White House Sends Christmas Greetings

CNN has the full text of the Weekly Address by the President, this week joined by the First Lady, wishing everyone a Merry Christmas. The President said in part:

Because this is the season when we celebrate the simplest yet most profound gift of all: the birth of a child who devoted his life to a message of peace, love, and redemption. A message that says no matter who we are, we are called to love one another – we are our brother’s keeper, we are our sister’s keeper, our separate stories in this big and busy world are really one....

[W]e're encouraging Americans to ask what you can do to support our troops and their families in this holiday season. For some ideas on how to get started, just visit Serve.gov..... America's brave servicemen and women represent a small fraction of our population. But they and the families who await their safe return carry far more than their fair share of the burden. They've done everything they’ve been asked to do..... So let’s all remind them this holiday season that we’re thinking of them – and that America will forever be here for them, just as they've been there for us.

The White House website today also carries an interview with Diane Roussel-Dupre, the "Santa Tracker Head Researcher" at the Department of Energy's Los Alamos Laboratory. Here is part of the interview:

Q: What is the hardest part of keeping track of Santa?

Diane Roussel-Dupre: Because of his wish to surprise, Santa does not file a flight path with the Federal Aviation Administration, so we never really know where he will be.

Q: What technologies do you use?

Diane Roussel-Dupre: We believe that Rudolph's glowing, bright red nose puts out optical and infrared light that makes him easy to detect, allowing an optical camera on FORTE to give us a glimpse of Santa and his team. Also, the Federal Aviation Administration requires Santa to fly with a radio transponder on his sleigh, similar to what airplanes use, to ensure flight safety around the world. This transponder can be detected with the radio receiver that flies on-board both the FORTE and Cibola Flight Experiment (CFE) satellites. We will also be using the star cameras on the CFE satellite to look for Rudolph and the rest of the reindeer pulling Santa's sleigh.

4th Circuit Rejects Establishment Clause Challenge To County's Role In Development That Includes Church

In Glassman v. Arlington County, Virginia, (4th Cir., Dec. 23, 2010), the U.S. 4th Circuit Court of Appeals rejected an Establishment Clause challenge to Arlington County, Virginia's participation in the financing and construction of a ten story building that houses a church on the first two floors and apartments on the upper 8 floors. Plaintiff unsuccessfully argued that (1) the County had engaged in disguised funding of the church by overvaluing the affordable housing units in the project; (2) the physical layout of the building, in which the apartment tenants will pass through church property, creates a religious overtone to the project; and (3) the County became excessively entangled with the church when it appointed a representative to the Church-controlled board of the non-profit corporation that will over see construction of the project. (See prior related posting.)

Woman Challenges Virgin Islands License Photo Rule

Yesterday's Virgin Island Daily News reports that a Muslim woman is challenging a policy of the Virgin Islands Bureau of Motor Vehicles that allows her to have her drivers' licence photo taken wearing her hijab (head scarf) only if she produces a letter from her imam.  License applicant Nailah Jamil says she was told she needed a notarized affidavit from the imam, though now authorities say notarization is not required. The Council on American-Islamic relations has sent a letter to the BMV director on behalf of Jamil saying that the Virgin Islands' photo policy is "contrary to all federal, state and local government photography guidelines, which provide for religious exemptions."

New Minnesota Judge Pick Represented Conservative Christian Groups

The Minnesota Independent reports that on Tuesday, Minnesota's Gov. Tim Pawlenty appointed attorney Jamie L. Anderson to a vacancy created by a retirement on the state's 4th District (Hennepin County) Court. Anderson is the wife of the Governor's chief of staff and has represented conservative religious groups in high profile cases.  She represented the Minnesota Family Council in its effort to intervene as a defendant in a case challenging Minnesota's ban on same-sex marriage. In 2009, she was one of the lawyers who represented the Child Evangelism Fellowship of Minnesota in a case in which it was seeking an equal right with secular groups to to send Christian literature home with students. In 2007, Anderson was a lobbyist for born-again-Christian Frank Vennes who was a large donor to evangelical groups. However Anderson's primary areas of practice are business law, wills and trusts, probate and real estate. In appointing Anderson, Gov. Pawlenty bypassed the state's Commission on Judicial Selection which makes recommendations to the governor.  Legally governors may bypass the Commission and others have also done so.

