Groups Protest Ban On Religion-Based Hiring In Proposed SAMHSA Legislation

Today's New York Times and a press release from World Vision report that over 100 religious organizations have written to every member of Congress objecting to a provision in HR 5466, the proposed SAMHSA Modernization Act of 2010 reauthorizing the Substance Abuse and Mental Health Services Administration.  At issue is a provision (Sec. 501(m)(2)) that would prevent grant recipients under the Act from hiring on the basis of religion. The controversial section reads:

With respect to any activity to be funded (in whole or in part) through an award of a grant, cooperative agreement, or contract under this title or any other statutory authority of the Administration, the Administrator, or the Director of the Center involved ... may not make such an award unless the applicant agrees to refrain from considering religion or any profession of faith when making any employment decision regarding an individual who is or will be assigned to carry out any portion of the activity. This paragraph applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable to a religious corporation, association, educational institution, or society.

Steven McFarland, chief legal counsel at World Vision USA, said that the language would effect "a seismic change in bedrock civil rights law for religious organizations." Among the groups signing the letter are World Vision, the Union of Orthodox Jewish Congregations of America and the U.S. Conference of Catholic Bishops.

New York Bingo Scheme Defrauds Greek Orthodox Diocese

In Queens, New York, three men were indicted last week on 714 gambling related counts in a scheme that defrauded the Greek Orthodox Diocese of America out of hundreds of thousands of dollars.  According to yesterday's Queens Gazette, bingo profits were supposed to go to the Greek Orthodox Diocese, but the affiliated charities were bogus organizations that allowed the three men to take some $830,000 from bingo and illegal side bets for themselves over several years.  The defendants, Spiros Moshopoulos, Tommy Skiada, and Daniella Radulescu were also charged with defrauding the city Department of Consumer Affairs out of some $20,000 in fees.

Egypt Prosecuting Muslim Publisher Over Introduction To Christian Bible

According to Daily News Egypt, Egypt's Prosecutor General on Monday referred Ahmed Abdallah Abo-Islam, a publisher of Islamic books, to a state security court on charges of contempt of the Christian religion.  A complaint had been filed against the publisher by Naguib Gobrael, a Coptic lawyer who is head of the Egyptian Union for Human Rights.  The charges grew out of publication of a copy of the Bible by Abo-Islam with an introduction charging that this is not the authentic Bible, and that the current Christian Bible is fabricated, modified and full of contradictions. The introduction also claims that the Church is deceiving Christians by labeling the Bible as the Holy Book.

FLDS Defendant Will Challenge Texas Bigamy Statute

At a state court hearing Tuesday in San Angelo, Texas, attorneys for FLDS member Wendell Loy Nielsen said they will challenge the constitutionality of Texas' bigamy statute when Nielsen goes on trial in October. Yesterday's San Angelo (TX) Standard Times reports that the prosecution of Nielsen is the first growing out of the April 2008 raid on the FLDS Yearning for Zion Ranch that does not directly involve sexual assault of a child. He is charged with three counts of bigamy. Each count could bring a sentence of up to ten years in prison.

Orthodox Jewish Community In New Jersey Split Over Sex Abuse Charges In State Court

A lengthy article in today's Asbury Park (NJ) Press reports on the rift in Lakewood, New Jersey's Orthodox Jewish community over the process that led to criminal sexual assault and child endangerment charges being brought against Yosef Kolko, a former camp counselor and local yeshiva teacher. The father of the 12-year old child who was the victim of the abuse went directly to Ocean County prosecutors. A number of Orthodox rabbis though say that they favor such charges being handled initially by Jewish religious courts and that the father should have obtained permission from the rabbinical court before filing charges in a civil court against a fellow Jew.

Virginia AG Gives Guidance On Holiday Displays

Virginia's Attorney General last week, at the request of Loudon County officials, issued an official advisory opinion (Opinion 10-067) on permissible holiday displays. The opinion concludes that the state constitution's establishment clause is narrower than the federal one and does not limit holiday displays on public property, though it does prohibit favoritism toward a particular sect or denomination.  Moving to the requirements of the federal establishment clause, the opinion gives the following guidance:

Loudoun County must accommodate religious items within the personal space of employees under certain circumstances. In addition, where the County already has provided a public forum or limited public forum, it will usually lack the right to exclude a religious display of reasonable duration based solely upon content. Even where no such forum previously has been created, the County is free to create a nondiscriminatory forum for recognition of holidays, including Christmas, if it makes clear that the County itself is not communicating a religious message.

Moreover, irrespective of religious accommodation, the County is free to communicate its own recognition of holidays, including Christmas, as long as overtly Christian symbols are balanced with other religious and secular ones in a way that communicates to reasonable, informed observers that the County is not making a religious statement. Because secular symbols can insulate innately religious symbols from constitutional attack, decoration of public buildings with such secular items as lights, candy canes, wreaths, poinsettias, fir trees, snowflakes, and red and green ribbons should raise no serious constitutional objection.

