Chief Justice Refuses To Stay Effectiveness of D.C. Same-Sex Marriage Law

U.S. Supreme Court Chief Justice John Roberts has refused to grant a stay to prevent the District of Columbia’s Religious Freedom and Civil Marriage Equality Amendment Act from taking effect today. In an in chambers opinion in Jackson v. District of Columbia Board of Elections and Ethics, (Sup. Ct., March 2, 2010), the Chief Justice said that it has been the practice of the Court to defer to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern. Congress has chosen not to override the D.C. statute, and petitioners can raise many of the same arguments in their pending litigation attempting to get an initiative on the ballot to repeal the law that permits same-sex marriage. AP reports on the decision, saying that while couples may apply for licenses beginning today, there is a 3-day waiting period before they get the licenses and can actually be married. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Plaintiffs Have Standing To Challenge Day of Prayer, But Not Prayer Proclamations

In Freedom From Religion Foundation, Inc. v. Obama, (WD WI, March 2, 2010), a Wisconsin federal district court ruled on the standing of Freedom from Religion Foundation and some of its members in a lawsuit challenging the constitutionality of the National Day of Prayer statute (36 USC 119) and the issuance of prayer proclamations by the President. (See prior posting.) In addition to the President, Shirley Dobson, chairperson of the National Day of Prayer Task Force was also named as a defendant. The court held:

Although the answer is not free from doubt, I conclude that, under the unique circumstances of this case, plaintiffs have standing to challenge the constitutionality of the National Day of Prayer statute. The primary injury plaintiffs allege is the feeling of unwelcomeness and exclusion they experience as nonreligious persons because of what they view as a message from the government that it favors Americans who pray. That injury is intangible, but it is no less concrete than the injuries in the many cases in which courts have recognized the standing of persons subjected to unwelcome religious speech. The only difference between those cases and this one is that plaintiffs have not come into physical or visual contact with a religious display. However, that difference has little significance in a case like this one involving a national message intended to reach all Americans.

... With respect to plaintiffs' challenge to "prayer proclamations" issued by the President (other than one required by § 119), none of the plaintiffs has read or heard such a proclamation except when they expressly sought one out. Such a self-inflicted "injury" cannot establish standing. With respect to defendant Dobson, plaintiffs have failed completely to show that any of her actions has injured them.

Alliance Defense Fund issued a release on the decision.

Tennessee School District Settles Suit Challenging Religious Practices In Schools

The Cheatham County (TN) Board of Education voted Monday night to approve a settlement in a lawsuit alleging a pattern of religious activities in the county schools. (See prior posting.) The settlement order (full text) in Doe v. Cheatham County Board of Education, (MD TN, filed 11/16/2009), was announced in a press release by the ACLU of Tennessee that filed the lawsuit. Under the agreement, among other things school officials will not participate in or permit non-student third parties to offer prayers in conjunction with school events; will prevent non-student third parties (including the Gideons) from distributing Bibles during instructional time or at school events; will make a good faith effort not to hold school events at religious venues; will not knowingly let teachers promote personal religious beliefs to students during class or at school events; teachers will not cite sacred text as authority for historical or scientific fact to students in classes, or display religious symbols in class unless there is a pedagogical reason for doing so; and school teachers will not put religious beliefs or references to a deity on their school web pages.

British Sikhs Challenge 2011 Census Form

Britain's Sikh Federation is considering filing a lawsuit against the UK government's Office of National Statistics over the form it plans to use for the 2011 census. According to yesterday's Sikh Times, the government intends to list Sikhs as a choice in the voluntary portion of the form that asks about religious affiliation. The Sikh group insists that Sikh should also be a choice in the compulsory portion of the form that asks about ethnicity. They say that otherwise this will continue the under count of Sikhs that occurred ten years ago, reducing the amount of government services to which they are entitled.

Church Zoning Decision Remanded for Further Findings

In Arnold v. Versailles-Midway-Woodford County Board of Adjustment, (KY Ct. App., Feb. 26, 2010), a Kentucky appellate court in a second appeal in a church zoning case sent back for additional proceedings a county zoning authority's decision to grant Versailles United Methodist Church a conditional use permit for construction of a church building, school building, gymnasium and parking lot. The court held that again the County Board of Adjustment had not made adequate findings to justify its conclusions. It also directed the Board to make appropriate findings under RLUIPA instead of the conclusory statements that appeared in its original decision.

