Bankruptcy Judge Orders Trial On Whether Parish Assets Are Shielded From Diocese Creditors

A Delaware federal bankruptcy judge yesterday decided that the Catholic Diocese of Wilmington cannot develop a plan of reorganization and exit bankruptcy without first obtaining a determination of whether funds belonging to individual parishes and Catholic Charities are shielded from Diocese creditors (mostly abuse victims). Bloomberg News reports that Judge Christopher Sontchi ordered a trial to take place in June on the issue.

White House Faith-Based Task Force Debates Religious Symbols In Funded Programs

The White House Office of Faith-Based and Neighborhood Partnerships Task Force on reform of the faith-based office held a two-hour teleconference on Monday as it moved toward finalizing its draft report. According to the Washington Post's On Faith, one of the important debates on the phone conference was whether religious groups operating federally-funded programs out of their facilities need to cover up religious symbols during the times the funded services are being offered. The task force discussed two other alternatives: allowing the symbols if covering them is impractical and no religiously neutral rooms are available, or imposing no requirements but urging religious groups to be sensitive to the issue. No consensus emerged, as the group chose Wake Forest Center for Religion and Public Affairs Director Melissa Rogers to coordinate the drafting of the final report.

Trial Court Leaves Open Manslaughter Option In Trial of Tiller's Shooter

In Wichita, Kansas, a state trial court judge has left open the question of whether Scott Roeder who is on trial for killing abortion doctor George Tiller will be permitted to argue that he is guilty only of manslaughter. Roeder wants to argue that he was attempting to save the lives of the unborn. According to yesterday's New York Times, Judge Warren Wilbert denied the prosecution motion to exclude evidence that might support a manslaughter conviction. Instead, he said that he would decide on a witness-by-witness basis during trial what evidence he will admit. [Thanks to Scott Mange for the lead.]

3rd Circuit Dismisses Challenge To Muslim Scientist's Security Clearance

In El-Ganayni v. U.S. Department of Energy, (3d Cir., Jan. 11, 2010), the U.S. 3rd Circuit Court of Appeals upheld the revocation of the security clearance of a Muslim physicist, Abdel El-Ganayni, who worked for Bettis Laboratory on the Navy's nuclear propulsion program. El-Ganayni also served as an imam for the Pennsylvania Department of Corrections. His problems apparently began after he distributed to Muslim prisoners a book about Islam titled The Miracle in the Ant, which includes a passage about an ant that has a defense mechanism that allows spraying of deadly secretions on attackers. He also spoke at a mosque criticizing the FBI for recruiting Muslims as informants.

El-Ganayni sued claiming the revocation was motivated by speeches he gave criticizing the FBI, US foreign policy and the war in Iraq, and that he was being discriminated against based on his religion and national origin. The court dismissed the claims concluding that El-Ganayni could prove retaliation or discrimination only by showing the government's primary motivation for revoking his clearance. This however would involve the courts in deciding on the merits of a security clearance revocation-- a matter over which courts lack jurisdiction. The court also concluded that DOE followed the applicable regulations and executive orders in revoking El-Ganayni's security clearance.

Rabbi Seeks Army Waiver of Beard Policy To Become Chaplain

Yesterday's New York Jewish Week reports on the efforts of Rabbi Menachem Stern to obtain a waiver of U.S. Army grooming rules so he can become a chaplain. Stern , a Chabad Lubavitch rabbi, wears a beard for religious reasons. Originally he was informed that the Accession Board had approved him, but then he received a phone call saying that the approval was an error because he could not enlist while wearing a beard. Apparently the chaplaincy branch is willing to have Stern wear a beard, but the Army's chief of personnel along with the chief of staff object. Rabbi Sandy Dresin, executive director of chaplains at the Aleph Institute, says that currently there is a shortage of Jewish chaplains in the military. He says that the 8 Jewish chaplains in the Army could be doubled if the Army relented on its policy on beards. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

New Statement of Current Law On Religious Expression In U.S

Yesterday, Wake Forest University's Center for Religion and Public Affairs released a 32-page document titled Religious Expression in American Life: A Joint Statement of Current Law. Drafted by a group of 28 experts from a variety of religious and political views, the document attempts to answer in clear language some 35 questions about the permissible role of religion in the public forum. The document covers topics such as the role of religious belief in formulating public policy, restrictions on tax-exempt organizations, religious displays on public property, religion in the workplace, and religious activity in public schools. ADL has issued a press release describing the joint statement. [Thanks to Steve Sheinberg for the lead.]

