Religion Clause

Thursday, July 29, 2010

Bangladesh Supreme Court Appellate Division Restores Constitutional Provision On Secularism

The Financial Express reports that on Tuesday, the Appellate Division of Bangladesh's Supreme Court upheld, with certain modifications, a High Court decision that declared illegal the Fifth Amendment to Bangladesh's Constitution. The decision restores various articles of the 1972 Constitution, including those that affirm principles of secularism. According to the Financial Express:

The verdict paves the way for restoration of Article 12 of the original Constitution that says: The principle of secularism shall be realized by the elimination of - (a) communalism in all its forms; (b) the granting by the State of political status in favour of any religion; (c) the abuse of religion for political purposes; (d) any discrimination against, or prosecution of persons practising a particular religion.

The verdict makes way for dropping clause (2) of Article 25 that says the State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.

Following the verdict, Article 38 with proviso will be restored. Article 38 says "Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order: "Provided that no persons shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has or its object, or pursues, a political purpose."

The Financial Express reports separately that Bangladesh's Parliament has created a 15-member committee to prepare a draft amended Constitution to comply with the Court's order. DNA India reports however that Parliament is unlikely to ban ban religious parties or drop the Islamic verse "Bismillahir Rahmani Rahim" from the preamble of the constitution (See prior related posting.)

Settlement Reached In High Schooler's Suit Against Science Teacher Who Taught Religion In Class

Today's Columbus (OH) Dispatch reports on the settlement of a federal lawsuit brought by the family of a high school student against Mount Vernon, Ohio high school teacher John Freshwater. The lawsuit alleged violations of the Establishment Clause. Copies of the Ten Commandments were posted in Freshwater's classroom. He kept his personal Bible on his desk, and a box of Bibles were stored in the back of the classroom for use by the school's Fellowship of Christian Athletes for which Freshwater served as faculty advisor. The student also alleged a battery growing out of an experiment with a Tesla coil which allegedly left a mark on his arm in the shape of a Christian cross. (See prior posting.) Attorneys for the insurance carrier for the school and teacher have not released details of the settlement, which must still receive court approval. Currently Freshwater is on administrative leave, fighting attempts of the school board to fire him for teaching religion in his science class.

New Zealand Jewish Community Preparing To Sue Over Ban On Kosher Slaughter

JTA today reports that the Jewish community in New Zealand is preparing to file a lawsuit challenging the government's recent decision refusing to exempt kosher slaughter from a new Animal Welfare Slaughter Code that requires animals be stunned before being killed. (See prior posting.) Attempts to convince the Agriculture Minister to reverse the ban have not succeeded. The lawsuit will likely claim that the ban violates religious freedom protected by New Zealand's Bill of Rights Act . The Animal Welfare Act of 1999, Sec. 73, provides that in proposing a Code under the Act, the National Animal Welfare Advisory Committee is to consider, among other things, the requirements of religious and cultural practices.

Atheist School Proposal Welcome Under Britain's New Education Policy

Yesterday's London Telegraph reports that Britain's Education Secretary Michael Grove says he would be interested in looking at proposals by individuals such as atheist Prof. Ricard Dawkins for the creation of a "free thinking" school. Around one-third of the government funded schools in Britain are faith schools. The government has published a plan to give parents' groups, teachers and charities powers to open their own schools at taxpayers' expense. Saying that an atheist school would not be his personal preference, he emphasized that nevertheless it is consistent with the new policy of providing the greatest degree of choice to parents.

Most of University's Speaker Policy Survives Facial Challenge By Christian Preacher

In Sonnier v. Crain, (5th Cir., July 27, 2010), the 5th Circuit Court of Appeals , in a 2-1 decision, rejected a facial challenge to most parts of Louisiana State University's speaker policy, applying the test that a facial challenge will succeed only if there is no set of circumstances under which the policy would be valid. In a suit brought by an itinerant Christian preacher who wanted to deliver a religious message to students, the court upheld the denial of a preliminary injunction to prevent enforcement of (1) the school's seven-day advance notice requirement for a permit; (2) a two-hour, once-per week limitation for each speaker or organization; (3) the collection of personal information before issuing a permit; and (4) the limitation of speech to three specific campus locations. However it enjoined enforcement of the school's requirement that speakers pay a security fee at the discretion of the University.

Judge Dennis dissented arguing that at the preliminary injunction stage, the court should have considered the speech policy as applied as well as the facial challenge to it. He concluded that all portions of the policy were unconstitutional as applied to plaintiff. He also argued that the majority used the wrong test in determining facial validity. Finally he concluded that the University's restrictions are not narrowly tailored to serve a significant governmental interest.

