Pope Quoted In New Book Suggesting Use of Condoms To Prevent HIV Is Permissible In Some Cases

Associated Press and the Guardian today reports on excerpts from a long interview with Pope Benedict XVI taken from a new book to be released Tuesday.  The excerpts published  yesterday by the Vatican newspaper L'Osservatore Romano are from the book Light of the World: The Pope, the Church, and the Signs of the Times by German journalist Peter Seewald.  The remarks suggest a modification of the Church's stance on the use of condoms to prevent AIDS.  Previously some Church officials had said that abstinence and fidelity are the only way to stop the spread of HIV, while the Pope had merely said that condom use exacerbates the AIDS crisis. Now the Pope is quoted as saying that in some cases, such as for male prostitutes, the use of condoms "in the intention of reducing the risk of infection" could represent "a first step in the direction of moralisation, a first assumption or responsibility, on the way toward recovering an awareness that not everything is allowed and that one cannot do whatever one wants." Theologians suggest that the Pope may be applying the notion that an evil act can be tolerated where it is performed for an intended good, or that where the intended purpose is to protect from disease rather than trying to block pregnancy use is permissible.

Appeals Court Reverses Decision On Validity of Replacing Episcopal Bishop

In Schofield v. Superior Court of Fresno County, (CA App., Nov. 18, 2010), a California appellate court held that in a lawsuit brought by the Episcopal Church to establish its title to property of the break-away San Joaquin Diocese, the trial court must apply neutral principles of law to determine ownership of the property.  It held that the trial court had erred in preliminarily deciding who is the rightful bishop of the Diocese of San Joaquin. The trial court had approached the issue by deciding that the Diocese's attempt to withdraw from the national church was ineffective and that therefore the national church's replacement of the incumbent bishop John-David Schofield by Jerry A. Lamb as provisional bishop was valid.  The Court of Appeals held instead that the validity of the removal and appointment of a bishop is a matter of ecclesiastical law as to which the determination of the Episcopal Church controls. So the issue remaining for the trial court is the validity of property transfers allegedly made by Schofield before he was replaced. That is to be decided by reference to "general California statutory and common law principles governing transfer of title by the legal title holder, the law of trusts, including the establishment of trusts and transfers by a trustee in contravention of a trust upon the property (if a trust is established by the evidence), and corporations law...." (See prior related posting.) Anglican Curmudgeon discusses the decision and the controversy over its implications at length.

Maryland County Concedes, Settling RLUIPA Land Use Lawsuit In Mid-Trial

Both The Capital and the Maryland Daily Record report that on Thursday in the midst of a RLUIPA trial, Anne Arundel County, Maryland signed a settlement in the lawsuit brought against it by Riverdale Baptist Church which sought to build a school on 57 acres of land it owns.  Initially, in 2004, county planners approved the plans, but after objections by neighbors the County Council passed two new zoning restrictions that effectively prevented building of the school. The county attorney admitted in court that the county had targeted the church with its new legislation and had timed the legislation so it would not affect two other private schools.  The settlement-- agreed to on the 12th day of trial just before the county's last witness took the stand-- will allow the Riverdale Baptist to build its school and also awards $3.25 million in damages to the church. The complaint asked for $8.7 million.  In 2008 the parties negotiated a settlement that would have cost the county only $300,000, but at that time the County Council refused to approve its terms. [Thanks to Roman P. Storzer for the lead.]

County Takes Control of Holiday Displays

The Chester County Daily Local reports that yesterday the Chester County, Pennsylvania commissioners voted 2-1 to have the county place its own holiday displays at the Historic Courthouse, eliminating the rivalry of past years between those erecting Christian and Jewish displays and a secular group that has put up a Tree of Knowledge. Tension between the Pastors Network and the Freethought Society were particularly intense last year as the Tree of Knowledge displayed book titles as ornaments and included titles such as "The God Delusion." The new resolution calls for the county to put up displays to celebrate the traditions of the holidays, to support the troops, celebrate peace and promote commerce. The resolution says the displays will comply with constitutional limitations. A member of the Freethought Society which opposed the new arrangement told commissioners: "This is about you deciding whether atheists are people, too...."

9th Circuit Will Permit Live C-SPAN Broadcast of Arguments In Prop 8 Appeal

According to today's San Francisco Chronicle, the U.S. 9th Circuit Court of Appeals has decided that C-SPAN  will be permitted to broadcast live the appeals court arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of California's Proposition 8 that bars same-sex marriage. The two-hour arguments scheduled for 10:00 a.m. on December 6 will be split between arguments on standing and arguments on the constitutionality of Proposition 8. (9th Circuit order on oral arguments.) Attempts to allow limited televising of the federal district court trial in the case were ultimately prevented by a U.S. Supreme Court decision finding that the district court followed improper procedures in adopting its rule permitting broadcasting. (See prior posting.)