Pakistan's Federal Shariat Court Asserts Expanded Jurisdiction; Invalidates Provisions of Women's Protection Act

On Wednesday, according to Business Recorder, Pakistan's Federal Shariat Court (FSC) declared three sections of the 2006 Women's Protection Act void, finding that the provisions violate Section 203DD of Pakistan's Constitution. That section defines the jurisdiction of  the FSC as including the power to reveiw the finding of any criminal court under any law relating to the enforcement of Hudood. An editorial from the Pakistan's Daily Times describes the effect of the FSC's ruling. It says that the FSC decision:

seeks to restore the primacy of Hudood laws in cases relating to the offence of zina (adultery) and qazaf (false accusation of adultery), which have a long history of abuse and injustice. The Women’s Protection Act 2006 omitted two sections of the Hudood Ordinances which, to some extent, reduced the likelihood of abuse of these laws against women accused of adultery. Their cases could now be tried under the Pakistan Penal Code, instead of exclusively under the Hudood Ordinance. 

However, not only did the FSC declare Sections 11, 25, 28 and 29 of the Women’s Protection Act 2006 un-Islamic and unconstitutional on the premise that the overriding effect of the Hudood Ordinances over other laws could not be taken away, it also asserted that the jurisdiction to hear appeals under any law relating to ten offences covered by the term ‘hudood’ for the purpose of Article 203 DD of the constitution lies with the FSC and not the high courts. The FSC thus gave parliament time till June 22, 2011 to make amendments to the Women’s Protection Act to restore these clauses, otherwise the court’s verdict would stand and these clauses would be considered restored. The court also directed the government to amend the Control of Narcotic Substances Act of 1997 and Anti-Terrorism Act 1997 to lay down a procedure for filing of appeals to the FSC instead of a high court for such offences.... 

According to the Business Recorder, the ten offenses over which the FSC has asserted jurisdiction are: Zina (adultery), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of adultery), Shurb (alcoholic drinks/intoxicants/narcotics etc), Sarqa (theft simplicitor), Haraba (robbery, highway robbery, dacoity - all categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code), Irtdad (apostasy), Baghy (treason), Qisas (right of retaliation in offences against human body) and human trafficking.

TSA Procedures Continue To Offend Some On Religious Grounds

Today's Washington Post carries an article titles TSA Procedures Offend Followers of Many Faiths. It reports that while Muslim women are particularly offended by the full body scanners in use at airports, they are not alone. Sikhs (who are often required to remove their turbans), some Orthodox Jews and some evangelical Christians also object on religious grounds, citing modesty concerns. Some say that TSA's rules that call for secondary screening for those wearing "bulky clothing" are applied subjectively with a bias against religious headgear.

High School Teacher In Spain Sued By Muslim Family For Discussing Ham

Hudson New York reports on a lawsuit filed recently in Spain by parents of a Muslim high school student charging a high school geography teacher with violating Article 525 of the Spanish Penal Code that makes it illegal to "offend the feelings of members of a religious confession." José Reyes Fernández, a teacher at Menéndez Tolosa, a school in the town of La Línea de la Concepción, was focusing on the different climates in Spain. He said that the climate in Andalusia was perfect for curing Spanish ham. A Muslim student interrupted and said that talk of pork products is offensive to his religion. According to the article, this lawsuit follows several other controversies in Spain with members of the Muslim community. For example, in September a recently reopened night club in the southern Spanish resort town of Aguilas was pressured by Muslims to change its name from La Meca. The owners also agreed to change some of club's architecture such as a minaret-like tower that Muslims found offensive.

