Court OK's Sectarian City Council Invocations

A New York federal district court this week rejected an Establishment Clause challenge to sectarian prayers offered at Town Board meetings in Greece, New York.  In Galloway v. Town of Greece, (WD NY, Aug. 5, 2010), the court, in an 83-page decision, upheld the town's policy of inviting clergy from all denominations in the town to offer an invocation, without any guidance or restriction on the content of their prayer. That policy led to almost all of the prayers being delivered by Christian clergy. The court wrote in part:

[T]he Court has considered the nature of the prayers, and finds that they did not proselytize or advance any one, or disparage any other, faith or belief. It is undisputed that the vast majority of prayers at issue in this case were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ.... Otherwise, though, most of the prayers that Plaintiffs maintain are sectarian are indistinguishable from prayers that they say are non-sectarian....

Plaintiffs maintain ... that sectarian legislative prayers necessarily violate the Establishment Clause.... Plaintiffs contend that prayers may only refer to a "generic God," and must not refer to any particular deity or to any religious belief, such as the Holy Trinity, that is specific to a particular religion or group of religions. Plaintiff's further maintain that to prevent sectarian prayer, the Town must instruct potential prayer-givers to give inclusive ecumenical prayers. The Court disagrees.

It is clear to this Court that Marsh [v. Chambers] does not require that legislative prayer be non-sectarian. To the contrary, Marsh upheld the constitutionality of legislative prayer, thereby specifically carving out a unique exception to the Lemon test, based primarily if not exclusively on the long history of legislative prayer in Congress, which is often overtly sectarian....

The Court also disagrees with Plaintiffs' contention that the Town must, or even can, instruct potential prayer-givers that prayers should be "inclusive and ecumenical." In Lee [v. Weisman], the Supreme Court characterized the defendant school's similar instruction to an invited rabbi as an impermissible attempt by government to control the content of prayer.... The Court finds that the policy requested by Plaintiffs would violate Lee, since it would likewise impose a state-created orthodoxy. In this regard, the Court respectfully disagrees with the Fourth Circuit's decision in Turner [v. City Council of the City of Fredericksburg, Virginia].

Moreover, the Court finds that Plaintiff's proposed non-sectarian policy, which would require Town officials to differentiate between sectarian prayers and non-sectarian prayers, is vague and unworkable, as Pelphrey [v. Cobb County, GA] demonstrates. The instant case illustrates the illusory nature of so-called nonsectarian prayer, since as shown above, many of the prayers that Plaintiffs say are sectarian are indistinguishable from prayers that they say are not.

Alliance Defense Fund issued a press release on the decision. (See prior related posting.)

Suits Against Scientology By 2 Sea Org Members Dismissed Under Ministerial Exception Doctrine

In two related cases brought by a husband and wife, a California federal district court yesterday applied the constitutionally compelled  "ministerial exception" doctrine to dismiss suits against the Church of Scientology alleging violations of the Trafficking Victims Protection Act. The TVPA (18 USC 1589(a)(1)) prohibits knowingly obtaining the labor or services of a person by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person, and permits victims to bring civil actions for damages (18 USC 1595).

In Claire Headley v. Church of Scientology International, (CD CA, Aug. 5, 2010), plaintiff was a member of Scientology's Sea Org. Sea Org members live communally, are assigned physically difficult tasks, and are subject to strict discipline. They are not allowed to raise children and remain Sea Org members. Plaintiff says she had two abortions under the pressure of this policy. In Marc Headley v. Church of Scientology, (CD CA, Aug. 5, 2010), plaintiff was also a Sea Org member and alleged instances of physical abuse and acts of discipline. In dismissing the lawsuits on First Amendment grounds, the court said:

Defendant here represents that the challenged conduct was doctrinally motivated..... Therefore, inquiry into these allegations would entangle the Court in the religious doctrine of Scientology and the doctrinally-motivated practices of the Sea Org. It would also require the Court to analyze the criteria Defendant uses to choose ministers and the reasonableness of the methods used to enforce church policy and encourage members to remain with the organization and the religion itself.... In order to determine whether Defendant’s means of persuading members to remain with the Sea Org, etc. fall within the purview of the TVPA, a trier of fact must inquire into Scientology’s policies, practices, and scriptures.