Ohio Supreme Court Will Decide If Church Can Sponsor Charter School

The Ohio Supreme Court has agreed to review a case in which a church claims that a decision of the Ohio Department of Education denying its application to sponsor a charter school ("community school") violates the equal protection clauses of the U.S. and Ohio (Art. 1, Sec. 2) constitutions and as well as the free exercise clause of the Ohio Constitution (Art. 1, Sc. 7). The denial was based on Ohio Rev. Code 3314.015(B)(3) that requires a sponsor to be an "education-oriented institution." According to yesterday's Columbus Dispatch, Brookwood Presbyterian Church in Columbus runs an educational program for 64 children with autism. It currently operates under the umbrella of another approved charter school, but that school is now threatened with closure. An Ohio Court of Appeals dismissed the church's challenge on the ground that the Department of Education's decision to deny a community school application is unappealable. Brookwood Presbyterian Church v. Ohio Department of Education, (OH Ct. App., Sept. 8, 2009). The full text of all the pleadings, briefs and court orders filed in the case in the Ohio Supreme Court are available online. [Thanks to Scott Mange for the lead.]

Teacher Wins Right To Display Classroom Banners With Religious References

In Johnson v. Poway Unified School District, (SD CA, Feb. 25, 2010), a California federal district court held that high school teacher Bradley Johnson's rights were violated when school officials told him to take down two 7-foot wide banners he had placed on his classroom wall. One displayed quotes such as "God Bless America" and "In God We Trust." The other quoted from the Declaration of Independence, with the term "Creator" in the quote in all capital letters. The school permits teachers to create their own displays in their classrooms, so long as the displays are not disruptive. Other teachers had posted items such as a Tibetan prayer flag, posters of Mahatma Gandhi, the Dali Lama and Malcolm X, as well as posters with views on a wide variety of other issues. Johnson's posters had hung in his classroom without objection for 20 years.

The court concluded that the school had created a limited public forum for teachers to express their views on their classroom walls, and that officials had engaged in unconstitutional viewpoint discrimination in squelching Johnson's speech. Establishment Clause concerns were unjustified since, according to the court, there is no realistic danger that an observer would think the school district was endorsing a particular religion. Moreover, the court concluded that by permitting Buddhist, Hindu, and anti-religious speech by some teachers while silencing the Judeo-Christian speech of Johnson, the school violates the Establishment Clause, the Equal Protection Clause and the "no preference" clause of the California Constitution. The court ordered school officials to immediately permit Johnson to redisplay the two banners at issue, and also awarded Johnson nominal damages. AP yesterday reported on the decision, and the Thomas More Law Center that represented Johnson issued a release on the decision, including photos of the disputed banners. (See prior related posting.)

Settlement Reached In Texas Prayer Garden Challenge

The San Antonio (TX) Express News reported yesterday that a settlement has been reached in a lawsuit attempting to prevent The Coming King Foundation from placing a 77-foot tall cross in their Kerrville, Texas subdivision. The cross is part of a 23-acre prayer garden., and will overlook Interstate 10. Neighbors say that subdivision deeds limit lots to residential use, but the Foundation argued that the deed restrictions are invalid because the 12-lot subdivision plot was not approved by county commissioners. (See prior posting.) Under the settlement, the garden will be constructed, but a privacy wall will be put up. Also access and parking from a subdivision street will be limited, and defendants will pay $25,000 toward plaintiff's legal fees.

Cert. Denied In Property Dispute Involving Break Away Episcopal Parish

Yesterday the U.S. Supreme Court denied certiorari in St. Luke's of the Mountains v. Episcopal Church, (Docket No. 09-708, March 1, 2010). (Order List.) In the case below, decided by a California appellate court under the name Huber v. Jackson, the court applied the "neutral principles" of law doctrine, concluding that the Episcopal Church and its Diocese of Los Angeles are the owners of the property of St. Luke's parish in La Crescenta, California. The congregants of St. Luke's voted in 2006 to break away from the Episcopal Church and affiliate with the more conservative Anglican Church of Uganda. (See prior posting.) The California Supreme Court refused review in the case (2009 Cal. LEXIS 9850, Sept. 17, 2009). The Episcopal Diocese of Los Angeles issued a statement yesterday thanking the Supreme Court for its clarity in refusing review. Episcopal News Service reports on the Supreme Court's refusal to review the state appellate court's ruling. [Thanks to John W. Chilton for the lead.]

