Both respondents, mother and sister, testified to the fact that the decedent followed many Jewish traditions, and that his Jewish faith was an important part of his daily life. Although it is not the function of this court to sit in judgment of anyone's choice in the manner in which he/she chooses to practice or observe his/her faith, the court finds that these occasional, isolated acts of religious observance do not unequivocally constitute and support the fact that Jamie actively practiced his Jewish faith. Moreover, the court finds that whatever the nature of decedent's bond of religion, it was insufficient to overcome his paramount wish that his wife and he be together in death as they were in life.... Additionally, as the proposed final resting place for his remains, St. Elizabeth Cemetery is nondenominational, there is no evidence to show that his burial there will offend his Jewish faith.... There was no evidence presented by respondents to show decedent's paramount concern was that his remains be laid to rest in a Jewish cemetery.[Thanks to Joseph Landau for the lead.]
Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Saturday, May 01, 2010
Court Permits Wife To Move Husband From Jewish Cemetery
Nurse Files State Claims After Being Required To Assist In Abortion
Friday, April 30, 2010
Delaware Court Dismisses Abuse Suits Against Out-of-State Dioceses and Parish On Due Process Grounds
The cases allege sexual abuse occurring in Delaware by priests employed by the out-of-state entities. The court refused, on First Amendment grounds, to examine canon law to determine which Church superiors were responsible for the priests' behavior. The court held that since the priests were not acting within the scope of their employment when they committed the alleged abuse, any liability of the dioceses or parish is not based on the doctrine of respondeat superior. Therefore in determining whether there was a sufficient nexus to support personal jurisdiction, the court must examine actions in Delaware of the dioceses and parish, not actions of the priests themselves. Plaintiff failed to show sufficient activities in Delaware to establish general jurisdiction over the dioceses or parish. The court likewise rejected claims of specific jurisdiction since the alleged negligence in hiring or supervising the priests, or in failing to warn potential victims, all took place out of state. The court concluded its opinion with this unusual statement directed at the plaintiffs:
If the allegations of the complaints are true, you have suffered immeasurably at the hands of men who betrayed a sacred vow and a position of trust solely to satisfy their own selfish and perverted desires. The Court realizes that the foregoing analysis must seem to be a cold, sterile calculus devoid of any understanding of the injuries you have suffered, and it is fully cognizant that its decision in this matter will leave you without a remedy because your claims are barred by the statutes of limitations in your home states. Nonetheless, the Court is bound to apply our federal constitution and the laws of this state as it finds them. The legal questions presented by these motions are not even close ones.In Naples v. Diocese of Trenton I, (DE Super. Ct., April 29, 2010), the court similarly dismissed for lack of personal jurisdiction a lawsuit brought under the Delaware Child Victim's Act against a New Jersey diocese and parish. Some of the alleged acts of sexual abuse had taken place in Delaware. However in Naples v. Diocese of Trenton II, the court refused to dismiss on forum non conveniens grounds a suit against the priest himself who allegedly abused plaintiff. Much of the abuse took place in New Jersey, but some acts took place in Delaware.
Muslim Woman Loses Suit Against Judge Who Banned Hijab In Courtroom
The court dismissed the claim for an injunction on the ground that judges have absolute immunity when acting in their judicial capacity. Here defendant was controlling the demeanor and dress of parties who were participating in matters before the court. It also dismissed the request for a declaratory judgment, finding plaintiff lacked standing. She failed to show an injury in fact. According to the court: "Albaghdady never protested removal of her head piece, she never informed Defendant that her 'hat' was a hijab, and most critically, when asked to remove it, said, 'Okay. It doesn't matter.' ... She removed her hijab without hesitation." The Detroit Free Press yesterday reported on the decision.
Lower House of Belgian Parliament Passes Burqa Ban
Court Can Enjoin Expelled Member From Entering Church Property
[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
The London Daily Express , The Independent and the Daily Mail all report on the decision.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.
Head of Egypt's Al-Azhar Cuts Political Ties
Thursday, April 29, 2010
USCIRF Releases 2010 Annual Report on International Religious Freedom
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
5th Circuit Hears Oral Arguments In Challenge To Texas Pledge of Allegiance
Retired Chaplains Urge President To Retain Don't Ask, Don't Tell
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
Virginia Governor Restores Police Chaplains' Right To Deliver Sectarian Prayers
Supreme Court Hears Arguments On Release of Names of Petition Signers
Court Lacks Jurisdiction Over Decision Not To Circulate Minister's Resume
Wednesday, April 28, 2010
Supreme Court Reverses Order Barring Display of Cross At World War I Memorial
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....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.
.... [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.
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.