Religion Clause

Monday, August 23, 2010

Debate on RFRA: Hamilton vs. Friedman

PublicSquare.net has posted a 4-part debate between Marci Hamilton and me on the Religious Freedom Restoration Act. Actually the essays comprising the debate were written a number of months ago-- there was substantial delay in the exchange actually getting posted. So while a few of the references are dated, the basic thrust of the exchange is still relevant.

Kazakhstan Plans Offering of Shariah-Compliant Bonds

UAE's The National reported yesterday that the nation of Kazakhstan, planning its first issuance of government bonds in ten years, will issue Shariah-compliant bonds (Sukuk securities) instead of Euro bonds. Kazakhstan is trying to become a regional Islamic finance center by 2020.

Suit Claims Religious Discrimination In Barring of Faith-Based Substance Abuse Program From County Jail

Yesterday's Santa Rosa (FL) Press Gazette reports that a federal religious discrimination lawsuit was filed Friday by Milton, Florida's First Apostolic Church seeking to prohibit Santa Rosa County Sheriff Wendell Hall from excluding the church's faith-based Alcohol and Chemical Treatment Series program from the Santa Rosa County Jail. The lawsuit alleges that the decision to remove the Church's volunteers from the jail was taken by the Santa Rosa County Inter Faith Board, and involves a "doctrinal dispute" over proper baptism rites.

Sunday, August 22, 2010

West Reacts Strongly To Stoning Sentences Under Islamic Law

In its Behind the News section, today's New York Times carries an article exploring the particularly strong reaction in Western countries to two recent cases of execution by stoning under Islamic law. In Afghanistan last week, the Taliban stoned a young couple to death for trying to elope. Last month international protest arose over the stoning sentence imposed in Iran on a woman accused of adultery. Brazil offered the woman, Sakineh Mohammadi Ashtiani, asylum. Iranian authorities then redefined Ashtiani's crime as murder. Stoning is a legal punishment in Iran, Saudi Arabia, Somalia, Sudan, Pakistan and Nigeria. However it is rarely imposed. Islamic law allows stoning only when four male eyewitnesses testify to the same conduct. Some non-Muslim societies, such as the Kurdish Yazidi, have also imposed the punishment.

Recent Prisoner Free Exercise Cases

In Vazquez v. Ragonese, (3d Cir., Aug. 18, 2010), the 3rd Circuit remanded to the district court for consideration under RLUIPA of a prisoner's claims that prior institutions have failed to forward certain religious items (including oil, soaps, tarot cards and a multi-colored beaded necklace) to him after he was transferred to another institution. The court also remanded for consideration of plaintiff's claim that he is not allowed to purchase or acquire materials he needs for his religious practices.

In Lightner v. Ausmus, 2010 U.S. Dist. LEXIS 85348 (D ID, Aug. 17, 2010), an Idaho federal district court held that the statute of limitations barred a civil rights action by a paroled sex offender who charged that his parole officer would not agree that he could attend a Baptist church, but only gave him permission to attend an LDS church.

In Maxwell v. Hobbs, 2010 U.S. Dist. LEXIS 84931 (ED AR, July 23, 2010), an Arkansas federal magistrate judge recommended dismissal of an inmate's complaint that his free exercise rights were violated when prison officials disapproved the Five Percenter Newspaper he was receiving concluding that it contained gang-related content.

In Nichols v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 83006 (D CO, Aug. 12, 2010), a Colorado federal district court rejected a prisoner's claim that he was arbitrarily removed from the Common Fare diet and was not offered a comparable alternative to meet his Christian religious needs. The court concluded that plaintiff's adoption of a whole foods diet was for health reasons, rather than for religious reasons. To the extent there were later religious reasons, plaintiff failed to show that this imposed a substantial burden on his free exercise of religion. Beyond this, the claim was barred by the statute of limitations. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 83693, June 22, 2010. The prisoner who filed the case was Oklahoma City bomber Terry Nichols. (AP report).

