Court Can Enjoin Expelled Member From Entering Church Property

In Church of Christ in Hollywood v. Cage-Barile, (CA App., April 27, 2010), a California appellate court upheld against constitutional attack an injunction issued barring an expelled Church member from entering Church property. Lady Cage-Barile was expelled for disrupting religious services and harassing the congregation. She now contends that the First Amendment and comparable state constitutional provisions preclude civil courts from adjudicating whether she has the right to enter church property. The court disagreed, saying:

[R]egardless of whether the Church is congregational or hierarchical, its decision to terminate Cage-Barile's membership is binding on us. That decision was based on religious doctrine and, as a matter of constitutional law, is not subject to review by civil courts. Nor is there any suggestion in the record that the Church failed to follow the proper procedures in making its decision. The Church held a noticed meeting, invited the congregation, allowed Cage-Barile to speak to the assembly, and, thereafter, the board and membership expelled her.... Under the First Amendment, the courts must accept the Church's decision. The question before us is whether, having expelled Cage-Barile, the Church can prevent her from entering its property. The answer is yes....

British Appeals Court Rejects Plea For Special Panel To Adjudicate Religious Rights Cases

Yesterday in Britain's Court of Appeal, Lord Justice Laws sharply rejected charges that the regular judges of the court do not understand Christianity or other relgious faiths. He reiterated an earlier decision of the court to refuse to allow an appeal of a controversial employment discrimination case. Last November, the Employment Appeal Tribunal upheld the right of a counseling service to require employees to serve all clients. Counselor Gary McFarlane was dismissed after he refused on the basis of his Christian religious beliefs to counsel same-sex couples. The EAT rejected McFarlane's religious discrimination claim. (See prior posting.) After the Court of Appeal in January rejected an application to appeal, McFarlane, backed by Lord Carey, the former Archbishop of Canterbury, petitioned for appointment of a special Court of Appeal panel of five judges who understand religious issues to hear McFarlane's appeal and future appeals involving religious rights. (See prior posting.) Rejecting that request, in McFarlane v. Relate Avon Ltd., (Ct. App., April 29, 2010), the court said:

The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.... But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.

... We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials.

The London Daily Express , The Independent and the Daily Mail all report on the decision.

Head of Egypt's Al-Azhar Cuts Political Ties

On Wednesday, IPS reported that the new head of Al-Azhar, Egypt's premier center of Islamic learning, has resigned from President Hosni Mubarak's ruling National Democratic Party in order to avoid charges that the government is mixing religion and politics. On April 11, Mubarak accepted the resignation of Grand Sheik Ahmed al-Tayeb who had been a member of the group that draws up NDP party policy. The resignation was motivated by the fact that NDP often charges its chief opposition-- the Muslim Brotherhood-- with exactly that kind of mixing of religion and politics. (See prior related posting.)

USCIRF Releases 2010 Annual Report on International Religious Freedom

In a press release today, the U.S. Commission on International Religious Freedom announced the release of its 2010 Annual Report. The Report recommends to Congress, the White House and the State Department that 13 countries be listed as "countries of particular concern (CPCs)" -- countries where the most egregious violations of religious freedom are taking place. Those countries are Burma, China, North Korea, Eritrea, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam. It listed 12 other countries that it is placing on its watch list of nations that require close monitoring due to the extent that religious freedom is being infringed. Those are: Afghanistan, Belarus, Cuba, Egypt, India, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela.

USCIRF's 382-page report documents religious freedom issues in both CPC and watch list countries, as well as in three others that are being closely monitored: Bangladesh, Kazakhstan and Sri Lanka. Under the International Religious Freedom Act of 1998, USCIRF's report is to be considered by the State Department in preparing its Annual Report to Congress on International Religious Freedom. Also each year, the President is to revise the list of CPCs. The most recent list (see prior posting) is comprised of 8 of the 13 countries recommended this year by USCIRF: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia (with a waiver), Sudan, and Uzbekistan. An AP article discusses the USCIRF Report.

Court Says Juror's Discussion With Pastor On Capital Punishment Was Harmless Error

In Centennial, Colorado, a trial judge has ruled that a juror's discussions of the death penalty with his pastor during a recess in jury deliberations in a murder trial amounted to harmless error. Yesterday's Aurora (CO) Sentinel reports that, in violation of the judge's instructions, a juror in the trial of Robert Ray sought the advice of his pastor on his church's views on capital punishment. The pastor told him the church was opposed to it, but that he was free to make his own decision on the matter. One of Ray's lawyers argued that this "green-lighted" the juror's vote in favor of imposing the death penalty on Ray. The court, however, concluded that it had not been shown that the conversation affected the decision of the juror in question or his fellow jurors. Defendant Ray is already serving a 108-year sentence for his part in another murder.

