Supreme Court Decision Impacts Those Seeking Asylum Because of Religious Persecution

The U.S. Supreme Court yesterday handed down an immigration law opinion that has important implications in cases in which an individual about to be deported or removed seeks to reopen proceedings to claim asylum because of religious persecution in his country of origin. A federal regulation makes discretionary a decision to reopen proceedings to consider changed conditions relating (among other things) to religious persecution in his country of origin. In Kucana v. Holder, (Sup. Ct., Jan. 20, 2010), the Court, in an opinion by Justice Ginsburg, held that a statutory bar to judicial review of decisions by the Attorney General that are made discretionary by statute does not apply to decisions by the Attorney General made discretionary only by federal regulations. In this case, an Albanian citizen sought political asylum, fearing political persecution. His motion to reopen his removal proceedings was based on claims that conditions in Albania had worsened. Justice Alito filed a concurring opinion. ScotusBlog reports on the decision.

Court Rejects Claim of Religious Exemption From Income Taxes

In Bennett-Bey v. Shulman, (D DC, Jan. 20, 2010), the federal district court for the District of Columbia dismissed a pro se complaint in which plaintiff claimed a free exercise exemption from having federal income taxes withheld from her salary. Tanya Bennett-Bey alleged that she had sovereign immunity from federal taxes because she is a beneficiary of the Great Moorish Estate Express Trust, which makes her "a Moorish American Citizen." The court first found that it lacked jurisdiction because plaintiff had never filed for a refund from the IRS. Beyond that, plaintiff failed to allege that paying federal income tax would place a substantial burden on her free exercise of religion.

Rifqa Bary Remains In Foster Care, Agrees to Counseling

The Columbus Dispatch reported yesterday that a sort of detente has been reached in the case of Rifqa Bary, the 17-year old who fled her home in Ohio after converting from Islam to Christianity. She fled to a pastor in Florida, claiming her father had threatened to kill her because of the conversion. Florida courts eventually returned her to Ohio. At a court hearing in Columbus (OH) on Tuesday, both sides agreed that Rifqa would remain in a foster home where she is now living in temporary custody of Franklin County (OH) Children Services. Rifqa and her parents will go through counseling. If they are not reconciled, when Rifqa turns 18 in August when will be considered an adult and will be free to live wherever she wishes. Also in the court hearing, Rifqa admitted she was unruly in running a way from home, but the court will impose no sanctions on her. During the hearing, Rifqa, carrying a wooden cross and wearing a rhinestone crucifix necklace, clung to her attorney, Angela Lloyd. (See prior related posting.)

Japan's Supreme Court Says City's Gift of Site For Shrine Is Unconstitutional

Japan's Supreme Court yesterday ruled that the city of Sunagawa violated the Japanese Constitution when it allowed city-owned land to be used without charge as a site for a Shinto shrine. Article 20 of the Constitution bans religious organizations from receiving any privileges from the State and bars the government from engaging in religious activity. According to today's Japan Times , the Supreme Court's Grand Bench wrote: "It is inevitable that the general public would believe the local government supports a specific religion if it provides specific benefits to it." The Court remanded the case to the Sapporo High Court for it to fashion a remedy other than removal of the shrine.

Hundreds Killed In Muslim-Christian Violence In Nigeria

Reports from the Nigerian city of Jos say that between 200 and 400 people were killed and over 4,000 were injured in three days of violence between Muslims and Christians that began January 17. The Kyiv Post reports that most of the violence took place in the city's poor neighborhoods. There are conflicting reports on what started the violence. Next reports that the Plateau state government has imposed a 24-hour curfew and that the federal government has ordered the deployment of troops to the area.

Visa Bans for Two Muslim Scholars Lifted

Reuters reported yesterday that Secretary of State Hillary Clinton has signed orders ending the bans on granting visas to two Muslim scholars--Prof. Tariq Ramadan of Oxford University and Prof. Adam Habib of Johannesburg University. Originally government officials gave no reason for revoking Ramadan's visa, but later said it was based on a provision of the Patriot Act that allows exclusion of individuals who have supported terrorism. Ramadan is also banned from some Arab countries for his criticism of their failure to support the Palestinians. The ACLU issued a press release praising Secretary Clinton's actions.

Free Exercise Claim Growing Out of Auto Search Dismissed

In Turner v. Craig, 2010 U.S. Dist. LEXIS 3356 (ND CA, Jan. 14, 2010), plaintiff alleged that he was arrested after a traffic stop by defendant police officers. Officers searched his vehicle and took a bottle of "blessing oil" that defendant uses for religious purposes from the car's glove box. Plaintiff claimed this violated his free exercise rights. The court dismissed the claim with leave to amend, indicating that plaintiff needed to set out some description of his religious practices and allege that defendants acted with the object or purpose of suppressing his religion. Various other claims growing out of the same incident-- including illegal search and false arrest allegations-- were also dismissed with leave to amend.

