Military Religious Freedom Advocate Mikey Weinstein Profiled

Foreign Policy yesterday carried a profile of Mikey Weinstein, founder of the Military Religious Freedom Foundation. It says:

Although he is frequently attacked for waging a war on Christianity, all but a fraction of Weinstein's clients are practicing Catholics and Protestants of mainline denominations who claim to be targeted by proselytizing evangelical superiors. The root of the problem, Weinstein believes, is a cluster of well-funded groups dedicated to Christianizing the military and proselytizing abroad.

MMRF is currently preparing to file suit on behalf of Zachari Klawonn, a Muslim Army specialist at Fort Hood who says he has been harassed and threatened after the shooting massacre at Ft. Hood last November by Maj. Nidal Hasan. Klawonn says even before that, he constantly suffered cultural and religious discrimination. Commanders at Ft. Hood deny the charges, saying they have responded quickly to claims of anti-Muslim bigotry.

Hindu Group In India Opposes State's Construction of Buddha Park

In the Indian city of Patna (in the state of Bihar), the state government plans to tear down an old Hindu Shiva temple on the site of the former Bankipore jail in order to build a Buddha Park. Today's Times of India reports that Bharat Sadhu Samaj has decided to launch a statewide protest. It says the plans to build meditation centers and a 200 foot high statute of Buddha on 22 acres of state land is inconsistent with India's Constitution. Section 27 of India's Constitution provides: "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."

Group Urges States Not To Contract To Send Inmates To Planned Christian Prison

As reported last November, a non-profit Texas-based prisons ministry, Corrections Concepts Inc., plans to build a private all-Christian 600-bed prison in Wakita, Oklahoma. The facility will be for men near the end of their sentences who volunteer to be housed there and agree to participate in its program. The ministry has recently announced that discussions are underway with Oklahoma, Kansas and California regarding contracts to house their prisoners in the new facility. In a press release yesterday, Americans United said that it has written officials in the three states urging them to refuse to send prisoners to Corrections Concepts. The identical letters argue that state funding for prisoners in religious facilities would violate the Establishment Clause. The Oklahoma Department of Corrections has already decided not to send prisoners, bu discussions are continuing with the Oklahoma Office of Juvenile Affairs.

To Help In Deciding, Judge Visits Church Where Graduation Is Scheduled

In Bridgeport, Connecticut, federal district judge Janet Hall is hearing the lawsuit against the Enfield (CT) Public Schools brought by the ACLU and Americans United. The suit challenges Enfield's plans to hold this year's graduation ceremonies for two high schools in First Cathedral Church in Bloomfield (CT). (See prior posting.) Yesterday's Hartford Courant reported that Judge Hall, after hearing the last witnesses, took a tour of the Church, taking notes as she walked through. She was accompanied by court staff, lawyers for both sides, and two newspaper reporters. Much of the case apparently turns on the feasibility of the Church's removing or covering all the religious symbols.

Kenya Court Says Kadhis Courts Inconsistent With Other Parts of Constitution

In Kenya, the Nairobi High Court sitting as a Constitutional Court yesterday struck down the provision in the current Kenya Constitution that provides for Kadhis courts (Sec. 66). The court's opinion (excerpts) holds that Section 66 is inconsistent with Sec. 82 that bars discriminatory laws. Among the conclusions in the Court's 144-page opinion are:

the financial maintenance and support of the Kadhis' courts from public coffers amounts to segregation, is sectarian discriminatory and unjust ... and amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion (secularism) and is therefore contrary to the universal norms and principles of liberty and freedom of religion envisaged under sections 70, 78 and 82 of the Constitution....

the entrenchment of the Kadhis' courts in the Constitution elevates and uplifts the Islamic religion over and above the other religions in Kenya which is inconsistent with section 78 and 82 of the Constitution....

Yesterday's Daily Nation, reporting on the decision, says that the Court has raised a question about the scheduled August 4 referendum on a new Constitution, since that draft also includes Kadhis courts. (See prior posting.) The High Court in its decision held that whether provisions in the proposed document are a problem is not ripe for determination. The Daily Nation reports that opponents of the draft constitution are calling for an immediate suspension of the planned referendum.

UPDATE: The Daily Nation reports that on May 25, Kenya's Attorney General filed an appeal of the decision.