Today's Richmond Times-Dispatch reports on the opinion.

South Carolina AG Says Non-Profit Group's "I Believe" Plates Are Constitutional

Last year a federal district court held that a statute authorizing South Carolina's "I Believe" license plates-- carrying the image of a cross superimposed on a stained glass window-- violates the Establishment Clause.  (See prior posting.) Yesterday's Myrtle Beach (SC) Sun News now however reports that state Attorney General Henry McMaster has issued an opinion ruling that a new plan for similar "I Believe" plates is constitutional. Instead of being specially authorized by statute, this time a private non-profit group has applied for issuance of the plates under a general law that allows non-profit groups to apply for creation of specialty plates by paying $4,000 or collecting at least 400 prepaid orders. (SC Code of Laws Sec. 56-3-8000). The proposed new plate has the group's website URL along the top: http://www.ibelievesc.net/. Below it, the plate depicts a golden sunrise and on the left, and three crosses symbolizing the site of Jesus' crucifixion. South Carolina already has authorized 127 different specialty plates, including 21 created by non-profit groups, including one that reads "In Reason We Trust" created by a secular humanist group. The Aug. 16 Attorney General's Opinion reasoned: "The specialty license program has a secular purpose - allowing all nonprofit organizations to identify themselves by a logo or symbol."

2nd Circuit: Jewish Parole Division Employee May Proceed With Hostile Work Environment Claim

In Leifer v. New York State Divsion of Parole, (2d Cir., Aug. 23, 2010), the U.S. 2nd Circuit Court of Appeals rejected Title VII religious discrimination and retaliation claims by a Jewish employee of the New York Division of Parole. Plaintiff complained that mandatory meetings were scheuduled on the Jewish holiday of Rosh Hashanah in 2001 and Shavuot in 2003. The court concluded that plaintiff's religious exercise was accommodated when he was excused from attending the meetings. He did not show any material change in the terms and conditions of his employment as a result of his missing the meetings. However the court did  conclude that plaintiff was entitled to go to trial on his charge of a hostile work environment. The court said: "Leifer presents evidence of six interactions with his supervisors over a three-year period which implicate his religion.... [A] reasonable jury could find the interactions to be sufficiently hostile to have altered his employment conditions for the worse."

Suit Seeks To Enforce FOIA Request For FBI Records on Surveillance of Muslims

The ACLU of Northern California, the Asian Law Caucus and the San Francisco Bay Guardian yesterday filed a lawsuit against the FBI seeking to enforce Freedom of Information Act requests filed in July asking for records relating to the surveillance of Muslim communities in California. (See prior posting.) The complaint (full text) in ACLU of Northern California v. FBI, (ND CA, filed 8/24/2010), argues that the government surveillance at issue impacts fundamental First Amendment rights of free exercise of religion, freedom of association and freedom of expression. The ACLU announced the filing of the lawsuit in a press release. Illume yesterday reported on the lawsuit.

9th Circuit Reinstates Evangelist's Defamation Claim Against ABC's 20/20

In Price v. Stossel, (9th Cir., Aug. 24, 2010), the U.S. 9th Circuit Court of Appeals reversed a California district court's early-stage dismissal under California's anti-SLAPP statute of a defamation claim by a prosperity gospel evangelist. Dr. Frederick Price brought an action against ABC television correspondent John Stossel and others involved in producing the show 20/20.  On the show, Stossel showed a clip of a sermon by Price in which Price describes a person with substanital wealth. Out of context the show suggested Price was talking about himself when, in fact, the quote was about a hypothetical wealthy person who was spiritally unfulfilled. The 9th Circuit held that for purposes of an anti-SLAPP motion, the court should determine whether the clip as broadcast materially altered the meaning conveyed by the speaker. The district court had erroneously relied on the conclusion that the statement's meaning, while distorted by ABC, was still substantially true. In remanding to the district court, the 9th Circuit said it was expressing no opinion on whether plaintiff could show the other required elements of a defamation claim. OC Weekly yesterday reported on the opinion.

Bonfire Permit Denied To Group Seeking To Burn Qurans As 9/11 Protest

As previously reported, the Dove Outreach Center in Gainesville, Florida has created a furor by announcing its plans to host an International Burn A Quran Day on Sept. 11. The Gainesville Sun reported last week that the city has refused to grant Dove Outreach a permit to have an open bonfire. Under the city's fire code, outdoor burning is prohibited without a permit. This includes burning newspaper, corrugated cardboard, container board or office paper. The church says it will go ahead with the protest without a permit.

Preliminary Injunction Bars Application of Obama Administration Stem Cell Research Guidelines

Yesterday in Sherley v. Sebelius, (D DC, Aug. 23, 2010), the U.S. District Court for the District of Columbia issued a preliminary injunction preventing the Obama administration from applying it Guidelines for Human Stem Cell Research. Those Guidelines expanded federally funded research involving embryonic stem cells. The court concluded that plaintiff's had shown a likelihood of success on the merits on their argument that the Guidelines violate the Dickey-Wicker Amendment that prohibits the use of federal funds for research in which human embryos are destroyed.  The court rejected the government's attempt to distinguish between deriving stem cells from an embryo and conducting research on those stem cells.  The New York Times reports that there is confusion over whether the preliminary injunction impacts research projects already funded. (See prior related posting.)