Vatican Issues Guidelines For Scheduled Mideast Synod

The Vatican yesterday released a document titled Guidelines for Mideast Synod. The synod, scheduled for Oct. 10-24, is expected to attract some 150 bishops, mostly from Eastern rite churches. Haaretz reports that there are some 17 million Christians in the Middle East from Iran to Egypt. Many Christians have fled, but many others (primarily from Philippines, India and Pakistan) have arrived in Arab lands in recent years to work in domestic or manual labor. Here are some excerpts from the lengthy Guidelines:

18. Political conflicts in the region have a direct influence on the lives of Christians, both as citizens and as Christians. The Israeli occupation of the Palestinian Territories makes daily life difficult with regard to freedom of movement, the economy and religious life (access to the Holy Places is dependent on military permission which is granted to some and denied to others on security grounds). Moreover, certain Christian fundamentalist theologies use Sacred Scripture to justify Israel's occupation of Palestine, making the position of Christian Arabs even more sensitive.

19. In Iraq, the war has unleashed evil forces within the country, religious confessions and political movements, making all Iraqis victims. However, because Christians represent the smallest and weakest part of Iraqi communities, they are among the principal victims, with world politics taking no notice.

20. In Lebanon, Christians are deeply divided at a political and confessional level, without a commonly acceptable plan of action. In Egypt, the rise of political Islam, on the one hand, and the disengagement of Christians from civil society on the other, lead to intolerance, inequality and injustice in their lives. Moreover, this Islamisation also penetrates families through the media and school.... In many countries, authoritarianism or dictatorships force the population - Christians included - to bear everything in silence....

22. In the Middle East, freedom of religion customarily means freedom of worship and not freedom of conscience, i.e., the freedom to change one's religion for belief in another. Generally speaking, religion in the Middle East is a social and even a national choice, and not an individual one. To change religion is perceived as betraying a society, culture and nation, founded largely on a religious tradition.

23. Conversion is seen as the fruit of a proselytism with personal interests attached and not arising from authentic religious conviction. Oftentimes, the conversion of Jews and Muslims is forbidden by State laws. Christians, though also subjected to pressure and opposition from families and tribes - even if less severely - remain free to change their religion. Many times, the conversion of Christians results not from religious conviction but personal interests or under pressure from Muslim proselytism, particularly to be relieved from obligations related to family difficulties.

British Equality Commission Opens Consultation on Equality Guides

Last week, Britain's Equality and Human Rights Commission opened its consultation on drafts of three guides under Britain's Equality Bill. The Bill is in its final stages of Parliamentary passage. The three proposed guides are: (1) Employment; (2) Equal Pay; and (3) Services, Public Functions and Associations. (Links to full texts and questionnaires.) The draft guides have extensive examples of the ban on religious discrimination, and also deal with various exemptions for religious organizations. The consultations close on April 2.

British Proposal Would Permit Religious Same-Sex Commitment Ceremonies

Ekklesia reported yesterday on a proposal to create more options in Britain for same-sex commitment ceremonies. The proposal is now before the House of Lords. Currently under Britain's Civil Partnership Act 2004, same-sex commitment ceremonies can only be conducted by civil registrars. The proposed amendment to the pending Equality Bill would also give legal recognition to same-sex commitment ceremonies performed by churches or religious organizations if they wish to be able to do so.

UPDATE: The House of Lords passed the amendment by a vote of 95-21 on March 2. London Times.

Cert. Denied In Kindergarten Bible Reading Ban

Yesterday, the U.S. Supreme Court denied certiorari in Busch v. Marple Union School District, (Docket No. 09-315, 1/19/2010). (Order List.) In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, upheld a Pennsylvania elementary school's restriction that barred a kindergartner's mother from reading aloud from the Bible as part of a "show and tell" activity in her son's classroom. (See prior posting.) The Christian Science Monitor reports on the Supreme Court's refusal to grant review. The school involved is in suburban Philadelphia.

