Pastor Challenges IRS Non-Profit Limits With Endorsements From Pulpit

In an open challenge to the constitutionality of the tax code's ban on non-profits endorsing political candidates, a Hastings, Minnesota pastor has endorsed from the pulpit a slate of conservative candidates running for governor, other state offices and Congress after indicating in advance on a radio show that he would do so.  Americans United announced yesterday that it had filed a formal complaint (full text) with the Internal Revenue Service over the activities of pastor Brad Brandon of Hastings' Berean Bible Baptist Church. In addition to the endorsements from the pulpit, Brandon also distributed a flyer during services listing the church's endorsements.The St. Paul Pioneer Press yesterday quoted Brandon as saying:

I'm not necessarily excited about an investigation or possible audit, but to me, that's a small price to pay. This is an issue of clergy not being able to say what they want. ... It is something I've been thinking about for quite some time. I've been praying about it. I see so much around me; we are losing our freedom to speak and speak out.

Yesterday's Minnesota Independent has a photo of the flyer and audio excerpts of Brandon's sermon.

Warren Jeffs Fights Extradition To Texas

Attorneys for Warren Jeffs, former leader of the polygamous FLDS Church, are seeking to quash an extradition warrant signed by Utah Governor Gary Herbert that would turn Jeffs over to Texas state authorities for trial on sexual assault and bigamy charges there. The move comes after the Utah Supreme Court overturned Jeffs' Utah conviction on charges of being an accomplice to rape because of improper jury instructions. (See prior posting). According to CNN, Jeffs argues that the Interstate Agreement on Detainers does not apply because Jeffs is not a person who has "entered upon a term of imprisonment" since his conviction was reversed.  Apparently Utah is relying upon the Uniform Criminal Extradition Act to authorize Jeffs transfer to Texas.  Jeffs' attorneys argue that Utah and Texas have "shrouded their ungodly alliance in the semantics of extradition law."

Justice Department Files Amicus Brief In Mosque Case To Argue That Islam Is A Religion

The Civil Rights Division of the U.S. Department of Justice yesterday announced the rather unusual move of filing an amicus brief (full text) in a case pending in a state trial court. Estes v. Rutherford County Regional Planning Commission is a lawsuit in Rutherford County, Tennessee Chancery Court seeking to halt construction of a controversial Islamic center being built in Murfreesboro, Tennessee.  Plaintiffs in the case have argued, among other things, that Islam should be classified as a political or ideological movement, not a religion, and that the proposed mosque is not a house of worship. (See prior posting.) The Justice Department's brief counters these claims, arguing that Islam is a religion entitled to First Amendment protection and that the proposed Islamic Center and mosque is a place of religious assembly protected by the Religious Land Use and Institutionalized Persons Act. Reporting on the filing, AP quotes the Tennessee U.S. Attorney who said: "Plaintiffs' implication that Islam is not a recognized religion by the United States is wrong and is not supported by any authority whatsoever."

Megachurch Files For Bankruptcy Protection

Garden Grove, California's mega-church, the Crystal Cathedral Ministries, founded by Dr. Robert H. Schuller, announced yesterday that it is filing for Chapter 11 Bankruptcy Act protection. The Orange County Register reports that the cathedral owes unsecured creditors some $7.5 million, including $56,000 to the livestock supplier who supplied camels, horses and sheep for the cathedral's Glory of Christmas Pageant. The bankruptcy filing occurred after a committee of creditors refused to extend a moratorium which had been agreed to so negotiations could proceed.

Party's Ballot Listing Did Not Violate Establishment Clause

In McMillan v. New York State Board of Elections, 2010 U.S. Dist. LEXIS 109894 (ED NY, Oct. 15, 2010), James McMillan, the founder of the Rent Is Too Damn High party, sued for $350 million in damages claiming that the New York City board of elections violated his constitutional rights in removing the word "Damn" from his party's name in listing him on the 2009 New York City mayoral ballot. (Claims as to earlier elections were dismissed on statute of limitations grounds and claims against the state election board were dismissed on 11th Amendment grounds.) The city board of elections contended that ballot space limitations require that a Party's name not to exceed 15 characters. Plaintiff claims the city board of elections was motivated by religious concerns in removing "Damn" for his party's name, in violation of the Establishment Clause. The court found, however, that McMillan offered no evidence to support his charges that the board's actions were religiously motivated. The court also rejected McMillan's free speech, equal protection and due process arguments. In earlier proceedings, the parties agreed that on future ballots the party will be listed as "Rent Is 2 Damn High", thus meeting the 15 character limit.

