8th Circuit Denies Qualified Immunity To Officials Who Conspired Against Faith-Based School

In Heartland Academy Community Church v. Waddle, (8th Cir., Feb. 8, 2010), the U.S. 8th Circuit Court of appeals refused to dismiss on qualified immunity grounds a civil rights action for damages against various Missouri officials who conspired in 2001 to remove 115 students from a Christian faith-based boarding school for children with behavioral and substance abuse problems. The court described the underlying charges:

Two of the conspiracy’s more prominent members were Chief Juvenile Officers Michael Waddle (Waddle) and Cindy Ayers (Ayers).Waddle, the conspiracy’s ringleader, disliked HCA because (1) HCA was unlicensed (legally), (2) Waddle disagreed with HACC’s teachings, and (3) Waddle believed HCA had not acted "very Christ-like." Ayers complained HCA was "growing too fast," and expressed the view that "there [were] people everywhere at [HCA], including children from foreign countries," and Missouri should slow or "put a stop" to HCA.

The charged conspiracy reached its nadir on October 30, 2001, when juvenile authorities and armed law enforcement officers, 30 total, arrived at HCA’s campus
and removed 115 of its students. The Officials did not provide any notice to Heartland of the removal until the last possible moment. Waddle and Ayers procured ex parte orders from local juvenile court judges to remove HCA’s students. Waddle
and Ayers used false misrepresentations to obtain the ex parte removal orders. The juvenile court judges issued the ex parte orders under the false impressions (1) all HCA students were in imminent danger of physical harm, (2) HCA was unwilling to
cooperate with the relevant juvenile authorities, and (3) no lesser alternative short of a mass removal was available to ensure the students’ safety.

The court rejected defendants' claim that the trial court failed to look at each official's conduct individually when ruling on qualified immunity.

Court Orders Cemetery Title Transferred To Allow O'Hare Airport Expansion

Yesterday's Chicago Tribune reports that an Illinois court has cleared the way for expansion of Chicago's O'Hare Airport by ordering the transfer of title of the 5.3-acre St. Johannes Cemetery from St. John's United Church of Christ to the city for $630,000. This follows a ruling last December that the city could use eminent domain to acquire the land. In previous litigation, church members were unsuccessful in arguing that moving the graves would illegally impose a substantial burden on their religious exercise because of their religious belief in the physical resurrection of the bodies of Christian believers. The city will work with next of kin to have the graves moved by spring of 2011. The court ordered no graves to be moved for at least 20 days to give church attorneys a chance to appeal yesterday's decision.

Human Rights Activists Charge Egypt Plans To Monitor Sermons In Mosques Through Cameras

Egypt's Ministry of Islamic Endowments has denied that it plans to monitor sermons given in mosques through the use of cameras. Media Line yesterday reported that concern over monitoring arose after cameras were installed in the Sayyida Nafisa Mosque in Cairo. Ministry spokesmen however said the cameras were to prevent stealing money from charity boxes. Human rights advocates are suspicious of the true motivations, saying the cameras violate protections in Egypt's constitution. The decision to set up cameras is apparently related to a recent speech by Egyptian President Hosni Mubarak following the murder of six Copts last month.

Costa Rica's Constitutional Court Rejects Bishops Power To Select Religion Teachers

CNA yesterday reported that Costa Rica's Constitutional Court, by a vote of 4-3, struck down the agreement between the Catholic Church and the government that gives the Bishop's Conference of Costa Rica the right to approve teachers of Catholic religion in public schools. The arrangement, which allowed the Church to reject a teacher on moral grounds as well as knowledge of religion, was seen by those challenging it as an intrusion by bishops into affairs of the public schools.

