6th Circuit Denies Motions To File Amicus Briefs In Ministerial Exception Rehearing Bid

In March, the 6th Circuit in EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act. (See prior posting.) The court reasoned that they are not "ministerial employees" who are excepted from coverage. Only those who teach primarily religious subjects or who have a central spiritual or pastoral mission are covered by the ministerial exception. Last month, the parochial school filed a motion (full text) seeking an en banc rehearing, arguing that the 6th Circuit should not adopt the "primary duties" test to determine whether the ministerial exception applies, or, if it does, should not use a quantitative test in determining primary duties. A dozen religious organizations, representing a number of religious traditions, sought to file a total of four amicus briefs supporting the petition for an en banc rehearing. (Full text of briefs 1, 2, 3, 4 .). In an unusual move, the 6th Circuit, without explanation, refused to permit the amicus briefs to be filed. (Full text of order.) [Thanks to Luke Goodrich of the Beckett Fund for the lead and the documents.]

Split 6th Circuit Panel Denies Rehearing In 10 Commandments Case

In a 2-1 decision issued in January, the U.S. 6th Circuit Court of Appeals rejected an Establishment Clause challenge to a "Foundations of American Law and Government" display (including the 10 Commandments) that had bee placed in the Grayson County, Kentucky courthouse. The majority held that challengers failed to show a religious purpose in approving the display. (See prior posting.) Today in American Civil Liberties Union of Kentucky v. Grayson County, Kentucky, (6th Cir., May 14, 2010), the 6th Circuit by the same 2-1 vote denied a rehearing in the case. The ACLU claimed that a genuine issue of material fact should lead to vacating the summary judgment award. It focused on statements made by the county's Judge Executive at the time the county removed the Ten Commandments document from the display in order to comply with a preliminary injunction that had been issued by a federal district court. In written opinions denying the rehearing, the majority said that the alleged statements did not show a religious purpose. Judge Moore, dissenting, argued that in context the remarks could demonstrate a religious purpose. Liberty Counsel issued a press release on today's action by the court.

Canadian Court Hearing Arguments On Conscience Rights For Marriage Commissioners

Today's Vancouver Sun reports that for the first time in 20 years, the government of Canada's province of Saskatchewan has invoked the Constitutional Questions Act to obtain an opinion from the Court of Appeal on the constitutionality of proposed legislation. At issue are two alternative drafts of proposed legislation that would permit some or all of the province's 326 marriage commissioners to refuse to perform marriage ceremonies that are contrary to their religious beliefs. One draft would limit the exemption to individuals who were commissioners in 2004 when the province authorized same-sex marriages. The other draft would cover all commissioners.

Regina lawyer Mike Megaw was appointed by the government to argue in favor of the constitutionality of the law. Eighteen other individuals and groups were allowed to intervene in the case. Yesterday the court heard six hours of argument, and returns today to hear the remaining presentations. Some of the arguments yesterday focused on the breadth of the proposed law. It is not limited to same-sex marriage, and some claim that it could allow refusals on religious grounds to perform interracial marriages or marriages between people of different castes as well. (See prior related posting.)

Malaysian Woman Challenges Ban On Non-Muslim Lawyers Practicing In Syariah Court

In Malaysia, Victoria Jayaseele Martin, a non-Muslim woman who earned a Diploma in Syariah Law and Practice in 2004 from the International Islamic University Malaysia, is challenging the requirement imposed by the Federal Territory of Kuala Lumpur that only Muslims can be admitted to practice before its Syariah Court. Bernama reports today that a High Court judge has granted Martin leave to file a mandamus action to require the Federal Territory Religious Council to allow her to practice before the religious court. In allowing Martin to proceed, the High Court rejected arguments that only the Syariah Court had jurisdiction to hear her application. According to today's Malaysia Star, Martin contends that Rule 10 of the Peguam Syarie Rules 1993 that limits Syariah practice to Muslims is unconstitutional and not authorized by the Administration of Islamic Law (Federal Territories) Act 1993.

