Catholic Church Challenges Baltimore Ordinance Regulating Pregnancy Counseling Centers

According to the Baltimore (MD) Sun, the Archdiocese of Baltimore has filed a federal lawsuit challenging the constitutionality of a Baltimore ordinance that requires pregnancy counseling centers to post signs (in English and Spanish) informing clients that they do not refer women for abortion or birth control. Proponents of the law say it assures that women have accurate health information. The lawsuit claims that the law violates First Amendment expression and religion rights of church members.

NY High Court: Hate Crime Law Can Apply To Property Offenses

In People v. Assi, (NY Ct. App., March 30, 2010), New York's high court held that New York's Hate Crimes Act of 2000 can cover religiously-motivated property crimes, as well as crimes against persons. Defendant in the case admitted to attempting to fire bomb a synagogue to protest the shooting of a Palestinian child by the Israeli Army. Today's Riverdale Press reports on the decision.

Subsidized Housing Project Attacked on Establishment Clause Grounds

The Washington Post last week reported that opposition to a government subsidized affordable housing project in Arlington County, Virginia has turned into a church-state argument. To find space for housing near the suburban D.C Metro station, the county will pay subsidies to a developer who will build apartments over the First Baptist Church of Clarendon. A non-profit group bought air rights over the church last year. A new sanctuary will also be constructed, and the church and housing project will share an entrance, lobby and elevator. Opponents argue that the subsidies are really a way to bail out a church that is in financial difficulty. A federal district court will hear arguments tomorrow on a motion to dismiss the complaint that alleges Establishment Clause violations. [Thanks to Robert Tuttle for the lead.]

Taxpayers Have Standing To Challenge TVPA Grant To Catholic Bishops

In ACLU of Massachusetts v. Sebelius, (D MA, March 22, 2010), a Massachusetts federal district court held that taxpayers have standing to challenge a grant to the U.S. Conference of Catholic Bishops under the Trafficking Victims Protection Act. USCCP made grants to subcontractors, and specified in all of them that no referrals could be made for abortion services of contraceptive materials. In finding standing, the court said:

The issue is by no means open and shut, but the court is of the view that the ACLU has met its burden under Flast of showing a link between the congressional power to tax and spend and a possible violation of the Establishment Clause in the grant of public funds to the USCCB....

In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.

10th Circuit: No State RFRA Claim For Objectionable Autopsy

In Ross v. Board of Regents of the University of New Mexico, (10th Cir., March 23, 2010), the 10th Circuit Court of Appeals refused to permit family members to sue under New Mexico’s Religious Freedom Restoration Act challenging an autopsy performed on a San Carlos Apache man that allegedly violate his religious beliefs. The court concluded that decedent did not engage in an "act or refusal to act" that was substantially motivated by religious belief. Thus New Mexico RFRA's protection of free exercise of religion was not implicated. The court also rejected various other challenges to the autopsy

Supreme Court Denies Cert. In Religious Music Case Over Alito Dissent

Last week, the U.S. Supreme Court denied certiorari in Nurre v. Whitehead, (Docket No. 09-671, March 22, 2010). In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 ruling, held that school officials did not violate a student's free speech rights when they barred her from performing an instrumental version of Ave Maria at her Everett, Washington high school's graduation ceremony. (See prior posting.) Justice Alito filed a rare dissent to the denial of review. He argued:

A reasonable reading of the Ninth Circuit’s decision is that it authorizes school administrators to ban any controversial student expression at any school event attended by parents and others who feel obligated to be present because of the importance of theevent for the participating students. A decision with such potentially broad and troubling implications merits our review.

National Law Journal reported on the cert. denial.

Obama Announces Recess Appointments To EEOC

Last Saturday, the White House announced it intent to make 15 recess appointments to high level government positions. The nominations are currently stalled in the Senate. Four of the 15 are for the Equal Employment Opportunity Commission: Jacqueline A. Berrien for EEOC Chair; Chai R. Feldblum for EEOC Commissioner; Victoria A. Lipnic for EEOC Commissioner; and P. David Lopez for General Counsel of the EEOC. As recess appointees, these individuals will hold office until the end of the Senate's session in 2011. (CRS background.) However their names will remain before the Senate for confirmation for the full terms of their offices. The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

Recent Prisoner Free Exercise Cases

In Clark v. Small, 2010 U.S. Dist. LEXIS 23731 (SD CA, March 15, 2010), a California federal district court permitted an inmate to proceed with his claim that he was not permitted to celebrate Ramadan, but dismissed his equal protection and due process challenges.

