Religion Clause

Friday, October 15, 2010

USCIRF Urges Obama To Raise Religious Freedom Issues On His Trip To Indonesia, India

The U.S. Commission on International Religious Freedom this week sent a letter (full text) to President Obama urging him to highlight the importance of religious freedom during his upcoming visits to Indonesia and India. On Indonesia, the letter said:

In our visit earlier this year, USCIRF was impressed by the commitments made by officials from different levels of government to advance religious freedom and related human rights as essential to Indonesia’s democratic future. However, strong political forces, terrorist networks, and extremist groups continue to challenge Indonesia’s democratic trajectory and are a source of ongoing, serious violations of religious freedom and related human rights.

As to India, USCIRF said:

India’s democracy, religious pluralism, and tradition of religious tolerance are truly noteworthy. Despite this history of tolerance and the current national government’s commitment to sustaining it, unfortunately episodic communal violence continues to occur. The governmental response, particularly at the state and local levels, has not been adequate, and justice for victims, such as those in Gujarat and Orissa, often has been slow and ineffective.

5th Circuit Upholds Texas Pledge Against Establishment Clause Attack

In Croft v. Perry, (5th Cir., Oct. 13, 2010), the U.S. 5th Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance (which includes the phrase "one state under God") and to a state statute requiring school students to recite the pledge each day. Treating the suit as a facial challenge to the pledge and the related statute, the court concluded:

The pledge is a patriotic exercise, and it is made no less so by the acknowledgment of Texas’s religious heritage via the inclusion of the phrase "under God." A pledge can constitutionally acknowledge the existence of, and even value, a religious belief without impermissibly favoring that value or belief, without advancing belief over non-belief, and without coercing participation in a religious exercise.

The Houston Chronicle reports on the decision. (See prior related posting.) [Thanks to Kate Shellnutt for the lead.]

Malaysia Promotes Islamic Finance

Islamic banking is growing fast in Malaysia which is promoting itself as the world's center for Shariah compliant financial products. Bloomberg Business Week reports today that Malaysian banking assets that comply with the Islamic ban on interest rose to the equivalent of $109 billion (US)-- 20% of Malaysia's total banking assets. Also Islamic insurance (takaful) now accounts for 9% of Malaysia's insurance industry. The Ministry of Finance's 2010-2011 Economic Report sets out the new data.

Mixed Response To Schools' Limits On Wearing Rosaries

Catholic News Service this week reported that the Catholic Diocese of Colorado Springs, Colorado has decided not to oppose a decision by some Colorado Springs schools to allow students to wear rosaries only if they are tucked into their shirts. The Diocese said in an Oct. 12 statement: "Because some gangs in the local area have decided to wear rosaries as jewelry as a symbol of their gang affiliation, the diocese does not oppose the decision by some schools in School District 11 to ask students who choose to wear rosaries to keep them inside their shirts." Last week the ACLU announced it opposed the school's policy and the American Center for Law and Justice sent a letter to the principal of Mann Middle School threatening to sue on behalf of a student if the policy is not changed. (UPI). However Colorado Springs Diocese judicial vicar and chancellor Msgr. Ricardo Coronado-Arrascue said that rosaries are not meant to be jewelry and opposed the use of rosaries to symbolize gang membership. A memo from Mann Middle School to students and parents said that some Catholics are offended by rosaries being worn like fashion accessories.

Thursday, October 14, 2010

Residents Protest Removal of Christian Flag From War Memorial

As previously reported, last month King City, North Carolina's city council voted to remove a Christian flag that had flown at the city's veteran's memorial along with U.S., state and other flags. Today's Daily Tar Heel reports that, in response, residents have been protesting. They placed a new Christian flag there on a temporary stand and are guarding it 24 hours a day. The protest will continue until Oct. 23 when there will be a march through town to support a return of the flag which depicts a soldier kneeling in front of a cross. Also local businesses and homes are now flying the flag and vendors are selling T-shirts and magnets depicting it. A supporter said: "We are not trying to represent diversity of the world. We are trying to represent the community and the values that the country was founded on."

Chaplain Says DADT Injunction Will Impact Ability To Counsel Soldiers

On Tuesday, a California federal district court in Log Cabin Republicans v. United States, (CD CA, Oct. 12, 2010), held, in a lengthy opinion, that the military's "don't ask, don't tell" policy violates due process and 1st Amendment speech and petition rights of gay and lesbian members of the armed forces. The accompanying 3-page order imposing a permanent injunction bars enforcement of "don't ask, don't tell" and requires the government to discontinue any pending investigation or discharge under the rules. Baptist Press yesterday interviewed retired Chaplain (Col.) Keith Travis who is now chaplain team leader for the North American Mission Board, who said:

In order to best serve soldiers, our chaplains need to be able to practice their faith freely. Under this order, there's a question as to whether our chaplains would be able to offer the full counsel of Scripture to soldiers who seek their guidance.

