Appeal Filed In Delaware School Board Invocation Case

Today's Delaware Online reports that an appeal has been filed with the Third Circuit in Doe v. Indian River School District. In the case, a Delaware federal district court upheld against an Establishment Clause attack the policy of the Indian River School Board to open its meetings with a prayer delivered by members of the school board on a rotating basis, or if the board member prefers, a moment of silence. The district court applied precedent relating to prayers opening sessions of legislative bodies. (See prior posting.)

Ecclesiastical Abstention Doctrine Does Not Bar Negligent Supervision Claim Against Church

In Erdman v. Chapel Hill Presbyterian Church, (WA Ct. App., June 29, 2010), a Washington state appellate court held that the ecclesiastical abstention doctrine does not bar a church employee's claim for negligent supervision and retention claims against a church based on alleged physical intimidation and verbal abuse by its pastor. Plaintiff, a Church elder employed as the Church's Executive for Stewardship, was in a dispute with the pastor over whether tours of religious and historical sites led by him jeopardized the church's tax exempt status. Nor are plaintiff's Title VII claims for sexual harassment. However the court dismissed various other claims by plaintiff.

Appeal In Italian Crucifix Case Heard By European Court's Grand Chamber

Yesterday, the 19-judge Grand Chamber of the European Court of Human Rights heard an appeal from a November ruling by a 7-judge panel that held crucifixes in public school classrooms in Italy violate protections in the European Convention on Human Rights. The ECHR panel found that crucifixes in classrooms infringe protections of thought, conscience and religion and the right of parents to educate their children according to their convictions. (See prior posting.) Both the European Centre for Law and Justice and AP report on yesterday's appeal in the case of Lautsi v. Italy . Joining Italy in the appeal were Armenia, Bulgaria, Lithuania, Cyprus, Greece, Malta, Monaco, San Marino, Romania and Russia. Italian courts had held that the crucifix is part of the Italian national identity, and not an attempt to convert students. An amicus brief supporting Italy's position was filed in the case by a group of over 50 law professors from across Europe. The amicus effort was coordinated by Notre Dame law professor Paolo Carozza and the Becket Fund for Religious Liberty. (Notre Dame News, 6/7).

Kagan Gets Some Questions on Religion Clauses

On Day 3 of her confirmation hearings, Supreme Court nominee Elena Kagan was asked questions about the Establishment and Free Exercise clauses, and about standing to raise Establishment Clause issues. Blog from the Capital has an unofficial transcript of the exchanges between Kagan and Senators Feinstein, Cardin and Coburn. Kagan explained her understanding of the religion clauses in part as follows:

In general, I think, what both First Amendment clauses are designed to do - and this is the way in which they work hand in hand with each other - what they're both designed to do is to ensure that you have full rights as an American citizen. You are a part of this country, no matter what your religion is, and to ensure that religion just never functions as a way to put people because of their religious belief or because of their religious practice at some disadvantage with respect to any of the rights of American citizenship. So, I think that that's the sort of overall purpose of both parts of the amendment.

The full transcripts are worth reading.

Supreme Court Refuses Review Of School Rules On Distributing Materials

On Monday, the U.S. Supreme Court denied certiorari in Morgan v. Plano Independent School District, (Docket No. 09-1131). (Order List.) In the case, the U.S. 5th Circuit Court of Appeals found that rules adopted in 2005 by a Texas school district restricting the times and places at which students can distribute written materials are constitutional, at least on their face. At issue were students who wished to distribute religious-themed candy canes and tickets to church musical and drama programs. (See prior posting.) Dallas Morning News on Monday reported on the court's action.

Groups Urge Congressional Hearings on Faith Based Initiative

On June 18, thirty national organizations comprising the Coalition Against Religious Discrimination, sent a letter (full text) to the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary Committee urging it to hold hearings on the current status of the Faith-Based Initiative. The letter reads in part:

As a candidate, President Obama promised to reinstate constitutionally required religious liberty protections and end federally funded religious discrimination in the Faith-Based Initiative. Yet, eighteen months after President Obama’s inauguration, the White House and all the federal agencies are still operating under the same inadequate safeguards against proselytizing and insufficient constitutional protections imposed by the previous Administration.

[Thanks to Michael Lieberman for the lead.]