South Dakota High Court Rejects Jurisdiction Over Hutterite Colony Dispute; Lower Court Dissolves Colony

In Hutterville Hutterian Brethren, Inc. v. Waldner, (SD Sup. Ct., Nov. 17, 2010), the South Dakota Supreme Court held that it lacks jurisdiction over a dispute between two factions of the Hutterian Church, both claiming control of the non-profit corporation that controls the Hutterville Colony.  The dispute grew out of a 1992 schism in the church, after which each faction tried to obtain control of the corporate governance of Hutterville. The court held that the governance question depends on resolving a dispute over membership in and expulsion from the "true" Hutterite by the "true" church elders.  The First Amendment shields such issues from scrutiny by civil courts. Religious issues pervade the dispute, and corporate governance cannot be decided without extensive inquiry into religious doctrines and beliefs.

Meanwhile the state circuit court judge whose opinion was affirmed by the Supreme Court has now held that the Hutterville colony dispute should be dealt with by dissolving the colony, selling off its assets and distributing the proceeds to its members. That decision was handed down one day before release of the Supreme Court's opinion. Reporting on the decision, KELO Land Television quotes one of the attorneys involved as saying that the dissolution decision will probably not be affected by the Supreme Court's holding. Colony members still have the option of  reconciling and continuing to live communally.

EU Official Says Church Schools Cannot Refuse To Hire Gays and Lesbians

In a September, Elzbieta Radziszewska, a senior Polish official who deals with anti-discrimination issues, told a Catholic newspaper that church-owned schools and colleges could refuse to hire homosexuals and could fire those already employed where that is consistent with their church's values and principles.  Yesterday's Christian Century reports that European Union Justice Commissioner Viviane Reding disagrees, saying that sexual orientation cannot be a genuine occupational requirement for a teacher. On October 26, in response to parliamentary questions, Redding issued a written statement saying that while under EU's directive on equal treatment in employment religious organizations are allowed to take a person's religion or belief into account where necessary, that exception does not justify discrimination on ground other than religion or belief. Radziszewska responded that the EU directive allows religious organizations to insist that employees be loyal to the organization's ethics, and those who are not need not be employed in institutions where these are essential job qualifications.

Parents Object To Planned School Play "Santa Goes Green"

In DuBois, Pennsylvania, some parents have raised a new kind of objection to a planned school Christmas play. The Progress reported yesterday that four residents have asked the DuBois School Board to reconsider the choice of the play "Santa Goes Green" that is to be produced by 4th and 5th graders on Dec. 8-10. The play was written by author and composer John Jacobson, who was also an unsuccessful candidate for the U.S. House of Representatives from California's 2nd District in this month's elections.  Parent Patty Fisch says the play contains a hidden political and environmental agenda that she does not want her child exposed to. She says that "several parts in the play drill into kid's heads the world's going to end if they don't go green." Another parent argued that environmentalism is a matter of personal belief and so the play could be seen as advancing religion.

Israeli Jewish Anti-Missionary Group Sues State-Run Radio Stations Over Ad Refusal

Yad L'Achim is an Israeli non-profit group, one of whose goals is to counter Christian missionary activity aimed at Jews in Israel. Arutz Sheva reported on Wednesday that the organization has filed suit against two Israeli state-operated radio stations which have refused to run Yad L'Achim's ads. The organization wants to run the ads prior to music festivals and major concerts at which Christian missionaries reaching out to young people are particularly active. Both the Israel Broadcasting Authority and Army Radio have refused. Army Radio says that it cannot run ads that "may damage the religious sentiments of different groups."  In a letter to the court, Yad L'Achim said:

a public service announcement or paid ad warning Jews not to fall prey to missionaries would not violate the religious feelings of anyone in Israel. It is the radio stations' social and legal obligation to broadcast the ads. There is, in fact, no more suitable message for Jews in a Jewish state than to tell them to remain strong in their identities and reject anti-Semitic missionary activity.

Yad L'Achim attorneys threaten to go beyond their present suit which demands the ads be run either as a public service announcement or a paid ad. They say they if the stations do not change their stance, Yad L'Achim will file a discrimination claim with the High Court as well.

9th Circuit: Christian Legal Society Failed To Preserve Pretext Argument For Review

Last June in Christian Legal Society v. Martinez, the U.S. Supreme Court upheld Hastings Law School's policy of only recognizing student groups that are open to all students. The policy was challenged by CLS that required its members and officers to sign a statement of faith. (See prior posting.)  However the Supreme Court remanded the case to the 9th Circuit, saying that, "if and to the extent it is preserved," the Circuit Court could still consider CLS's argument that Hastings applied its all-comers rule in a biased fashion, using it as a pretext for religious discrimination. In Christian Legal Society of University of California Hastings v. Wu, (9th Cir., Nov.17, 2010), the 9th Circuit held on remand that plaintiffs had failed to preserve this selective application argument for appeal. The Washington Post reports on the decision. [Thanks to Religion News Service for the lead.]