In Marksberry v. Strode, 2010 U.S. Dist. LEXIS 82482 (WD KY, Aug. 2, 2010), a Kentucky federal district court held that an inmate's 1st Amendment rights were not violated when when a prison official referred to his Rastafarian religious head covering as a "clown hat." In a second case involving a claim by the same prisoner, 2010 U.S. Dist. LEXIS 82481 (WD KY, Aug. 3, 2010), the same judge held that plaintiff's 1st Amendment rights were not violated by a 5-day delay in furnishing him a vegetarian diet and permitting him to wear his "crown" head covering. It also held that the claim is time barred.

Westboro Leader In Interview Justifies Picketing Of Soldiers' Funerals

The Huffington Post on Friday carried an interview by investigative reporter Joshua Kors of Pastor Fred Phelps of the Westboro Baptist Church in which Phelps justifies his group's confrontational picketing of veterans' funerals and other venues. Here are a few excerpts:

Phelps: The mission of the church is to preach to a doomed world, to let them know about the second coming of Jesus. It's not going to be pretty. Look at the world of Noah. In his day there were 12 to 16 billion people on Earth, and only eight got out of that flood alive. The world is going to be devoured by fire. ...

The message we have is simple: the sodomites have taken over the country, and this country has given itself over to immorality. We want to warn the nation, let them know that God is not going to let this country get by with that kind of degeneracy. So what's the right forum to preach that message?

Kors: People would say funerals are not the right forum. And why soldiers' funerals?

Phelps: Soldiers' funerals are the right place. The Lord has killed him. The soldier shouldn't be there dead. But this is the God that delivered ten different plagues -- and nothing worked. So here we are....

Kors: What happens to homosexuals when they die?

Phelps: These fags are going to hell. And I'm supposed to be quiet about that? I'm supposed to get lockjaw? The Bible's just full of hell, the wrath of God.

Kors: On TV, in movies, hell is always portrayed as full of flames and snakes.

Phelps: That's right. Hell is the place where the worm eats on fags, and the fire is never quenched. Indescribable pain. The Lord Jesus said that. And he knows because he's had a front row seat since the creation of Adam. What you need to do is get a Bible and look up Luke, Chapter 16. These fags are going to hell, and instead of squawking like crybabies, they ought to be so thankful that at no expense to them, we've dedicated time and resources to preach to them. People say we're "disturbing the peace." Don't you understand: we've done 40,000 of these pickets, and we'd be in jail if we were disturbing the peace.

Court Enforces Restrictive Covenant To Bar Construction of Chabad Center

In Criscenzo v. Chabad-Lubavitch of the Shoreline, Inc., (CT Super. Ct., Aug. 13, 2010), a Connecticut trial court judge enforced a restrictive covenant in a deed to bar Chabad Lubavitch from building a Chabad center to be used as a synagogue, school and activity center on residential property in the town of Guilford. The Guilford Planning and Zoning Commission had granted a special permit for the construction. The court rejected challenges to plaintiffs' ability to bring the challenge as well as a claim of change of circumstances. The New Haven Register reported on the decision yesterday.

Magistrate Rejects Challenge To North Dakota Ten Commandments Monument

In Red River Freethinkers v. City of Fargo, (D ND, Aug. 16, 2010), a North Dakota federal magistrate judge recommended that a lawsuit seeking removal of a Ten Commandments monument from the civic plaza, land owned by the city of Fargo, be dismissed. In 2005, the court rejected an Establishment Clause challenge to the monument by the same plaintiffs. Then the Freethinkers proposed donating a companion monument with language rejecting the notion that the U.S. is a Christian nation, but agreed that their monument offer would be withdrawn if the city moved the Ten Commandments to private property. The City Commission agreed to this, but changed its mind when 5200 signatures were collected for an initiated ordinance to keep the monument on city land. Council adopted an ordinance to keep the Ten Commandments and this lawsuit followed.