Private Rabbinic Court In Israel Is At Center of a Controversy

Last week Haaretz carried a long article about the little known group of private rabbinic courts in Israel known as Badatz, an acronym for Court of Justice or Righteous Court. The article focuses on the court branch located in Bnei Brak, a city east of Tel Aviv in which strictly observant Orthodox Jews (Haredi) and important Haredi rabbis live. Unlike the government-run rabbinical courts that deal only with family and personal status matters, Badatz deals with a wide variety of civil disputes. The parties must agree to submit their disputes to Badatz, but the rabbinic court can place pressure on members of the Haredi community who do not do so by issuing a "writ of refusal" which essentially calls for others to ostracise the individual who will not submit to the court's jurisdiction. Badatz has come into the news because of a lawsuit filed in the civil court system against several of the rabbinic judges (dayanim) on Badatz. [This paragraph has been corrected thans to an e-mail from Jack Levey.] As reported by Haaretz:

Rabbi Zvi Bialostosky, a building contractor, his son Chaim and the son's partner, Eliezer Friedman, were involved in a lengthy dispute with people who bought an apartment from them in Bnei Brak. The case was heard by Badatz Bnei Brak, until at a certain point Bialostosky and the other plaintiffs sued the dayanim in Tel Aviv Magistrate's Court.... Late last year, the contractors filed no fewer than 11 requests for various legal proceedings against the religious judges, in the process crossing a Haredi red line by taking their case to the state secular court system and, worse, suing dayanim. The result was an offensive of unprecedented ferocity by the Haredi leadership against two private individuals.

A letter signed by ... spiritual leaders of the Haredi world asserts that Bialostosky and Friedman "lifted a hand against God and His Torah" and are liable to cause "the destruction of the religion."

The contractors requested and were granted a restraining order against threats and harassment, after complaining to the civil court that the Badatz rulings constituted "harassment" and "libel." The dayanim retorted that such allegations were groundless and added that Bialostosky is "a quarrelsome individual who is involved in numberless disputes and litigations."

Supreme Court Denies Cert. In Oklahoma 10 Commandments Case

The U.S. Supreme Court today denied certiorari in Haskell County Board of Commissioners v. Green, (Docket No. 09-531, March 1, 2010). (Order List.) In the case, the U.S. 10th Circuit Court of Appeals held that a display of a Ten Commandments monument on the lawn of the county courthouse in Stigler, Oklahoma, violated the Establishment Clause. (See prior posting.) AP reports on the Court's refusal to grant review. [Thanks to both Bob Ritter and Scott Mange for the lead.]

Indian Court Strikes Down Longer Divorce Waiting Period for Christians

In India last week, Kerala's High Court struck down as unconstitutional a provision that requires Christians to wait at least two years after they are first married to file for divorce. The personal law that governs other religious communities, as well as the Special Marriage Act that governs those with no religion, all allow others to file for divorce after one year. According to today's CathNews Asia, the court held that the clause in the Indian Divorce Act applicable only to Christians is discriminatory and violates the constitutional protection of equality before the law. Praveen and Soumya Thomas filed for divorce eight months after they were married. The court suggested that the legislature could impose a one-year waiting period for Christians, the same as imposed on other religious groups.

Obama's New Envoy To OIC Profiled

Today's Washington Post profiles Rashad Hussain, President Obama's recently appointed special envoy to the Organization of the Islamic Conference. (See prior related posting.) The 31-year old Hussain who grew up in Plano, Texas, is both a scholar of the Qur'an and an ardent North Carolina Tar Heels basketball fan (his undergraduate alma mater). After completing a master's degree in Arabic and Islamic studies at Harvard, he was working with the House Judiciary Committee at the time of 9-11. He later attended Yale Law School and, until his recent appointment, worked in the White House Counsel's Office. Hussain has memorized the Qur'an and prays daily, often in a room in the Eisenhower Executive Office Building used by all faiths.