State Department Issues 2010 Report On International Religious Freedom

Yesterday the U.S. State Department released its 2010 Report on International Religious Freedom. The annual report to Congress is mandated by Section 102 of the International Religious Freedom Act of 1998. In releasing the report, Secretary of State Hillary Clinton (full text) said:

Religious freedom is under threat from authoritarian regimes that abuse their own citizens. It is under threat from violent extremist groups that exploit and inflame sectarian tensions. It is under threat from the quiet but persistent harm caused by intolerance and mistrust which can leave minority religious groups vulnerable and marginalized.... [W]ith this report as our guide, the United States will continue to advance religious freedom around the world as a core element of U.S. diplomacy.

Assistant Secretary Michael H. Posner then answered reporters questions. (Full text of briefing.)

The report surveys the status of religious freedom separately for every country around the world (except for the U.S. itself). The Executive Summary highlights 27 countries in which there have been noteworthy developments, either positive or negative. It reports on U.S. efforts to promote religious freedom in the 8 countries the State Department has formally designated as "Countries of Particular Concern." (See prior posting.) However the Report did not update these designations. Secretary Posner, though, said that a new list will be forthcoming "in the next couple of months."

The Executive Summary reiterates U.S. opposition to continuing efforts by Muslim countries to obtain a U.N. resolution on "defamation of religions." Citing China and Uzbekistan, it also condemns "the growing trend of forcibly returning individuals from another country to face persecution or abuse in their home country in retribution for their religious activism." [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

In Battle For Texas House Speaker, Religion Becomes An Issue

In the Texas state legislature, Joe Straus, the current speaker of the House of Representatives, is being challenged by two other Republicans who are more conservative. Yesterday's Dallas Morning News reports that  supporters of challengers Rep. Warren Chisum and Rep. Ken Paxton are stressing their candidates' Christian values and in e-mails are alluding to the fact that Straus is Jewish. A Houston Chronicle opinion piece carries a detailed examination of what it calls the "religious campaign against Straus."  Some of the opposition pieces claim Straus favors abortion and points out that his rabbi is on the board of Planned Parenthood. A Dallas Morning News report analyzes the claim that Straus received a 100% National Abortion Rights League rating for 2007.  It reports:

In 2007, Straus voted 100 percent of the time with NARAL Pro-Choice Texas. However, he only voted on one of nine votes the group considered crucial that session. Straus voted "aye" on an unsuccessful amendment to the state budget that would have shifted to child-abuse prevention efforts $5 million previously allotted to "pregnancy crisis centers," which advise women and girls about alternatives to abortions.

The ADL yesterday issued a release calling appeals based on a candidate's religion "offensive and inappropriate."

Russia's Lower House Approves Bill Allowing Orthodox Church To Reclaim Nationalized Property

Reuters reports that yesterday the State Duma, the lower house of Russia's Parliament, adopted a bill authorizing the Russian Orthodox Church to reclaim up to 17,000 building and churches nationalized after the 1917 Bolshevik revolution. Under the bill, the Church cannot reclaim museum pieces or public buildings. The bill easily passed on its second and main reading in the lower house. It must still pass a perfunctory third reading before going to the upper house (the Federation Council) for approval and then being signed into law by the president. (Background on legislative process).

Ponzi Scheme Targets Investors In Shariah-Compliant Financial Products

A Department of Justice press release yesterday unveiled an indictment against three owners of a bankrupt Chicago real estate development firm charging that they ran a Ponzi scheme aimed at investors seeking Shariah-compliant investments. The indictment alleges that two of the owners of Sunrise Equities, Inc. misrepresented that an investment in the company was Shariah compliant, and promised returns of between 15% and 30%.  Hundreds of Muslims in the Chicago area invested, and collectively they lost some $30 million in the fraud. Sunrise was not generating any profits from real estate development and prior investors could be paid only out of funds later invested by others. The two defendants charged in the affinity-group fraud have now fled the country.

New Survey Identifies Religious Concerns For 2012 Election

The Public Religion Research Institute this week released a report on its  2010 Post-Election American Values Survey. The report titled Old Alignments, Emerging Fault Lines: Religion in the 2010 Election and Beyond,  reports on three findings that may have importance for the 2012 elections:  (1) only 4 in 10 Americans believe that President Obama has religious beliefs similar to their own; (2) 49% of Americans believe that the values of Islam are compatible with American values; and (3) 58% agree that God has granted America a special role in human history. ABP yesterday reported on the survey.