New Jersey Environmental Officials Challenge Ritual Burial of Holy Objects

Jewish religious law requires  shaimos-- certain worn out religious items such as old books containing the name of God and certain religious garments-- to be disposed of by burial instead of merely being thrown into the trash.  Asbury Park (NJ) Press last week reported on a lawsuit in state court in New Jersey in which the state Department of Environmental Protection is attempting to require Rabbi Chaim Abadi to dig up truckloads of shaimos buried in two different sites in New Jersey. Apparently state environmental officials were present at the first site (in Jackson, NJ) when the burial took place and "looked the other way." However after a second site in Lakewood, NJ was used, officials objected to both saying they are near a water well and protected wetlands. An April article from the Asbury Park Press says that over 2000 bags of sacred Jewish texts and clothing were disposed of at the Lakewook location.  Rabbi Abadi has found another site at a Lakewood Jewish cemetery to which the shaimos could be removed. However that also requires Department of Environmental Protection approval and so far that has not been forthcoming. Apparently environmental officials are claiming that the shaimos constitutes solid waste and must be moved to a licensed landfill.

Recent Articles of Interest

From SSRN:

• Stephanie R. Hoffer, Caesar as God's Banker: Using Germany's Church Tax as an Example of Non-Geographically Bounded Taxing Jurisdiction, (Washington University Global Studies Law Review, Forthcoming).
• Walker Humphrey, Dennis the Menace?: An Analysis of Whether the Episcopal Church’s Dennis Canon Entitles the Church to an Exemption from Neutral Trust Law, (September 27, 2010).
• Steven Douglas Smith, Religious Freedom and its Enemies, or Why the Smith Decision May Be a Greater Loss Now Than It Was Then, (Cardozo Law Review, Forthcoming).
• Steven Douglas Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, (October 13, 2010).
• Anthony D'Amato, On Genocide, (Naval War College International Law Studies (Blue Book), Vol. 75, pp. 119-130, 2010).
• Joel W. Friedman, The Impact of the Obama Presidency on Civil Rights Enforcement in the United States, (Tulane Public Law Research Paper No. 10-03, Oct. 12, 2010).
• Azhar Majeed, Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights, (Cardozo Public Law, Policy and Ethics Journal, Vol. 8, No. 3, 2010).

From bepress:

• Daphna Hacker, Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts, (Tel Aviv University Legal Working Paper Series. Tel Aviv University Law Faculty Papers. Working Paper 123, Oct. 2010).

From SmartCILP:

• Benjamin Shmueli, What Have Calabresi & Melamed Got to Do with Family Affairs?: Women Using Tort Law in Order to Defeat Jewish and Shari'a Law, 25 Berkeley Journal of Gender Law & Justice 125-171 (2010).
• Valorie K. Vojdik, Politics of the Headscarf in Turkey: Masculinities, Feminism, and the Construction of Collective Identities, 33 Harvard Journal of Law & Gender 661-685 (2010).
• Symposium: The New Face of Discrimination: "Muslim" in America. Introduction by Abdullah Antepli; articles by Peter G. Danchin, Aziz Z. Huq, Natsu Taylor Saito, Tung Yin and Sheryll Cashin; note by Maura K. Finigan. 2 Duke Forum for Law & Social Change 1-154 (2010).