According to the court, plaintiff contends that "the City acted with an 'overt religious purpose' in reversing its decision to move the Ten Commandments monument to private property and has 'transformed' the previously constitutional display of a mixed secular and religious expression to one with an unconstitutional, religious purpose by adopting the initiated ordinance." However the court disagreed, concluding:

Freethinkers’ amended complaint asserts that, by adopting the initiated ordinance, the City adopted the alleged religious motivations of the petition promoters. This conclusory assumption is not supported by any allegations of fact.

The court also concluded that even if it did invalidate the ordinance, that would not necessarily lead to removal of the Ten Commandments monument. The city would still be free to leave the monument in place. The Crookston (ND) Daily Times reports on the decision.

UPDATE: The court adopted the magistrate's recommendations at Red River Freethinkers v. City of Fargo, 2010 U.S. Dist. LEXIS 93819 (D ND, Sept. 8, 2010).

EEOC Lawsuit Charges Failure To Accommodate Employee's Sabbath

The EEOC announced in an Aug. 12 press release that it has filed suit in a North Carolina federal district court against Measurement, Inc., an educational company, charging that it fired an employee rather than accommodate her religious needs to avoid work on Saturdays. Jacqueline Dukes is a member of the Christian denomination Children of Yisrael which observes the Sabbath from sundown Friday to sundown on Saturday. In Sept. 2008 Dukes was told that she would have to work on Saturdays on a new project. The EEOC complaint charges that Measurement could have accommodate Dukes by permitting her to switch shifts with other employees.

Saturday, August 21, 2010

Preliminary Injunction Denied In Suit By Counseling Student Objecting To Remediation Plan

In Keeton v. Anderson-Wiley, (SD GA, Aug. 20, 2010), a Georgia federal district court refused to issue a preliminary injunction in a suit by a graduate student in counseling at Augusta State University who was required to complete a Remediation Plan regarding counseling of homosexual clients in order to remain in the program. The action was taken after the faculty expressed concern that student Jennifer Keeton might not be able to separate her personal, religious-based views on homosexuality from her professional counseling duties. Keeton alleged that the school's action violated her free speech, free exercise, equal protection and due process rights. (See prior posting.)

Judge Hall, emphasizing that "despite any suggestion to the contrary, this is not a case pitting Christianity against homosexuality" said that he "will not, especially at this early stage of the litigation, serve as an 'ersatz dean'." The court continued:

the Remediation Plan was imposed upon Plaintiff not because of mere disagreement with her viewpoints, but because of Plaintiff's inability to resist imposing her moral viewpoint on counselees, a position contrary to the ethical rules incorporated into the ASU counseling program's curriculum.... [I]ncorporation of the ACA [American Counseling Association] Ethical Code into the ASU counseling program's curriculum, and requiring students to adhere to the Code as a curricular requirement, appears at this time to be "reasonably related to legitimate pedagogical concerns"....

To the extent that Defendants compel Plaintiff to speak at all by requiring that she "affirm" GLBTQ conduct in a counseling setting, they demand nothing more than Plaintiff's adherence to the ACA Code of Ethics....

Yesterday's Augusta Chronicle reports on the decision.

Malaysian Appellate Court Says Status As Muslim Up To Syariah Court

According to Bernama, Malaysia's Court of Appeal ruled yesterday that only the Syariah Court has jurisdiction to determine whether someone is Muslim. The ruling came in an appeal of a 2005 lower court decision refusing to turn the body of former army commando and famed Mt. Everest climber M. Moorthy over to his Hindu wife for burial. (See prior posting.) The Kuala Lumpur Islamic Affairs Religious Council obtained an ex-parte order from the Syariah Court stating that Moorthy had embraced Islam prior to his death and it buried him in a Muslim cemetery. The Court of Appeal said that Moorthy's widow can apply to the Syariah Court to have the ex parte order set aside. The widow's attorney said he would file for leave to appeal to the Federal Court.