Vermont Catholic Diocese Settles All Past Clergy Abuse Lawsuits For Over $20M

The Roman Catholic Diocese of Burlington, the diocese that covers the state of Vermont, has settled the 26 pending clergy sex abuse cases that have been filed against the Diocese for a total of $17.65 million. Three other cases that have gone to trial and are currently on appeal to the Vermont Supreme Court were also settled for undisclosed amounts-- said by Barre Montpielier (VT) Times Argus to total at least $3 million. The settlements were announced in a letter (full text) yesterday posted on the Diocese website. To pay for the settlements, the Diocese will sell its 32-acre headquarters overlooking Lake Champlain, and will move to other offices. It will also sell 26-acre Camp Holy Cross located on Colchester's Malletts Bay. In the meantime it has obtained an interim loan using the properties as collateral and has depleted its unrestricted reserves to cover the costs.

Debate Over Permitting Stores To Open On Holidays Becomes Contentious

In Canada, Toronto's City Council voted to defer further discussion of a proposed amendment that would allow all retail stores to remain open 365 days per year. Yesterday's Toronto Globe & Mail reports that the proposal was put forward by Council's economic development committee in order to equalize the playing field for all retailers. Presently stores in some tourist areas have no restrictions, while stores elsewhere in the city must close on nine public holidays. However the debate became contentious when North York council member Giorgio Mammoliti-- a candidate for mayor in the upcoming October elections-- pressed to still restrict stores from opening on Good Friday and Easter. He said: "Those of us that believe in God know that there are certain days that we're not supposed to be working and we are supposed to be with our families." That brought a response from council member Raymond Cho who asked Mammoliti whether he would be working only for Christians when he became mayor. Some Council members hope for a less charged debate if the amendment is deferred until after the election.

11th Circuit: Muslim's Employment Discrimination Claim Not Supported

In MackMuhammad v. Cagle's Inc., (11th Cir., May 12, 2010), the 11th Circuit Court of Appeals affirmed the dismissal of a religious discrimination in employment and hostile work environment suit brought by a Muslim man who was rejected for a superintendent's position at a poultry plant. The court said plaintiff had not demonstrated he was qualified for the position, or that similarly situated non-Muslim employees were treated more favorably. It also rejected his claim that references to him in the workplace as "Bin Laden" and jokes about his refusal to eat pork amounted to a hostile work environment. Finally, it dismissed his state law intentional infliction of emotional distress claim.

Two Clergy Sexual Abuse Cases Filed In Florida

The Orlando (FL) Sentinel reports that a new clergy abuse lawsuit was filed yesterday in Orange County, Florida against the Catholic Diocese of Orlando and the Diocese of Gary, Indiana. It accuses former priest Richard Emerson, who was on temporary assignment from Indiana, of abusing the plaintiff in the late 1980's and early 1990's. A second lawsuit was filed in Orange County earlier this month involving allegations against former priest Vernon H. Uhran by an Orlando man who claimed that in 1970, when plaintiff was a 14-year old altar boy, Uhran repeatedly sexually abused him after plying him with alcohol during a spiritual retreat to a beach.

Anonymous Letter Claims To Be From Veteran Who Stole Sunrise Rock Cross

Yesterday's Barstow, California Desert Dispatch published an anonymous letter claiming to explain the theft earlier this week of the Cross on Sunrise Rock in the Mojave National Preserve World War I memorial. (See prior posting.) The newspaper, which said it could not verify the validity of the letter, reported it was transmitted by an anonymous caller who claimed it was written by the person directly responsible for the theft. The letter writer, claiming to be a veteran, said his decision to "lovingly" move the cross was impelled by language in the Supreme Court's recent decision permitting it to remain. (See prior posting.) The letter read in part:

5. The cross was erected illegally on public land in 1998 by a private individual named Henry Sandoz. Since then the government has actively worked to promote the continued existence of the cross, even as it excluded other monuments from differing religions. This favoritism and exclusion clearly violates the establishment clause of the US Constitution.

6. Anthony Kennedy desecrated and marginalized the memory and sacrifice of all those non-Christians that died in WWI when he wrote: '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.' The irony and tragedy of that statement is unique.