British Cabinet Minister Criticizes Cities' Tax Breaks For Scientology

City tax authorities in four British cities-- London, Westminster, Birmingham and Sunderland-- have given the Church of Scientology property tax relief even though it is not classified as a charitable religious organization by the Charity Commission. Free Internet Press reported last week that Britain's Communities Secretary, Eric Pickles, has criticized the action by the various cities, saying: "Councils may award charitable relief. They should take into consideration the Charity Commission's rulings when weighing up whether to do so. I do not believe the majority of the public would want their own council to be giving special tax breaks to such a controversial organization."

Indian State Announces Quick Compensation To Kin of 10 Killed In Temple Stampede

AFP reports that in the Indian state of Bihar, outside a Hindu temple in the Banka district, a stampede late Saturday killed ten and injured 15 others as thousands came to the temple to sacrifice goats for the Hindu festival of Durga Puja (also known as Navartri Puja)-- a festival honoring the mother goddess Durga.  AFP says that the stampede was caused by rumors that a portion of the temple had collapsed or that snakes had entered it. However an AP report carried by the Wall Street Journal says that the injuries were triggered by arguments among those in attendance over whose goats would be sacrificed first. Some 30,000 goats were sacrificed at the temple on Saturday. According to Sify News, the Bihar disaster management department has announced that it would pay Rs.1 lakh (around $2270 US) to each relative of those killed.

China Bars House Church Members From Attending International Conference

The New York Times reported Friday that in China more than 100 Christians were barred by authorities from leaving the country to attend the Third Lausanne Conference on World Evangelization that begins today in Cape Town, South Africa. The Christians seeking to attend are members of unofficial "house churches" in China. The Chinese Ministry of Foreign Affairs said that Conference organizers did not invite representatives of China's official Christian churches and instead:

secretly extended multiple invitations to Christians who privately set up meeting points. This action publicly challenges the principle of independent, autonomous, domestically organized religious associations, and therefore represents a rude interference in Chinese religious affairs.

Recent Prisoner Free Exercise Cases

In Hall v. Ekpe, (2d Cir., Oct. 13, 2010), the 2nd Circuit Court of Appeals rejected a claim that a prison policy allowing attendance at formal Ramadan services only to inmates identified by the prison's chaplain as observant Muslims violated plaintiff's 1st Amendment rights. The court reserved judgment on plaintiff's damage claim under RLUIPA pending decision by the United States Supreme Court in a pending case on whether damages can be awarded in official capacity suits under RLUIPA. (See prior posting.)

In Avery v. Thompson, 2010 U.S. Dist. LEXIS 106937 (ND CA, Oct. 4, 2010), a prisoner complained that his free exercise rights were infringed when 265 pamphlets published by a White supremacist publisher were confiscated from him. Since no evidence was introduced about the actual contents of any of the pamphlets, the court denied prison authorities' motion for summary judgment without prejudice, indicating that a reneewed motion could be made with a proper evidentiary showing.


In Krieger v. Brown, 2010 U.S. Dist. LEXIS 108822 (ED NC, Oct. 13, 2010), a North Carolina federal district court rejected a prisoner's claim that his rights under RLUIPA and the 1st Amendment were violated by prison authorities refusal of his requests to use certain ritual items and an outdoor worship circle in the practice of his Asatru religion.


In Butler v. Hogue, 2010 U.S. Dist. LEXIS 109072 (ND NY, Oct. 13, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 109075, Feb. 4, 2010) and dismissed an inmate's claims that his 1st, 8th and 14th Amendment rights were violated when prison authorities served him a contaminated kosher meal on one occasion and soup in a defective container on another.


In Brancho v. Alexander, 2010 U.S. Dist. LEXIS 109581 (ND OH, Oct. 14, 2010), an Ohio federal district court dismissed an inmate's free exercise claims that he was denied a religious diet and religious services because the complaint failed to allege adequate facts to show a violation and failed to connect particular defendants with the claims.


In Sayed v. Profitt, 2010 U.S. Dist. LEXIS 109221 (D CO, Sept. 27, 2010), a Colorado federal district court rejected a claim by a Muslim inmate that his free exercise rights were violated because he was unable to perform full ablution before Friday Jum'ah prayers.  The claims for injunctive relief were moot because the inmate had been moved to a different facility. Some of the damage claims were barred by the 11th Amendment. As to others, the court found no violation of plaintiff's free exercise rights because substitute ablution is an adequate alternative.