In Hartmann v. California Department of Corrections and Rehabilitation, 2010 U.S. Dist. LEXIS 23848 (ED CA, March 15, 2010), a California federal magistrate judge concluded that inmates failed to state a claim against the California State Personnel Board in connection with their complaint that no Wiccan prison chaplains were hired for their facility.

In Jackson v. Boucaud, 2010 U.S. Dist. LEXIS 23760 (SD GA, March 15, 2010), a Georgia federal district court accepted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 125893, Dec. 31, 2009) and dismissed an inmate's claims that his rights were infringed when he was not permitted to borrow in inter-library loan a copy of The Bible Code. He failed to allege how denial of the book infringed his sincerely held religious beliefs.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 23898 (WD VA, March 16, 2010), a Virginia federal magistrate judge permitted an inmate to proceed with challenges under RLUIPA and the due process clause to confiscation of religious materials of the Nation of Gods and Earths (also known as the Five Percent Nation of Islam).

In Boles v. Newth, 2009 U.S. Dist. LEXIS 126028 (D CO, Nov. 13, 2009), a Colorado federal magistrate judge concluded that damage to an inmate's religious objects and religious books did not create a meaningful burden on his practice of religion.

In Borzych v. Frank, 2010 U.S. Dist. LEXIS 25194 (WD WI, March 17, 2010), a Wisconsin federal district judge rejected an inmate's claim that his First and Fourteenth Amendment rights, and his rights under RLUIPA, were violated by a prison policy that prohibits practitioners of Odinism from having runes.

In McChesney v. Hogan, 2010 U.S. Dist. LEXIS 25717 (ND NY, March 18, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25705, Feb. 26, 2010), and permitted a civilly committed offender who is an atheist,to proceed on a claim for injunctive relief, but not for damages, on his complaint that material used in the sexual offender treatment program were premised on religious principles.

In Damron v. Sims, 2010 U.S. Dist. LEXIS 25166 (SD OH, March 17, 2010), an Ohio federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25158, Jan. 27, 2010) and dismissed claims by prisoners who were Christian Separatists that they have been denied in various ways the free exercise of their religion. The court held that plaintiffs pointed only to general policies and failed to allege particular instances in which their rights were infringed.

In Brown v. Michigan Department of Corrections, 2010 U.S. Dist. LEXIS 25396 (ED MI, March 18, 2010), a Michigan federal district court adopted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 126067, Oct. 28, 2009) and rejected both on statute of limitations grounds and on the merits an inmate's argument that his free exercise rights were violated when he was not permitted to talk about his religious beliefs during the Assaultive Offender Program.

In Anderson v. Craven, 2010 U.S. Dist. LEXIS 25140 (D ID, March 16, 2010), an Idaho federal district court refused to dismiss an inmate's claim that his rights were violated when, as a condition of parole, he was forced to attend the Therapeutic Community program which, allegedly, is religion based.

In Funzie v. Little, 2010 U.S. Dist. LEXIS 25771 (MD TN, March 18, 2010, a Tennessee federal district court adopted a magistrate's findings (2010 U.S. Dist. LEXIS 25768, Jan. 12, 2010) and dismissed plaintiff's objections to the seizure and screening of his religious materials by the security threat group.

Church Claims It Was Misled Into Not Applying For Tax Exemption

Knox News yesterday reported that a church in Knoxville, Tennessee is making an unusual argument in an attempt to avoid $53,000 in back taxes that it did not realize it owed. Tennessee law gives a church three years to apply for a property tax exemption when it replaces its previously exempt property with new property. New Covenant Baptist Church bought new property and began to occupy it as a church in 2005. It thought its previous property was exempt since it never received a tax bill. However in fact the county wrongly omitted its previous property from the tax rolls because the church had never properly applied for an exemption. In In re New Covenant Baptist Church, Inc., (TN Bd. Equal., Feb. 26, 2010), the Tennessee Board of Equalization concluded that the church was not entitled to the grace period for its new property because its previous property was not in fact exempt. In a letter to the Knox County Commission and a draft legal complaint, the church argues that the fault lies with the Knox County Tax Assessor who misled the Church into assuming that its prior property was exempt. The church obtained an exemption beginning Nov. 2006, but its taxes for the two prior years remain at issue.