5th Circuit Hears Oral Arguments In Challenge To Texas Pledge of Allegiance

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Croft v. Perry, (recording or oral arguments), an Establishment Clause challenge to the Texas Pledge of Allegiance recited in public schools in Texas. State law permits students to opt out of reciting the Pledge, which refers to Texas as "one state under God." The district court found a secular legislative purpose and concluded the pledge did not amount to an endorsement of religion. (See prior posting.) Texas Tribune reports on the case and has posted the full text of the Texas Attorney General's brief in the appeal.

Retired Chaplains Urge President To Retain Don't Ask, Don't Tell

Yesterday 41 retired military chaplains sent a letter (full text) to President Obama and Secretary of Defense Gates urging them to retain the military's current "don't ask, don't tell" policy on gays and lesbians in the armed forces, or at least to include robust religious liberty protections in any change. Copies of the letter were sent to additional military and legislative leaders as well. (CBS News reported on developments.)

The letter says: "if the government normalizes homosexual behavior in the armed forces, many (if not most) chaplains will confront a profoundly difficult moral choice: whether they are to obey God, or to obey men." The letter contends that chaplains will be pressured into watering down their religious teachings and may have their ability to share their religious beliefs challenged. It goes on to argue:

Marginalizing a large group of chaplains ... will unavoidably harm readiness by diminishing morale. Similarly, making orthodox Christians-- both chaplains and servicemen-- into second-class Soldiers, Sailors, Airmen or Marines whose sincerely-held religious beliefs are comparable to racism cannot help recruitment or retention.

According to Congress.org, to counter the letter, six gay rights activists delivered toy soldiers to their lawmakers yesterday to represent the 13,500 service personnel who have been discharged under "don't ask, don't tell." Also, the Interfaith Alliance released a statement (full text) criticizing the chaplains' letter, saying in part: "Repealing 'Don't Ask, Don't Tell' is a step forward in equality and justice for all citizens. When chaplains find the government's pursuit of these goals to be a threat to their values, we must ask whether something is askew with their values."

Iran Limits Rights of Sunnis To Conduct Prayers

According to a report yesterday from Asharq Al-Awsat, the government of predominately Shiite Iran has recently issued a ban on Sunnis praying at state universities and military camps. The order follows a ban in several cities of Sunnis holding Friday prayer services in their homes.

Virginia Governor Restores Police Chaplains' Right To Deliver Sectarian Prayers

In Virginia, a State Police policy adopted in 2008 requiring police chaplains to deliver non-sectarian prayers at official events has been reversed by Gov. Bob McDonnell's administration. Yesterday's Hampton Roads Virginian-Pilot reports on the change that had been pressed by the Family Foundation of Virginia. When the prior policy was adopted by the Gov. Tim Kaine administration, six of the department's seventeen volunteer chaplains resigned in protest. (See prior posting.) The policy restored yesterday allows chaplains to pray according to the dictates of their own conscience, in accordance with their faith traditions, while being respectful of other faiths. The ACLU of Virginia (press release) had urged McDonnell to ignore lobbying efforts of those who wanted sectarian prayer restored.

Supreme Court Hears Arguments On Release of Names of Petition Signers

The U.S. Supreme Court yesterday heard oral arguments in Doe v. Reed, (full transcript of arguments). At issue is whether the right to anonymous political speech was infringed when Washington state, under its Public Records Law, released the names of those who signed a petition seeking a referendum on the state's domestic partnership law. The 9th Circuit found no First Amendment problem with the release. (See prior posting.) The New York Times says that the First Amendment arguments were met with skepticism from justices across the ideological spectrum. Justice Scalia remarked: "running a democracy takes a certain amount of civic courage."

Court Lacks Jurisdiction Over Decision Not To Circulate Minister's Resume

In Thibodeau v. American Baptist Churches of Connecticut, (CT App., April 27, 2010), the Appellate Court of Connecticut held that the free exercise protections of the U.S. and Connecticut constitutions preclude it from exercising jurisdiction over complaints by a Baptist minister that the regional organization of American Baptist churches refused to circulate his resume to congregations because of concern about his fitness for the ministry. The court held that plaintiff's promissory estoppel, defamation, fraud and infliction of emotional distress claims all involve issues of the church's internal management and the right of a church to determine, without government interference, the qualifications of individuals to serve as a member of the clergy. (See prior related posting.)

Supreme Court Reverses Order Barring Display of Cross At World War I Memorial

The U.S. Supreme Court today, in a fragmented decision producing six separate opinions, decided a challenge to Congress' transfer of a religious symbol on federal land to a private party, the VFW. The case involved the long-running dispute over the Sunrise Rock Cross in the Mojave Preserve memorial to those killed in World War I. In Salazar v. Buono, (Sup. Ct., April 28, 2010), the Court reversed the 9th Circuit and remanded the case. The Court of Appeals had found Establishment Clause problems with Congress' transfer of the cross. (See prior posting.) The Supreme Court's decision was announced in an opinion written by Justice Kennedy, joined by Chief Justice Roberts and joined in part by Justice Alito.