77' Cross Goes Up In Texas Subdivision Prayer Garden

Following a settlement last March of a lawsuit attempting to prevent The Coming King Foundation (TCKF) from placing a 77-foot tall cross in a Kerrville, Texas subdivision (see prior posting), on Tuesday the $2 million, 70-ton sculpture was erected overlooking Texas I-10, half way between the Atlantic and Pacific Oceans. A press release from TCKF says the sculpture called The Empty Cross, which is part of a 23-acre sculpture prayer garden, will be admission free. However, over $2 million still needs to be raised in order to build a parking lot entrance and interior roads that will allow the park to be opened to the public. In the meantime, guided tours are available, as is live streaming video of the Cross.

Wednesday, July 28, 2010

Court Upholds Dismissal of Counseling Student Who Would Not Counsel Gays

In Ward v. Wilbanks, (ED MI, July 26 2010), a Michigan federal district court upheld Eastern Michigan University's dismissal of a student from its graduate program in counseling because of her objections to counseling clients on their same-sex relationships, in violation of professional counseling standards. Julea Ward's Christian beliefs precluded her from affirming relationships which she believed were inconsistent with Biblical teachings. The court concluded that the university's policy is not a speech code, but is an integral part of the curriculum. It held that in a university setting, restricting or compelling speech that occurs in a classroom as part of the curriculum will be upheld so long as it serves a rational pedagogical purpose. According to the court:

The University had a rational basis for adopting the ACA Code of Ethics into its counseling program, not the least of which was the desire to offer an accredited program. Furthermore, the University had a rational basis for requiring its students to counsel clients without imposing their personal values. In the case of Ms. Ward, the University determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs - including homosexual relationships. The University offered Ms. Ward the opportunity for a remediation plan, which she rejected. Her refusal to attempt learning to counsel all clients within their own value systems is a failure to complete an academic requirement of the program.

Additionally, the court rejected Ward's free exercise and Establishment Clause claims:

Plaintiff was not required to change her views or religious beliefs; she was required to set them aside in the counselor-client relationship – a neutral, generally applicable expectation of all counselors-to-be under the ACA standard.

It concluded that the program requirements were secular in purpose and effect and did not involve excessive entanglement. It went on:

Although plaintiff’s complaint that defendants demonstrated hostility, arrogance, and offensiveness during the formal and informal reviews is well taken, the court finds that neither this behavior nor the curriculum requirements satisfy the level of hostility required to establish a religion of secularism....

Finally the court rejected plaintiff's equal protection claim:

Both sides’ positions eventually hardened due to the confrontational atmosphere, culminating in the “theological bout” during the formal hearing. Nevertheless, the court does not perceive any maliciousness in defendants’ behavior amounting to a constitutional violation.

Alliance Defense Fund which represented the student said in a release yesterday that it would appeal the decision. (See prior related posting.) Today's Inside Higher Ed reports on the decision.

ACLU FOIA Request Seeks To Uncover FBI "Muslim Mapping"

In a press release yesterday, the ACLU announced coordinated Freedom of Information Act requests in 29 states and the District of Columbia asking the FBI to release records on its collection and use of information on ethnic-oriented businesses, behaviors, lifestyle characteristics and cultural traditions in communities with concentrated ethnic populations. According to the Los Angeles Daily News, an ACLU staff attorney said that it fears the FBI engaging in "Muslim mapping," the "singling out individuals for investigation, surveillance, and data-gathering based solely on their religion or ethnicity."

9th Circuit Says Ghanaian Baptist Preacher Entitled To Asylum

In Afriyie v. Holder, (9th Cir., July 26, 2010), the 9th Circuit held that a citizen of Ghana should have been granted asylum in the United States based on his persecution in Ghana by private parties who objected to his proselytizing as a Baptist preacher in predominately Muslim areas of the country. Persecution by private parties is a basis for asylum if the government is unable or unwilling to control the persecution. The court concluded that reporting persecution to the government is not essential to demonstrating that the government is unable or unwilling to protect a person from private actors. It is enough to show a lack of police resources that result in the police being unable to provide protection. The court also remanded for further findings appellant's claim for relief under the Convention Against Torture. Courthouse News Service reports on the decision.

Muslim Employees Prevail In Two EEOC Cases Involving Religious Accommodation

Muslim employees of two different companies have obtained favorable results after filing complaints with the EEOC. In one case, according to BNA's Daily Labor Report Monday, Swedish-based Electrolux Group has decided to change the evening shift meal breaks during Ramadan this year so employees will be able to break their fast and still abide by company rules that prohibit food on the production floor.