ACLU Say College Prof Teaches Religion and Anti-LGBT Views As Fact

The ACLU of Northern California yesterday sent a demand letter (full text) to the president of Fresno City College complaining about a faculty member, Dr. Bradley Lopez, who teaches a health science class in which he presents religiously-based and anti-LGBT views as scientific fact. Yesterday's Fresno Bee and a press release from the ACLU describe aspects of Lopez's class. Lopez presented a slide describing homosexuality as a "biological misapplication of human sexuality" and said that the "recommended treatment" is "psychological counseling" or "hormone supplements." Lopez presented Biblical passages as "empirical" evidence that life begins at conception, and he asserted that the leading cause of death in the U.S. is abortion. Using a Biblical quote about the world ending in fire, Lopez said "that is the real global warming we should be worried about." Lopez assigned a homework question that involved constructing Jesus genetic makeup from Biblical references. The ACLU insists the College must make certain that its instruction does not inculcate religious doctrines and must give accurate and unbiased health science instruction.

White House Faith Based Council Posts Votes On Two Controversial Church-State Issues [UPDATED]

Last Thursday, the White House Office of Faith-based and Neighborhood Partnerships posted the preliminary votes by its Advisory Council on two contentious issues. The final votes were posted today. [The following has been updated to reflect the final vote.]

The first issue is whether faith-based social service providers should be allowed to provide services in rooms that contain religious symbols, artwork or messages. Two members voted to ban any religious symbols. Seven members voted to allow symbols when there is no space in the organization's offices without them and when removing or covering them would be infeasible, so long as objecting clients also have a choice of a different provider to which they do not object. Sixteen members voted not to require removal or covering of symbols, but to encourage providers to be sensitive and to attempt to accommodate those who object, and have alternative providers available if that is not sufficient.

The second issue is whether the government should require houses of worship to form separate corporations to receive direct federal social service funds. Thirteen voted yes; 12 voted no. (See prior related posting.)

Indian Court Strikes Down Quotas for Backward Classes of Muslims

In India, by a vote of 5-2 the High Court of Andhra Pradesh has held that the Andhra Pradesh Reservation in Favor of socially and Educational Backward Classes of Muslims Act 2007 is unconstitutional. According to New Delhi's The Pioneer today, the court also struck down two government orders under the law that had granted a 4% reservation to fifteen backward classes of Muslims in educational institutions and in jobs. The court held that the 2007 report of the Backward Classes Commission on which the law was based did not reflect true conditions. The ruling threw into doubt the fate of thousand of college and professional school students who have been permitted under the 4% quota since 2007. This is the third time since 2004 that the courts have struck down attempts by Andhra Pradesh to create set-asides for Muslims. the Hindu BJP argues there is no provision in the constitution for religion-based set-asides. The state will quickly file an appeal of today's decision with the Supreme Court.

Meanwhile according to today's Business Standard, the government of West Bengal announced a 10% set-aside of government jobs for Muslims there who are economically, socially and educationally backward.

Recent Articles of Interest

From SSRN:

• Carissima Mathen, What Religious Freedom Jurisprudence Reveals About Equality, (Journal of Law and Equality, Vol. 6, No. 2, 2009).
• Dov Fox, Taking Sides on Genetic Modification, (American Journal of Bioethics - Neuroscience, Forthcoming).
• Alexander Tallchief Skibine, Culture Talk or Culture War in Federal Indian Law?, (Tulsa Law Review, Forthcoming).
• Susan J. Stabile, An Effort to Articulate a Catholic Realist Approach to Abortion, (U of St. Thomas Legal Studies Research Paper No. 10-08, 2010).
• Mary Jean Dolan, Government Identity Messages and Religion: The Endorsement Test after Summum, (February 5, 2010).
• Robert K. Vischer, When is a Catholic Doing Legal Theory Doing "Catholic Legal Theory?", (Seton Hall Law Review, Forthcoming).
• Elizabeth Rose Schiltz, The Paradox of the Global and the Local in the Financial Crisis of 2008: Applying the Lessons of Caritas in Veritate to the Regulation of Consumer Credit in the United States and the European Union, (Journal of Law and Religion, Vol. 26, 2010).
• Andrew M.M. Koppelman, No Respect: Brian Leiter on Religion, (Northwestern Public Law Research Paper No. 10-07, Jan. 5, 2010).