Suit Threatened Over Student Who Is Disciplined For Wearing Rosary Beads

The American Center for Law & Justice (press release) is threatening to file a lawsuit against Schenectady, New York school officials on behalf of a middle school student who was sent home for wearing a Rosary outside of his shirt. The plastic Rosary is made of light purple beads and a white Crucifix. The school's dress code defines items made of beads as gang-related symbols. According to a Demand Letter (full text) sent to the Oneida Middle School principal and other District officials, Raymond Hosier wears the Rosary in memory of his deceased brother and deceased uncle. The ACLJ letter argues that the school's dress code is unconstitutionally vague and, as applied, infringes Hosier's free speech rights.

School Responds To No-Prayer Injunction By Ending Review of Student Graduation Speeches

Earlier this month, an Indiana federal district court issued a preliminary injunction prohibiting the planned student-led prayer at suburban Indianapolis' Greenwood High School's upcoming graduation. The school conducts a student ballot at an assembly in which students vote on whether to have a fellow student deliver a non-denominational prayer at graduation. (See prior posting.) In response to the court ruling, the Greenwood Community School Corporation announced that this year school "officials will not review the speeches of the four student speakers which will allow them to voice their opinions with no restrictions." In the past, the school principal had reviewed a written copy of students' remarks. The school board statement urged speakers to be responsible and respectful of others. According to AP, school officials say speakers, however, will not be stopped even if they use profane language or deliver politically charged speeches.

Defendant Sentenced For Cyber Attack On Scientology Website

A press release from the Church of Scientology reports that yesterday a Los Angeles federal district court sentenced Brian Thomas Mettenbrink, convicted of engaging in a cyber attack on Scientology's website, to 12 months in prison and payment of $20,000 restitution. Judge Gary Allen Feess imposed a sentence that is an upward departure from the Federal Sentencing Guidelines to protect the public from further criminal conduct. Mettenbrink is the second member of the anti-Scientology group Anonymous to be sentenced for the January 2008 attack. (See prior posting.) The court also required that during probation after serving his prison sentence, Mettenbrink must remain at least 100 yards away from any Church of Scientology.

US Amicus Brief To High Court Favors Vatican In Abuse Lawsuit

Last week, the United States filed an amicus brief (full text) with the U.S. Supreme Court after being invited to express its views on whether certiorari should be granted in Holy See v. Doe, (Docket No. 09-1). In the case, the 9th Circuit held that the "tortious act" exception in the Foreign Sovereign Immunities Act means that the Vatican is not shielded from a claim by a victim of sexual abuse based on the doctrine of respondeat superior. That exception (28 USC 1605(a)(5)) allows a suit (with certain exceptions) against a foreign state for damages "caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment". (See prior posting.)

The United States in its amicus brief essentially sided with the Vatican, but urged that instead of granting a full hearing on the appeal, the Court should grant cert, vacate the judgment of the Court of Appeals and remand for further consideration. The U.S. urged, that if the Court is not willing to do this, it should deny certiorari. More specifically, the Justice Department argued that the 9th Circuit was wrong in holding that the sexual abuse was within the priest's "scope of employment" under Oregon law, a prerequisite for liability under the doctrine of respondeat superior. It argued further that the 9th Circuit "erred in conflating the FSIA's jurisdictional scope-of-employment inquiry with the separate question of respondeat superior liability under state substantive law." Today's Cath News reports on the filing of the brief.

Czech President, Prague Archbishop Sign Agreement On Joint Care of Cathedral

In the Czech Republic yesterday, an 18-year long dispute between the government and the Catholic Church over the ownership of St. Vitus Cathedral at Prague Castle was resolved with the signing of an agreement by Czech President Vaclav Klaus and Prague Archbishop Dominik Duka. Ceske Noviny yesterday reported that under the agreement, a council will be set up to provide for management of the cathedral. Its members-- government and church officials-- will be the holders of the seven keys to the room in the cathedral's St. Wenceslas Chapel where coronation jewels are preserved. In signing the agreement, President Klaus said:

The court dispute about the cathedral and some other real estate at Prague Castle has been terminated by the declaration we have just signed. As it has been for long past centuries, the state and the Catholic Church will by joint forces take care of the cathedral that they together consider an exceptional national symbol in its historical, spiritual and cultural sense.

(See prior related posting.)