In an unrelated case, also reported by BNA's Daily Labor Report on Monday, White Lodging Services, Inc. which manages the Louisville (KY) Downtown Marriott has settled a lawsuit brought by the EEOC on behalf of four Muslim women who were denied job interviews in 2005 when they would not remove their hijabs. Marriott dress policy did not allow employees to wear head coverings that were not part of their uniforms, and the housekeeping manager who rejected the women was not aware of the significance of the hijab. The company will pay $10,000 to settle with each of the women, and will provide equal opportunity training for Hotel employees. (EEOC press release, 7/21). [Thanks to Steven H. Sholk for the lead.]

Tuesday, July 27, 2010

Utah High Court Reverses FLDS Leader Warren Jeff's Conviction

The Utah Supreme Court today reversed the rape as an accomplice conviction of FLDS leader Warren Jeffs. (See prior posting.) In State of Utah v. Jeffs, (UT Sup. Ct., July 27, 2010), a unanimous court held that the jury had been improperly instructed on the issue of consent. Jeff's conviction grew out of his role in the compelled marriage of a 14-year old, Elissa Wall, to her nineteen-year-old first cousin, Allen Steed. Utah law provides that intercourse with a minor is non-consensual where the actor occupied a position of special trust in relation to the victim. The trial court erroneously instructed the jury that this referred to whether Jeffs, the accomplice, occupied a position of trust, instead of whether Steed, the person having intercourse with Wall, occupied such a position. The court also clarified the state of mind requirement in order to convict Jeffs as an accomplice. He must have been aware, at a minimum, of a substantial and unjustifiable risk that his actions would result in rape being committed by another person. And where the charge is aiding another, rather than soliciting, encouraging or commanding the action, the accomplice must have acted intentionally. The Salt Lake Tribune reports on the decision.

UPDATE: AP (7/28) reports that Texas and federal authorities still have charges pending against Jeffs who could now be tried under those indictments. Meanwhile KSL News has Elissa Wall's reaction to the decision. Wall is in a witness protection program.

Canadian Appellate Court Opens Door To Refugee Status For U.S. Conscientious Objector to Iraq War

In Hinzman v. Minister of Citizenship and Immigration, (Fed. Ct. App., July 6, 2010), Canada's Federal Court of Appeal held than an American soldier's application for permanent residency as a refugee based on "humanitarian and compassionate" grounds may be granted when his refusal to deploy to Iraq was based on a sincere and deeply held moral, political or religious objection to a particular war. In a decision below, the applications judge agreed with the H&C Officer that the CO's potential punishment for desertion in the United States did not justify granting his application because "hardships attached to laws of general application in a democratic state cannot be considered as unusual and undeserved or disproportionate under Canadian law." The appeals court held, however, that "the H&C Officer had the duty to look at all of the appellants’ personal circumstances, including Mr. Hinzman’s beliefs and motivations, before determining if there were sufficient reasons to make a positive H&C decision." Axis of Logic yesterday, reporting on the decision, says that it has "[set] the stage for a new immigration review process for all those Iraq- and Afghanistan-assigned American soldiers who came to Canada as conscientious objectors." However Canada's Minister of Citizenship and Immigration Jason Kenney is opposed to allowing American CO's to remain in Canada.

Rabbi Sentenced In Fraud Case From 1980's

In a Manhattan federal court yesterday, Rabbi Avrum Friesel was sentenced to 27 months in jail and ordered to pay $11 million in restitution for a fraud committed by leaders of the Hasidic village of New Square, New York in the 1980's. Yesterday's New York Post reports that Friesel, after spending eleven years on the run in Israel and Great Britain, plead guilty after being extradited from Britain last year. The offenses included obtaining $10 million in fraudulent Pell grants for ineligible students at a Brooklyn seminary. The court granted a downward departure from the Federal Sentencing Guidelines 41 month sentence because of Friesel's minor role in the fraud and his history of working with disabled children. Friesel said he was deeply ashamed of breaking American civil law, which meant he also broke Jewish religious law. Four co-defendants were convicted in 1999, but their sentences were commuted by President Bill Clinton on his last day in office in 2001. The New York Post notes that the commutation came shortly after Hillary Rodham Clinton won almost every vote in New Square, NY in her race for the U.S. Senate.