British Faith Schools Criticize Government's Admissions Guidelines

Yesterday's London Mail reports that government-supported faith schools in Britain are criticizing admissions guidelines promulgated by the Department of Children, Schools and Families. Designed to prevent discrimination against working-class students, the guidelines allow schools to favor pupils who are members of the faith promoted by the school, but not to discriminate on the basis of their level of observance. Schools say this favors "pew-jumpers" who discover a new religion in order to get their children into a good school.

Pope Addresses Environment, Religion and State In Annual New Year Address

Pope Benedict XVI yesterday delivered his annual New Year address to the diplomatic corps accredited to the Holy See. Zenit reports on the address (full text) which focused on the environment, but related the issue to a broad range of international issues. Speaking of relations between religion and state, the Pope said:

Sadly, in certain countries, mainly in the West, one increasingly encounters in political and cultural circles, as well in the media, scarce respect and at times hostility, if not scorn, directed towards religion and towards Christianity in particular. It is clear that if relativism is considered an essential element of democracy, one risks viewing secularity solely in the sense of excluding or, more precisely, denying the social importance of religion. But such an approach creates confrontation and division, disturbs peace, harms human ecology and, by rejecting in principle approaches other than its own, finishes in a dead end.

There is thus an urgent need to delineate a positive and open secularity which, grounded in the just autonomy of the temporal order and the spiritual order, can foster healthy cooperation and a spirit of shared responsibility. Here I think of Europe, which, now that the Lisbon Treaty has taken effect, has entered a new phase in its process of integration.... Noting ... the Treaty provides for the European Union to maintain an "open, transparent and regular" dialogue with the Churches (Art. 17), I express my hope that in building its future, Europe will always draw upon the wellsprings of its Christian identity.

German State Checks IDs of All Attending Mosques

A 2003 law in the German state of Lower Saxony allows police to question and search individuals in public places regardless of suspicion of wrongdoing when done to prevent crimes of "grave and international concern." Yesterday's Boston (MA) Global Post reports that police are using this authority to routinely monitor those attending mosques. Streets in front of mosques are cordoned off on Fridays. Armed police check the identification papers of everyone entering or leaving the mosque. Sometimes police search bags, ask questions, or even bring in for questioning those who cannot show ID. The Green Party is introducing a bill to end this practice of "unmotivated mosque checks" which interferes with integration of Muslims into society.

Nevada Court Rejects Proposed Personhood Amendment

Yesterday, in a decision apparently issued orally from the bench, a Nevada trial court judge ruled that a petition seeking to place a proposed "Personhood Amendment" to the state Constitution on the November ballot cannot be circulated. The proposed amendment reads: "In the great state of Nevada,the term 'person' applies to every human being."

In Bristol v. Personhood Nevada, the court held that the language of the amendment is so vague that there is no way the average person can understand the effect of the petition. The court also concluded that the petition violates a state law that limits ballot issues to one subject. The Las Vegas Review-Journal and a release from the ACLU of Nevada report on the decision. The petition is part of a national campaign by a Christian anti-abortion organization, PersonhoodUSA, to find a way to overturn Roe v. Wade. Personhood Nevada says it will appeal yesterday's decision to the Nevada Supreme Court.

Cert. Denied In Establishment Clause Challenge To Sheriff's Christian Speaker

The U.S. Supreme Court yesterday denied certiorari in Milwaukee Deputy Sheriff's Association v. Clarke, Docket No. 09-460 (Jan. 11, 2010), refusing to review the 7th Circuit's decision in the case. (Order List.) In the case below, the Court of Appeals held that a Wisconsin sheriff's department violated the Establishment Clause when it invited representatives of the Fellowship of the Christian Centurions, a peer support group for law enforcement officers, to speak at several mandatory employee meetings.