CNN reported yesterday that even though the Obama administration opposes "don't ask, don't tell", the Justice Department is likely to seek an emergency stay of the district court's injunction and, if rejected by the district court, to file an appeal with the 9th Circuit.

Ontario High Court Says Allowing Witness To Wear Niqab Requires Contextual Analysis

In Canada yesterday, Ontario's highest appellate court held that a judge conducting a preliminary inquiry in a criminal case has discretion whether or not to permit Muslim women to testify with their face covered. In The Queen v. N.S., (Ont. Ct. App., Oct. 13, 2010), defendants were charged with criminal sexual assault. The victim, niece and cousin of defendants, asserted the right to continue to wear her niqab, with her face covered, when testifying at the preliminary inquiry. The court said in part:

just as the preliminary inquiry judge has the power to regulate how and when a witness will testify, he or she has the power to determine whether a witness should be required to change his or her attire before testifying.... While it is clear that face to face confrontation between the accused and prosecution witnesses is the accepted norm in Canadian criminal courts, there is no independent constitutional right to a face to face confrontation.... Departures from the traditional face to face public confrontation between accused and witness will run afoul of the Charter only if they result in a denial of a fair trial to the accused...... A minimal interference with cross-examination would not impair an accused's right to a fair trial and would not justify any limitation on the witness's exercise of her right to freedom of religion....

The reconciliation may be very different at a preliminary inquiry, where the witness's credibility is essentially irrelevant, than at trial, where the outcome of the case and the accused's liberty may turn entirely on the witness's credibility....

Perhaps the most difficult aspect of the contextual analysis is that which requires the court to take into account other constitutional values and societal interests.... N.S. is a Muslim, a minority that many believe is unfairly maligned and stereotyped in contemporary Canada. A failure to give adequate consideration to N.S.'s religious beliefs would reflect and, to some extent, legitimize that negative stereotyping. Allowing her to wear a niqab could be seen as a recognition and acceptance of those minority beliefs and practices and, therefore, a reflection of the multi-cultural heritage of Canada recognized in s. 27 of the Charter. Permitting N.S. to wear her niqab would also broaden access to the justice system for those in the position of N.S., by indicating that participation in the justice system would not come at the cost of compromising one's religious beliefs....

There is also a societal interest pointing against a witness wearing a niqab when testifying. Society has a strong interest in the visible administration of criminal justice in open courts where witnesses, lawyers, judges and the accused can be seen and identified by the public.... Attempts to reconcile competing interests using "constructive compromises" might include the use of an all female court staff and a female judge. Those measures might also include, where constitutionally permissible, an order that a witness be cross examined by female counsel.... If necessary, the court could be closed to all male persons other than the accused and his counsel. In this case, resort to the measures outlined above could result in N.S., if she was required to remove her niqab, revealing her face to only one male person, M---d.S., to whom her religious beliefs indicated she should not....

If the judge concludes that the wearing of the niqab in all of the circumstances would infringe the accused's right to make full answer and defence, that right must prevail over the witness's religious freedoms and the witness must be ordered to remove the niqab.

The Toronto Sun reported on the Court of Appeal for Ontario's decision.

Wednesday, October 13, 2010

Supreme Court Refuses Review In One Case; Permits SG To Argue In Another

Yesterday, the U.S. Supreme Court granted two orders of interest in the church-state/ religious freedom area. (Order list). It denied certiorari in Association of Christian Schools v. Stearns, (Docket No. 90-1461). In the case, the 9th Circuit rejected constitutional challenges to the University of California's admissions policy. The University refuses to accept certain high school courses offered by Christian schools as courses that will be counted to qualify students for admission. (See prior posting.)

In Garriott v. Winn (Docket No. 09-991) along with Arizona Christian School Organization v. Winn (Docket No. 09-987), -- both on the Court's docket for this term-- the Court granted the motion of the Acting Solicitor General to participate in oral argument on the side of appellant. In the case, a 3-judge panel of the 9th Circuit found taxpayer standing and ruled that, as applied, Arizona's tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations" violates the Establishment Clause. The 9th Circuit then denied en banc review, but with 40 pages of opinions. (See prior posting.) The government in its amicus brief filed in the Supreme Court argues both that challengers lack standing to assert their claim and that on the merits the Arizona statute is a constitutionally permissible neutral program that permits individuals to direct aid to religious programs.