New Jersey Appellate Court Says Religious Belief Does Not Excuse Coerced Sex With Wife

In S.D. v. M.J.R., (NJ Super. Ct. App. Div., July 23, 2010), a New Jersey appellate court held that the trial court should have issued a final restraining order to protect a Muslim woman who had been the victim of her husband's domestic violence. The trial court judge had concluded that while the husband's coerced sex with his wife constituted sexual assault, the husband did not have the requisite sexual intent because of his belief that his religion permitted him to require his wife to comply with his sexual demands. The appellate court held: "Because it is doubtlessly true that the laws defining the crimes of sexual assault and criminal sexual contact are neutral laws of general application, and because defendant knowingly engaged in conduct that violated those laws, the judge erred when he refused to recognize those violations as a basis for a determination that defendant had committed acts of domestic violence."

Tennessee Lt. Gov. Questions Freedom of Religion For Muslims

TPMDC reported yesterday that Tennessee Lt. Gov. Ron Ramsey, a candidate in the state's gubernatorial primary (currently running third), suggested in an answer to a question at a campaign event that Islam may not be protected by the Constitution's free exercise clause. Referring to a dispute over a zoning change to permit an Islamic center to be built in Murfreesboro (TN), (background from CNN) he said: "Now, you know, I'm all about freedom of religion. I value the First Amendment as much as I value the Second Amendment as much as I value the Tenth Amendment and on and on and on. But you cross the line when they try to start bringing Sharia Law here to the state of Tennessee -- to the United States. We live under our Constitution and they live under our Constitution." In a rambling answer, he also remarked: "Now, you could even argue whether being a Muslim is actually a religion, or is it a nationality, way of life, cult whatever you want to call it. Now certainly we do protect our religions, but at the same time this is something we are going to have to face."

Monday, July 26, 2010

Russian Prosecutors Open Criminal Prosecution Against Scientology Group

Today's Moscow Times reports that prosecutors in the Russian town of Shchyolkovo, northeast of Moscow, have opened a criminal prosecution against the Church of Scientology on the grounds that it is promoting extremism. The action follows an April decision by a Siberian court that added 28 works by Scientology founder L. Ron Hubbard to the country's list of extremist material. (See prior posting.)

Battle Over Conversion Law In Israel Takes 6-Month Pause

Today's Jerusalem Post carries an op-ed by Natan Sharansky, chairman of the Jewish Agency, reviewing the battle that has gone on for the past two weeks in the Israeli Knesset over proposed new legislation on conversion. As reported by the New York Times on Friday, the bill began as an attempt to make conversion to Judaism easier for 300,000 Russian immigrants who came to Israel but are not considered Jewish under Orthodox religious law. The Knesset proposal did this by giving conversion authority to local rabbis around the country. However, when Orthodox authorities objected, the bill was amended to provide that Orthodox Jewish law would be the basis for conversion. That led to massive protests from the Jewish community in the United States who saw this as an attempt to undercut progress in litigation that had been made by the Reform and Conservative movements to have their conversions recognized. As the Knesset adjourned for the summer, Prime Minister Benjamin Netanyahu's office announced a compromise under which both sides would negotiate for the next six months. Until January, no conversion law will be introduced in the Knesset, and litigation before Israel's Supreme Court by the Reform and Conservative movements will be suspended for the same period.

Reality Show Seeking Progressive Muslim Leader Is Popular In Malaysia

AP reported yesterday on a reality show that is garnering large audiences on an Islamic-themed cable channel in Malaysia. "Imam Muda" (Young Leader) is seeking a pious but progressive young Muslim man who can show that religion can remain relevant to Malaysian young people. The ten men, between 18 and 27, ultimately picked as contestants for the show are photogenic and could pass as models. The contestants are sequestered in a mosque hostel. The tasks they have performed, featured on different episodes, include performing Muslim ablutions on two unclaimed corpses and burying the bodies; and counseling residents of a shelter for women and homeless children. The ultimate winner will receive an all-expense paid pilgrimage to Mecca, an automobile, a position as prayer leader in a major mosque, a scholarship to study in Saudi Arabia and $6400 (US) cash.

Saudi Clerics Say Muslim Women In France Need Not Wear Veil

As France moves to ban the weraing of the burqa and niqab (see prior posting), Saudi Islamic jurisprudence scholar Mohamed al-Nujaimi and Saudi author and cleric Ayed al-Garni say that Muslim women living in France are exempt from the requirement to cover their face. Apparently so are tourists to France, but the clerics say that it is preferable to avoid visiting there and instead go to Muslim countries which permit the niqab. The two clerics are not members of the Saudi Senior Scholars Auhority which has not commented on France's actions. The comments come as the Louvre Museum in France, with the support of the Saudi government, has mounted a major display of Saudi artifacts. These developments were reported Friday by Reuters via Haaretz.