No Federal Jurisdiction Over Claim Against Church Alleging Homosexual Activities

In Hayes v. Wooten, 2010 U.S. Dist. LEXIS 134569 (ED NC, Dec. 14, 2010), a North Carolina federal district court dismissed a federal lawsuit against Elevation Baptist Church and several of its leaders by a pro se plaintiff who alleged various claims growing out of his attendance at a group discussion at which he claims homosexual approaches were made to him and his attendance with his son at a church event called "Boys to Men" which he claims turned out to have a "very homosexual character in nature and spirit." The court found no federal jurisdiction over the claims-- many of which were claims under state law. No diversity of citizenship existed; no facts were plead to support plaintiff's Title VII claim; and insofar as a First Amendment "conspiracy to violate religious expression" claim was alleged, no state action was involved.

UN Approves US-Led Campaign To Restore Reference To Sexual Orientation In Resolution Against Arbitrary Executions

Yesterday by a vote of 93 to 55 with 27 abstentions, the United Nations General Assembly approved a United States sponsored move to restore a reference to sexual orientation in a resolution that condemns extrajudicial, summary and arbitrary executions. Reuters reports that the resolution condemns killings for racial, national, ethnic, religious or linguistic reasons and killings of refugees, indigenous people and other groups. Similar resolutions in prior years also referred to sexual orientation, but this year a General Assembly committee approved a proposal by Arab and African nations to eliminate that reference. The United States led the effort to restore the reference. According to Politico, the U.S. though ended up abstaining when the overall resolution including the reference to sexual orientation was put to a vote. The U.S. action was for totally different reasons-- concern that the resolution obscures the relationship between international humanitarian law and human rights law.

After the U.N. vote approving the U.S. proposal, the White House issued a statement (full text) reading in part:

President Obama applauds those countries that supported the amendment offered by the United States to ensure that "sexual orientation" remains covered by the United Nations resolution on extrajudicial, summary, and arbitrary execution. Killing people because of their sexual orientation cannot be rationalized by diverse religious values or varying regional perspectives. Killing people because they are gay is not culturally defensible – it is criminal.

While today’s adoption of an inclusive resolution is important, so too are the conversations that have now begun in capitals around the world about inclusion, equality, and discrimination. Protecting gays and lesbians from state-sponsored discrimination is not a special right, it is a human right.

Lawsuit Claims Transportation Utility Fee Is Illegal Disguised Property Tax On Churches

On Monday, a lawsuit was filed in state court in Kansas on behalf of a Baptist and a Catholic church challenging a new tax provision adopted by the city of Mission, Kansas.  The complaint (full text) in First Baptist Church of Mission v. City of Mission, (Johnson Co. Dist. Ct., filed 12/20/2010), argues that the city's Transportation Utility Fee is in reality a property tax levied on churches that are exempt under state law from property taxation. The tax is based on the average number of vehicle trips which it is estimated are generated by a property each year.  For houses of worship, this is based on the number of seats in the building's worship area. The proceeds of the tax are used for street repairs and transit system maintenance.  An Alliance Defense Fund press release announcing filing of the case characterizes the Transportation Utility Fee as a tax that punishes churches based on their attendance.

Split 10th Circuit Denies En Banc Review In Utah Highway Patrol Cross Case

The 10th Circuit Court of Appeals this week by a 5-4 vote denied an en banc rehearing in American Atheists, Inc. v. Davenport, (10th Cir., Dec. 20, 2010). The 4 dissenting judges filed two opinions detailing their concerns about the 3-judge panel's ruling handed down in August. That decision held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. [corrected]. (See prior posting.) Urging en banc review, Judge Kelly writing for all four dissenters said:

The court’s decision continues a troubling development in our Establishment Clause cases—the use of a "reasonable observer" who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion.

A second dissent from denial of review written by Judge Gorsuch and joined by Judge Kelly said in part:

Our court has now repeatedly misapplied the "reasonable observer" test, and it is apparently destined to continue doing so until we are told to stop.... It seems we must ... take account of our observer's selective and feeble eyesight. Selective because our observer has no problem seeing the Utah highway patrol insignia and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper’s name posted directly above the insignia.

