "full-time employees of a religious organization" and who speak to the legislature about "protecting the right of the members [of that organization] to practice the religious doctrines of that church or religious organization" the statute also requires another content-based determination focused on religious speech.....

The ACLU's likelihood of success on its establishment clause challenge is equally plain..... On its face the content based determinations discussed above require the state to set the boundaries of a religious organization's exempt advocacy by inquiring into what the doctrines of a church or religious organization are and how the lobbying activities promote them. Requiring such an examination is likely to violate the establishment clause by fostering excessive government entanglement in religion....

Queen Elizabeth Delivers Christmas Speech

Britain Queen Elizabeth II's 2009 Christmas Speech was broadcast today (full text). In it, she focused on the entire Commonwealth. She said in part:

Each year that passes seems to have its own character. Some leave us with a feeling of satisfaction, others are best forgotten. 2009 was a difficult year for many, in particular those facing the continuing effects of the economic downturn....

It is 60 years since the Commonwealth was created and today, with more than a billion of its members under the age of 25, the organisation remains a strong and practical force for good....

We know that Christmas is a time for celebration and family reunions; but it is also a time to reflect on what confronts those less fortunate than ourselves, at home and throughout the world. Christians are taught to love their neighbours, having compassion and concern, and being ready to undertake charity and voluntary work to ease the burden of deprivation and disadvantage. We may ourselves be confronted by a bewildering array of difficulties and challenges, but we must never cease to work for a better future for ourselves and for others.

The London Telegraph's coverage of the speech links to a video of it.

President Obama and First Lady Send Christmas Greetings

In a joint remarks released yesterday (full text), President Obama was joined by First Lady Michelle Obama to offer Christmas wishes to families across the country. Much of the address (billed as the President's Weekly Address) was directed to the American military and their families, offering thanks and support to them. The President reminded all Americans that:

even in these tough times, there's still so much to celebrate this Christmas. A message of peace and brotherhood that continues to inspire more than 2,000 after Jesus' birth. The love of family and friends. The bonds of community and country. And the character and courage of our men and women in uniform who are far from home for the holidays, away from their families, risking their lives to protect ours.

Final Defendants Sentenced In Tax Fraud Scheme By Hasidic Rabbi

According to a press release issued Monday by the U.S. Attorney's Office in Los Angeles, a California federal district judge has sentenced Grand Rabbi Naftali Tzi Weisz, the Brooklyn, New York, Grand Rabbi of Spinka, to two years in prison for orchestrating a money-laundering tax evasion scheme. Weisz plead guilty last summer to a criminal conspiracy charge (see prior posting), admitting to a scheme in which several of his charitable organizations solicited donations with secret promises to refund large percentages of the donations back to donors who deducted the entire amounts on their tax returns. A pre-sentence report concluded that this practice among certain Hasidic sects has resulted in hundreds of millions of dollars of unreported income. The final defendant in the case, Yaacov Zeivald, was sentenced to 4 months in prison for his part in the fraud. Five others have already been convicted and sentenced in the scheme.

Appeals Court Affirms Conviction of Street Preacher For Disorderly Conduct

In Commonwealth v. Marcavage, (MA App., Dec. 23, 2009), a Massachusetts Appeals Court upheld the conviction of a street evangelist who was arrested on Halloween night, 2007, in the city of Salem and charged with disorderly conduct under M.G.L., Ch. 272, S.53. Michael Marcavage, director of a proselytizing group, visits Salem every Halloween to preach to the crowds that gather there to celebrate. Many in the crowd complained about Marcavage waving a Bible too close to them. Eventually a police officer ordered Marcavage to stop using a megaphone. He resisted confiscation of the megaphone, argued, and then went limp. He fell into a fountain, bringing police officers to the ground with him. He was then arrested. The court affirmed his conviction, finding that his conduct amounted to "tumultuous behavior". It said: "we find nothing in the record to support the inference that the decision to curtail the defendant's use of the megaphone was in any way connected with the content of his speech."

Orthodox Jewish Medics Say Volunteer Fire Company Refused Accommodation

According to yesterday's Baltimore Sun, three medics who are Orthodox Jew, have filed complaints with the Maryland Commission on Human Relations and the U.S. EEOC, complaining that the Pikesville Volunteer Fire Co. has been unwilling to permit them to ride on emergency calls. The fire company says that the men's religiously mandated (but short-trimmed) beards might interfere with breathing masks that the Pikesville department was considering buying for its medic corps. However, according to one of the medics, Matthias Goldstein, medics have never been required to wear the masks. The three men say that the real reason for the refusal is Pikesville Volunteer Fire Company's resentment over their involvement with Hatzalah-- a competing volunteer rescue organization organized by Orthodox Jews in neighboring Northwest Baltimore. There have been conflicts between the two groups when Hatazalah responds to a call near or over the county line. A Pikesville spokesman denies the charge, and says this is purely a safety issue.

11th Circuit Hears Oral Arguments In Challenge To Park Rules Limiting Feeding the Poor

Last Thursday, the U.S. 11th Circuit Court of Appeals heard oral argument in First Vagabonds Church of God v. City of Orlando. In the case, a Florida federal district court found that Orlando's Large Group Feeding Ordinance violates the speech rights of an activist group that feeds the poor and infringes the free exercise rights of a church that holds Sunday services, including the sharing of food, in a downtown city park. The Ordinance requires a permit to feed more than 25 people in any downtown park, and limits a group to two permits per park in a 12 month period. (See prior posting.) According to the Fulton County Daily Report, at last Thursday's oral argument, two of the judges on the panel expressed some skepticism over the district court's holding. However Judge Rosemary Barkett sharply questioned the city's lawyers, asking whether the food distribution actually put a burden on the parks.