Prayers At Honolulu City Council Questioned

Yesterday's Honolulu Advertiser reports that Hawai'i Citizens for Separation of State and Church has filed a complaint with Honolulu City Council contending that since January 2008, 25 out of 27 Council meetings have been opened by Christian prayer or sermonizing. Council chairman Todd Apo said the policy does not need changing, but reminded members about existing guidelines for aloha messages that open Council meetings. He says that a few recent messages have "gone deeper into religion than was appropriate." Meanwhile, Apo is encouraging council member to deliver the aloha message personally rather than seeking an outsider to do so. Apo delivered the message at Council's last monthly meeting. Hawai'i Citizens for Separation of State and Church also plans to file a complaint with the Hawaii state Senate about the prayers that open its sessions.

Recent Articles of Interest

From SSRN:

• Adam Schwartzbaum, The Niqab in the Courtroom: Protecting Free Exercise in a Post-Smith World, (April 20, 2010).
• Samuel J. Levine, Of Inkblots and Omnisignificance: Conceptualizing Secondary and Symbolic Functions of the Ninth Amendment, in a Comparative Hermeneutic Framework, (Michigan State Law Review, Vol. 2009, No. 2, 2009).
• Samuel J. Levine, Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity, (Law and Religion: Cases in Context: Leading Law and Religion Scholars Explore the Issue That Confound the Courts, Leslie C. Griffin ed., 2010.)
• Mike Newdow, Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?, (Capital University Law Review, Forthcoming).
• David W. Opderbeck, A Critical Realist Theology of Law, Neurobiology, and the Soul, (Seton Hall Public Law Research Paper, April 23, 2010).
• Lorenz Langer, Panacea or Pathetic Fallacy? The Swiss Ban on Minarets, (Vanderbilt Journal of Transnational Law, Vol. 43, 2010).
• Robert K. Vischer, Individual Rights vs. Institutional Identity: The Relational Dimension of Conscience in Health Care, (U of St. Thomas Legal Studies Research Paper No. 10-17, 2010).
• Robert K. Vischer, Conscience and the Common Good: Reclaiming the Space between Person and State, (Cambridge University Press, 2010).

From SmartCILP:

• John A. Eidsmoe, The Use of the Ten Commandments in American Courts, 3 Liberty University Law Review 15-46 (2009).
• Jeffrey C. Tuomala, Book Review, (Reviewing Robert George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis), 3 Liberty University Law Review 77-102 (2009).
• Symposium: A Celebration of the Twentieth Anniversary of Mulieris Dignitatem, Part I. Articles by Marguerite A. Peeters, Sr. Prudence Allen, Maria Sophia Aguirre, Mary Timothy Prokes, Elizabeth R. Schiltz, Margaret McCarthy, I.F.C. Camp, M.R. Gonzales and Helen M. Alvare. 8 Ave Maria Law Review 1-195 (2009).

Suit In Botswana Challenges Authority of Territorial Chief Over Churches

According to Botswana's Sunday Standard, a hearing is scheduled today before a High Court judge in Botswana in a suit filed by the country' Evangelical Fellowship and the Family of God Church against the royal family of the territory of Bakgatla. Last week, a dispute broke out between the Family of God Church and the royal family over a crusade held by the church in the city of Mochudi. The church was accused of disrespecting Kgatla law, and Paramount Chief Kgafela Kgafela II's regiments whipped two of the church's pastors. An order was issued banning the church from worshiping in Mochudi. The lawsuit seeks a court order declaring that the Bakgatla paramount chief has no legal authority to expel the churches or any of its members from Kgatleng, and that the order banning the church was a violation of its free exercise rights and its members' rights to practice their religion. (Botswana Constitution, Sec. 11.)

UPDATE: MMEGI reported Tuesday that in an interim ruling a High Court justice has held that Family Church of God's constitutional rights to freedom of conscience, thought and religion were infringed by Kgafela and his regiments. The court issued an order barring Kgafela, pending final determination of the case, from interfering with the activities of any church that is a member of the Evangelical Fellowship of Botswana.

British Court Sentences Atheist For Leaving Insulting Material In Airport Chapel

A judge in England's Liverpool Crown Court last week Harry Taylor, described by BBC News as a "militant atheist", a six month suspended sentence for causing religiously aggravated intentional harassment. He was convicted by a jury in March of leaving distressing posters in the prayer room at Liverpool's John Lennon Airport. One of the posters depicted a smiling crucified Jesus next to an advertisement for "no nails" glue. A second poster showed Islamic suicide bombers at the gates of paradise being told to stop because they had run out of virgins. The court also issued a five-year Anti-Social Behavior Order against him-- a civil order banning him from carrying religiously offensive material in a public place. Taylor was convicted on similar charges in 2006. [Thanks to Volokh Conspiracy for the lead.]

Compromise Will Let South African Jurist Attend His Grandson's Bar Mitzvah

Apparently South African jurist Richard Goldstone will be able to attend his grandson's Bar Mitzvah in a Johannesburg suburb after all. Goldstone is currently a visiting faculty member at Georgetown University in Washington, D.C. Earlier this month it was reported (see prior posting) that planned demonstrations by the South African Zionist Federation over Goldstone's report to the United Nations on Israel's Gaza incursion had led Goldstone to decide not to attend. However today's New York Times reports that the South African Board of Jewish Deputies has now worked out a compromise. No protests will be held on the day of the planned Bar Mitzvah. In exchange, Goldstone will meet with leaders of the South African Zionist Federation and other Jewish groups.