Court Says Pooled Investment Funds Are Part of Delaware Diocese Bankruptcy Estate

In In re Catholic Diocese of Wilmington, Inc., (DE Bankr., June 28, 2010), a Delaware federal bankruptcy court held that funds in a pooled investment program operated by the Catholic Diocese of Wilmington are part of the bankruptcy estate. Individual parishes have over $2.3 million of their funds invested in the pool, while various Catholic charitable and educational organizations have over $25.8 million and the Catholic Diocese Foundation has $45 million there. These 31 participants in the pooled investment program claimed that a trust relationship existed so that their invested funds belong to them and are not property of the diocese. The court held that a trust exists, but that their funds are comingled with funds of the diocese that are also part of the pooled investment vehicle, and that these participants (with the exception of one parish) have not carried their burden of identifying and tracing the funds that belong to them. So these funds become part of the total pool that will be divided among some 140 sexual abuse victims who have sued the diocese. The parishes and institutions with funds in the pool will also have claims and will share pro rata with abuse claimants and other creditors. Bloomberg Businessweek, reporting on the decision, quotes an attorney for sex abuse victims who have sued the diocese who calls the result "a great victory for all the survivors of sexual abuse in the diocese."

Prop 8 Opponents Say CLS v. Martinez Supports Them

Earlier this month, lawyers made their closing argument in Perry v. Schwarzenegger, a federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. A decision has not yet been handed down in the case. (See prior posting.) Plaintiffs, who claim that gays and lesbians are a protected class for constitutional purposes, say language in Monday's Supreme Court decision in Christian Legal Society v. Martinez supports their position. The Recorder yesterday reported that lawyers for those challenging Proposition 8 wrote a letter (full text) to U.S. District Judge Vaughn Walker, bringing the Supreme Court's language to his attention. The letter reads in part:

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: "Our decisions have declined to distinguish between status and conduct in this context."

Kagan's Religion Comes Up In Unusual Contexts At Confirmation Hearings

JTA reports that at the Senate Judiciary Committee hearings yesterday on the Supreme Court nomination of Elena Kagan, the nominee referenced her religion in two unusual contexts. Sen. Chuck Grassley (R-Iowa) questioned Kagan on remarks she made at Harvard Law School welcoming Israeli Supreme Court Judge Aharon Barak in which she called the activist jurist her "judicial hero." (See prior posting.) Responding to Grassley's concerns, Kagan said that her admiration does not mean she wants to adopt Barak's views in the United States. Instead, she said, she admired his role in creating an independent judiciary for Israel and assuring that it "would become a very strong rule of law nation." Then she added: "As you know, I don't think it's a secret I am Jewish. The State of Israel has meant a lot to me and my family. And – and I admire Justice Barak for what he's done for the State of Israel and ensuring an independent judiciary."

At another point in the hearing, Sen. Lindsey Graham (R-SC) began to question Kagan about terrorism issues, focusing on the arrest in Detroit last Christmas Day of an attempted airline bomber. Graham asked: "Where were you on Christmas Day?" Kagan responded humorously: "Like all Jews, I was probably at a Chinese restaurant."

Don Byrd is live blogging from the hearings on church-state issues that arise.

En Banc Rehearing Denied In Challenge To Inauguration Prayer and Oath

Yesterday the D.C. Circuit Court of Appeals denied a panel rehearing and also denied an en banc rehearing in Newdow v. Roberts. The case is an Establishment Clause challenge to prayer and use of "so help me God" in the oath at Presidential inauguration ceremonies. In May's panel decision dismissing the case, two judges held that it was moot and that plaintiffs lacked standing, while the third judge would have dismissed on the merits. (See prior posting.) [Thanks to Bob Ritter for the lead.]

Reasons For Belgian Raid On Church Headquarters Disclosed

Today's New York Times reports new information explaining the raids by Belgian police last week on church offices and a cathedral in the Archdiocese of Malines-Brussels. The Pope criticized police tactics. (See prior posting.) The Times reports that the raids stemmed from a formal accusation by Godelieve Halsberghe, former head of an internal church commission handling sexual abuse cases, that the Church was hiding information. Investigators seized two truckloads of files, many relating to 475 complaints filed since April when Bishop Roger Vangheluwe resigned after admitting to sexually abusing a young man decades ago. (Background.) Investigators are comparing records to see if some complaints were kept from the church's commission. Prosecutors are also considering whether to move against those who knew children were being abused and took no action to protect them.