Church Synod Sued After Ordering Changes In College's Board

According to last Thursday's Christian Post, one lawsuit has been dropped, but a second is still pending after the General Synod of the Associate Reformed Presbyterian Church removed the board of trustees and installed an interim board at Erskine College in Due West, South Carolina. Christianity Today last week reported on the March 3 meeting of the General Synod which acted on a March 2 Report of Moderator's Commission that recommended reducing the size of the college's Board from 34 (plus 23 advisory members) to 16. A Preliminary Report issued in February found numerous problems as the college searches for a new president. Among the findings were: "A significant majority of the professors interviewed had no understanding of how the Christian faith could be meaningfully integrated into their discipline."

All of this led to a lawsuit being filed against the General Synod by Scott Mitchell who is the chairman of both the old board that was removed and of the new interim board that was appointed. It alleged that the General Synod violated Erskine's charter and bylaws in the action it took. The court issued a temporary restraining order barring a change in the bylaws to reduce the size of the board. (Columbia (SC) The State.) However now at the direction of Erskine's executive committee, Mitchell has withdrawn his lawsuit. However a second lawsuit filed by the Alumni Association and three trustees is still pending.

UPDATE: On April 9, a state court judge issued a preliminary injunction in the Alumni Association's suit, freezing the status quo while the litigation is pending. (Erskine College Press Release.)

China Imposes New Financial Audit Rules On Religious Institutions

According to AsiaNews.it last week, China's State Religious Affairs Administration has issued new rules requiring all religious institutions to file audited annual financial reports. The agency said the rules are designed to help the government supervise finances and prevent embezzlement and misappropriation of funds from the country's 130,000 religious institutions. Religious organizations are seen as public institutions under Chinese law.

Court Upholds Rights of Evangelists To Leaflet At Catholic Parish Festival

Teesdale v. City of Chicago, (ND IL, March 17, 2010), is a suit by Garfield Ridge Baptist Church and five of its members who were prevented by police acting as security guards from handing out religious tracts, and from using a megaphone, at a Festival being held (with a city permit) by a Catholic parish on parish grounds and surrounding streets. The court held that it was a violation of plaintiff's clearly established rights to prevent them from leafleting, and that a question of fact remained as to whether preventing them from using a megaphone was reasonable. The court also refused to dismiss the false arrest claim by one of the plaintiffs who was arrested for trespassing. The court however did dismiss plaintiffs equal protection claims and their claims under the Illinois Religious Freedom Restoration Act. Preventing them from distributing literature on one afternoon at one place did not constitute a substantial burden on their religious exercise. Finally the court held that plaintiffs can proceed against the city itself only for equitable relief. Plaintiffs' attorneys issued a press release on the decision.

House Committee Holds Hearing On Outreach To Muslim Communities To Foil Terrorism

On March 17, the U.S. House of Representatives Committee on Homeland Security held hearings on Working with Communities to Disrupt Terror Plots. The full text of statements of the Chair and of six witnesses, as well as a video recording of the hearing, is available on the Committee's website. Witnesses focused largely on how to create relationships with American Muslim communities.

Appeal Filed By Intervenors Challenging Consent Decree On Religion In Schools

The Pensacola (FL) News-Journal reports that an appeal has been filed with the U.S. 11th Circuit Court of Appeals in Minor Doe I v. School Board for Santa Rosa County, Florida. In the case, a federal district court in February rejected an attempt by the Christian Educators Association International, representing teachers, to intervene to seek a modification of a consent decree under which the Santa Rosa County school board was enjoined from various activities that promoted religion in school classrooms and at school events. (See prior posting.)