Today's St. Petersburg Times reports on the decisions. (See prior related posting.)

Will Effective Portions of Arizona's SB 1070 Hit Church Vans?

While portions of Arizona's SB 1070 targeting illegal immigrants was struck down by a federal court last month (full text of decision), other portions of the law have gone into effect. According to New America Media today, church leaders are particularly concerned about one of those provisions that has gone into effect, Sec. 13-2929, which provides:

A. It is unlawful for a person who is in violation of a criminal offense to: 1. Transport or move or attempt to transport or move an alien in this state in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law....

Church groups often transport their undocumented members to services or spiritual retreats in church vans or buses. The Phoenix Police Department says the provision would not be triggered by a traffic stop of a bus or van for speeding or ignoring a stop sign. But University of Arizona law professor Gabriel Chin says that police could stop a vehicle for suspicion of violating federal laws against harboring undocumented immigrants and then invoke this provision of SB 1070 to charge a state offense.

Southern Baptist Minister In Runoff For U.S. House In Georgia's 7th District

The Macon Telegraph yesterday profiled Rev. Jody Hice who will be one of two candidates in the run-off next Tuesday for the Republican nomination for the U.S. House of Representatives in Georgia's Republican-leaning 7th District that encompasses the eastern suburbs of Atlanta.  Hice, a Southern Baptist, was prominent in battles to display the Ten Commandments in public buildings, and defied the IRS by endorsing 2008 Presidential candidate John McCain from the pulpit. His campaign office features a poster of Jesus kneeling in prayer with one hand outstretched touching the crack in the Liberty Bell. Hice particularly attracted attention with billboards on the Atlanta freeways that show President Obama with a Soviet hammer and sickle. Hice has focused his campaign on fiscal issues, but still maintains his half-hour radio show on the Christian Satellite Network. Some say he violated tax laws on non-profits when in his July 27 broadcast Hice gave a brief update on the runoff and asked for listeners' prayers. Both Hice's Let Freedom Ring Ministries and the network are non-profits. The 7th district's current congressman, Republican John Linder, is retiring. Hice's opponent in the run-off is Rob Woodall, Linder's former chief-of-staff. Woodall was the front-runner in the initial round of primary voting.

French Jews Wage Legal Battle To Reclaim Family Names

London's Jewish Chronicle yesterday reported on the legal battle being waged by some Jews in France who want to reclaim their traditional family name. Many years ago, their parents changed the family name to something that sounds more French to avoid anti-Semitism. French law provides that family names are immutable and must be continued. Foreign-sounding names can be changed, and a person can reclaim a name if it is about to disappear, but only if it is a French name. Now, for example, Olivier Raimbaud wants to reclaim her family name of Rubinstein, and has been filing requests for 25 years with the State Council to do so. When requests are considered, the government insists that the entire family agree to the change. A new group, The Strength of the Name, has recently filed four more requests for individuals at the justice ministry. Some of those seeking a name change are reacting to right-wing politicians like National Front leader Jean-Marie Le Pen who has accused Jews of hiding their identity in order to dominate France.

Australian Judge To Rule On Whether Witness Can Wear Niqab

Controversy over Muslim women wearing the full-face veil has now made its way to Australia.  According to WA Today, the former director of the Muslim Ladies College of Australia, Anwar Sayed, is on trial in a court in Perth for fraudulently obtaining over $750,000 (AU) in public funding. One of the witnesses against him, a tutor at the school, has requested that she be allowed to wear a niqab while on the witness stand. Sayed's attorneys argue that the witness, identified only by her first name, Tasneem, should have to testify with her face uncovered so that the jury can assess her credibility in part by her facial expressions. Prosecutors say that forcing Tanseem to remove the niqab that she usually wears in public would create stress that could affect her facial expressions while testifying. Since the issue has been raised, Sayed has received death threats which police are investigating. And WA Today reports this morning that Sayed has been stabbed after being stopped in his car.  Apparently he was not injured seriously. Meanwhile Sayed's lawyers are suggesting some possible compromises-- testimony by closed circuit television with a female officer present with the witness, or at least a jury instruction on how to take account of the witness' lack of facial expression. The court will rule on the issue August 19. Meanwhile Australian politicians have begun to speak out on both sides of the issue.