Supreme Court Review Sought In RLUIPA Case

According to the Longmont (CO) Times Call, a petition for certiorari was filed with the U.S. Supreme Court last week in Rocky Mountain Christian Church v. Board of Commissioners of Boulder County, Colorado.  In the case, the 10th Circuit upheld a jury's determination that denial of a special use permit to a church violated the equal terms and unreasonable limitations provisions of RLUIPA. (See prior posting.) The 10th Circuit subsequently denied a rehearing after making minor changes in its original opinion. (See prior posting.)

Pastor Who Reversed Qur'an Threat Now Claims Car Offered To Him

In the midst of high-profile threats by Florida pastor Terry Jones to sponsor a Sept. 11 burning of Qur'ans (see prior posting), a New Jersey car dealer known for his unusual ads used one of those ads to offer Jones a year's free use of a new car if he did not go through with his plans.  According to AP on Friday, now that Jones has decided for other reasons not to burn Qur'ans, he is asking car dealer Brad Benson for the car. Jones says he will not keep the car for himself, but will donate it to an organization that helps abused Muslim women.  Car dealer Benson says he will now donate the car outright to Jones because he does not want to be connected to whatever Jones does with the car.

Council of Europe Parliament Affirms Healthcare Providers' Right To Conscientious Objection

The Parliamentary Assembly of the Council of Europe (PACE) on Oct. 7 adopted a resolution (full text) supporting the right of conscientious objection by medical providers.  As reported by Radio Free Europe last week, the PACE's Social, Health and Family Affairs Committee presented a very different draft (full text) to the Assembly. The draft focused on the problems posed by "unregulated use of conscientious objection," and recommended limiting its availability to individual health care providers directly involved in performing a procedure, and not to public hospitals and clinics as a whole.  The original proponents of the resolution would have gone even further and totally banned conscientious objection even by individual providers. PACE debated the proposal extensively. (See Press Release.) The resolution it adopted ended up broadly supporting conscientious objection.  The resolution reads in part:

No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.

White House Defends Conference Call To Faith-Based Leaders On Health Care Reform

CNN yesterday reported that the White House is responding to criticisms of its faith-based office leveled by former Bush administration officials. At issue was a conference call to leaders of faith based and community groups by President Obama and Joshua DuBois, his director of faith-based initiatives, urging the leaders on the call to help explain the advantages of the Obama health care plan to their constituencies. (See prior posting). In a blog posting on the White House website yesterday, Joshua DuBois said in part:

recently, President Obama hosted a conference call with thousands of religious and community leaders to share important information about new health care benefits that will impact those in need. There could hardly be a more appropriate audience. When congregants falls ill, faith communities come together to support their brothers and sisters in need.  And when families struggle, they often turn to religious leaders for the spiritual and practical support to move forward. This is why faith leaders requested information about a new health care law that includes, for example, provisions that make it illegal for insurance companies to deny care to sick children, and allows young people to remain on their parent’s health insurance until they turn 26. 

White House Faith Based Head Keynotes Vatican Conference On Interfaith Action

This week Joshua DuBois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships, delivered the keynote address (full text) at the Holy See's Conference on Interfaith Action held in the Vatican. He said in part:

My Office is also tasked with assessing, and improving, the United States Government’s engagement of religious issues and religious actors around the globe.  President Obama believes that faith-based organizations can be powerful catalysts for development and social action: from rebuilding communities ravished by natural disasters to responding to outbreaks of deadly disease.   The President also believes that while faith-based groups are powerful as singular actors, they can multiply their impact by joining across religious lines: Christians, Muslims, Hindus and Jews, retaining their individual beliefs but coming together to serve communities around the globe in times of dire need.  My Office seeks to create opportunities for this sort of interfaith engagement, and for the first time develop mechanisms for the United States Government to systematically partner with religious organizations abroad.