Recent Articles and Books of Interest

From SSRN:

• Luc B. Tremblay, The Bouchard-Taylor Report on Cultural and Religious Accommodation: Multiculturalism by Any Other Name?,(EUI Working Papers LAW No. 2009/18, Dec. 1, 2009).
• Juliet P. Stumpf, Juliet P., The Implausible Alien: IQBAL and the Influence of Immigration Law, (Lewis & Clark Law Review, Vol. 14, No. 231, 2010).
• Cosmin Dariescu, Jurisdiction Over Marriage in the Romanian Principalities: From the Ecclesiastical Court to the Secular Tribunal, (Turning Points and Breaklines: Yearbook of Young Legal History 4, Szabolcs Hornyak, et. al., eds., pp.180-192, Martin Meidenbauer, Munchen, 2009).
• Gregor Noll, Sacrificial Violence and Targeting in International Humanitarian Law, (February 24, 2010).
• Perry Dane, Constitutional Law and Religion, (Blackwell Companion to Philosophy of Law and Legal Theory, Dennis Patterson, ed., Blackwell, 2010).
• Frederick C. DeCoste, Caesar's Faith: Limited Government and Freedom of Religion in Bruker v. Marcovitz, (Dalhousie Law Journal, Vol. 32, No. 1, pp. 153-176, 2009).
• Dimitry Kochenov, On Options of Citizens and Moral Choices of States: Gays and European Federalism, (Fordham International Law Journal, Vol. 33, No. 1, 2009).
• Heather Kennedy, Pleasant Grove v. Summum: Is Ten Truly Greater than Seven? An Examination of the Government Speech Doctrine Regarding Privately Donated Monuments Displayed on Public Land, (February 23, 2010).

From SmartCILP and elsewhere:

• J. Scott Carpenter, Matthew Levitt & Michael Jacobson, Confronting the Ideology of Radical Extremism, 3 Journal of National Security Law & Policy 301-327 (2009).
• H. Lyssette Chavez & Monica K. Miller, Religious References in Death Sentence Phases of Trials: Two Psychological Theories That Suggest Judicial Rulings and Assumptions May Affect Jurors, 13 Lewis & Clark Law Review 1037-1083 (2009).
• Michael Hatfield, The Anabaptist Conscience and Religious Exemption to Jury Service, 65 N.Y.U. Annual Survey of American Law 269-322 (2009).
• Debra A. Jones, The Role of Spirituality in the Mediation Process, [Abstract], 27 Conflict Resolution Quarterly 145-165 (2009).
• Journal of Church and State, Vol. 51, No. 3 (Summer 2009) has recently been issued.
• The March 2010 issue of American United's Church & State has recently appeared online.

Recent Books:

• Dan Diner, Lost in the Sacred: Why the Muslim World Stood Still, (Princeton Univ. Press , Nov. 2009), reviewed in The Muslim News.
• Frank Lambert, Religion in American Politics: A Short History, (Princeton Univ. Press, Feb. 2010).
• Ian Buruma, Taming the Gods: Religion and Democracy on Three Continents, (Princeton Univ. Press, Feb. 2010).

Op-Ed Presses For Continued US Foreign Aid Through Religious Groups

Nicholas Kristof's op-ed in today's New York Times focuses on the history of the U.S. channeling foreign humanitarian aid through religious organizations. He says that evangelicals have become the "new internationalists," pressing for U.S. programs abroad for a range of human service needs. He writes in part:

Some Americans assume that religious groups offer aid to entice converts. That's incorrect. Today, groups like World Vision ban the use of aid to lure anyone into a religious conversation.

Some liberals are pushing to end the longtime practice (it's a myth that this started with President George W. Bush) of channeling American aid through faith-based organizations. That change would be a catastrophe. In Haiti, more than half of food distributions go through religious groups like World Vision that have indispensable networks on the ground. We mustn't make Haitians the casualties in our cultural wars.

DC Catholic Archdiocese Says It Will Be In Compliance When Same-Sex Marriage Takes Effect

Washington, D.C.'s new law legalizing same-sex marriage takes effect this Wednesday. (See prior posting.) Yesterday's Washington Post reports that the Washington Catholic Archdiocese that receives significant social service funding from the city says it will be in compliance with law, though it has not specified exactly what it will do. D.C. law appears to require groups receiving public funds to offer benefits to spouses of married employees, whether traditional or same-sex marriages. The Archdiocese has already transferred its foster care program to avoid having to allow same-sex couples to serve as foster parents. (See prior posting.)

