Challenge To Nativity Scene Dismissed As Moot

In Freedom from Religion Foundation v. Manitowoc County, 2010 U.S. Dist. LEXIS 39667 (ED WI, April 22, 2010), a Wisconsin federal district court dismissed as moot a challenge to the display of a Nativity scene on the Manitowoc County (WI) Courthouse lawn. The court said:

the County recently enacted a written Policy governing the placement of displays on courthouse grounds. Previously, citizens wanting to place a display on the grounds sought permission from the Director of Public Works.... Now, however ... the new written Policy is intended to allow all citizens equal access to the courthouse grounds. Because citizens will now have open access, any Nativity scene displayed in the future would be seen not as a government-sponsored message but simply as the message of a citizen group taking advantage of an open forum.

The court rejected plaintiff's argument that the new policy is a sham and that the county will continue to favor Christian religious displays.

Suit Against Vatican and Pope Seeks Damages, Release of Names of Absuive Clergy

Yesterday's National Law Journal reported on a suit filed in federal court in Milwaukee, Wisconsin against the Holy See, the Pope, and two cardinals at the Vatican, seeking damages because of sexual abuse plaintiff suffered at the hands of Rev. Lawrence Murphy who taught at St. John's School for the Deaf. Murphy allegedly abused around 200 boys at the suburban Milwaukee school between 1950 and 1974. The 55-page complaint (full text) in Doe v. Holy See, (ED WI, filed 4/22/2010) also seeks release of the names of clergy sex offenders and of documents relating to their activity. It asserts a wide range of claims against defendants, including breach of contract, misrepresentations, negligence, conversion and violation of international human rights conventions. Counsel for plaintiff expects that the Vatican will raise a defense of sovereign immunity. Plaintiff intends to rely on the tort and commercial activity exceptions to sovereign immunity (28 USC Sec. 1605) found in the Foreign Sovereign Immunities Act. The complaint contains numerous allegations regarding the commercial nature of the Catholic Church's fundraising in the United States.

The Vatican Press Office issued a release yesterday responding to the lawsuit, saying: "the lawsuit - together with its de rigueur press conference and news releases - is simply the latest attempt by certain U.S. lawyers touse the judicial process as a tool of media relations."

UPDATE: An April 26 article from CNN profiles Jeff Anderson, the lawyer who filed the lawsuit. Active in bringing clergy sex abuse litigation for decades, the article describes Anderson as the attorney who has most driven U.S. media coverage of the Catholic Church sex abuse scandal.

Church Property Tax Disputes Continue In Various Locations

Disputes over tax exemptions for property owned by religious institutions continue to arise around the country. In Congregation Rabbinical College of Tartikov, Inc. v. Town of Ramapo, (NY App. Div., April 20, 2010), a New York appellate court held that town tax authorities improperly revoked the tax exemption for property that was being leased out as a religious summer camp by the rabbinical college that owned it. The court held that the operation of the summer camp was in furtherance of the college's religious purposes. (See prior related posting.)
[Thanks to Joseph Landau for the lead.]

Meanwhile in Scituate, Massachusetts, the Boston Archdiocese has withdrawn a lawsuit seeking a court declaration that the town cannot tax the St. Francis X. Cabrini church building that had been closed by the archdiocese, so long as it was not used for non-religious purposes. The archdiocese argued that the building remains a sacred place designated for divine worship. (See prior posting.) The Quincy (MA) Patriot Ledger reports that the Archdiocese has decided to pursue appeals through the state Appellate Tax Board instead of in court.

New Law Expands Florida Tax Credit School Voucher Program

Florida's Governor Charlie Crist yesterday signed SB 2126, a bill that dramatically expands Florida's Tax Credit Scholarship Program. (Legislative history.) According to today's Miami Herald, corporations get dollar-for-dollar tax credits for contributions to the voucher program that is open to low-income students. Some 27,700 students now receive vouchers. Under the new law which takes effect July 1, the amount of each voucher will grow over several years from the current $3950 to up to 80% of the state's per pupil funding amount-- $5492 at current levels. Many students use the vouchers at faith-based schools. A spokesman for the program predicted that participation could grow to 70,000 students in five years.

