Indian Tribe Now Excluded From Sacred Site In California Marine Life Protection Initiative

Under California's Marine Life Protection Act Initiative, new regulations that became effective on May 1 set aside 21 Marine Protected Areas. The San Francisco Bay Independent Media Center yesterday reported that on April 30, Native American tribal leaders held a ceremony to bless a site that is sacred to the Kashia Tribe of Pomo Indians who are now excluded from gathering seaweed and fishing in the area. The site on Stewarts Point (called "Danaka" by the tribe) is referenced in the tribe's creation story. Some 25 tribes are pressuring California to address tribal ceremonial and subsistence rights as part of the MLPA process.

French Parliament Adopts Non-Binding Resolution Opposing the Burqa

In another step toward outlawing the wearing of the burqa in France, yesterday the French National Assembly, the country's Parliament, adopted by a vote of 434-0 a non-binding resolution declaring that "radical practices which violate the dignity and equality between men and women, such as the wearing of the full veil, are contrary to the values of the republic." AFP reports that 30 Communist members in the 577-seat National Assembly walked out in protest of the vote. The Sarkozy government is moving ahead with a bill that will formally ban the burqa in public (see prior posting), though the Socialist opposition, in order to avoid a court challenge, wants the ban limited to wearing of the burqa in state institutions. The government's bill will cover wealthy foreign tourists who currently often frequent shops in Paris while fully veiled.

Meanwhile yesterday, the Council of Europe announced in a press release that its Parliamentary Assembly's Committee on Culture, Science and Education has adopted a resolution opposing a general ban on the niqab or burqa for women who "genuinely and freely desire" to wear it. It said a more limited ban for security purposes or where public or professional functions call for religious neutrality or showing of one's face may be justified. However a broader ban may violate freedom of religion protected by the European Convention on Human Rights.

Muslim Police Officer's Religious Discrimination Claim Dismissed

In Wallace v. City of Philadelphia, (ED PA, April 26, 2010), a Pennsylvania federal district court held that a Muslim police officer's request to wear his beard longer than permitted by police department policy could not be reasonably accommodated without imposing an undue burden on the city. It therefore dismissed plaintiff's Title VII religious discrimination claim as well as his claim under the Pennsylvania Human Relations Act. Police Department policy permitted officers to wear beards up to one-quarter inch in length for medical or religious reasons. Plaintiff was eventually terminated for refusing to comply with this limitation. The court observed that "to permit employees to mark themselves uniquely in the name of religious accommodation, at the cost of maintaining an employer's neutrality and uniformity, may ask too much." [Thanks to Volokh Conspiracy for the lead.]

Sunrise Rock Cross-- Focus of SCOTUS Decision-- Stolen By Vandals

The Cross on Sunrise Rock in Mojave National Preserve-- the focus of a recent Supreme Court decision-- has been torn down by vandals. CNN reports that the 6-foot high metal cross that served as a memorial to those killed in World War I was removed Sunday night from its difficult-to-reach site in the California desert. Last month the U.S. Supreme Court issued a fragmented ruling in the Establishment Clause challenge to the cross, which had been transferred to the VFW in order to avoid constitutional issues. The Supreme Court's decision in Salazar v. Buono permitted the cross to remain, at least for now. The National Park Service is investigating the incident, but no arrests had been made as of Tuesday morning. [Thanks to James Maule via Religionlaw for the lead.]

Religious Advocacy Groups Issue Statements On Kagan Nomination

A number of religious advocacy groups have issued statements commenting on President Obama's nomination of Elena Kagan to the U.S. Supreme Court. The Baptist Joint Committee said it hopes Kagan, if confirmed, "will protect our most fundamental freedom — religious freedom — with a commitment to principles of both no establishment and free exercise embodied in our 'first freedom'." Catholic Families for America opposed the nomination, saying it had "'grave concerns' about her promotion of same-sex 'marriage' and abortion, as well as a 'dangerous internationalism' that has become fashionable among leftist jurists." The American Jewish Committee welcomed the nomination, saying: "We commend President Obama on nominating Elena Kagan, whose strong legal credentials make her a worthy candidate for the U.S. Supreme Court."