Justice Kennedy concluded that the government's objections to plaintiff's standing could not be raised at this stage of the litigation because the government had not properly sought Supreme Court review of the issue when it was initially decided. He then focused on the complex procedural history of the case. The district court enjoined the government from permitting display of the Cross on Sunrise Rock before Congress passed the statute transferring the land to a private party. The Court of Appeals affirmed on the ground that a reasonable observer would see the cross as an endorsement of religion. Plaintiff's challenge to the land transfer was brought in the form of seeking to apply or extend the original injunction to it. The district court enjoined the transfer on the basis of an improper Congressional purpose. Justice Kennedy objected:

The District Court thus used an injunction granted for one reason as the basis for enjoining conduct that was alleged to be objectionable for a different reason.... [It] failed to consider whether, in light of the change in law and circumstances effected by the land-transfer statute, the "reasonable observer" standard continued to be the appropriate framework through which to consider the Establishment Clause concerns invoked to justify the requested relief. As a general matter, courts considering Establishment Clause challenges do not inquire into "reasonable observer" perceptions with respect to objects on private land....

.... [T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

In a one-paragraph concurring opinion, Chief Justice Roberts said that the land transfer was no different that tearing down the cross, selling the land to the VFW, and having the VFW reconstruct the cross.

Justice Alito, writing separately, said he agreed with Justice Kennedy, except he did not see any need to remand the case for further proceedings. He would reverse the decision and instruct the district court to vacate its order prohibiting implementation of the land-transfer statute. He said:

Congress chose an ... approach that was designed to eliminate any perception of religious sponsorship stemming from the location of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument. The mechanism that Congress selected is one that is quite common in the West, a "land exchange."

Justice Scalia wrote an opinion joined by Justice Thomas, concurring in the judgment but arguing that plaintiff lacks Article III standing to pursue what Scalia characterized as new relief, not an appliation of the original injunction. Plaintiff failed to allege any actual or imminent injury from the land transfer, since the only injury plaintiff claimed was his concern with seeing the cross on federal land.

Justice Stevens, in an opininon joined by Justices Ginsburg and Sotomayor, dissented. Stevens argued that it was proper for the district court to find that the land transfer statute violated its original injunction. He concluded that the land transfer statute did not end government endorsement of the cross:

First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display.

Stevens goes on to assert that the plurality is attempting to reopen a settled issue-- whether the government can endorse the cross because of its dual symbolism. In concluding, he emphasized that because Congress has created no other memorial to the veterans of World War I, this sectarian symbol is the only monument to all the soldiers who died in that war.

Finally Justice Breyer wrote a separate dissent arguing that the Court should have dismissed the writ of certiorari as improvidently granted since the case turns on fairly clear principles of the law of injunctions and presents no federal questions of general significance. A district court has considerable leeway to interpret the meaning of its own injunctions, and should interpret the scope of an injunction in light of the injunction's purpose and history. The district court did that here. The Washington Post reports on the decision.

Creator Of "Draw Mohammed" Campaign Backs Off, As Others Continue It

Reacting to last week's online threats to the creators of South Park over their depiction of the Prophet Muhammad in a bear costume (see prior posting), Seattle artist Molly Norris created a poster promoting May 20 as "Everybody Draw Mohammed Day," sponsored by a fictional group, Citizens Against Citizens Against Humor. The poster also included sketches of items such as a coffee cup and a pasta box each claiming to be the real Mohammed. The poster spread virally on the Internet, creating a reaction for which Norris was unprepared. AOL News and the National Post yesterday both reported that Norris has now backed off, posting a statement reading in part: "I did not intend for my cartoon to go viral. I did not intend to be the focus of any ’group’. This particular cartoon has struck a gigantic nerve, something I was totally unprepared for." Also Jon Wellington who created a Facebook page publicizing Norris' efforts has backed out, surprised at the deeply offensive drawings that were posted to his site. However now a Toronto IT specialist calling herself "Mimi" says she will promote the May 20 event. Also, Michael Moynahan at Reason has invited submissions that he says he will post on May 20.

Dispute Continues Over Nepal As Secular State In Proposed Constitution

In Nepal, as law makers approach the May 28 deadline for completing a draft of a new constitution, tensions increase over whether the country will remain a secular state. In 2006, Parliament passed a resolution providing that the country would no longer formally be known as a Hindu nation. (See prior posting.) Last week, Christians rallied in Kathmandu demanding that the new constitution ensure their rights by keeping Nepal as a secular state. Cath News India reports that Christians are pressing for provisions in the constitution that protect their right to form Christian NGOs and church trusts easily. However yesterday's London Guardian reports that there are increasing pressures, fueled by Hindu nationalists in India, to once again declare Nepal a Hindu state. A popular Nepal holy man, Kali Baba, has threatened to burn himself alive if the country is not again declared Hindu. According to the Guardian, even the proposed new constitution does not completely protect free exercise because it continues a ban that is in the country's interim constitution that prohibits converting another person from one religion to another.

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.