Kenya Passes New Constitution Despite Opposition From Churches

The New York Times reports that in yesterday's referendum in Kenya, 67% of the voters approved the country's new constitution (full text of draft document) according to provisional results released today.  The new constitution limits the powers of the president, provides for land reform and creates a bill of rights. As reported by CNN, Kenya's Christian churches had opposed the Constitution because of provisions they say will permit abortion on demand and because of the document's recognition of Muslim Khadis courts. (See prior posting for details.) The U.S. government supported the draft Constitution, but some conservative Christian groups in the United States, particularly the American Center for Law & Justice, opposed the draft. Three conservative members of Congress wrote the State Department's Inspector General in May asking for an investigation of whether there has been a violation of provisions that prohibit spending of U.S. government funds to lobby for or against abortion. (Christian Science Monitor 5/14).

U.S. Court Orders Russia To Return Book Collection To Jewish Group

In Agudas Chasidei Chabad of United States v. Russian Federation, (D DC, July 30, 2010), the DC federal district court found that plaintiff had presented a legally sufficient prima facie case and entered a default judgment against the Russian Federation ordering it to return two collections of valuable religious books and manuscripts (the Library and the Archive) to Chabad. The court concluded that the expropriation of both collections was discriminatory. The Archive was taken by the Soviet Army in World War II from the Nazis who had expropriated it. The court found three separate takings over time of the Library-- one during the Russian Revolution, one when the Soviet government failed to return the books, and a third in 1992 when the Russian Federation closed all legal avenues for retrieval of the collection. Russia had earlier withdrawn from participating further in the litigation, arguing that the court lacked jurisdiction over it and indicating it would not consider any court orders binding on it. The Foreign Sovereign Immunities Act (28 USC 1608(e)) still requires that a claimant establish its right to relief before a default judgment can be entered. The court's order (full text) requires defendants to deliver the collections to the U.S. embassy in Moscow or to a destination of plaintiff's choosing. A press release from Bingham McCutchen LLP that represented plaintiffs reported on the decision. (See prior related posting.)

Religious Leaders React On Both Sides of Prop 8 Decision

USA Today this morning reviews the reaction of a number of religious leaders on both sides of the debate to a California federal district court's ruling yesterday (see prior posting) that Proposition 8, banning same-sex marriage, is unconstitutional. The Mormon Church, one of the strongest supporters of Proposition 8, urged all sides "to act in a spirit of mutual respect and civility toward those with a different opinion" as the debate continues. Rev. Susan Russell, head of Integrity-- an Episcopal group supporting gay rights-- said: "No one has the right to write their theology into our Constitution. (This) should be celebrated by people of all faiths, of any faith and of no faith." The California Catholic Conference said: "That the judge should find the marriage -- civilizations' longstanding public policy -- irrational and discriminatory does a great injustice to the institution itself and ultimately will further encourage the disintegration of mother-father families."

Maryland Court Orders Closure of Chabad Center

A Montgomery County, Maryland state trial judge last week ordered the Chabad Israeli Center in Rockville (MD) to close down for violating a court order that only allowed it to operate Friday evenings and Saturday mornings for Sabbath services. Yesterday The Gazette (suburban Maryland) reported that in fact meetings were held there at other times and a few girls stayed at the residence for a few nights.  The court order limiting the Center's operations came after the Center was cited for violating the city's fire prevention and building codes. The Sabbath operations were conditioned on there being a special fire watch system in place, and attendance was to be limited to 25. A neighborhood committee has been monitoring the Center to see if it complied. The committee's activities have disrupted the lives of the rabbi's family. [Thanks to Steven H. Sholk for the lead.]

Pakistan Court Hears Arguments On Permanently Banning Facebook Over Blasphemous Pages

Pakistan's The News reports today on proceedings in the Lahore High Court seeking a permanent ban on Facebook for again displaying blasphemous material. A temporary ban was placed on the site in May because of a page promoting "Everybody Draw Muhammad" day. (See prior posting.) Now another page is promoting "Everybody Burn Quran" day. It is also claimed that Facebook carried blasphemous caricatures of the Kaaba, Islam's holy site in Mecca. The court gave Telecom Wireless three weeks to inform it of the steps it has taken to make blasphemous material unavailable in the country. In arguing for the ban, the petitioner contended that the U.N. Covenant on Civil and Political Rights requires every country to pass legislation to ban religious hatred, and cited the U.N. Human Rights Commission's resolution on Combatting Defamation of Religions.(See prior posting.)