Americans United for Separation of Church and State said: "We simply don’t know much about Elena Kagan’s views on church-state separation.... It's the job of the Senate Judiciary Committee to fill in the picture by asking her questions about how religion and government should interact." Liberty Counsel also raised questions: "The Senate should press hard to question Elena Kagan on her judicial philosophy. The public deserves to know whether Kagan will use her transnational law philosophy as a lens through which she views the Constitution. And the public needs to know whether her personal views will trump the Constitution, as they appeared to do when she banned military recruiters from campus."

The Jewish Council for Public Affairs release said: "Supreme Court nominees should be held the highest standard and be fully committed to protecting justice for all and our nation's core values described in the Constitution and the Bill of Rights.... We encourage Senators to give Ms. Kagan full and fair consideration and hope all sides keep discussions and debate civil." The Muslim Public Affairs Council said: "We call upon Ms. Kagan, if she is confirmed, to follow in the footsteps of Justice Stevens in his commitment to preserving individual freedoms, checking executive power, and upholding the rule of law which have made America a better place for over 35 years."

In Ontario Unemployed Teachers Are Changing Religion To Improve Job Chances

Toronto's Catholic District School Board, like most other Catholic school boards in Canada, requires that all teachers it hires for its schools must be Catholic-- a practice permitted under Ontario's Human Rights Code. Yesterday the Toronto Globe & Mail and Parentcentral.ca both report that increasingly unemployed, non-religious teachers are turning to Catholicism in order to get a teaching position. They are becoming increasingly involved in order to obtain a pastoral letter of recommendation from their parish priest. Ontario has twice as many teachers as teaching positions available. At least some of the teachers are apparently going through the motions of religious observance only so they can qualify for a teaching position. The superintendent of human resources for the Board doubts that teachers who were once practicing Catholics have disingenuous reasons for returning to their faith, and says those converting are generally interviewed during the conversion process.

First Freedom Center Has New President

Yesterday's Richmond Times-Dispatch reports that Randolph Marshall Bell, former
ambassador-at-large and special envoy for Holocaust issues for the State Department from 2002 to 2003, has become president of the First Freedom Center. The Center is devoted to increasing understanding and respect for religious liberty. Bell wants to expand the organization's national and international educational efforts, and expand the Center's use of electronic media to reach out to more schools and universities.

Elena Kagan Nominated By Obama To Supreme Court [UPDATED]

The White House this morning announced President Barack Obama's nomination of Solicitor General and former Harvard Law School Dean Elena Kagan to the U.S. Supreme Court to replace retiring Associate Justice John Paul Stevens. (Full text of remarks by President and Kagan.) The New York Times today has an extensive background article on Kagan along with the full text of her confirmation hearings for Solicitor General. If confirmed, she will become the third Jewish Justice (along with Justices Ginsburg and Breyer). This will mark the first time that three members of the Jewish faith sit on the Supreme Court at the same time. Also, with Justice Stevens retirement, it will mark the first time that the high court has had no Protestant justices. (See prior posting.) One of the anecdotes recounted by the Times is Kagan's clash, as a 12 or 13 year old, with her rabbi over what the content of her bat mitzvah ceremony would be.

Much of Kagan's published scholarly writings (full list at pp. 52-53 of Hearings) focus on the constitutional issues surrounding the regulation of hate speech. These include: The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Supreme Court Review 29 [Hein-on-Line link]; Regulation of Hate Speech and Pornography After R.A.V., 60 Univ. Chi. L. Rev. 873 (1993) [LEXIS link]; When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 UC Davis L. Rev. 957 (1996); and Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996) [LEXIS link].

During Kagan's confirmation hearings for Solicitor General, she was questioned (Hearings at pp. 97-98) about a memo she wrote as a law clerk for Supreme Court Justice Thurgood Marshall suggesting that government funding through the Adolescent Family Life Act for faith-based social service organizations to discourage teen pregnancy was improper because inevitably religious teaching would be injected into the organizations' social services. At her hearings, she rejected her earlier position, saying in written answers that her earlier view was "deeply mistaken" and that she now believes that it is incorrect to presume that a religious organization will use grant funds in an impermissible way to further religion.