Supreme Court Agrees To Review Arizona Tuition Tax Credit

The U.S. Supreme today agreed to review two consolidated cases involving an Establishment Clause challenge to Arizona's school tuition tax credit program. It granted certiorari in Arizona Christian School Tuition Organization v. Winn, (Docket No. 09-987, cert. granted 5/24/2010) and in Garriott v. Winn, (Docket No. 09-991, cert. granted 5/24/2010), consolidating the two cases for a total of one hour of oral argument. (Order List.) The cases were decided in a single opinion below. A 3-judge panel of the 9th Circuit found taxpayer standing and ruled that, as applied, Arizona's tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations" violates the Establishment Clause. (See prior posting.) The 9th Circuit then denied en banc review, but with 40 pages of opinions. (See prior posting.) SCOTUS Blog has links to the petitions for and opposed to granting cert. and the amicus briefs.

Supreme Court Grants Cert. In RLUIPA Damages Case

The U.S. Supreme Court this morning granted certiorari in Sossamon v. Texas, (Docket No. 08-1438, cert. granted 5/24/2010). (Order List.) The suit was brought by an inmate who objected to the prison's policy of prohibiting congregational worship in the prison's chapel. He claimed that alternative worship venues do not give him access to Christian symbols or furnishings such as an altar or cross. The Supreme Court's grant of review was limited to the question of: "Whether an individual may sue a State or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc et seq. (2000 ed.)."

In the case, the 5th Circuit held (see prior posting) that official-capacity damage actions are barred by the state's sovereign immunity. Agreeing with the 4th Circuit, it concluded that RLUIPA did not clearly alert the state of Texas that it would waive sovereign immunity for damage actions by accepting federal funding. The 5th Circuit also held that damages under RLUIPA are not available in suits against officials in their individual capacities. It reasoned that because RLUIPA was enacted under Congress' Spending Clause Powers, only the governmental recipient of the grant may be liable for a violation. The Supreme Court did not grant cert. to review that port of the holding. SCOTUS blog has links to the petitions for and against cert. and amicus filings in the case.

Israeli Right Wingers Say They Will Protest Bar Mitzvah of Rahm Emanuel's Son

The Jerusalem Post reports that White House chief-of-staff Rahm Emanuel arrived in Israel on Friday. He has made the trip for a long-planned Bar Mitzvah of his son Zach and his nephew Noah. Plans had been to hold the ceremonies at Jerusalem's Western Wall over Memorial Day week end. CBS News reported last week, however, that two Israeli right wing politicians, Baruch Marzel and Itamar Ben-Gvir, who disagree strongly with President Obama's Israel policy and hold Emanuel responsible for it, plan to disrupt the event. They wrote to Emanuel: "We promise to accompany your son's bar mitzvah events in Israel, we will make sure to receive you as you deserve to be received ... with catcalls and disgust." They say they would be happy if Zach came alone to the Western Wall without his father, but that they have no choice but to demonstrate if his father is there also. In light of these developments, it is unclear now where the Bar Mitzvah ceremonies will be held.

Recent Articles of Interest

From SSRN:

• Ian S. Speir, Clemency in Jewish Law, (May 18, 2010).
• Ellen P. Aprill, An Overview of Tax Issues for Synagogues (and Other Religious Congregations), (Loyola-LA Legal Studies Paper No. 2010-24, May 19, 2010).
• Kristen Stilt, How is Islam the Solution?: Constitutional Visions of Contemporary Islamists, (Texas International Law Journal, Forthcoming).
• Jeff Redding, Dignity, Legal Pluralism, and Same-Sex Marriage, (Brooklyn Law Review , Vol. 75, 2010).
• Hussin Iza, Where is the Local Online? Internet Fatwa and the Making of New Muslim Spaces, (Western Political Science Association 2010 Annual Meeting Paper).
• Mohamad Mova Al 'Afghani, Religious Freedom in Indonesia Before and after Constitutional Amendments, (Critical Thinkers For Islamic Reform, Brainbow Press, 2009).
• Michael Young, In Defense of the Constitutionality of Critically Discussing Religion and Ethics in Schools in Light of Free Exercise and Parental Rights, (Ohio State Law Journal, Vol. 70, p. 1565, 2009).
• Aziz Z. Huq, Modeling Terrorist Radicalization, Duke Journal of Law and Social Change, Forthcoming).

From SmartCILP:

• Nancy D. Perkins, Form and Norm: The Transformative Potential of Sub-National Environmental Solidarity, 20 Fordham Environmental Law Review 469-514 (2010).