7. Justice Kennedy’s words in particular and others like them from the other Justices caused me to act.

8. At the time of its removal there was nothing to identify the cross as a memorial of any kind, and the simple fact of the matter is that the only thing it represented was an oddly placed tribute to Christ. This cross evoked nothing of the sort that Justice Kennedy writes of, it was in the end simply a cross in the desert....

12. We as a nation need to change the dialogue and stop pretending that this is about a war memorial. If it is a memorial, then we need to stop arguing about the cross and instead place a proper memorial on that site, one that respects Christians and non-Christians alike, and one that is actually recognizable as a war memorial.

13. If an appropriate and permanent non-sectarian memorial is placed at the site the cross will be immediately returned to Mr. Sandoz.

14. Alternatively, if a place can be found that memorializes the Christian Veterans of WWI that is not on public land the Cross will promptly be forwarded with care and reverence for installation at the private site.

[Thanks to Scott Mange for the lead.]

UPDATE: The May 16 San Bernadino Sun reports that rewards for return of the stolen cross now total $125,000.

Remedies Imposed In Muslim Charity's Challenge To Terrorist Designation

In KindHearts for Charitable Humanitarian Development, Inc. v. Geithner, (ND OH, May 10, 2010), an Ohio federal district court issued an opinion on the appropriate remedy in a Muslim charity's challenge to the procedures used by the U.S. Treasury's Office of Foreign Assets Control in designating the charity a Global Terrorist Group. Last August, the court held that the government should have obtained a search warrant; that OFAC had applied vague criteria and did not give the charity adequate notice and opportunity to be heard; and had improperly blocked access to funds for KindHearts to use to pay its counsel. (See prior posting.) In October it issued a preliminary injunction against further action pending the cout's decision on a remedy. (See prior posting.) This week, in fashioning a remedy, the court refused to invalidate the order blocking KindHearts' assets, and instead decided to hold a post-seizure probable cause review as a remedy for the warrantless seizure and continuing retention of KindHearts' assets. At the hearing the government will be required to show that it had reasonable ground to believe that KindHearts was subject to designation as a terrorist group. Also it may cure its Fourth Amendment violation by showing probable cause for the original seizure.

As to the failure to give notice and opportunity to be heard, the court imposed as a remedy a remand. The court will hold an ex parte, in camera meeting with the government to decide what classified evidence will give KindHearts adequate notice. It also remanded to the Office of Foreign Asset Control for further consideration the issue of payment of attorneys' fees from blocked assets. IPS reports on the decision.

NGO's Oppose 5 Countries Running For Seats On UN Human Rights Council

The United Nations General Assembly is scheduled today to elect 14 new members to the 47-member Human Rights Council. UN Watch reports that human rights groups are calling on UN members to reject 5 of the 14 countries that are running unopposed. They say that Libya, Angola, Mauritania, Qatar and Malaysia all have poor human rights records. A particularly strong appeal has been made by 37 NGO's urging the defeat of Libya's candidacy. (Full text of NGO letter.)

New York Church Designated As Landmark Over Leaders' Objections

New York City Council yesterday approved landmark designation for the historic West Park Presbyterian Church at Amsterdam Ave. and 86th St. According to the New York Times, preservationists have waged a 20-year battle to save the Romanesque Revival building which has been closed for two years because of physical deterioration. Church leaders wanted to tear down part of the building and develop the site. The church's pastor, Rev. Dr. Robert L. Brashear said: "Forced landmarking has the effect of imposing the governmental idea of mission on the congregation. There is a profound church-state issue here." It will cost $11 to $12 million to restore the church.

Evangelicals Call For "Just Assimilation" Immigration Policy

A Statement (full text) released om Tuesday and signed by six leading evangelical leaders calls for a "just assimilation immigration policy." It says in part:

We must first secure our borders before we can implement a broader just assimilation immigration policy. Secure borders are not closed borders....

After securing our borders, we should allow the millions of undocumented and otherwise law-abiding persons living in our midst to come out of the shadows. The pathway for earned legal citizenship or temporary residency should involve a program of legalization for undocumented persons in the United States, subject to appropriate penalties, waiting periods, background checks, evidence of moral character, a commitment to full participation in American society through an understanding of the English language, the rights and duties of citizens and the structure of America’s government, and the embrace of American values.