Swedish Law Firm Sues Government For Discrimination After Muslim Lawyer Is Removed From Case

In Sweden, a law firm has filed an unusual discrimination lawsuit against the state according to Saturday's The Local. Last fall, a Muslim lawyer from the firm of Salmi & Partners was appointed by the country's Migration Board to represent an Egyptian Christian and his family who were seeking asylum because of persecution by Muslims in Egypt. The asylum applicant, however, objected to having a Muslim lawyer appointed. While the Board refused, on appeal the Supreme Migration Court agreed that a non-Muslim lawyer should be appointed for him, saying that given the grounds on which he was seeking asylum his concerns were understandable. Now Salmi & Partners is seeking damages of 100,000 kroner from the state, arguing that the ruling will deter law firms from hiring Muslims for fear that it could reduce their chances of obtaining appointments from the Migration Board. The firm is also seeking leave to appeal the Supreme Migration Court's ruling to the Supreme Administrative Court.

Court Settles Dispute Between Church and Its Former Treasurer

In Casa de Oracion, Church of God of Prophecy v. Carrasco, 2010 Cal. App. Unpub. LEXIS 3333 (CA 6th App., May 7, 2010), a California Court of Appeals upheld a trial court's resolution of a dispute between a San Jose church and its former treasurer. Applying neutral principles, the court found that the unincorporated Church of Prophecy changed its status to a corporation knonw as Casa de Oracion and the corporation became the owner of the church's property. The court also found that Sam Carrasco was properly removed as treasurer of the church, and that the trial court properly ordered him to deposit church funds with the court.

Recent Articles and Book of Interest

From SSRN:

• Salim Farrar, The Role of the Defence in Islamic Law, (Sydney Law School Research Paper No. 10/42, May 4, 2010).
• Mark L. Movsesian, Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform, (University of St. Thomas Journal of Law & Public Policy, Forthcoming).
• Frederick Mark Gedicks, Undoing Neutrality? From Separation to Tolerance in Establishment Clause Jurisprudence, (Willamette Law Review, 2010).

From SmartCILP:

• Alex Schulman, Kulturkampf and Spite: The Rehnquist Court and American "Theoconservatism", [Abstract], 22 Law & Literature 48-75 (2010).

New Book:

• Elaine Howard Ecklund, Science vs. Religion: What Scientists Really Think, (Oxford Univ. Press, May 6, 2010).

Recent Prisoner Free Exercise Cases

In Munson v. Norris, (8th Cir., May 3, 2010), the 8th Circuit Court of Appeals affirmed a trial court's instructions to the jury on the elements of an Establishment Clause claim by a paroled prisoner who exhibited sexual deviancy. Plaintiff claimed he was forced to recite a prayer at the end of 12-step meetings that were part of his parole. Despite concern about the trial court's instruction that plaintiff had to show he was damaged, the court concluded that this did not rise to the level of plain error and affirmed the jury verdict that found no Establishment Clause violation.

In Smith v. Ludwick, 2010 U.S. Dist. LEXIS 42396 (ED MI, April 30, 2010), a Michigan federal district court dismissed an inmate's habeas corpus action in which he complained that he was denied the right to participate in the kosher meal program. Habeas is not available to challenge conditions of confinement, as opposed to the length or duration of a sentence.

In George v. Morgan, 2010 U.S. Dist. LEXIS 42667 (D DE, April 30, 2010), a Delaware federal district judge permitted an inmate to proceed with his claim that he was n ot allowed to attend chapel services or receive spiritual counseling. He also claimed that prison officials punished him for praying in his cell, telling him that talking to God is a sign of being crazy.

In Ramziddin v. Monmouth County Sheriff Department, 2010 U.S. Dist. LEXIS 42798 (D NJ, April 30, 2010), a New Jersey federal district court dismissed without prejudice a Muslim pre-trial detainee's clams that correctional officials violated his free exercise rights when they confiscated his prayer rug for security reasons, limited the areas in which he could wear his kufi, failed to serve meals that conform to his religious preferences, and forced him to pray in "awkward and unsanitary" conditions in the multi-purpose room or in cells.