IRS Updates Procedures For Obtaining Non-Profit Determinations

The Internal Revenue Service today published Rev. Proc. 2010-9 (Jan. 11, 2010), updating the procedures for issuing of determination letters and rulings under Sections 501 of the Internal Revenue Code on the exempt status of non-profit organizations. This includes religious organizations applying for non-profit status. The major change instituted in this revision is the centralization of the responsibility for processing applications in the Exempt Organizations Determinations office in Cincinnati, Ohio. Key district offices no longer exist.

Catholic Bishops Press Congress For Immigration Reform In 2010

Last week, the U.S. Conference of Catholic Bishops announced a new campaign for immigration reform in 2010. USCCB is taking three step: (1) launching a nationwide postcard campaign as part of its "Justice of Immigrants" campaign; (2) launching two new websites-- Justice for Immigrants and National Migration Week; and (3) sending out a nationwide action alert asking for Congress to quickly enact immigration reform. Bishop John C. Webster said that an important principle is pressing for reforms so individuals can find work in their home countries and not be forced to emigrate. The San Bernadino Sun on Saturday covered the Bishop's new initiative. It quotes Steven Camarota, Director of the Center for Immigration Studies, who says that most parishioners do not agree with the Bishops' call to help illegal immigrants.

White House Introduces Commerce Department Faith-Based Head

Last week, the White House Office of Faith-based and Neighborhood Partnerships posted an interview with Cedric Grant, Director of the faith-based office at the Department of Commerce. Grant says his most important activity so far has been outreach efforts for the 2010 Census. He explains: "Clergy are the most trusted voices in communities and are great advocates to bring awareness and participation in the 2010 Census. Community leaders, both faith-based and secular, know their communities intimately and service hard- to- count populations through their various programs."

Utah County Will Balance Budget By Police Fee, Including On Churches

Salt Lake County, Utah is proposing to balance its budget by assessing a law enforcement fee on homes, businesses, churches and non-profits. Yesterday's Salt Lake Tribune reports that the amount of the annual fee will depend on the demand for police services that is generated by the particular type of property. For example, big box stores would pay $13,584; taverns would pay $1,044 and preschools would pay $588. Under the plan, which the County Council will vote on today, churches would pay $1,008 per year, while smaller non-profits would be assessed $180. Some 41 churches in the unincorporated county would be covered by the new fees. A number of clergy object to imposing the fee on churches in the county.

Recent Articles and Book of Interest

From SSRN:

• Cornelia Koch, Classroom Crucifixes, Teacher Headscarves, Faith Healers and More - The German Experience of Religious Freedom Under a Bill of Rights, (U. of Adelaide Law Research, Aug. 13, 2009).
• Adam S. Hofri-Winogradow, The Muslim-Majority Character of Israeli Constitutional Law, (Middle East Law and Governance, Vol. 2, No. 2, February 2010).
• Peter Rizov, Definition of Religion: Honest Conviction, Regardless of Perception, in a Predominantly Non-Secular Subject Matter, (February 23, 2009).
• Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, (UCLA Law Review, Vol. 57, Forthcoming).
• David C. Gray, Constitutional Faith and Dynamic Stability: Thoughts on Religion, Constitutions, and Transitions to Democracy, (Maryland Law Review, Vol. 69, p. 26, 2009).
• Debora Threedy, Claiming the Shields: Law, Anthropology, and the Role of Storytelling in a NAGPRA Repatriation Case Study, (Journal of Land, Resources & Environmental Law, Vol. 29, No. 1, p. 91, 2009).
• Samuel J. Levine, Miranda, Dickerson, and Jewish Legal Theory: The Constitutional Rule in a Comparative Analytical Framework, (Maryland Law Review, Vol. 69, No. 1, 2009).
• Micah Schwartzman, The Sincerity of Public Reason, (Journal of Political Philosophy, Forthcoming).
• Geoffrey P. Miller, Golden Calves, Stone Tablets and Fundamental Law, (NYU School of Law, Public Law Research Paper No. 10-02, Jan. 4, 2010).

New Book:

• Michael J. Perry, The Political Morality of Liberal Democracy, (Cambridge Univ. Press, Nov. 2009).