US Soldiers Pressured To Attend Commanding General's Religious Concerts

Talk To Action reported Thursday on a series of Commanding General's Spiritual Fitness Concerts at Fort Eustice and Fort Lee, both Army bases in Virginia. Supposedly attendance is voluntary, but soldiers feel pressured to attend. It is reported that in May an NCO put group of soliders at Ft. Eustice on lockdown and required them to do maintenance work for opting out of attendance. Maj. Gen. James E. Chambers began the concert series which was supposed to have performers from different religious traditions. However all the concerts have featured evangelical Christina performers, who also read from the Bible and gave Christian testimony between songs. The Military Religious Freedom Foundation is looking into the cost of the concerts that featured nationally known Christian artists. [Thanks to Dispatches from the Culture Wars for the lead via Scott Mange.]

Friday, August 20, 2010

Evangelist Franklin Graham Says President Obama Was Born A Muslim But Has Now Accepted Jesus Christ

In a rather surprising interview (video) with CNN's John King yesterday, a leading Christian evangelist, Franklin Graham, made these comments on President Obama's religious beliefs (excerpts as reported by ABC News):

I think the president's problem is that he was born a Muslim, his father was a Muslim. The seed of Islam is passed through the father like the seed of Judaism is passed through the mother. He was born a Muslim, his father gave him an Islamic name.

Now it's obvious that the president has renounced the prophet Mohammed, and he has renounced Islam, and he has accepted Jesus Christ. That's what he says he has done. I cannot say that he hasn't. So I just have to believe that the president is what he has said.

Time's Cover Story Asks Whether US Is Islamophobic

The cover of this week's Time magazine features the question: "Is America Islamophobic?" The lead story, abridged online, observes in part:

Although the American strain of Islamophobia lacks some of the traditional elements of religious persecution — there's no sign that violence against Muslims is on the rise, for instance — there's plenty of anecdotal evidence that hate speech against Muslims and Islam is growing both more widespread and more heated. Meanwhile, a new TIME–Abt SRBI poll found that 46% of Americans believe Islam is more likely than other faiths to encourage violence against nonbelievers.

Accompanying the lead article is "A Brief History of Intolerance in America" and a video titled "Inside the Park51 Mosque" in which Muslims in Lower Manhattan discuss how Islam is viewed in the U.S.

FLDS Wants Utah High Court To Stay Trustee's Action On UEP Trust

The Salt Lake Tribune reports that members of the FLDS church filed a petition with the Utah Supreme Court yesterday asking it to stay, pending its decision in the matter, all but the most necessary acts regarding the United Effort Plan Trust which is being reformed under trial court supervision. The UEP trust holds almost all the property in the twin FLDS towns of Hilldale, Utah and Colorado City, Arizona. At issue is a July 27 order by trial court judge Denise Lindberg that gives acts of the court-appointed fiduciary managing the trust the force of court orders. A trial court hearing is scheduled for Sept. 21 on a final subdivision plat for the land filed by trustee Bruce Wisan that will move land from communal to individual ownership. The FLDS petition to the Utah Supreme Court urges in part: "The fiduciary has made it clear that he intends to force FLDS members to take back in their own names what they have given to the Lord, even though their faith prevents them from doing so and requires that they honor their consecration. This is nothing short of a government-imposed religious test." (See prior related posting.)

Pew Poll Shows More Americans Think Obama Is Muslim

Yesterday the Pew Forum on Religion and Public Life released a new poll on Religion, Politics and the President. The finding making the most headlines (ABC News) is that a growing number of Americans incorrectly believe that President Obama is Muslim. 18% of those responding say Obama is a Muslim (up from 11% in March); 34% say Obama is a Christian; and 43% say they don't know.

The Press Gaggle aboard Air Force One yesterday (full text) included a lengthy exchange between reporters and Deputy Press Secretary Bill Burton about this part of the poll. Here is a portion of the exchange:

Q The Pew poll came out today and there’s some numbers on there that are interesting -- one showing that the number of Americans who believe that the President is Muslim has gone up, while the number of Americans who believe the President is Christian has gone down. What do you guys make of that?