NY Prison Chaplain Administrator Charges Discrimination

Askew v. New York State, 2010 U.S. Dist. LEXIS 3297 (ND NY, Jan. 15, 2010), involves discrimination charges by a Protestant Ministerial Program Coordinator (MPC) employed by the New York Department of Correctional Services. Glorya Askew is the only female and only African-American Protestant MPC. She claims her supervisors, particularly Mark Leonard, discriminated against her in favor of the Catholic MPC in assigning duties, offering job opportunities and speaking appearances and in relocating her from New York City to Albany. She also alleges Leonard told her that "[she] should never have gotten [the MPC] position because [she is] black and a woman." Leonard asked the inspector general's office to investigate Askew, and its report charges that Askew misrepresented outside employment and submitted false travel and time records. Askew says the charges are false. The court refused defendants' motions to dismiss many of Askew's Title VII, equal protection and free exercise of religion claims.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of 'Defamation of Religion', (January 18, 2010).
• Bruce Garen Peabody, Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order, (Cardozo Law Review, Forthcoming).
• Steven Paul Goldberg, Neuroscience and the Free Exercise of Religion, (Law and Neuroscience: Current Legal Issues, M. Freeman, ed., Oxford University Press, 2010).

Other Articles:

• Michael W. Schwartz, Wahhabism and the First Amendment , (Commentary, 2010).
• The January 2010 Issue of Church & State (from Americans United) has recently appeared.

Military Contractor Secretly Placing Biblical References On Rifle Sights

In an investigative report yesterday, ABC News revealed one of the more unusual examples of religion intruding in the military. A Michigan company, Trijicon, has a $660 million contract to supply up to 800,000 high-powered rifle sights to the Marine Corps, and additional sights to the Army. It urns out that the company has been added coded references to New Testament verses at the end of the serial number on each rifle sight. For example, serial numbers end with "2COR4:6" (Second Corinthians 4:6) or "JN8:12" (John 8:12). The company says it has been adding the references for years. The practice was begun by the company's founder, Glyn Bindon, a devout Christian from South Africa. The company's website makes reference to the goodness of Americans based on Biblical standards. The military was unaware of the company's practice. The Biblical references were in the same type size and font as the rest of the serial number on the sight.

Tom Munson, Trijicon's director of sales and marketing said there is nothing wrong with the inscriptions and that the issue was raised by a group that is "not Christian." Apparently the practice was called to the military' attention by the Military Religious Freedom Foundation. MMRF's founder, Mikey Weinstein, says members of his group that currently serve in the military have complained about the inscriptions, saying that commanders have referred to the weapons with these sights as "spiritually transformed firearm[s] of Jesus Christ." Interfaith Alliance issued a statement calling on the Defense Department to conduct an immediate investigation and to take appropriate action if Trijicon broke any laws.

India's Supreme Court Refuses To Order Constitution Amended To Clarify Status of Sikhs

India's Supreme Court yesterday dismissed a lawsuit asking it to order the government to amend India's Constitution to eliminate a provision in Explanation II to Article 25 that says the reference in the Constitution to the power to legislate regarding Hindu religious institutions should be construed to also include Sikh, Jain and Buddhist institutions. Sikhs want it made clear that Sikhism is a separate religion. Calcutta's Telegraph reports that the court held it lacks the power to direct Parliament to amend the provision. Eight years ago a Constitution review committee recommended the change, but Parliament has never acted on it. Sikhs say that because their marriages are governed by the Hindu Marriage Act, they face problems when the migrate abroad. They declare their religion as Sikh, but foreign authorities are confused because they present Hindu marriage certificates.

Ohio High Schoolers Fight Removal of God From School Mission Statement

In Uniontown, Ohio, the school board last month voted to change the school's mission statement to temporarily remove "belief in God" from the school district's mission statement after a complaint from the Freedom from Religion Foundation. (See prior posting.) Fox 8 News Cleveland yesterday reported on efforts of two high school students, Mackenzie Muchalk and Alex Looney, who are fighting the school board's move. They are selling T-shirts that read: "We value a belief in God" on the front and, on the back, "They can take his name out of our mission statement but they can NEVER take Him out of our hearts." They want the audience at next month's school board meeting to attend wearing the T-shirts. Muchalk says: "We just want to stand up to who we think of as bullies." FFRF retorts that it is the Christians in the community who are the "bullies."

Lawsuit Asks Court To Uphold Removal of Church Directors

In Westmoreland County, Pennsylvania Common Pleas Court last week, the pastor of a local church filed suit asking the court to uphold a vote last November by the church's board of directors removing two elders. Today's Pittsburgh Tribune-Review reports that Pastor Roy Aiken Jr. asked the court to uphold a 3-2 board vote to expel Frank Ring and William Grassel from the Christian Fellowship Center of Greensburg's board of directors. The lawsuit says both men violated the church's bylaws by being combative and quarrelsome, contentious and argumentative, and failing to regularly attend church functions. The lawsuit also charges that Grassel did not speak in tongues, a requirement for board membership under the church's bylaws. Both men continued to attend board meetings, and last week, they enlisted the support of one other board member to expel Lewis Gainfort from the board. Gainfort had been one of the votes in November in favor of expelling Ring and Grassel. At last week's meeting, the same three also voted to issue an $18,450 check to Ring's construction company.