California Federal District Court Strikes Down Proposition 8, The State's Ban On Same-Sex Marriage

In a 138-page opinion today, a federal district court in San Francisco held that California's Proposition 8 that bans same-sex marriage is unconstitutional. In Perry v. Schwarzenegger,(ND CA, Aug. 4, 2010), the court held that

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same sex couples and has not suffered any demonstrated harm as a result....Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

In approaching the substantive due process argument, the court said that

the parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.....

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.... Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.....

The court concluded that domestic partnerships do not fulfill the state's due process obligation, because they "do not provide the same social meaning as marriage."

Moving to the equal protection issue, the court said:

The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present.....

Ultimately the court avoided deciding whether that history of discrimination triggered a strict scrutiny review, because, in its view, Proposition 8 failed even the rational basis test. The court rejected a series of purported justification for treating same-sex couples differently.  It said the evidence showed that same-sex marriage has no adverse effect on society or the institution of marriage and that "tradition alone ... cannot form a rational basis for a law."  Proponents also argued that Proposition 8 protects the First Amendment freedom of those who oppose same-sex marriage. The court responded:

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying ..., those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.....

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples..... Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate..... [M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation..... Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

Proponents of Prop 8, Anticipating Loss, File Advance Motion For Stay Pending Appeal

The federal district court for the Northern District of California has announced that it will issue its decision in Perry v. Schwarzenegger-- the challenge to the constituitonality of California's Proposition 8 banning same sex marriage-- today. In anticipation of the decision, yesterday proponents of Proposition 8 (apparently anticipating a loss) filed a Motion for Stay Pending Appeal accompanied by a memorandum in support of the motion. (Full text of filing.) Plaintiffs responded today with a letter (full text) saying they intend to respond if a response is warranted and asked to be heard on the motion. Today's Silicon Valley Mercury News reports on the filing.

Chelsea Clinton's Interfaith Marriage, and Presiding Rabbi, Subject of NYT Articles

Today's New York Times in two articles explores aspects of Chelsea Clinton's interfaith marriage last week end.  One article explores the conflicted feelings in the Jewish community over the marriage-- pride in the societal openness reflected by the marriage, but concern that interfaith marriages undermine the passing on of Jewish tradition. The second article explores the spiritual journey of Rabbi James Ponet, who co-officiated at the wedding. Indifferent about Judaism before college, he became obsessed with religion in college. He studied at Hebrew Union College for the rabbinate, spent eight years in Israel studying and returned to Yale as a deeply observant rabbi. About five years ago, however, he went through another change in which at least his outward observance lessened. He is described as deeply Jewish, but also very interested in other traditions.

New Twist In Rifqa Bary Case; Parents, Girl Disagree Over Cancer Treatment

Yesterday's Columbus Dispatch reports on the latest twist in the case of Rifqa Bary, the 17-year old who ran away from her home in Ohio to Florida last year saying her father threatened to kill her for converting from Islam to Christianity. The parents denied the claim as Rifqa was returned to Ohio but placed in foster care. (See prior posting.) Now it turns out that Rifqa has had a bout with uterine cancer. She underwent surgery, and her physician recommended that it be followed by 45 weeks of chemotherapy even though she is disease-free according to available imaging techniques. Her parents support that recommendation, but Rifqa, who turns 18 next week, opposes that course of treatment, though she will continue to consult her doctors.  Yesterday an Ohio juvenile court magistrate ruled that Rifqa is mature enough to make the treatment decision for herself, and said the court cannot order treatment because Rifqa's health is not in immediate danger. Rifqa's parents claim the decision to end chemotherapy came after Rifqa attended a faith-healing event. Rifqa's attorneys, however, say she went to a "prayer conference" shortly after her diagnosis. She had multiple surgeries and began chemotherapy, but it made her weak and sick.