From SmartCILP:

• Bruce Ledewitz, Could Government Speech Endorsing a Higher Law Resolve the Establishment Clause Crisis?, 41 St. Mary's Law Journal 41-117 (2009).

Activist Charges Conflicts In Some Illinois Capital Funding For Religious Groups

There are new developments in the campaign by Chicago activist Rob Sherman to challenge state legislative appropriations to houses of worship, parochial schools and religious institutions in last year's Capital Bill. (See prior posting.) Last month he filed a challenge with the State Government Suggestion Award Board. In a posting on Friday, Sherman charges that some of the challenged appropriations are to religious organizations on whose boards legislators themselves sit. In one case, a legislator is the CEO of the religious organization slated to receive funds. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Newingham v. Magness, (8th Cir., Feb. 4, 2010), the U.S. 8th Circuit Court of Appeals held that Muslim prisoner could proceed with his claim under RLUIPA for injunctive relief to obtain use of a prayer rug, but the court dismissed his claim for damages.

In Green v. Tudor, 2010 U.S. Dist. LEXIS 7414 (WD MI, Jan. 29, 2010), a Michigan federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 124246, Oct. 21, 2009) and dismissed various claims by an inmate over the lack of hot Ramadan meals and lack of notice of substitutions of items in Ramadan meals.

Rupe v. Cate, 2010 U.S. Dist. LEXIS 7817 (ED CA, Feb. 1, 2010), was a challenge to alleged discrimination and repression by prison officials of prisoner's attempts to practice their Druid and other Pagan religions. While dismissing a number of plaintiff's claims, the court allowed him to proceed on his claim under the free exercise clause, his claim for retaliation and his equal protection claim.

In Cobb v. Mendoza-Powers, 2010 U.S. Dist. LEXIS 8089 (CD CA, Jan. 25. 2010), a California federal district court adopted the findings of a magistrate (2009 U.S. Dist. LEXIS 124379 , Oct. 20, 2009) and dismissed without prejudice an inmate's claim that his free exercise rights were violated when he was not excused for religious reasons from complying with prison grooming standards. The court held that this claim is not cognizable in a habeas corpus action.

In Valentine v. Poff, 2010 U.S. Dist. LEXIS 8253 (WD VA, Feb. 1, 2010), a Virginia federal district court dismissed a frivolous an inmate's challenge to the type of food served to him in his religious diet.

In Blake v. Howland, 2009 Mass. Super. LEXIS 363 (MA Super. Ct., Dec. 2, 2009), a Massachusetts trial court rejected state and federal free exercise claims, claims under RLUIPA and other challenges by a Native American man who is civilly committed as a sexually dangerous person. Plaintiff complained he is denied access to smudging and pipe ceremonies, a purification lodge, various other items needed for Native American worship ceremonies and is also not furnished a Native American volunteer to work with members of his religious group.

In Jamal v. Smith, 2010 U.S. Dist. LEXIS 5029 (CD IL, Jan. 22, 2010), an Illinois federal district court permitted a Muslim inmate to proceed with his claim that a pat down search of him was conducted by a female officer in violation of his religious objections, even though male officers were readily available. First Amendment Center reports on the case.

A release from the Rutherford Institute reports that it has filed suit in Virginia federal district court challenging a Virginia Department of Corrections directive that prohibits inmates from receiving CDs containing spoken words. The suit was filed on behalf of an inmate wishing to obtain a CD containing a Christian sermon. (Full text of complaint in Mabe v. Commonwealth of Virginia, (ED VA, filed Feb. 3, 2010).