Canadian Judge Refuses To Let Sikh Witness Wear Kirpan

A Canadian trial court in Windsor, Ontario yesterday refused to permit a key witness in a contentious lawsuit between two factions at a local Sikh temple to enter the courtroom wearing his kirpan (ceremonial dagger). According to the Montreal Gazette, Superior Court Justice Steven Rogin said that the witness, a physician and gurdwara leader, will not be permitted to bring his kirpan into the courthouse even though the ban may breach his charter right to freedom of religion. The judge said that the leadership dispute at the Sikh Cultural Society of Metropolitan Windsor has generated "excitement and passion," and the kirpan could be used as a weapon. When witness Dr. Sukdev Singh Kooner, who is at the center of the dispute, refused to enter the courtroom without his kirpan, Judge Rogin adjourned the proceedings so Kooner can testify through a deposition that will be taken at his lawyer's office, transcribed by a court reporter and entered into evidence.

Kentucky High Court Voids Funding of Pharmacy Building, Scholarships At Baptist University

In University of the Cumberlands v. Pennybacker, (KY Sup. Ct., April 22, 2010), the Kentucky Supreme Court held that a $10 million state appropriation for construction of a pharmacy school at a Baptist college violates the provision in Kentucky's Constituiton that prohibits public funding of "any church, sectarian or denominational school" (Sec. 189). The court rejected the argument that the ban on sectarian funding violates the First Amendment of the U.S. Constitution, finding that the state has legitimate anti-establishment concerns. It also rejected the argument that Sec. 189 of the state Constitution was anti-Catholic in its origins. The court went on to also hold that a $1 million appropriation for a pharmacy student scholarship program at the same college violates the Kentucky Constitution's ban on special legislation (Sec. 59). Justice Cunningham (joined by Justice Scott) wrote a concurring opinion "to dispel any abiding notion that courts, such as this one, in marking clearly the divide between church and state, are taking a legalistic swipe at religion." Justice Scott (joined by Justice Venters) wrote a partial dissent arguing that the pharmacy student scholarship program is permissible. (See prior related posting.) Yesterday's Lexington Herald-Leader reports on the court's decision.

Korea's Supreme Court Says Private Mission School Must Respect Students' Religious Rights

South Korea's Supreme Court yesterday sent back for retrial a damage action brought by a 24-year old law student who six years ago was expelled by a Protestant high school for protesting a required religion class. JoongAng Daily reports on the decision that held students' religious freedom must be respected even by private mission schools because students are assigned to the schools through a random lottery instead of by their own choice. Plaintiff Kang Ui-seok says that if he wins at his retrial, he will follow the Christian teaching of "love your enemies," and will return the money to the school.

Taxpayer May Not Intervene To Challenge Settlement of Suit By School District

In Doe v. Cheatham County School Board of Education, 2010 U.S. Dist. LEXIS 38883 (MD TN, April 20, 2010), a Tennessee federal district court refused to permit a citizen/taxpayer to intervene to challenge a settlement of an Establishment Clause lawsuit that was brought by the ACLU against Cheatham County (TN) public schools. In the settlement, the school board agreed that the schools will no longer allow various religious activities. (See prior posting.) The court, in rejecting the motion to intervene, said:

[Intervenor] objects in toto to the enforcement of the Establishment Clause as it pertains to Christianity in public schools and to the ability of the ACLU to collect fees for its efforts to enforce the Establishment Clause in such cases, both of which are far beyond the scope of the issues presented here. Allowing her to pursue such global claims would undoubtedly prolong what is a simpler question of whether specific acts by certain teachers and administrators violated either the state or federal constitution.

Canadian FLDS Leader Denied Advance of Legal Fees In B.C. Polygamy Reference

In the Canada last October, British Columbia's Attorney General decided that instead of appealing the dismissal of polygamy charges that were filed against the leaders of two FLDS factions, the province would instead ask the British Columbia Supreme Court for clarification on the law's constitutionality. (See prior posting.) That led Winston Blackmore, one of the two FLDS leaders who had been charged under the law, to ask the court to permit him and his congregation to participate as interested parties in the Reference proceedings. He also sought an order advancing him funds to pay for attorneys' fees for his participation. In In re the Constitutional Question Act, R.S.B.C. 1986, C. 68, (BC Sup. Ct., April 20, 2010), the court granted Blackmore and the FLDS faction he represents "interested person" status so they can participate in the case. However the court refused Blackmore's request for an advance of costs. It found no reason to give him preferential treatment over twelve other interested parties who are also participating in the case. CBC News reported on the decision on Tuesday.