In Ind v. Colorado Department of Corrections, 2010 U.S. Dist. LEXIS 43312 (D CO, March 23, 2010), a Colorado federal magistrate judge recommend that an inmate who followed a branch of the Christian Identity Movement be allowed to proceed with his RLUIPA claims for an injunction stemming from his allegations that he was denied the opportunity to take communion alone in his cell and was denied religious texts. It held that one of the defendants had qualified immunity as to damage claims.

In Greenfield v. Corzine, 2010 U.S. Dist. LEXIS 44433 (D NJ, May 6, 2010), a New Jersey federal district court held that a civil committee under the Sexually Violent Predator Act failed to allege sufficient facts to state a free exercise claim when he alleged only that he was denied the right to participate in religious services while he was in "map" for 60 days in 2006. Also the statute of limitations had run on the claim.

In Rouser v. White, 2010 U.S. Dist. LEXIS 44151 (ED CA, April 15, 2010), a California federal district court issued a preliminary injunction in a lawsuit filed by a Wiccan prisoner alleging various infringements of his rights under the free exercise clause and RLUIPA. The injunction required that prison officials allow plaintiff to keep and maintain religious texts (including but not limited to A Witches' Bible Compleat (the "Wiccan Bible"), that they allow him to obtain group Wiccan items before Wiccan group services; that they do not take or destroy plaintiff's religious articles; that plaintiff be provided a way to order and receive religious items; that officials announce Wiccan services to the same extent they announce services for the mainstream faiths; that plaintiff be allowed to access the outdoor, nature-based religious area when Wiccan services are scheduled; and that plaintiff be given access to the fire pit during religious services.

Court Rejects Constitutional Argument Against Limit On Child's Religious Exposure

A Chicago trial court judge has rejected constitutional arguments by law student Joseph Reyes who, in a widely publicized custody case, defied a court order that he not expose his daughter to any religion other than Judaism. (See prior posting.) Reyes argued that the order was unconstitutional because the order was too vague, and that the court cannot constitutionally determine what constitutes the Jewish religion. According to WGN News, on Friday the court ruled that Reyes must stand trial for contempt. Rejecting Reyes' arguments, the court said that it can properly adjudicate religious disputes in the best interest of the child. The final decree dissolving the couple's marriage eliminated the restriction on Reyes. (See prior posting.)

Arizona Eliminates Last Limits on Sunday Liquor Sales

The Verde (AZ) Independent reports that on Thursday Arizona Gov. Jan Brewer signed HB 2143 that eliminates the ban on early morning Sunday liquor sales. Church goers have been protected from liquor temptations by the ban on sales before 10:00 a.m. Now, when the new law takes effect at the end of July, liquor sales on Sunday will be no different than on other days-- beginning at 6:00 a.m.

Court Overrules Jewish Cemetery's Objections To Moving of Body

An Allegheny County, Pennsylvania court has overruled the objections of a Jewish cemetery and permitted the body of a man who died almost 45 years ago to be reburied elsewhere as requested by his family. Yesterday's Pittsburgh Post-Gazette reports on the dispute between the Orthodox Jewish Poale Zedeck cemetery and Howard Tobin's widow (recently deceased)and daughter, who want their husband and father moved to the Star of David section of Homewood Cemetery where Tobin's widow also bought plots for herself and their son who died in 2008. The cemetery's refusal is based on Jewish religious law that only allows bodies to be moved for limited reasons. The court said that the family's interest outweighs that of the cemetery.

Establishment Claim Against Charter School Proceeds, But Students May Not Intervene

In ACLU v. Tarek ibn Ziyad Academy, (D MN, May 7, 2010), a Minnesota federal district court refused to dismiss the ACLU's claim against individual board members of a charter school in a suit that alleged the school is in fact sectarian and promotes Islam in violation of the Establishment Clause. The court held that the complaint sets forth sufficient facts to state a claim aginst individual defendants, and that they do not have qualified immunity as to the claims. It held that the school itself is not immune from suit under the 11th Amendment because under Minnesota law school boards are treated as municipalities, not as an arm of the state. The court also allowed cross claims for indemnification against TiZA filed by its sponsor and the state Commissioner of Education to proceed.