Lawsuit Challenges Library's Meeting Room Policy

A federal civil rights action was filed on Thursday challenging the refusal by the New Smyrna Beach, Florida, Public Library to allow its meeting rooms to be used for a seminar titled "Is Religion Alive in America?". The seminar, which focuses on how Christian principles apply to current events, includes prayer, Bible reading and religious songs. The library rejected the request because its rules prohibit use of meeting rooms, among other things, for religious services. The complaint (full text) in Verdugo v. Volusia County, Florida, (MD FL, filed 2/4/2010), alleges that the policy singles out religious speech for unfavorable treatment. It contends that the rule violates the speech, free exercise and Establishment clauses of 1st Amendment, the due process and equal protection clauses of the 14th Amendments as well as Florida's Religious Freedom Restoration Act. Alliance Defense Fund issued a release announcing the filing of the lawsuit and discussing other similar challenges filed in recent months.

Anglican Factions In Zimbabwe Struggle Over Control

Virtue Online today carries a report from the Feb. 1 Christian Post on the struggle between two Anglican factions in Harare, Zimbabwe. Controversy began in 2007 when Nolbert Kunonga, a supporter of President Robert Mugabe's regime, accused the Anglican Province of Central Africa of being pro-gay. Kunonga said he was withdrawing the Diocese of Harare from the Province. He set up his own rival Anglican province, appointed himself archbishop and claimed church property. A High Court ordered the two factions to share church buildings, but Kunonga, with the help of police are blocking access to church buildings by those loyal to the official Province of Central Africa. For the past two years they have been forced to hold services outside.

Lenient Sentence Imposed on Muslim Man By Britain's Cherie Blair Brings Complaints

Britain's Judicial Complaints Office this week began an investigation into Cherie Blair, wife of former Prime Minister Tony Blair. Ms. Blair, who practices employment law under her maiden name, Cherie Booth, also acts as a part-time judge in London. According to UAE's The National today, Britain's National Secular Society filed a formal complaint against Ms. Blair after she gave a suspended sentence to a Muslim man who was charged with getting into an altercation over who was first in line at a bank. Blair told defendant Shamso Miah: "I am going to suspend this sentence for the period of two years based on the fact you are a religious person and have not been in trouble before. You are a religious man and you know this is not acceptable behaviour." Both the National Secular Society and the British Humanist Assoiciation have complained that Blair acted in a discriminatory manner in suggesting that a non-religious person would have been treated more harshly. At the same time, some in Britain on the political right are seizing on Blair's remarks to charge bias in favor of Muslims by "the establishment."

Street Preachers Challenge "Loud Noise" and Trespass Bans

Last week, a federal civil rights lawsuit was filed in Richmond, Virginia by five Christian evangelists some of whom were charged with creating loud and disturbing noise for preaching at downtown First Friday events and at a Christmas parade. Others were charged with trespassing for preaching at the Watermelon Festival held in a shopping area. The complaint (full text) in Craft v. City of Richmond, (ED VA, filed 1/29/2010), charges that in the case of individual and small group speech, the provisions invoked are an unconstitutional infringement of speech on their face and as applied. It also alleges freedom of association, free exercise, equal protection and due process violations. Alliance Defense Fund issued a press release on the case earlier this week. Today's Richmond Times-Dispatch covers the case and reports that Richmond City Council is scheduled to pass a new noise ordinance on Monday designed to cure constitutional defects in the old ordinance.

Trial of Geert Wilders Proceeds With Pared Down Witness List

The trial of Dutch right-wing politician Geert Wilders for inciting hatred and and discrimination against Muslims and non-Western immigrants, and insulting Muslims will proceed in Amsterdam. (See prior related posting.) Al Jazerra reported Wednesday that a Dutch court rejected Wilders' claim of Parliamentary immunity, ruling that immunity does not extend to statements made outside of Parliamentary meetings. The court also cut down on the witnesses that Wilders may call. Part of Wilders' defense is that he was speaking the truth. According to Dutch News today, Wilders wanted to call 18 witnesses. However the court has limited him to three experts on Islam, including American Syrian psychiatrist Wafa Sultan who believes that the world is engaged in a battle between modernity and barbarism that Islam will lose. The witnesses will be heard by an examining judge in proceedings that will be closed to the public.