School Principal Sues Claiming Religious Discrimination After He Promoted Prayer Breakfast

In Santa Barbara, California, an elementary school principal has filed a lawsuit against the Goleta Union School District charging that the district is attempting to fire him because of his evangelical Protestant religious beliefs. Principal Craig Richter was disciplined and threatened with contract non-renewal after he appeared in a video promoting the 2010 Santa Barbara Community Prayer Breakfast which had a theme of honoring teachers. The complaint (full text) in Richter v. Goleta Union School District, (CD CA, filed 10/12/2010), claims that the district took action against him on the grounds that his participation in the video violated church-state restrictions by implying district endorsement of the prayer breakfast. The suit charges violation of Title VII, of California's employment discrimination law and of plaintiff's free speech rights. Alliance Defense Fund issued a press release reporting the filing of the lawsuit.

Federal Government Appeals Cases That Invalidated DOMA

Reuters reports that the Justice Department yesterday filed notices of appeal in two companion rulings by a Massachusetts federal court that held the federal Defense of Marriage Act (DOMA) unconstitutional. (See prior posting.) Even though President Obama opposes DOMA, the Justice Department says it "is defending the statute, as it traditionally does when acts of Congress are challenged." Bay Windows points out that the notices of appeal were filed on the last possible day for doing so.

European Commission To Investigate Italy's Tax Benefits To Church-Owned Commercial Property

Bloomberg News reported yesterday that the European Commission is opening an investigation into tax exemptions that Italy grants to the Catholic Church. In addition to a property tax exemption for non-commercial properties, Italy gives the Church a 50% reduction on the tax imposed on commercial property. European Union regulators say this may amount to an illegal state subsidy if the Church's commercial activities are in competiton with private commercial service providers. In a press release yesterday the European Commission also announced that it would examine Italian laws that protect ecclesiastical institutions (as well as amateur sports clubs) from losing tax exemptions for their property even if they begin to use formerly non-commercial property for commercial purposes.

Suit In Belarus Seeks Religious Burial For Executed Murderer

According to a report published yesterday by Forum 18, in Belarus the mother of convicted murderer Andrei Zhuk who was executed in March has filed a civil suit in Lenin District Court in Minsk seeking to obtain her son's body for religious burial. The suit against the Ministry of Interior's Department for the Execution of Punishments claims that the refusal to release Zhuk's body or tell his mother where he is buried violates the religious exercise rights of Zhuk's mother protected under Art. 18 of the International Covenant on Civil and Political Rights. Article 21 of the Belarus Constitution obligates the government to guarantee rights specified in the country's international obligations.

Cert. Petition Filed In D.C.Refusal of Marriage Initiative

A petition for certiorari (full text) was filed in the U.S. Supreme Court yesterday seeking review of the D.C. Court of Appeals decision in Jackson v. District of Columbia Board of Elections and Ethics. In the case, D.C.'s highest appellate court, in a 5-4 decision, upheld election officials' refusal to accept a petition seeking an initiative vote to bar D.C. from recognizing same sex marriages. (See prior posting.) The petition asks the Supreme Court to decide whether the D.C. Council violated the Congressionally approved D.C. Charter in limiting the issues that can be put to an initiative vote. An Alliance Defense Fund press release announces the filing of the cert. petition.

Tuesday, October 12, 2010

Court Says State Agency Can Ban Employee From Giving Faith-Based Counseling

In Moore v. Metropolitan Human Service District, 2010 U.S. Dist. LEXIS 107997 (ED LA, Oct. 8, 2010), a Louisiana federal district court dismissed a Title VII religious discrimination claim brought by a social worker employed by a state agency that provides counseling for patients suffering from addictive disorders. Plaintiff Beulah Moore is also an ordained minister. The clinic manager at the facility employing Moore ordered her to cease providing spiritual based counseling and prayer in her clinical treatment of clients. Evidence failed to support broader claims in Moore's complaint that she was also ordered to stop mentioning God at all in the work facility. (See prior related posting.) Moore resigned in a letter stating: "I refuse to be harassed and discriminated against because I speak of God, mention Jesus and have given Spiritual Support to clients on their request." The court concluded that the state agency was justified in restricting Moore's faith-based treatment of clients in order to avoid an Establishment Clause violation.