[Thanks to Don Byrd for the lead.] 

Human Rights Watch Publishes Its Stance On Europe's Ban on Muslim Veils

In response to the growing trend in European countries to ban religious dress in public places-- particularly face coverings worn by Muslim women-- Human Rights Watch yesterday published Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. It says in part:

Human Rights Watch takes no position on whether the wearing of the headscarf or face covering veils is desirable. We oppose both policies of forced veiling and blanket bans on the wearing of religious dress. Insofar as religious freedom is involved, we defend this right in the same spirit we defend freedom of expression - we uphold the right to express opinions which some deem contrary to the principles of human dignity, tolerance and respect, and which may deeply offend, because of the fundamental importance of freedom of religion and expression in democratic societies.

We also oppose laws prohibiting civil servants, including teachers, from wearing religious symbols at work, unless it has been shown that those symbols have a direct impact on their ability to perform their jobs.

6th Circuit Majority Holds Zoning Challenge By Religious Order Is Not Ripe

In Miles Christi Religious Order v. Township of Northville, (6th Cir., Dec. 21, 2010), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that First Amendment and RLUIPA challenges to the zoning ordinances of Northville, Michigan should be dismissed for lack of ripeness. Plaintiff, a Catholic Religious Order, had not appealed to the zoning board of appeals the township's demand for a site plan for continued use of its property. In response to the Order's argument that the township's actions chilled its constitutionally protected activity, the majority said:

a claim does not become ripe at the first whiff of governmental insensitivity or whenever a government official takes an adverse legal position against someone, even if one potential response is to curtail protected activities.

Chief Judge Bachtelder dissenting argued that: "the majority opinion does not adequately account for the First Amendment implications of this case and conflates the exhaustion of administrative remedies with the obtaining of a final decision...." [Thanks to Brian D. Wassom for the lead.]

6th Circuit: Collateral Estoppel Bars Relitigation of State Secrets Dismissal of Civil Rights Claim

In Tenenbaum v. U.S. Department of Defense, (6th Cir., Dec. 20, 2010), the U.S. 6th Circuit Court of Appeals held that the doctrine of collateral estoppel prevents plaintiffs from relitigating the application of the "state secrets" doctrine to their claim against the federal government. Plaintiff David Tenenbaum, a civilian employee of the Army, was subjected to an intensive investigation in 1997 over allegations that he had revealed classified information to the Israeli government. In 1998, Tenenbaum and his wife sued for violation of their civil rights, including an allegation that Tenenbaum's religion was a factor in the government's deciding to investigate him. That suit was dismissed when the government asserted that it could not mount a defense without disclosing state secrets. Following submission by DOD Inspector General of a report on the matter to the U.S. Senate Armed Services Committee in 2008, plaintiffs filed the present lawsuit alleging that defendants knowingly lied when they asserted the state secrets privilege in 1998. The Court held, however, that the question of whether the state secrets privilege had been properly invoked had already been litigated in 1998. Yesterday's Chicago Tribune reports on the decision. (See prior related posting.)

Italian Court Refuses To Release Vatican Funds Held In Money Laundering Probe

For a second time, a court in Italy has refused to release $30.2 million in funds belonging to the Vatican Bank (the Institute for the Works of Religion) seized in September by Italian authorities in a money laundering investigation. (See prior posting.) The funds were in a Vatican Bank account at the Rome branch of Credito Artigiano SpA.  According to AP yesterday, court documents show that prosecutors suspect that clergy may have been front men for corrupt businessmen or mobsters.