Court Refuses To Stop Murfreesboro Mosque

According to NPR, a Tennessee Chancery Court judge yesterday refused to issue a temporary restraining order to stop construction of an Islamic Center in Murfreesboro (TN). The formal issue in the trial was whether Rutherford County planning officials violated the state's open meeting law when they approved the site plan for the Center. (See prior posting.) However the trial drew national attention as plaintiffs argued that Islam should be classified as a political movement, not a religion. (See prior posting.) After seven days of testimony since late September, Chancellor Robert Corlew heard closing arguments yesterday (WRCB TV) and then issued his ruling. While expressing some concern about the notice requirements, Corlew ruled that plaintiffs had not shown the county acted illegally, arbitrarily or capriciously in approving the site plan.

Senate Hearing Held On Nomination of Ambassador at Large for International Religious Freedom

Religion News Service reports that yesterday the Senate Foreign Relations Committee held a hearing on the nomination of Suzan D. Johnson Cook to be Ambassador at Large for International Religious Freedom. In her prepared testimony (full text) Cook outlined some of her relevant experience. Cook retired last year as pastor of New York's Bronx Christian Fellowship Church.  Religious freedom advocates have been concerned that the religious freedom ambassador's post has been unfilled for so long. Some, however, question Cook's lack of foreign policy experience.

Executive Order Adopts New Criteria For Organizations Receiving Faith-Based Grants

President Obama today signed an executive order (full text) making changes in the operations of the White House Office of Faith-based and Neighborhood Partnerships.  As reported in a press release from the Baptist Joint Committee, the order implements many of the recommendations made in February by a task force on reform of the faith-based office. (See prior posting).  However the Executive Order does not implement a split recommendation that houses of worship use separately incorporated affiliates to receive federal grant funds. (The recommendations were published as part of a larger report last March. See prior posting.) Today's Executive Order, titled Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations, includes the following directives:

(c)  No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.

(d) ... [O]rganizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.

(e)  The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause ... and must monitor and enforce standards ... in ways that avoid excessive entanglement between religious bodies and governmental entities.

(f)  Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance ..., separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance.

(g) ...  [A] faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance ... to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization)....  [Organizations] may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents.

 (h)  ... If a beneficiary or prospective beneficiary of a social service program supported by Federal financial assistance objects to the religious character of an organization that provides services under the program, that organization shall, within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider....

The Executive Order also sets up a Working Group to draft a set of model regulations and guidance documents for adoption by federal agencies involved in distributing funds.

Illinois Village Sued For Refusal To Accommodate Jehovah's Witness Employee

A former Oak Park, Illinois employee on Friday filed a lawsuit against the village claiming that it wrongfully refused to accommodate her religious beliefs.  The TribLocal and the Pioneer Press report that Jehovah's Witness adherent Shawnya Robinson originally worked in Oak Park's community relations department, but was transferred the clerk's office when her original position was eliminated for budgetary reasons. Robinson had religious objections to registering domestic partnerships. She also objected to being involved in voter registration, interpreting her church's teaching of political neutrality as preventing her from being involved in any way in the voting process. Although Robinson was originally told that it would not be a problem to accommodate her religious beliefs, eight days after she began her new job she was fired because her supervisor became concerned about office morale problems that would be caused by Robinson's being exempted from some duties. The Illinois Department of Human Rights in September dismissed similar charges filed with it by Robinson.

Court Rejects Bivens Claim For Religious Discrimination By CIA

Ciralsky v. Central Intelligence Agency, 2010 U.S. Dist. LEXIS 120617 (ED VA, Nov. 15, 2010), is a suit originally filed ten years ago by a former CIA employee challenging the revocation of his security clearance and his resulting termination from his position as an attorney with the CIA.  Plaintiff Adam Ciralsky claims that these actions were taken because he is Jewish and was viewed as a supporter of Israel. Some of plaintiff's claims have already been adjudicated or are still pending in the district court for the District of Columbia. The claims involved in this opinion are primarily Bivens claims for violations of various constitutional provisions. Among those are claims that defendants violated the free exercise clause and the equal protection component of the 5th Amendment's due process clause. The court dismissed plaintiff's claims on various grounds, including lack of subject matter jurisdiction. However it also discussed the merits of various claims, including those under the 1st and 5th Amendment:

Ciralsky has already challenged the revocation of his security clearance under Title VII in the District of Columbia, which dismissed that claim; he cannot use a Bivens action to receive a second chance at his failed Title VII claim.

Indeed, allowing this claim would require this Court to broaden the scope of Bivens, which courts are reluctant to do. Bivens creates an implied right of action for damages against federal officials who violate specific constitutional rights.... Ciralsky has not cited any precedent that creates a Bivens action for free exercise or equal protection claims.

Even if Ciralsky could bring such a Bivens action, he does not allege facts that make out a constitutional violation. Ciralsky alleges that the CIA revoked his security clearance because officials saw him as overly sympathetic to Israel. If true, the CIA's actions were within its broad discretion for granting and denying access to national security information.