New Study Examines Assignments of Accused Priests In Chicago

Voice of the Faithful yesterday released a new study titled Priest Work History of Credibly Accused Priests in the Archdiocese of Chicago. It concludes that 60% of Chicago's parishes and institutions had an accused priest working there or in residence at some point in time. In 2009, 20% still had a credibly accused priest in residence. Most of the 97 credibly accused priests were assigned to parishes and institutions in a few Chicago zip codes. These appear to be areas with higher concentrations of African-Americans and low median household incomes. A number of parishes and institutions had more than one accused priest assigned to them at the same time.

OSCE Review Conference Session Focuses On Religious Freedom

The Review Conference of the Organization for Cooperation and Security in Europe (OSCE) began in Warsaw, Poland on Sept. 30 and ran until Oct. 8. Other portions of the Review Conference will be held later this month and next month ahead of the OSCE Summit to be held in early December. The Warsaw segment focused on the human rights commitments of the 56 member countries. (Press release). The dozens of documents (links to full texts) from Working Session 2 focus on freedom of thought, conscience and religion. Numerous statements were submitted by governments and NGOs.

In Israel, Teenager Sues For Right To Become A Rabbi

In Israel, a 14-year old boy, hoping to become Israel's youngest rabbi, has filed suit in the Supreme Court to force the Chief Rabbinate to grade an ordination exam which he took. According to Arutz Sheva yesterday, Chief Ashkenazi Rabbi Yona Metzger gave Moshe Raziel Sharify permission to take the exam, despite his age and despite opposition from Chief Sephardi Rabbi Shlomo Amar. However now the Rabbinate is refusing to grade the exam, saying that its internal rules require a person to be at least 22 years old to become a rabbi. Apparently Sharify is a child prodigy who has been tested on his knowledge of Jewish law by several respected rabbis, including the head of Jerusalem's religious court.

First Responder Sues Ground Zero Mosque Developers For Emotional Distress; Counter Suit Filed

According to the Huffington Post yesterday, 9-11 first responder Vincent Forras has filed a state court class action against the developers of the proposed Ground Zero mosque seeking damages of $350 million for infliction of emotional distress and assault. The complaint (full text) in Forras v. Rauf (apparently filed in mid-September) alleges that for people who live, work or often visit the area around ground zero, many of whom were first responders, the mosque project is "a nuisance, a terror risk and a conscious and/or negligent desire to inflict additional psychological terrorism and emotional distress...." The complaint goes on to allege:

Defendants’ actions and decisions to erect a Mosque at or near the site of a terrorist attack where nearly 3,000 Americans lost their lives as a result of radical Islamic terrorists’ actions is careless, negligent, and unlawful in that as a result of Defendants’ ties to terrorist organizations, Defendants have increased the access of terrorists and the likelihood of attacks on Ground Zero. Defendants, given their professed role as clergy, and as professed people of faith, and as citizens of the City of New York and property owners, owe a duty of care to Lead Plaintiff and other members of the class, particularly under these unique circumstances.

Yesterday's New York Post reports that defendants are seeking to have the lawsuit dismissed on free exercise of religion grounds. UPI reported yesterday that Imam Feisal Abdul Rauf and Park51, defendants in the lawsuit, have also responded with a counter-suit claiming that the action against them is motivated by "blind bigotry." The counter suit asks for $50,000 in damages plus attorneys' fees.

Monday, October 11, 2010

Court Says Undue Hardship In Accommodating Refusal To Handle Domestic Partnerships Must Go To Jury

In Slater v. Douglas County, (D OR, Sept. 24, 2010), an Oregon federal district court refused to grant either plaintiff's or defendant's motions for summary judgment in an employment discrimination case, sending to a jury trial the question of whether accommodating a county employee's religious beliefs would have posed an undue hardship under state or federal employment discrimination laws. The suit was brought by a former employee of the Douglas County, Oregon County Clerk's Office. Plaintiff Kathy Slater was fired from her position after she objected to being involved in registering domestic partnerships under Oregon's Domestic Partnership Law. Doing so would have violated her religious belief that homosexuality is a sin. The court concluded that the county's offer to help Slater transfer to a position in another county department if one became available was an insufficient effort at accommodation of her religious beliefs. However it was unable to determine the question of undue hardship on the record before it. The court did reject the county's argument that accommodating Slater's religious beliefs would have violated the Establishment Clause because the county would have been supporting the employee's religious beliefs. [Thanks to Volokh Conspiracy via Alliance Alert for the lead.]