Former Commissioners Question Dominance of One Church On City's Human Rights Commission

In Sioux City, Iowa, two former members of the city's Human Rights Commission told City Council on Monday that they are concerned about the lack of diversity in membership on the Commission.  Yesterday's Sioux City Journal reports that of the eleven current members of the Commission, 5 are members of Cornerstone World Outreach Church, and one is a former member. The issue arose in connection with Council's approval of the appointment of a new member of the Commission to replace an individual who had resigned. A column in yesterday's Sioux City Journal speculates that World Outreach Church is possibly attempting to "pack" the Commission in order to further its views in sexual orientation discrimination cases that come before the Commission.

Mayor Bloomberg Lauds Religious Liberty While Others Challenge Mosque Decision

Following yesterday's vote by the New York City Landmarks Preservation Commission that essentially refused to block plans to build a mosque and Islamic Center near Ground Zero, New York mayor Michael Bloomberg, in view of the Statue of Liberty and surrounded by religious leaders on Governors' Island, praised the Commission's decision and gave an impassioned defense of the American tradition of religious liberty. Here are some excerpts, but the full text is worth reading:

Of all our precious freedoms, the most important may be the freedom to worship as we wish. And it is a freedom that, even here in a City that is rooted in Dutch tolerance, was hard-won over many years. In the mid-1650s, the small Jewish community living in Lower Manhattan petitioned Dutch Governor Peter Stuyvesant for the right to build a synagogue – and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion..... In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion – and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780's.... 

This morning, the City's Landmark Preservation Commission unanimously voted not to extend landmark status to the building on Park Place where the mosque and community center are planned..... The simple fact is this building is private property, and the owners have a right to use the building as a house of worship. The government has no right whatsoever to deny that right....This nation was founded on the principle that the government must never choose between religions, or favor one over another. The World Trade Center Site will forever hold a special place in our City, in our hearts. But we would be untrue to the best part of ourselves – and who we are as New Yorkers and Americans – if we said 'no' to a mosque in Lower Manhattan.

Meanwhile, the American Center for Law & Justice, which represents a New York firefighter who survived 9-11, announced it would file a petition in state court challenging the Commission's vote as an abuse of discretion.

UPDATE: Here is the full text of the complaint in ACLJ's lawsuit challenging the Commission's decision. The case is Brown v. New York City Landmarks Preservation Commission, (Sup. Ct. NY County, filed 8/4/2010).

NYC Landmark Board Rejects Landmarking For Controversial Islamic Center Site

New York City's Landmarks Preservation Commission this morning paved the way for construction of a controversial Islamic Center  and mosque two blocks from Ground Zero in lower Manhattan.  According to CNN, the Commission voted 9-0 against landmark status for a building that developers plan to demolish to make room for the planned Center. Opponents of the mosque saw landmark status as a way of preventing the construction because it would have barred developers from demolishing or significantly altering the exterior of the building.  New York Mayor Michael Bloomberg and other city leaders support the building of the Islamic Center which is designed to show the face of moderate Islam. Some other politicians, however, have turned the proposal into a political issue, calling its location a provocation. (See prior posting.)

Florida Prisons To Begin Kosher Food Program On Trial Basis

JTA reported yesterday that Florida Governor Charlie Crist has recently signed a directive ordering the state Department of Corrections to provide a kosher food plan for state prison inmates.  A release last month from the Aleph Institute, a Chabad group that serves the needs of Jewish prisoners, says it will begin a 6-month trial of the program at a unit of the South Florida Reception Center in Miami. That trial begins August 16. In 2007, the state ended its previous Jewish Dietary Accommodation program in its prisons. (See prior posting.) [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Court Says Redacted Holiday Card Form Violated Free Speech

In Pounds v. Katy Independent School District, 2010 U.S. Dist. LEXIS 77175 (SD TX, July 30, 2010), a Texas federal district court granted a motion to reconsider its earlier decision involving a First Amendment challenge to a holiday card fundraising project at a Texas elementary school. The project permitted parents to order Christmas, Hanukkah or Kwanzaa cards featuring their child's artwork and containing one of a number of pre-set greetings. In sending home the order form supplied by an outside company, the school blacked out one message choice-- a religious quotations from the New Testament. The court held that the school's admitted viewpoint discrimination violated parents' First Amendment free speech rights and was not justified by an attempt to avoid an Establishment Clause violation. It concluded that use of the "unredacted [order] form could not fairly have been characterized as a government endorsement of any of the messages." (See prior related posting.)