Government Will Appeal Decision Striking Down National Day of Prayer

Yesterday the U.S. Department of Justice filed a Notice of Appeal to the 7th Circuit in Freedom From Religion Foundation, Inc. v. Obama. According to the AP, the United states will appeal both last week's decision finding that the statute creating the National Day of Prayer violates the Establishment Clause (see prior posting), but also the court's decision last month holding that plaintiffs had standing to bring the challenge. (See prior posting.)

Meanwhile, according to AOL News, the Pentagon Chaplain's Office yesterday withdrew its invitation to Franklin Graham, honorary chairman of this year's National Day of Prayer Task Force, who had originally been invited to speak at the Pentagon's special prayer service scheduled for May 6. The move came after complaints surfaced about Graham's previous references to Islam as an "evil and wicked" religion. (See prior posting.)

Supreme Court's Attorneys' Fees Decision Will Impact Religious Rights Cases

The U.S. Supreme Court yesterday decided an attorneys' fee case that will be important to lawyers bringing cases seeking to vindicate free exercise or establishment clause rights. 42 USC Sec. 1988 authorizes the award of reasonable attorneys' fees to the prevailing party in civil rights lawsuits, including those under Section 1983, RLUIPA and RFRA. In Perdue v. Kenny A., (Sup. Ct., April 21, 2010), the Court, in an opinion by Justice Alito, held that while the amount of the fee is generally determined by computing an hourly rate (the "lodestar" amount), that amount may be increased for superior performance, but only in extraordinary circumstances. Justices Breyer filed a partial dissent, joined by Justices Stevens, Ginsburg and Sotomayor, objecting to the manner in which the majority dealt with the application of its holding to the facts of the case before it which involved a challenge to Georgia's foster care system. National Law Journal reports on the decision, and Scotus Blog has further analysis of it.

Lawsuit Argues Publisher's Pension Plan Was Not An Exempt Church Plan

The Wall Street Journal reports on a federal lawsuit filed in Minneapolis yesterday by employees and retirees of Augsburg Fortress, the company that publishes hymnals, theological works and other books for the Evangelical Lutheran Church of America. Plaintiffs are suing the company after it announced it was terminating its seriously underfunded pension plan and would distribute out the remaining assets to employees and retirees. The lawsuit argues that the publisher's pension plan was not exempt from ERISA as a church plan, that Augsburg violated its fiduciary duties under ERISA by allowing the plan to become underfunded and failing to alert plan participants to the plan's financial problems. The complaint alleges alternatively that even if the plan was exempt from federal law as a church plan, Augsburg violated its fiduciary duties under state law to prudently manage the fund's assets. [Thanks to Rev. Chris Duckworth for the lead.]

Jehovah's Witness Loses Unemployment Comp Bid Over Beliefs About Birthday Celebrations

In Calhoun Jewelers, LLC v. Unemployment Compensation Board of Review, (PA Commnwlth. Ct., April 20, 2010), a Pennsylvania Commonwealth Court held that a Jehovah's Witness employee failed to show that she had a compelling reason based on sincerely held religious belief to leave her job. Without such a showing, her voluntary decision to quit her job as a salesperson in a jewelry store disqualifies her from receiving unemployment compensation benefits. The claimant's religious beliefs prohibit her from celebrating birthdays. She refused to write out personalized messages on birthday cards her employer was sending out to customers. The court concluded that claimant failed to show how the message she was instructed to write conflicted with her beliefs, particularly since she sold customers jewelry for birthday presents.

OIC Will Set Up New Committee On Human Rights

After a meeting Tuesday with U.N. High Commissioner for Human Rights Navanethem Pillay, the Organization of the Islamic Conference announced that it is setting up a permanent independent committee to deal with issues of human rights. MidEast News Source reports that the new committee will likely begin work following a meeting of OIC foreign ministers in Tajikistan next month. Some critics argue that the committee will be effective only if it does not draw its human rights principles from Shariah law. However OIC Secretary General Ekmeleddin Ihsanoglu said that universal human rights are in harmony with Islamic values.

Russian Court Says Scientology Titles Are Extremist Literature

A court in the Siberian city of Surgut has approved the request of prosecutors to list 28 works by Scientology founder L. Ron Hubbard to the Russian Federation's list of extremist literature. The Moscow Times reported yesterday that transport prosecutors in Surgut and Khanty-Mansiisk customs officers seized the books and recordings and had them examined by psychiatrists, psychologists and sociologists. Prosecutors say the works call for social and religious hatred, undermining Russia's traditional spiritual values. Possession of extremist literature can lead to a jail sentence of up to 15 days and a fine of $100(US).