Finally the court denied an application by ten TiZA students and four of their parents to intervene to protect the school's accommodation of their free exercise of religion. The court held that any injury to the students that might result from a settlement of the lawsuit by TiZA is too remote and speculative, and that any impairment of their rights might well be traceable to TiZA rather than plaintiffs. It also held that the students had delayed too long in filing a motion to intervene. However, the court granted the students permission to file an amicus brief in the case. The Minneapolis Star Tribune reported on the decision. (See prior related posting.)

Court Explains Continued Jurisdiction Over Santa Rosa Schools Consent Decree

In yet another installment in the attempt by teachers, parents and others to challenge a consent decree entered into by the Santa Rosa Florida school district to settle an Establishment Clause challenge to religious activities in the schools, a Florida federal district court this week issued a ruling "intended to memorialize the basis for the court's conclusion that it retains ancillary enforcement jurisdiction over the consent decree." A Christian teachers group seeking to intervene argued that the court lacked jurisdiction because the original plaintiffs had graduated high school, rendering the case moot. In Doe v. School Board for Santa Rosa County, 2010 U.S. Dist. LEXIS 44400 (ND FL, May 6, 2010), the court said: "The decree itself stands as a valid final order subject to this court's enforcement jurisdiction, regardless of the graduation status of the named plaintiffs." The ruling seems to undercut one of the arguments raised in a separate case filed two days earlier seeking to enjoin Santa Rosa school officials from enforcing the settlement. (See prior posting.)

NY Community Board Approves Plans For Mosque Near Ground Zero

In New York City, the Community Board of lower Manhattan voted unanimously Wednesday night to support a planned 15-story community center which will include a mosque two blocks away from ground zero. CNN reported Friday that the plans, which do not legally need Community Board approval, were drawn up by two groups devoted to promoting greater understanding of Muslims. Daisy Khan, executive director of the American Society for Muslim Advancement, said the project will celebrate pluralism in the U.S. and will help amplify the voices of the majority of Muslims who reject extremist ideologies. Relatives of 9/11 victims were divided on the project.

DC Circuit Dismisses Suit Challenging Past and Future Inaugural Prayers and Presidential Oath

Today in Newdow v. Roberts, (DC Cir., May 7, 2010), the Court of Appeals for the D.C. Circuit dismissed an Establishment Clause challenge to prayer and the use of "so help me God" in the oath at Presidential inauguration ceremonies. An opinion by Judge Brown, joined by Judge Ginsburg, held that the suit should be dismissed on mootness and standing grounds, while a concurring opinion by Judge Kavanaugh would have dismissed on the merits.

Judge Brown wrote that the challenge to religious expressions at President Obama's 2009 inauguration is moot. Plaintiffs failed to appeal the district court's denial of a preliminary injunction. (See prior posting.) Had they done so and had they won on appeal, that would have avoided mootness. As to their challenge in connection with the 2013 and 2017 inaugurations, plaintiffs are seeking relief against unknown parties over whom the court lacks jurisdiction. There is no assurance that those involved in planning the 2009 Inauguration will be involved in the future. And there is no way for plaintiffs to sue all possible future Presidents-elect. Therefore a declaratory judgment will not remedy the wrong being challenged and plaintiffs lack standing to pursue these claims.

Judge Kavanaugh concluded that plaintiffs have standing to challenge prayers and the oath for future inaugurations, but that neither violate the Establishment Clause. The prayers, in the forms they have been offered at inaugurations, should be permitted under the U.S. Supreme Court's decision in Mash v. Chambers upholding non-proselytizing legislative prayer. The words "so help me God" added to the Presidential oath should also be upheld as a long national tradition that is neither proselytizing nor exploitative. Judge Kavanaugh also used his opinion to explain his earlier vote to deny plaintiffs' motion for the court to eliminate at oral arguments in this case its usual call asking God to save the court and the country. (See prior posting.) [Thanks to Bob Ritter for the lead.]

North Carolina Diocese Settles Abuse Case For $1M

The Diocese of Charlotte, North Carolina has agreed to settle a priest sexual abuse case by paying the victim $1 million, as well as paying for counseling for him. Today's Charlotte Observer reports that the lawsuit involves abuse by Rev. Robert Yurgel when plaintiff was an altar boy in 1999 at Charlotte's St. Matthew Catholic Church . Yurgel last year was sentenced t0 8 years in prison.