Bolivia Enacts Broad Anti-Discrimination Law, But Impact On Media Protested

On October 8, Bolivian President Evo Morales signed the newly enacted Law Against Racism and All Forms of Discrimination.  According to Workers World, the law prohibits racism and also prohibits discrimination based religion as well as numerous other grounds. A translation of the anti-discrimination section is furnished as part of the Andean Information Network's analysis of the law:

A person who arbitrarily or illegally obstructs, restricts, infringes upon, impedes or prevents the exercise of individual or collective rights, motivated by sex, age, gender, sexual orientation or gender identity, cultural identity, family affiliation, nationality, citizenship, language, religious creed, ideology, political opinion or philosophy, marital status, economic or social situation, illness, occupation, level of education, being differently abled or having a physical, intellectual or sensory disability, pregnancy, regional origin, physical appearance and dress, will be sanctioned to a prison sentence between one and five years.

The news media oppose two sections of the new law that prohibit the media from publishing or broadcasting racist or discriminatory statements, even when reporting statements by third parties. Sanctions include withdrawal of operating licenses and prison sentences for journalists and media owners. CNN reports that 28 journalists in Santa Cruz are on a hunger strike in protest, fearing that the government will use the new law to muzzle media outlets that publish articles supporting political opponents. Journalists and others are seeking a national referendum on the provisions that impact the press.

Hundreds Turn Out for "Islam on Capital Hill"

CNN reports that hundreds of Muslims today turned out on in Washington for Islam on Capitol Hill.  Event organizer Abdul Malik said that the event, which he hopes to hold annually, is aimed mainly at Muslim young people. Malik said: "Muslim children need to know that this is their country and that they have a responsibility to protect and honor it. I want to make sure they're not radicalized by any elements, especially on the internet." The day included tours of Congress, prayers, speeches and a banquet.

7th Circuit Upholds Illinois Moment of Silence Law

In a 2-1 decision yesterday, the U.S. 7th Circuit Court of Appeals upheld Illinois' Silent Reflection and Student Prayer Act against Establishment Clause and vagueness challenges.  The Act requires every public school classroom to open with "a brief period of silence." The statute goes on to provide: "This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day."  The majority in Sherman v. Koch, (7th Cir., Oct. 15, 2010), held:

The Illinois legislature had a secular purpose in passing Section 1, namely mandating a period of silence to calm school children before the start of their day. There is no evidence that the secular purpose is a sham and that Illinois’s true purpose was to promote prayer. And there is nothing impermissible about clarifying that students may pray during that time period. Section 1 also does not advance or inhibit religion (or specific religions that practice momentary silent prayer), but rather mandates only a period of silence. There is also no state entanglement with religion. Therefore, Section 1 satisfies the Lemon test and Sherman’s First Amendment challenge fails. Sherman’s vagueness challenge also fails because Section 1 is not unconstitutionally vague in all of its operations.

Judge Williams dissenting however argued:

The Act makes what I believe to be an unnecessary reference to prayer, signaling a predominantly religious purpose to the statute. And by enumerating prayer as one of only two specific permissible activities, the Act conveys a message that Illinois students should engage in prayer during the prescribed period as opposed to a host of other silent options. I have concluded that the purpose and effect of the Act is to encourage prayer in public schools, which violates the first two prongs of the Lemon test.

The Chicago Tribune reports on the decision. Among the advocacy groups issuing press releases on the case were the ACLU of Illinois and Alliance Defense Fund.  (See prior related posting.)

School Board Drops Bible Class In Response To Lawsuit

Indy Channel News today reports that in response to an ACLU lawsuit filed earlier this month, the Fairfield, Indiana school district board voted unanimously yesterday to end a Bible class that was offered in the district's New Paris Elementary School.  The suit was filed on behalf of a first-grader and his mother, alleging that the student was left unsupervised in the school hallway during the 20-minute weekly class after his mother opted him out of it. Even though the school board's attorney advised the board that they would clearly lose the federal court lawsuit, 48 people attending the school board meeting urged the board to fight the suit.  One parent told the board: "Anything through God is possible."