Compromise Near To Drop Charges Against Westboro Funeral Protester

Sarpy County, Nebraska is close to reaching an agreement with Westboro Baptist Church leader Shirley Phelps-Roper that will lead to dismissing charges of negligent child abuse and disturbing the peace that have been brought against her.  The charges grew out of a 2007 protest at the visitation before the funeral of Iraq war veteran Randy Chaney. Westboro members picket veterans' funerals with signs protesting U.S. tolerance of homosexuality and other activities they consider sinful.  At the protest, Phelps-Roper's ten year old son was standing on an American flag. According to yesterday's Omaha World-Herald and a report from AP, charges of flag mutilation and contributing to the delinquency of a minor have already been dropped because a federal court declared the state's flag mutilation statute unconstitutional. Under the compromise being negotiated, Phelps-Roper will drop the lawsuit she has filed against three Sarpy County Attorneys who are prosecuting her seeking damages for violating her First Amendment rights. She will also drop Sarpy County from a pending federal lawsuit challenging the constituitonality of the state's funeral protest law. Phelps-Roper said: "The deal is 'You stop prosecuting us for our religion, and we'll stop suing you for prosecuting us for our religion'." The family of veteran Randy Chaney is unhappy with the county's decision to drop charges.

Bangladesh Court Says College May Not Require Religious Attire

According to yesterday's Jakarta Globe, Bangladesh's High Court has ordered the government to take action against the administrator of Rani Bhabani Women's College for requiring women to wear the burqa, and barring women from playing school sports and attending cultural activities.  The court held that no religious attire of any kind, including skull caps for men, can be required. This follows a decision by the High Court in April that women employed in public educational institutions may not be required to wear the veil, or hijab, against their will. (See prior posting.)

9th Circuit: World Vision Exempt From Title VII Religious Discrimination Ban

The 9th Circuit yesterday, in a 2-1 decision that spawned three lengthy opinions, held that the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act (42 USC 2000e-1) for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

In Spencer v. World Vision Inc., (9th Cir., Aug. 23, 2010), Judge O'Scannlain, writing the opinion for the court, formulated the test for the exemption as follows:

a nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it 1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious.

Judge Kleinfeld concurring formulated the test somewhat differently:

To determine whether an entity is a “religious corporation, association, or society,” determine whether it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.

Judge Berzon, dissenting, wrote:

Section 2000e-1(a) reflects Congress’s recognition that for a small group of employers—organizations devoted to prayer and religious instruction—the requirement to accommodate employees of different faiths could represent an unwarranted intrusion into the organizations’ own freedom of religion. For those groups, on balance, the restriction of the relatively few affected jobs to those with approved religious beliefs is tolerable.

My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles. But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees.

[Thanks to Ted Olsen via Religionlaw for the lead.]

Church Not Entitled To Tax Exemption When House It Owns Is Vacant

The LaCrosse (WI) Tribune reports that a federal district court has rejected a claim by Asbury Methodist Church in LaCrosse that its due process and free exercise rights were infringed when it was denied a tax exemption in 2008 while its property was being converted from a tax exempt parsonage to a tax exempt hospitality house.  Tax officials said that the house was vacant on Jan. 1, 2008 and so was not exempt for that year.  At issue were $4000 in property taxes.

UPDATE: Here is the full text of the opinion on LEXIS: Asbury United Methodist Church v. City of La Crosse, 2010 U.S. Dist. LEXIS 86744 (WD WI, Aug. 23, 2010).

Court Refuses Preliminary Injunction Against Georgia's Ban On Guns In Churches

On June 4 this year, Georgia's governor signed S.B. 308 that was enacted to clarify Georgia's gun laws. Among other things, the new law prohibits the carrying of guns in any house of worship. In July, GeorgiaCarry.org. along with Baptist Tabernacle of Thomaston, Georgia, its pastor and one of its members, filed a lawsuit in state court challenging that portion of the law. (See prior posting.) Along with the complaint, plaintiffs filed a motion for a preliminary injunction. Earlier this month, defendants removed the case to federal court. According to the Atlanta Constitution, the federal court yesterday refused to issue a preliminary injunction against enforcement of the ban. Plaintiffs say that worshipers want to arm themselves for protection, and the church agrees that they should be able to do so. Another argument being pressed by plaintiffs is that under the statute, the church's pastor is barred from bringing a weapon for protection when he is working alone or when he is in the pulpit. The suit raises both free exercise and Second Amendment challenges, and is probably the first suit filed after the U.S. Supreme Court in June in McDonald v. City of Chicago extended Second Amendment to state and local laws.

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.