New Australian Prime Minister Says She Will Not Pretend Religious Beliefs For Votes

In Australia last week, the governing Labor Party changed its leaders, naming Julia Gillard as Prime Minister-- the first woman to hold that post. (Huffington Post). Gillard is expected to call elections for as early as August. (news.com.au). The Australian today reports on a refreshing honesty by Gillard in responding to views about her religious beliefs. When asked during a radio interview how she would attract Christian voters and whether she believes in God, she responded:

I'm not a religious person. I was brought up in the Baptist Church but during my adult life I've, you know, found a different path. I'm of course a great respecter of religious beliefs, but they're not my beliefs. I am not going to pretend a faith I don't feel. And for people of faith the greatest compliment I could pay to them is to respect their genuinely held beliefs and not to engage in some pretence about mine. I think it's not the right thing....

For, you know, people of faith what I would say to them is I grew up in a Christian Church, a Christian background, a Baptist Church, I won prizes for catechism for being able to remember Bible verses. I am steeped in that tradition but I've made decisions in my adult life about my own views.... What I can say to Australians broadly of course is that I believe you can be a person of strong principle and values from a variety of perspectives. And I've outlined mine to you.

Advocacy Groups React To CLS v. Martinez

Many advocacy groups and interested parties have issued statements on yesterday's Supreme Court decision in Christian Legal Society v. Martinez. Here is a sampling:

• ACLU
• Alliance Defense Fund
• American Center for Law & Justice
• American Jewish Committee
• Americans United for Separation of Church and State
• Baptist Joint Committee
• Becket Fund for Religious Liberty
• Christian Legal Society
• Foundation for Individual Rights in Education
• Hastings College of Law
• Interfaith Alliance
• Union of Orthodox Jewish Congregations

Citizens Link suggests that the decision may have limited impact because few if any other schools have an "all-comers" rule for student groups. Most have a rule that bars discrimination on specified grounds, such as race, religion, gender and sexual orientation. The majority avoided passing on the constitutionality of this sort of rule. The Chronicle of Higher Education also reviews reactions to the decision.

Report Released on Canadian Zoning Laws and Religious Freedom

The Evangelical Fellowship of Canada announced yesterday the release of a report titled Zoned Out: Religious Freedom in the Municipality. The report outlines the protections for religious freedom in Canada and focuses on municipal zoning laws that may violate the religious freedom of congregations seeking to relocate.

Cert. Denied In Abuse Suit Against Vatican

The Supreme Court yesterday denied certiorari in Holy See v. Doe, (Docket No. 90-1). (Order List.) In the case, a Seattle man is attempting to hold the Vatican liable for abuse by a priest in the 1960's. The 9th Circuit held that plaintiff could proceed against the Vatican on a respondeat superior theory under the Foreign Sovereign Immunity Act's tortious act exception. (See prior posting.) Reporting on the Supreme Court's refusal to review which allows the lawsuit to move to trial, AP quoted plaintiff's attorney who hopes now to be able to depose Vatican officials.

Supreme Court Upholds Hastings Law School's All-Comers Policy for Registered Student Organizations

The U.S. Supreme Court today in a 5-4 decision upheld the non-discrimination policy of Hastings College of Law that requires registered student organizations to allow any student to participate. The policy was challenged by the Christian Legal Society which requires members to sign a Statement of Faith and abide by it, so that non-Christians and those who engage in "unrepentant homosexual conduct" are excluded. Registered student organizations get the advantage of being able to meet on school premises, and of communicating with its member through sending e-mails to the student body and through other official forums.

In Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez, (Sup. Ct., June 28, 2010), CLS argued that all-comers rule violates its rights to free speech, expressive association and free exercise of religion. The majority ruled only on the "all comers" rule that the parties specified applied in their stipulation of facts. It refused to pass on the question of whether the narrower non-discrimination policy as written that prohibits discrimination only on specified bases, including religion and sexual orientation, is unconstitutional because it targets beliefs based on religion or having to do with particular kinds of sexual behavior.