Indian Buddhists Protest Hindu Control Over Temple

In India, a group of Buddhists have gone on a hunger strike to protest the governance arrangements of the Mahabodhi Temple, in the holy city of Gaya in the province of Bihar. Pakistan's Daily Times yesterday reported that the strikers, in a makeshift tent just outside the office of the Bodhgaya Temple Management Committee object to a law enacted 60 years ago that sets up an 8-member committee to run the Temple. The committee has 4 Buddhist and 4 Hindu members, and the chairman must be the local district magistrate who must be Hindu. Buddhists argue that this gives Hindus control over a Buddhist holy site.

Recent Prisoner Free Exercise Cases

In Merring v. O'Brien, 2010 U.S. Dist. LEXIS 120 (MD PA, Jan. 4, 2010), a Pennsylvania federal district court dismissed an inmate's claim that he was not provided with a Bible when he was booked and he did not receive one for three weeks, despite his complaints.

In Robinson v. Jacquez, 2009 U.S. Dist. LEXIS 121732 (ND CA, Dec. 8, 2009), a California federal district court held that a Jewish inmate's complaint properly states a cognizable claim against a prison's warden for acquiescing in the prison's policy of denying kosher diets and Jewish religious services.

In Goodvine v. Swiekatowski, (WD WI, Jan. 4, 2010), a Wisconsin federal district court held that an inmate could move ahead with his damage claim alleging that a prison chaplain refused to provide him with a Qur'an even though the chaplain provided Christian prisoners with Bibles.

In Kanda v. Walker, 2010 U.S. Dist. LEXIS 784 (ED CA, Jan. 6, 2010), a California federal magistrate judge recommended denying a preliminary injunction to a Hindu inmate who requested a religious diet containing no meat, and prepared with separate utensils and kitchenware.

In Kendrick v. Faust, 2009 U.S. Dist. LEXIS 122114 (ED AR, Dec. 16, 2009), an Arkansas federal magistrate judge that an inmate be permitted to proceed with her claim that prison authorities destroyed her Catholic Bible on multiple occasions. However the magistrate recommended dismissal of a claim that the inmate was told by correctional officers that she was in a "southern Baptist prison" and was not permitted to practice any other religion.

Pennsylvania Court Rejects Catholic Day Care's Challenge To Licensing Rules

In St. Elizabeth's Child Care Center v. Department of Public Welfare, (PA Comnwlth. Ct., Jan. 7, 2010), a Pennsylvania state appellate court rejected free exercise challenges by a Catholic child day-care center to the requirement that it obtain a state certificate of compliance in order to operate. St. Elizabeth's argued that state regulations would significantly burden its religious mission to assist parents in raising their children and forming in them a Christian personality. The court concluded, however, that St. Elizabeth's had "failed to identify any actual or imminent infringement" on its rights.

Prop 8 Trial Begins Monday With Dispute Over Televising of Proceedings

In San Francisco tomorrow, the federal district court trial challenging the constitutionality of California's Proposition 8 barring same-sex marriage begins. (See prior posting.) Invoking a policy change instituted by the Ninth Circuit in December, the district court is permitting limited televising of the trial. Proceedings will be taped by court personnel and will be posted on YouTube at the end of the day. Intent on keeping the taping under the control of court personnel, Chief Judge John Walker rejected an offer by In Session (formerly Court TV) to broadcast the trial live. (The Recorder, 1/7.) Proponents of Proposition 8 are unhappy fearing intimidation of witnesses by same-sex marriage backers. Their appeal to the 9th Circuit of the district court's order permitting televising of the proceedings was denied by the appeals court on Friday. (Mercury News, 1/8.) Proposition 8 backers quickly filed an appeal with U.S. Supreme Court Justice Anthony Kennedy who has given the other side until noon today to respond. (New York Times, 1/9).

UPDATE: Justice Kennedy referred the appeal on broadcasting of the trial to the full court. On Monday the Court stayed the trial court's order thereby temporarily banning streaming of the proceedings to other court houses as well as any wider broadcasting of the proceedings. The stay remains in effect only until Wednesday to giver the Court more time to examine the issue. Justice Breyer dissented urging further consideration of the issue without a stay being imposed. (Order in Dennis v. Kristin, Sup. Ct., Jan. 11, 2010.) (CBN reports on the Supreme Court's action.)