We must return to a rational immigration policy that acknowledges that we are both a nation of immigrants and a nation of laws. It is our obligation to provide a just solution to those people who are currently undocumented under the present policy. That solution is neither amnesty nor mass deportation.

Among the signers of the statement were Liberty Counsel's Matt Staver, and Southern Baptist Convention's Richard Land. Also signing was the head of the National Hispanic Christian Leadership Conference.

New Details of Elena Kagan's Bat Mitzvah Are Revealed

The New York Times published details yesterday of Supreme Court nominee Elena Kagan's campaign as a 12-year girl old for more women's equality in Jewish religious life. Kagan's family belonged to the Orthodox, but progressive, Lincoln Square Synagogue, headed at that time by Rabbi Shlomo Riskin. A star Hebrew school pupil, Kagan convinced Rabbi Riskin to allow her to have the first formal Bat Mitzvah at a synagogue that previously only celebrated the Bar Mitzvah-- for boys. Kagan wanted a service identical to the Bar Mitzvah, at which she would read from the Torah on Saturday morning. However she had to negotiate for something less. Her ceremony was on Friday night, where she read from the Book of Ruth and gave a talk analyzing it. Rabbi Riskin, who now lives in Israel, says: "We crafted a lovely service, but I don't think I satisfied her completely. But she certainly raised my consciousness."

Protesters Prevent Cartoonist Vilks From Completing Talk On Art and Free Speech at Uppsala University

The Swedish cartoonist Lars Vilks was prevented by protesters from completing a lecture on art and free speech at Sweden's Uppsala University yesterday. Vilks' 2007 depiction of the head of the Prophet Muhammad on the body of a dog resulted in protests and death threats. (See prior posting.) In March, a U.S. woman was indicted for conspiracy to kill Vilks. CNN reports that at Uppsala, five audience members began protesting loudly before Vilks started his talk to the philosophy department. Police calmed the protesters, but as Vilks showed a film with sexual content, particularly a photo of naked gay men wearing masks representing the Prophet Muhammad, 15 to 20 members of the audience became loud and tried to attack him. (Tundra Tabloid). Vilks was taken by police to a nearby room for protection, and did not return to finish his talk. Sweden's The Local reports that three suspects have been arrested in the incident, but were then released.

Court Refuses To Dismiss Chabad's Claims Against Historic Commission Members

In Chabad Lubavitch of Litchfield County v. Borough of Lichtfield, Connecticut, 2010 U.S. Dist. LEXIS 45677 (D CT, May 7, 2010), a Connecticut federal district court held that a town and its Historic District Commission lack standing to move to dismiss civil rights claims brought against three members of the Historic District Commission in their individual capacities. At issue was Chabad's request for approval of its plans to restore and add onto a Victorian house on the edge of the District for use as as a synagogue, community center and for classes. (See prior posting.) The Commission denied Chabad a Certificate of Appropriateness for its site plan. Chabad brought claims under 42 USC 1985(3) and 1986 charging that three Commission members conspired and neglected to prevent a conspiracy to infringe its free exercise and associational rights.

British Police Recognize Pagan Officers Association

According to yesterday's London Times, Britain's Home Office has formally recognized the Pagan Police Association as a "diversity staff support organization." This means that Pagan police officers will be allowed to take off Pagan holidays as part of their annual leave. However the Home Office refused the Association's request for funding. Leave for Pagan officers on Samhain (Halloween) may create problems since traditionally police leaves are cancelled on that day because of the high incidence of vandalism. [Thanks to Scott Mange for the lead.]

Town's Emergency 911 Prayer Group Helps As Bad Weather Threatens

Yesterday's Tulsa World reports that in Miami, Oklahoma, ten churches participate in an Emergency 911 prayer group set up by the city's emergency management coordinator, and approved by its city manager, two years ago. The group was activated on Monday when forecasters said there was a threat of severe thunder storms. Emergency Management Coordinator Glenna Longan said that the town has not been hit by a severe storm since the group was formed. She says the group prepares the town in a spiritual sense for possible natural disasters. It also helps spread the word that severe weather is on the way and preparations should begin.

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.