The majority in an opinion written by Justice Ginsburg, held that Hastings' policy is a reasonable, viewpoint-neutral condition on access to a limited public forum for registered student organizations. She summarized:

The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

Responding to concerns about a takeover of a group by opponents who wish to sabotage it, Justice Ginsburg wrote that membership or leadership positions can be conditioned on "requirements designed to ensure that students join because of their commitment to a group’s vitality, not its demise."

Justices Stevens and Kennedy filed separate concurring opinions. Justice Stevens argued that even as written, the non-discrimination policy is constitutional. Justice Kennedy emphasized the informal learning that is furthered through student interaction by the all-comers policy.

Justice Alito wrote a dissent, joined by Chief Justice Roberts and Justices Scalia and Thomas. The dissent argued that the Court should focus on the non-discrimination policy as written, since that was the policy originally invoked to deny CLS registration. That policy, the dissent argues, amounts to viewpoint discrimination since only religious groups are required to admit students who do not share their views. Political groups or groups formed around other causes can limit membership. The dissent goes on to argue that even limiting the analysis to the broader all-comers rule, the policy is unconstitutional. It was adopted as a pretext to suppress a particular viewpoint and it is not reasonable in light of the purposes of the student organization policy which is promoting diversity among student organizations.

Pakistan Monitoring Major Websites For Sacrilegious Content

According to Salon, the Pakistan Telecommunications Authority under order from the Ministry of Information Technology is monitoring seven major websites for sacrilegious content. The sites being monitored are: Yahoo, Google, MSN, Hotmail, YouTube, Amazon and Bing. It will block links on these sites to offensive content. It is also completely blocking access to 17 other less well-known websites, including islamexposed.blogspot.com. The action was taken in response to an order by a court in the city of Bahawalpur, and follows a court-ordered temporary ban on access to Facebook last month. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Brian Michael McCall, Consulting the Architect when Problems Arise – The Divine Law, (June 24, 2010).
• Eugene Volokh, Freedom of Speech and the Intentional Infliction of Emotional Distress Tort. Cardozo Law Review, UCLA School of Law Research Paper No. 10-14 (2010).

From SmartCILP:

• Kyle Persaud, A Permit to Practice Religion for Some But Not for Others: How the Federal Government Violates Religious Freedom When It Grants Eagle Feathers Only to Indian Tribe Members, 36 Ohio Northern University Law Review 115-138 (2010).

Belgian Police Search of Cathedral and Church Offices Condemned

Yesterday, according to Zenit, Pope Benedict XVI in a letter to Belgian Archbishop André-Joseph Léonard condemned the methods used last Thursday by Belgian police in searching the headquarters of the Archdiocese of Malines-Brussels in a sexual abuse investigation. As described by Zenit:

The police arrived at 10:30 Thursday morning to the headquarters of the Archdiocese of Malines-Brussels, where the bishops of Belgium were meeting for their monthly meeting. The authorities detained the bishops at the headquarters for nine hours as they searched the offices and the Cathedral of Malines.

At that time they drilled holes in the two graves of cardinals Jozef Ernest Van Roey and Leon Joseph Suenens, deceased archbishops of Malines-Brussels, located in the crypt of the cathedral, and then sent cameras down in search of hidden documents.

In addition to the headquarters of the archbishopric of Brussels, the authorities seized some 500 confidential files In Leuven, Belgium, from the office of Peter Adriaensses, president of the commission for the treatment of sexual abuses. The home of former archbishop of Malines-Brussels, Cardinal Godfried Danneels, was also searched.

Compromise Lets Israel's High Court Release School Parents From Jail

In Israel, a compromise has led to the release from jail of the fathers of 35 girls enrolled in the Beit Ya'acov school in the town of Emmanuel. As previously reported, Israel's High Court ruled that a group of parents of the Slonim Hasidic sect would be imprisoned for two weeks for contempt if they did not obey the court's previous order to send their girls back to a school where they study together with Sephardi girls. Ultimately only the father's were jailed. According to today's Jerusalem Post and Haaretz, under the compromise all the girls will spend this week's last three days of the school year together hearing lectures about unity. Everyone agrees that this satisfies the Court's order. Then over the summer, the parties will meet to work out a more permanent solution. The Jerusalem Post says that the agreement calls for the right of Ashkenazi Hasidic parents to establish a new school next year. The haredi community calls the compromise a victory by religious forces over the state's secular institutions. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]