9th Circuit: Appeal To Religion Did Not Void Miranda Waiver

In United States v. Scaggs, (9th Cir., April 26, 2010), the U.S. 9th Circuit Court of Appeals held that the Miranda waiver by convicted murderer David Scaggs was not renedered involuntary by interrogators appeal to his religious beliefs. In questioning Scaggs without a lawyer present, the investigator asked him if he was a religious man. When Scaggs said he was, the investigator told him: "Well, if you're a religious guy, now is the time to tell the truth." The court held that this brief reference did not overbear Scaggs' will. Indeed Scaggs did not begin to confess until interrogators played a tape of an interview with an accomplice.

Recommended Life Sentence For Rubashkin Questioned

A sentencing hearing is scheduled tomorrow in an Iowa federal district court for Sholom Rubashkin, the former manager of a Postville, Iowa kosher slaughter house who was convicted on 86 counts of financial fraud after a raid on the Agriprocessors packing plant also led to immigration charges that were eventually dropped. To the surprise of many, federal prosecutors have recommended a life sentence for Rubashkin. Yesterday's Washington Post reports that a letter from 23 former prosecutors, including former Attorneys General Janet Reno and Ed Meese, urges Judge Linda Reade to impose a shorter sentence. Some speculate that prosecutors have singled out Rubashkin, a Hasidic Jew, because of his appearance or religious beliefs, or that the U.S. Attorney's Office is motivated by anti-Semitism. (See prior related posting.)

Interpretation of Florida "No-Aid" Provision Certified To State High Court

In Council for Secular Humanism, Inc. v. McNeil, (FL App., April 27, 2010), a Florida appellate court in an Establishment Clause case, by a 7-7 vote, denied a motion for en banc review of a decision by a 3-judge panel. However the 3 judges did file an amended panel decision and certified to the state Supreme Court as a matter of great public importance the question of whether the "no aid" provision in Florida's constitution prohibits the state from contracting with religious organizations for the provision of faith based transitional housing for inmates. In certifying the question, the panel observed that this was the first instance in which the no-aid provisions had been applied outside the school context.

As the panel had done in its original decision (see prior posting), the revised decision struck down the state payments to these religious organizations, but held that plaintiffs lacked standing to challenge the constitutionality of the contracts that were entered into with these organizations and required them to provide faith-based transitional housing. Finally the court rejected a challenge to provisions requiring consultation with a chaplain before an inmate is placed in a faith-based substance-abuse transitional housing program.

Justice Thomas (joined by 4 others) wrote a dissenting opinion to the denial of en banc review urging the court to use this case as an opportunity to reverse earlier precedent and hold that paying a religious institution to provide a public benefit does not amount to "aid" to the institution. Yesterday's Miami Herald reported on the decision.

Islamic Clerics In Kenya Banning Public Soccer Broadcasts

Reuters yesterday reported that a group of Islamic clerics in Kenya are trying to prevent public broadcasts of soccer and of films in the area around the town of Mandera, near the border with Somalia. The clerics say that young people are being distracted from their religious obligations by the broadcasts, so the clerics are confiscating equipment, destroying DVDs, and compensating the owners for them. While this sort of ban cannot be enforced legally in Kenya, the clerics have pressured local administrators to support it. Many Kenyans are particularly distressed by the move because of the upcoming World Cup competition scheduled for June in South Africa. Kenyans are avid soccer fans, and many more moderate Muslim clerics in the country do not necessarily support the broadcast ban.

Court Says Student May Participate In Pro-Life Day of Solidarity

In C.H. v. Bridgeton Board of Education, (D NJ, April 22, 2010), a New Jersey federal district court enjoined a New Jersey high school from preventing a student from distributing flyers and wearing a red duct tape armband reading "Life" as part of her participation in the Pro-Life Day of Solidarity. Applying the Supreme Court's Tinker decision, the court held that school officials had not carried their burden of showing a well-founded fear that either the armband or flyers will cause substantial disruption to the educational process. Alliance Defense Fund issued a release announcing the decision. (See prior related posting.)

New Poll On Religion In Public Life

Last Friday, Rasmussen Reports released a new poll of American adults on issues of religion in public life and the performance of the courts. Among the results: 64% believe judges' rulings have been more anti-religious than intended by the country's founders. 46% say the Supreme Court has been too hostile toward religion. 39% say the Court is too liberal, while 25% say it is too conservative. 45% believe that justices nominated by President Obama will be too liberal. 61% favor prayer in public schools. Breakdowns show Evangelical Christians most likely to see courts as anti-religious.

5th Circuit Hears Oral Arguments On Texas School Agency Creationism Policy

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Comer v. Scott. (Recording of oral arguments.) In the case the district court rejected an Establishment Clause challenge to a policy of the Texas Education Agency (TEA) that required its Director of Science to remain publicly neutral regarding the teaching of creationism. The Director, Christina Comer, was fired for forwarding to two listservs and seven science educators an announcement about an anti-Creationism talk that was being presented in Austin. (See prior posting.) Yesterday the Washington Post reported on the 5th Circuit oral arguments. Judge Fortunato Benavides pressed Comer's lawyer on why this wasn't a free speech claim instead of an establishment clause one. Lawyer Douglas Mishkin said that TEA's neutrality policy endorses a religious belief.

Christian Stock Index Launched

London's Financial Times reported that Europe's first stock index based on Christian values was launched yesterday. Stoxx Europe Christian Index consists of stocks of 533 European companies whose revenues come only from sources approved "according to the values and principles of the Christian religion." Companies are excluded if they profit from pornography, weapons, tobacco, birth control or gambling. The companies in the index are screened by a committee that includes representatives of the Vatican.

Obama Meets With Ailing Billy Graham In North Carolina

AP reports that yesterday while in North Carolina, President Barack Obama traveled to visit ailing 91-year old evangelist Billy Graham at Graham's mountainside home. Graham's son, evangelist Franklin Graham, was also there. Obama's visit lasted 30 minutes. Staff of both men were at the meeting. Obama had a private prayer and conversation with Graham who presented Obama Bibles for himself and the First Lady. Franklin Graham said his father prayed for the nation and asked God to give Obama wisdom in his decisions. Obama thanked God for Billy Graham's life.

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.