Bill To Permit Mennonites To Self-Insure Autos Goes To Georgia Governor For Signature

WSAV News reports that yesterday the Georgia state Senate passed, and sent to the governor for his signature, HB 656. The law will allow a 100-member community of Eastern Pennsylvania Mennonites who live in Metter (GA), near Savannah, to self-insure rather than buy auto insurance. Their religion considers insurance to be gambling. The bill provides that a religious organization may qualify as a self insurer for vehicles owned or leased by its members if the organization meets a number of specific requirements, including having been in continuous existence since 1950 and having been exempt from federal social security and medicare since 1970.

French Government Will Propose Burqa Ban In All Public Places

Today Britain's The Independent reports that French President Nicolas Sarkozy's government has decided that next month it will propose a complete ban on wearing the burqa in any public place. Sarkozy insisted that the ban is needed to protect the "dignity of women." In pressing for the new ban, Sarkozy ignores advice from the Conseil d'Etat that a total ban is unworkable and likely is unconstitutional. It recommended a ban only in public buildings. A report from a French Parliamentary committee also suggested limiting the ban to public buildings and transportation. (See prior posting.) The French State Ombudsman opposes the total ban, as do moderate Muslim groups who say that a ban will make Muslims feel that their religion is resented in France. While only 2,000 women in France wear the full-length veil, it is increasingly seen by a number of politicians across the spectrum as inconsistent with republican values of liberty and equality.

Meanwhile, Voice of America reports that tomorrow debate will begin in the Belgian parliament on similar legislation. Amnesty International urged the Belgian Parliament to reject the proposal, but said that women should be protected from coercion to wear the garment.

Miami Transit Authority Backs Off Decision To Pull Anti-Muslim Ads

In Miami, Florida, the Miami-Dade County Transit Authority has backed off of its original decision to pull ten ads that were set to be placed on Miami buses by an organization known as Stop Islamization of America. Last Friday's Miami Herald reported that the Transit Authority decided to stop the ads after complaints from CAIR that the ads were offensive to Muslims. The ads, carrying a website address, read in part: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get answers." A press release yesterday from the law offices of David Yerushalmi says that after a lawsuit was threatened, the Transit Authority agreed that it should not have prevented the ads from being run. It agreed to run the original ten ads and to also run twenty more at no additional cost.

Suit For Clergy Sex Abuse Relies On Alien Tort Claims Act

The Los Angeles Times reports that on Tuesday, a lawsuit was filed in federal district court in Los Angeles (CA) invoking the 1789 Alien Tort Claims Act in a clergy sex abuse case. The Act allows foreign victims of human rights violations to sue for damages in U.S. courts. This is apparently the first time that statute has been used in a clergy abuse case. Plaintiff alleges that as a 12-year old altar-boy, he was raped repeatedly by Father Nicolas Aguilar Rivera in Mexico in 1997. Aguilar had fled to Mexico from Los Angeles in 1987 after Los Angeles Cardinal Roger Mahony learned of police suspicions about him. The lawsuit charges that Cardinal Mahony and Mexican Cardinal Norberto Rivera Carrera covered up known charges against Aguilar, and claims that top church officials knew Aguilar was about to flee to Mexico but failed to inform police. Aguilar's was not defrocked until last year, and he is now in hiding, apparently in Mexico where an arrest warrant for him is outstanding.

Ohio High Court Says No Tax Exemption For Church's Low-Income Apartments

In NBC-USA Housing, Inc.–Five v. Levin, (OH Sup. Ct., April 12, 2010), the Ohio Supreme Court held that a federally subsidized apartment complex for low-income tenants operated by the National Baptist Convention (NBC) and a local church does not qualify for the property tax exemption under Ohio Rev Code 5709.12(B). That section exempts property used exclusively for charitable purposes. The court relied on "the consistent and longstanding doctrine that a distinctly residential use of real property defeats a claim of charitable exemption, even where attendant circumstances indicate the existence of charitable motives." It is not enough that NBC was carrying out a religious mission. The exemption depends on the use of the property, not the nature of the charitable institution that owns it. The argument for an exemption under a different section of the Ohio statutes was precluded because it was not properly raised on appeal.