Obama Speaks At D.C. Church About Dr. King's Legacy

Yesterday, President Barack Obama spoke at Washington, D.C.'s Vermont Avenue Baptist Church in remarks that the White House Blog captioned "Martin Luther King and the Challenges of a New Age." (Full text; Excerpts and video of full remarks.) The Church, founded by freed slaves after the Civil War was the site of a 1956 speech by Dr. King titled "The Challenges of a New Age." As part of his extensive remarks in advance of Martin Luther King Day, President Obama talked about religious faith:

Even as Dr. King stood in this church, a victory in the past and uncertainty in the future, he trusted God. He trusted that God would make a way. A way for prayers to be answered. A way for our union to be perfected. A way for the arc of the moral universe, no matter how long, to slowly bend towards truth and bend towards freedom, to bend towards justice. He had faith that God would make a way out of no way....

There are times when it feels like all these efforts are for naught, and change is so painfully slow in coming, and I have to confront my own doubts. But let me tell you -- during those times it's faith that keeps me calm. ... It's faith that gives me peace. The same faith that leads a single mother to work two jobs to put a roof over her head when she has doubts. The same faith that keeps an unemployed father to keep on submitting job applications even after he's been rejected a hundred times. The same faith that says to a teacher even if the first nine children she's teaching she can't reach, that that 10th one she's going to be able to reach. The same faith that breaks the silence of an earthquake's wake with the sound of prayers and hymns sung by a Haitian community. A faith in things not seen, in better days ahead, in Him who holds the future in the hollow of His hand. A faith that lets us mount up on wings like eagles; lets us run and not be weary; lets us walk and not faint.

So let us hold fast to that faith, as Joshua held fast to the faith of his fathers, and together, we shall overcome the challenges of a new age.... Together, we shall seize the promise of this moment. Together, we shall make a way through winter, and we're going to welcome the spring. Through God all things are possible.

NY Appeals Court Says Breakaway Church Property Belongs to Prebyterian Church USA

In Presbytery of Hudson River of Presbyterian Church (U.S.A.) v Trustees of First Presbyterian Church & Congregation of Ridgeberry, (NY App. Div., Jan. 12, 2010), a New York state appellate court, reversing the trial court, held that property of a break-away congregation is held in trust by the Presbytery for the Presbyterian Church (USA). It said in part:

the Book Of Order, a component of the constitution of PCUSA, contains language specifying that all property held by a particular church is held in trust for the national denomination. The neutral principles approach requires the courts to "look to the constitution of the general church concerning the ownership and control of church property" .... [D]efendants, in opposition to the plaintiffs' motion, failed to demonstrate that PCUSA is not hierarchical, or that cases involving hierarchical religious organizations do not apply here.

[Thanks to Joseph Landau for the lead.]

Pope's Visit To Rome Synagogue Focuses Debate On Pius XII's Actions In WW II

Pope Benedict XVI yesterday visited Rome's Great Synagogue amidst continuing controversy over whether Pope Pius XII did enough during World War II to save Italian Jews. (London Times.) Reuters reports that Riccardo Pacifici, president of Rome’s Jewish community and grandson of Genoa's Chief Rabbi who died in Auschwitz, directly confronted the Pope on the issue. After expressing gratitude to the convent that sheltered his father and uncle, Pacifici said:

In Italy and other parts of Europe, many religious people risked their lives to save thousands of Jews from certain death, without asking anything in return. This is why the silence of Pius XII before the Shoah still hurts because something should have been done. Maybe it would not have stopped the death trains, but it would have sent a signal, a word of extreme comfort, of human solidarity towards those brothers of ours transported to the ovens of Auschwitz.

In his address at the Rome Synagogue yesterday (full text) the Pope set out the Vatican's view of its record:

The extermination of the people of the Covenant of Moses, at first announced, then systematically programmed and put into practice in Europe under the Nazi regime, on that day tragically reached as far as Rome. Unfortunately, many remained indifferent, but many, including Italian Catholics, sustained by their faith and by Christian teaching, reacted with courage, often at risk of their lives, opening their arms to assist the Jewish fugitives who were being hunted down, and earning perennial gratitude. The Apostolic See itself provided assistance, often in a hidden and discreet way.

Last December, Pope Benedict issued a decree moving Pius XII closer to beatification, a move that sparked anger among some Jewish groups. (AP, 12/23/2009). Israel on Sunday asked Pope Benedict to open the Vatican archives to researchers to clarify Pope Pius XII's actions. (Reuters).