North Korea Says It Will Release U.S. Christian Activist

According to Voice of America, North Korea today said it will release Robert Park, the U.S. Christian activist who crossed into North Korea from China on Christmas day carrying a Bible and a letter urging North Korean leader Kim Jong II to embrace God and close political prison camps. (See prior posting.) North Korea says Park has repented. It also says that Park now believes North Korea has complete religious freedom after he was escorted to religious services in Pyongyang. Fellow activists believe Park was severely beaten while in custody, and he is likely to be seen as a hero in the Christian activist community when he returns to the U.S. Park's release comes one day after President Obama announced that North Korea would remain off a State Department list of nations which sponsor terrorism.

Slovakian Court Upholds Religion Law's Registration Requirement

Radio Slovakia International today reports that the Plenary Session of Slovakia's Constitutional Court has rejected a constitutional attack on the provision in Slovakia's religion law that requires 20,000 signatures of members for a church to obtain registration. The Office of the General Prosecutor filed the constitutional challenge claiming that the law, as amended in 2007 (see prior posting), infringes protected freedom of religion and association. The suit also alleged that the law is inconsistent with various human rights treaties. The Court concluded, however, that registration of a church is not an inevitable condition for performance of its right to freedom of religion.

Indonesia's Constitutional Court Hearing Challenge To Blasphemy Law

Indonesia's Constitutional Court on Wednesday held its first hearings in a challenge to the constitutionality of Indonesia's Law on Prevention of Blasphemy and Abuse of Religion. Yesterday's Jakarta Post reports that the lawsuit was filed last year by the late President Abdurrahman "Gus Dur" Wahid and several human rights organizations. The suit alleges that the law is unconstitutional because it recognizes only six religions: Islam, Christianity, Catholicism, Hinduism, Buddhism and Confucianism. It also bans people from publicly espousing or gathering popular support in favor of certain religious interpretations. Some 31 experts have been invited to testify in the trial.

Groups Urge President To Beef Up Church-State Safeguards In Faith-Based Funding

Yesterday, twenty-five national organizations wrote President Obama urging further church-state safeguards in faith-based social service programs receiving government aid. The letter (full text) said in part:

On the one year anniversary of your Executive Order establishing the new White House Office of Faith-Based and Neighborhood Partnerships, the undersigned religious, education, civil rights, labor, and health organizations write to urge that you take additional actions to prevent government-funded religious discrimination and protect social service beneficiaries from unwelcome proselytizing.

The letter urged the White House to prohibit religious organizations from discriminating in hiring on the basis of religion within federally-funded social welfare projects. It also urged that the President amend existing Executive orders to ensure that:

Program beneficiaries are not subject to unwanted proselytizing or religious activities.

Program providers give proper notice to beneficiaries of their religious liberty rights and access to alternative, secular providers.

Houses of worship and other religious institutions, in which religion is so integrally infused that it cannot be separated out, be required to create separate corporations for the purpose of providing secular, government-funded social services.....

Secular alternatives to social services provided by houses of worship and other religious institutions are readily available to beneficiaries.....

Uniform guidance and training materials be developed for all federal agencies to ensure that government-funded providers understand constitutionally-required religious liberty safeguards..... Furthermore, providers should be required to certify their adherence to the safeguards – and government agencies should engage in oversight to ensure compliance.

Here are the releases on the letter issued by the ADL, Americans United and the Baptist Joint Committee, all of which were signatories.

Deference Given To Hierarchical Determination in Church Property Dispute

In Choi v. Sung, (WA Ct. App., Feb. 2, 2010), a Washington state court of appeals upheld a trial court's resolution of a dispute between two factions of the New Hope Christian Reformed Church of Tacoma regarding ownership of church property. The courts enforced the decision of the denomination's Classis regarding the dispute. The trial court's findings on whether New Hope CRC was a congregational or hierarchical church were somewhat ambiguous. However the trial court's conclusions treat the church as hierarchical, and the court of appeals held that there was substantial evidence to support that approach.