Mennonites Have Problems With Road Protection Law In Iowa County

Today's WCF Courier reports on the problem posed for the Groffdale Conference Mennonite Community by Mitchell County, Iowa's Ordinance No. 41 that bans steel wheels on the county's hard surfaced roads. This group of Mennonites use modern tractors, but as a religious matter they replace inflated rubber tires with metal rims surrounded by a thick rubber belt containing metal bars to provide traction. They fear conventional tires would make trips to town too convenient. Thirteen year old Matthew Zimmerman is due in court this Friday on charges of violating Ordinance No. 41. He was cited for driving a 19,000 pound steel-wheel tractor pulling a home-made 2-wheel cart on a county road on his way to pick up four bales of wood shavings for his family's farm. County officials say steel wheels damage highways. However neighboring Howard County rejected a similar ordinance after Mennonites deposited $25,000 in a trust to cover any future highway damage. (See prior related posting.) Apparently steel wheels are harder on cement roads like many in Mitchell County, than on asphalt roads that predominate in Howard County. Mitchell County suspended the ordinance for 60 days last fall during the harvest season.

Anti-Semitism Showing Reductions In Poland

Today's New York Times reports that Poland "is finally showing solid signs of shedding the rabid anti-Semitism of the past." There has been a small Jewish revival in Eastern Europe, with hundreds of Poles converting to Judaism or discovering Jewish roots that were hidden during World War II. The article focuses specifically on the story of Pawel, a former Nazi skinhead, who after discovering he and his wife both had Jewish grandparents has become an observant Orthodox Jew. Pawel says he is now studying to become a schochet, a a ritual kosher slaughterer of animals. He explained: "I am good with knives."

Recent Prisoner Free Exercise Cases

In Yoshiyah v. Norris, 2010 U.S. Dist. LEXIS 14176 (ED AR, Feb. 18, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 14386, Jan. 28, 2010) and dismissed claims by an inmate who was a member of the House of Yahweh who complained that he was denied various religious publications and that he could only watch religious videos alone on Wednesdays rather than with a group on Saturdays. He also complained about the quality of the vegetarian kosher diet that was available.

In Abdul-Aziz v. Ricci, 2010 U.S. Dist. LEXIS 14657 (D NJ, Feb. 19, 2010), a New Jersey federal district court allowed an inmate to proceed with claims relating to use of prayer oils and availability of Halal meals.

In Walker v. Dart, 2010 U.S. Dist. LEXIS 14638 (ND IL, Feb. 19, 2010), an Illinois federal district court refused to dismiss an pre-trial detainee's complaint that religious services were denied for nearly nine months in one part of the Cook County Jail.

In Wappler v. Kleinsmith, 2010 U.S. Dist. LEXIS 15322 (WD MI, Feb. 22, 2010), a Michigan federal district court allowed a now-released inmate to proceed only against certain of the defendants in their individual capacities on his claims that he was denied kosher meals, religious materials and the opportunity to participate in group religious services and that officials made membership in the Alliance for Jewish Renewal (ALEPH) a condition of his ability to practice Judaism, participate in Seder and Passover services.

In Shoucair v. Snacker, 2010 U.S. Dist. LEXIS 15551 (ED MI, Feb. 23, 2010), a Michigan federal district court adopted the magistrate's recommendations (2010 U.S. Dist. LEXIS 15634, Feb. 3, 2010) and dismissed claims by an inmate including an allegation that a correction officer assaulted him, motivated by prejudice against Islamic Caucasians.

In Roberson v. South Carolina Department of Corrections, 2010 U.S. Dist. LEXIS 16421 (D SC, Feb. 24, 2010), a South Carolina federal district court adopted a magistrate's recommendations
(2010 U.S. Dist. LEXIS 16370, Jan. 27, 2010) finding that an inmate failed to show how an alleged denial of "any Kairos sponsored religious feast [and/or] bread festival celebration" prevented him from practicing his religion, and did not claim that Kairos food or celebrations are part of any religious ritual or faith to which he subscribed.

No Compromise Found For Hutterite Drivers' Licenses

Last July, the Supreme Court of Canada upheld a requirement imposed by the province of Alberta that all drivers' licences contain a photo of the license holder. Hutterites had objected to the requirement on religious grounds. (See prior posting.) A report from yesterday's Calgary Herald says that months of discussions between the provincial government and the Hutterites have failed to work out a compromise. The photo-less licenses that were issued to Hutterite drivers while legal proceedings were pending are now mostly expiring. Sam Wurz, manager of the Three Hills Hutterite Colony, says that their current plan is to continue to drve without a license.