New Head of al-Azhar Appointed In Egypt

Trade Arabia reports that on Friday, Egyptian President Hosni Mubarak appointed Sheikh
Ahmed El-Tayeb as the head of al-Azhar to succeed Sheikh Mohamed Sayed Tantawi who died on March 10. (See prior posting.) Al-Azhar is Egypt's most prestigious institution of Islamic learning, and one of the preeminent centers of Sunni learning in the world. Sheikh El-Tayeb has been head of al-Azhar University since 2003. In a 2004 interview he stressed the importance of teaching about the diversity of the Islamic heritage and of opening channels of communication with European countries. El-Tayeb's new position places him as the leader of the entire al-Azhar, which includes educational institutions throughout Egypt.

Pope Sends Pastoral Letter To Irish Catholics Addressing Clergy Sexual Abuse

Vatican Radio reports that Pope Benedict XVI today sent a Pastor Letter to all Catholics in Ireland apologizing for the sexual abuse of young people by Catholic clergy, and for the way in which the matter was handled by local clergy and religious superiors. Last May, a special government commission released a lengthy report on abuse at Catholic institutions in Ireland from 1936 to the present. (See prior posting.) The Pope's letter (full text) charged Irish bishops with "grave errors of judgment" and "failures of leadership." According to BBC News, groups representing victims of abuse have a mixed reaction to the Pope's letter, with some believing that Irish Cardinal Sean Brady should resign because of his reported role in the cover up of abuse charges. Others, however, pointing to the passage in the letter instructing bishops and religious superiors to "cooperate with civil authorities in their area of competence," say this means the Pope believes that those guilty of sexual abuse should face criminal prosecution.

Court Rejects Street Preachers' Challenge To Permit Ordinance

In Bethel v. City of Montgomery, 2010 U.S. Dist. LEXIS 24949 (MD AL, March 2, 2010), two street preachers challenged the requirement imposed by Montgomery, Alabama that they obtain a permit before preaching on public streets. A federal magistrate judge rejected their facial challenge to the ordinance, concluding it is a neutral time, place and manner restriction that is permissible under the First Amendment. The magistrate judge also rejected plaintiffs' equal protection and Fourth Amendment claims, recommending that the complaint be dismissed.

Suit Over School Rules That Banned Pro-Life T-Shirt Is Settled

Alliance Defense Fund on Wednesday announced the settlement of a lawsuit challenging the policies of a Pennsylvania school district under which a middle school student was told to remove a pro-life T-shirt which carried the message: "Abortion is not Healthcare." (See prior posting.) The Notice of Voluntary Dismissal in E.B. v. West Shore School District, (MD PA, filed 3/17/2010), says that the school district has revised it policy on school expression to eliminate a provision that allowed officials to ban expression that seeks to establish the supremacy of a particular religious denomination or viewpoint. The school district also revised its dress and grooming policy to eliminate a a ban on clothing that creates a hostile educational environment or displays discriminatory bias or animus.

Council Considering Policy on Proclamations for Religious Holidays

In North Miami Beach, Florida, city council's multicultural committee submitted recommendations Tuesday for a council policy on issuing proclamations recognizing religious holidays. Yesterday's Miami Herald reports that under the proposal, council would issue an official proclamation for only one holiday for each religion. The report generated some controversy however because it provides that proclamations should be issued fairly, for holidays of "all legal recognized religions." Committee chairman, Thomas Pinder, says this means no proclamations should be issued for religions considered to be cults or known to practice illegal acts as part of their ceremonies or worship. The report calls for a subcommittee to identify the various religions practiced by North Miami Beach residents, and for it to specify the one main holiday that should be recognized by the council for each of the religions.

Belgian Court Suspends Ban On Islamic Headscarves

Yesterday, Belgium's Council of State suspended a ban on Islamic headscarves that had been imposed on Muslim school girls in the Dutch-speaking region of Flanders. Earth Times reports that the Flanders regional educational council imposed the ban last year after teachers complained that some parents were forcing their daughters to wear the headscarves against their will. In ruling on a challenge to the order, the Council of State said it is not clear whether the educational council had the authority to issue the ban. The Council of State referred to the Constitutional Court the question of whether action by the Flemish Parliament was required before the ban could be imposed.