Recent Prisoner Free Exercise Cases

In Taylor v. Doe, 2010 U.S. Dist. LEXIS 38201 (SD OH, April 19, 2010), an Ohio federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 38195, March 2, 2010) and dismissed an inmate's argument that his free exercise rights were infringed when he was not permitted to go to a doctor's appointment because of long hair that he wore for religious reasons. The court held that the complaint had not raised the 1st Amendment issue.

In Simmons v. Herrera, 2010 U.S. Dist. LEXIS 39819 (ND CA, March 26, 2010), a California federal district court dismissed as moot an inmate's suit for injunctive relief to obtain Native American religious services at Salinas Valley State Prison. Plaintiff has been moved to a different prison facility.

In Ransom v. Martinez, 2010 U.S. Dist. LEXIS 39707 (ED CA, March 24, 2010), a California federal magistrate judge permitted a prisoner to move ahead with free exercise and RLUIPA claims that the requirement he undergo a strip search in front of female guards violates his Muslim religious beliefs.

Traffic Arrest Intensifies Debate In France Over Ban of Burqa and Niqab

Yesterday's Irish Times reports that the debate in France over a proposed ban of the niqab and burqa (full face veils) (see prior posting) has intensified after it was learned that traffic police in the city of Nantes earlier this month fined a Muslim woman 22 Euros for driving a car while wearing a niqab. They claimed that her field of vision was obstructed by the veil. The woman's lawyer argues that the fine is not justified by concerns about road safety, and that it is a breach of human and women's rights.

Meanwhile the government confirmed that its proposed ban on the full face veil in all public places would apply to tourists as well as residents. This led to speculation that police might force luxury shoppers from the Gulf states to remove their veils on the Champs-Elysees.

Congressional Earmarks Challenged On Church-State Grounds

In a letter (full text) sent last week to the Attorney General and to the Labor, HUD and Education secretaries, Americans United identified ten Congressional funding earmarks for fiscal 2010 that it says raise church-state issues. AU contends that the recipient organizations in each case "are pervasively sectarian, engage in substantial religious activities such as teaching or proselytization, engage in religious discrimination in service provision, and/or coerce service recipients to take part in religious activities." The letter asks each department to review the grants, impose adequate church-state restrictions or, if that is impossible, refrain from funding the earmarks. In a release announcing the letter, AU executive director Rev. Barry Lynn said: "Religious pork is bad for America’s constitutional health." Nine of the challenged grants are to Christian organizations; one is to a Jewish school.

Britain Apologizes To Vatican Over Leaked Memo On Pope's Planned Visit

Britain's Foreign Office yesterday issued a public apology to the Vatican after the press obtained a copy of a provocative memo circulated earlier this month among government officials. London's Sunday Telegraph reports that the background document grew out of a "brainstorming" session among civil servants on plans for Pope Benedict XVI's September visit to Britain. Circulated within the Foreign Office by a junior official, the proposals for the "ideal visit" by the Pope included many items that were implicitly critical of current Church policies on a variety of issues. (Excerpts from memo.) Suggestions included the Pope's opening an abortion ward, doing forward rolls with children to promote healthy living, singing a duet with the Queen, reversing Church policy on women as bishops and opening a help line for abused children. A cover memo admitted that a number of the ideas were "far-fetched." Senior officials quickly withdrew the document and one official who was responsible for it has been transferred to other duties. UK's Ambassador to the Vatican has also met with Holy See officials to express regret.

A second document circulated at the same time lists individuals and groups that are important to the Pope's visit, and ranks them in order of how influential and positive they are. The singer Susan Boyle is listed as more influential than the Archbishop of Westminster.

Tax Court Rules On Disputed Religious Charitable Deductions

In Wilkes v. Commissioner of Internal Revenue, (USTC, April 22, 2010), the United States Tax Court agreed with some, but not all, of the Commissioner's disallowance of claimed religious charitable contributions by Jeffrey and Patricia Wilkes who are members of the Church of Jesus Christ. The Church has no hierarchy, clergy or formal leadership, and autonomous local churches will accept contributions directly only from their members. At issue were contributions to "Needy Saints," and other contributions to church missionaries. Needy Saints are individuals certified by the elders of the local church as deserving of assistance. The Court held that contributions given directly to these needy private individuals are not deductible. However the Court did allow deductions for $12,500 given to two missionaries because they were given to them as agents of qualified non-profit organizations.

Sri Lankan Official Complains About South Park's Portrayal of Buddha

Sri Lanka's Sunday Leader reports today on indignation in Sri Lanka over two recent episodes of the animated American television show South Park which depicted Lord Buddha snorting cocaine. The government's Minister of Religious Affairs said he would ban the shows, and even the entire series, from being televised in the country. However he would not say whether he would also ban the sale of South Park DVDs that are widely available. This stir follows objections by Muslims earlier this week over the depiction of the Prophet Muhammad on South Park. (See prior posting.) South Park episodes have portrayed other religious leaders in unflattering ways as well, including Jesus viewing Internet pornography.

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.