MR. BURTON: Well, I think ... for most Americans, ... what they’re focused on is ... important issues like what’s happening in Iraq and Afghanistan, what’s going on in the economy, what are we doing to create jobs -- all these different issues.

And so the President is obviously a -- is Christian. He prays every day. He communicates with his religious advisor every single day. There’s a group of pastors that he takes counsel from on a regular basis. And his faith is very important to him, but it’s not something that is a topic of conversation every single day.

The poll also covered other aspects of religion and politics. 52% of the respondents said that churches should keep out of politics, while 43% say that houses of worship should express their views on social and political issues. 61% say it is important that members of Congress have strong religious beliefs. Only 46% of White Evangelical Protestants in the poll saw the Republican Party as friendly to religion. Republicans have made gains among all religious groups except for Hispanic Catholics.

City Incurs High Legal Fees Battling Hindu Woman Over Assessment To Remove Tree

WLS-AM 890 reported yesterday that the city of Evanston, Illinois has incurred some $40,000 in legal fees seeking to collect a $635 special assessment against Padma Rao who refused to pay on religious grounds. The assessment involved an alley paving project, and required the removal of a tree that stood near Rao's condominium. Rao and her mother say that removal of the tree violates principles of their Hindu religion which bars the needless killing of any living thing and prohibits Hindus from participating or acquiescing in needless killings. Rao has consistently lost in the courts and now may face the condo being auctioned off at a tax sale.

Muslim Disney Employee Files EEOC Complaint Over Wearing Hijab

The Orange County (CA) Register reported on Wednesday that a Muslim employee at a cafe in a Disneyland resort hotel has filed a compliant with the EEOC charging discrimination. Imane Boudlal says she was sent home four times for attempting to wear a hijab in her work as a hostess at Storytellers Cafe in Disney's Grand Californian Hotel. Disney, which has a strict dress code, says it offered Boudlal a behind-the-scenes job temporarily while an accommodation was worked out, but she refused. Boudlal says she wrote Disney requesting permission to wear the headscarf, but received no response. So she filed her discrimination complaint and held a press conference to call attention to the issue. Disney says the hotel union with which it is in a contract battle is using this issue to distract attention from the real issues faced by their members.

Court Refuses To Issue Preliminary Injunction Against University's Speaker Rules

In McGlone v. Bell, 2010 U.S. Dist. LEXIS 84578 (MD TN, Aug. 16, 2010), a Tennessee federal district court refused to grant a preliminary injunction in a suit brought by a Christian evangelist challenging Tennessee Technological University's policy on outside speakers' use of campus facilities. The policy requires application 14-business days in advance by outside speakers or groups that want to use campus facilities to speak or hand out literature. The court held:

The campus use policy is content-neutral, and it specifically permits individuals and groups to express religious messages on campus. ... [It] is not vague and it does not place unbridled discretion in TTU officials to restrict speech. Rather, the policy places explicit limitations on the discretion that may be exercised by those charged with approving or denying applications for registration. The policy specifies nine (9) circumstances under which an application for registration may be denied. These specified circumstances constitute reasonable time, place, and manner restrictions, and the policy is narrowly tailored to serve the significant governmental interests of TTU in promoting the orderly conduct of activities on campus and preventing the interruption of the university's normal educational mission. The policy also leaves open ample alternative channels of communication....

By ignoring the application requirement entirely, the plaintiff precluded campus officials from considering, in light of the policy's requirements, the plaintiff's desire to speak, to display signs, and to distribute literature on the TTU campus. Thus, the plaintiff has not shown that the campus use policy was applied to him, and he has not suffered any concrete and particularized harm that is actual or imminent resulting directly from the application of the policy to him.... The plaintiff's failure to show a concrete and particularized injury that is actual or imminent undercuts his facial constitutional challenge as well.

The court also dismissed on qualified immunity grounds claims against University officials in their individual capacities.