South Dakota Tea Party Candidate For Governor Presses For Religion, Church Endorsements

In South Dakota's June 8 primary, 5 candidates are competing for the Republican nomination for Governor. According to today's Argus Leader, the two with the most money behind them are Lt. Gov. Dennis Daugaard and Senate Majority Leader Dave Knudson. However they are being challenged by Tea Party candidate Gordon Howie, a state senator from Rapid City. His Pledge To South Dakota includes a promise that he "will not expel God from South Dakota." Earlier this month (press release), he issued a challenge to South Dakota churches and pastors to become politically active, saying: "Pastors and their congregations have been muzzled on Sunday mornings by the threat that their taxation status requires an enforced silence on who to vote for, and why." Today's Rapid City Journal reports that on May 15, Rev. H. Wayne Williams, pastor of Liberty Baptist Tabernacle in Rapid City, took up Howie's challenge by officially endorsing Howie for governor during a church service.

Recent Prisoner Free Exercise Cases

In Barhite v. Caruso, (6th Cir., May 14, 2010), the 6th Circuit rejected a prisoners free exercise and RLUIPA claims objecting to prison officials confiscating from him numerous photos of scantily clad young women. Plaintiff failed to allege that the photos were related to the practice of his Mormon religion. Instead he essentially alleged an equal protection discrimination claim, asserting that the photos were taken from him shortly after raids on an FLDS compound in Texas. However, he failed to allege that non-Mormon sex offenders were permitted to have similar photos.

In Burchett v. Bromps, (9th Cir., May 21, 2010), the 9th Circuit held that plaintiff should be permitted to amend his pleadings to pursue an Establishment Clause claim against the Washington state community corrections officer supervising the community-placement portion of his criminal sentence. Plaintiff alleged that the officer prohibited him from attending a Seventh Day Adventist Church and granted him permission to attend only an Assembly of God church.

In Robinson v. Delgado, 2010 U.S. Dist. LEXIS 47818 (ND CA, May 13, 2010), a California federal magistrate judge permitted an inmate who was a member of the House of Yahweh Yadhaim religion, to proceed with his claim that he should be permitted a kosher diet, and that the prison's vegetarian meals are not kosher.

In Perezo v. Williams, 2010 U.S. Dist. LEXIS 48248 (ND TX, May 17, 2010), a Texas federal court dismissed a frivolous an inmate's claim that his free exercise rights were violated because he is not permitted to take his Bible with him into the recreation yard for his one hour of recreation.

In Native American Council of Tribes v. Weber, 2010 U.S. Dist. LEXIS 48969 (D SD, May 18, 2010), a South Dakota federal district court held that plaintiff organization lacks standing to bring a suit under RLUIPA challenging the decision to remove tobacco from Native American ceremonies in the South Dakota State Penitentiary.

In Eichler v. Tilton, 2010 U.S. Dist. LEXIS 48623 (ED CA, April 21, 2010), a California federal magistrate judge held that an inmate needs to amend his complaint to clarify his claim that his religious rights are being infringed when prison officials refused to permit him to practice yoga.

In Gordon v. Caruso, 2010 U.S. Dist. LEXIS 49430 (WD MI, May 19,2010), a Michigan federal district court refused to dismiss claims by an inmate who was a member of the white-supremacist Asatru faith that his free exercise rights and his rights under RLUIPA were violated when officials prohibited Asatru group worship. Defendants had not shown that there were no less restrictive alternatives available to deal with officials' concerns.

In Sandeford v. Plummer, 2010 U.S. Dist. LEXIS 49315 (ND CA, April 26, 2010), a California federal district court refused to grant a prisoner's motion for reconsideration of the court's previous summary judgement against him (see prior posting) on his complaints of being denied an Islamic diet, of improper observances of Ramadan and Eid, denial of an imam for spiritual guidance and refusing to allow him to wear a Kufi prayer cap.

California Reacting To New Texas Textbook Changes

AP and Fox News report that last Monday, the California state Senate Appropriations Committee voted 6-3 (bill history) to approve and send S.B. 1451 on to the full state Senate. The bill is designed to prevent California from adopting textbooks that contain the controversial changes approved last week by the Texas State Board of Education. (See prior posting.) The bill would require that the California State Board of Education notify chairs of the Senate and Assembly education committees, as well as the state Secretary of Education, of textbook content that appears to be the result of the Texas changes. California Chronicle reports it is expected that the state Senate will pass the bill this week. Here are some of the legislative findings included in the latest version of the bill:

(h) Although not yet formally adopted, it is widely presumed that the proposed changes to Texas' social studies curriculum will have a national impact on textbook content since Texas is the second largest purchaser of textbooks in the United States, second only to California.

(i) As proposed, the revisions are a sharp departure from widely accepted historical teachings that are driven by an inappropriate ideological desire to influence academic content standards for children in public schools.

(j) The proposed changes in Texas, if adopted and subsequently reflected in textbooks nationwide, pose a serious threat to Sections 51204.5, 60040, 60041, 60043, and 60044 of the Education Code as well as a threat to the apolitical nature of public school governance and academic content standards in California.

Georgia Governor Signs New Disclosure Law On Kosher Foods

On Thursday, Georgia's governor, Sonny Purdue, signed into law H.B. 1345 which revises the state's provisions relating to the sale of kosher food. An ACLU press release reports on developments. Georgia's previous Kosher Food Labeling Act required that any food sold as kosher must meet "Orthodox Hebrew religious rules and requirements." Last August, the ACLU filed a lawsuit on behalf of a rabbi who wanted to certify food establishments as kosher using the standards of the Conservative Jewish movement. (See prior posting.) The new law will permit this. It requires that "a person who makes a representation regarding kosher food shall prominently and conspicuously display on the premises on which the food is sold, in a location readily visible to the consumer, a completed kosher food disclosure statement..." The disclosure statement requires 15 to 19 specific representations relating the foods sold. When unpackaged kosher food is involved, additional disclosures must be made regarding the identity and affiliations of the supervising rabbi or agency.

Court Says Challenge To Tax Code Parsonage Allowance Can Move Forward

In Freedom from Religion Foundation, Inc. v. Geithner, (ED CA, May 21, 2010), plaintiffs are challenging two provisions of the Internal Revenue Code on Establishment Clause grounds. Section 107 exempts from income the rental value of a parsonage, or the amount of a parsonage allowance, furnished to a member of the clergy as compensation for service performed in the exercise of a religious ministry. Section 265(a)(6) allows a member of the clergy to claim interest and property taxes as deductions, even though the money used to pay such amounts was received from a church in the form of a tax-exempt §107 allowance. (See prior posting.) In Friday's decision, a California federal district court, after finding that plaintiffs had standing to bring the lawsuit, allowed the challenge to Section 107 to proceed, but dismissed the challenge to Section 265(a)(6). The court also dismissed on 11th Amendment immunity grounds the claims under the California Constitution (but not the federal Establishment Clause claims) challenging California's parallel provisions.

The court held that plaintiffs adequately alleged that Section 107 has the unconstitutional effect of advancing religion. It provides a blanket exemption from taxable income for ministers' housing that is not available to similarly situated secular employees, and allows them to receive a tax-free housing allowance that is not available to other taxpayers. The section also provides a benefit to religion itself, since churches can pay ministers lower salaries when part of their compensation is tax-free. This special benefit for clergy and religion cannot be justified as an accommodation to protect free exercise. However, plaintiffs did not allege sufficient facts to show that the predominant effect of § 265(a)(6) favors religion. It merely gives ministers the same incentive to purchase a home that is available to other taxpayers. [Thanks to Michael Gompertz for the lead.]

Texas Board of Education Adopts More Conservative Social Studies Curriculum

In two party-line 9 to 5 votes yesterday, the Republican majority on the Texas State Board of Education adopted controversial changes to the state's social study guidelines that reflect a more socially conservative viewpoint. AP reports that over 200 amendments were offered this week to draft standards that had been prepared over the last 18 months by groups of teachers and university faculty. Today's Dallas Morning News quotes board member Don McLeroy who said the changes are an attempt to balance a curriculum that has been slanted toward liberal viewpoints. One of the curriculum changes involves students' approach to religious liberty and church-state separation. According to a release from the Texas Education Agency, the following will be added to the Government curriculum standards:

Examine the reasons the Founding Fathers protected religious freedom in America and guaranteed its free exercise by saying that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, and compare and contrast this to the phrase "separation of church and state."

Responding to criticism of earlier changes (see prior posting), the Board restored Thomas Jefferson to the list of political philosophers that students will study in world history. He was already included in the U.S. History and the Government curricula.