11th Amendment Protects Against Official Capacity, But Not Individual Capacity, Suit Against Judge

In Pucci v. Nineteenth District Court, (6th Cir., Dec.16, 2010), the U.S. 6th Circuit Court of Appeals held that a state court and its judge in his official capacity have 11th Amendment immunity in a suit by the former deputy court administrator who claims she was dismissed in retaliation for her complaints to state officials about the judge's use of religious language from the bench. The 6th Circuit went on to hold, however, that plaintiff may sue the judge in his individual capacity for declaratory and injunctive relief. The court concluded Chief Judge Mark Somers did not have qualified immunity as to plaintiff's due process or First Amendment claims against him. Local attorneys as well as plaintiff complained about Somers.  The 6th Circuit included this excerpt from the record setting out complaints about the judge's conduct:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] . . . [according to Foran,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during . . . Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church.

 Courthouse News Service reports on the decision. (See prior related posting.)

Virginia Legislator Plans To Propose Barring Gays From National Guard Service

Conservative Virginia state legislator Bob Marshall is raising a new kind of constitutional issue by his plans to introduce legislation in the Virginia legislature's House of Delegates that would ban gays from serving in the Virginia National Guard.  WTOP News reported yesterday that the move comes in response to Congress' recent passage of a repeal of Don't Ask, Don't Tell. Critics say that the National Guard is a federal military unit and that federal law would override any state limitation.  However Del. Marshall argues that states would never have ratified the U.S. Constitution if they did not retain unqualified control of their militias.

Turkey Will Include Alevis In New Textbooks

In Turkey, Faruk Celik, Minister of Work and Social Security, announced that new textbooks which incorporate information about the 6 to 12 million Alevis in the country will be available for the 2011-12 school year.  According to Today's Zaman, the new textbooks grow out of a government initiative directed at dealing with complaints by Alevis that their children in public schools are required to attend religious classes that focus on Sunni Islam. However Federation of Alevi-Bektaşi Associations Chairman Ali Balkız said his organization could not support compulsory religion classes, even if they include information about Alevism and Alevi figures.

Pope Sees Clergy Sex Abuse As Product of Moral Relativism

Pope Benedict XVI yesterday delivered an address (full text) during his traditional pre-Christmas meeting with the cardinals, archbishops, bishops, and members of the Roman Curia and of the Governorate of Vatican City State.  A significant portion of his remarks were an analysis of the clergy sex abuse scandal. He said in part:

In the vision of Saint Hildegard, the face of the Church is stained with dust.... We must accept this humiliation as an exhortation to truth and a call to renewal.... We must ask ourselves what we can do to repair as much as possible the injustice that has occurred. We must ask ourselves what was wrong in our proclamation, in our whole way of living the Christian life, to allow such a thing to happen....  

We are well aware of the particular gravity of this sin committed by priests and of our corresponding responsibility. But neither can we remain silent regarding the context of these times in which these events have come to light. There is a market in child pornography that seems in some way to be considered more and more normal by society. The psychological destruction of children, in which human persons are reduced to articles of merchandise, is a terrifying sign of the times. From Bishops of developing countries I hear again and again how sexual tourism threatens an entire generation and damages its freedom and its human dignity.... In this context, the problem of drugs also rears its head, and with increasing force extends its octopus tentacles around the entire world – an eloquent expression of the tyranny of mammon which perverts mankind.....

In order to resist these forces, we must turn our attention to their ideological foundations. In the 1970s, paedophilia was theorized as something fully in conformity with man and even with children. This, however, was part of a fundamental perversion of the concept of ethos. It was maintained – even within the realm of Catholic theology – that there is no such thing as evil in itself or good in itself. There is only a "better than" and a "worse than"..... Everything depends on the circumstances and on the end in view.... Morality is replaced by a calculus of consequences, and in the process it ceases to exist. The effects of such theories are evident today. Against them, Pope John Paul II, in his 1993 Encyclical Letter Veritatis Splendor, indicated with prophetic force in the great rational tradition of Christian ethos the essential and permanent foundations of moral action. Today, attention must be focussed anew on this text as a path in the formation of conscience.... 

Holidays At The White House Web Page

The White House Website currently features a page captioned Holidays at the White House. It carries videos of various holiday activities by the First Family, announces this year's White House holiday theme as "Simple Gifts," and furnishes holiday recipes and an online White House tour.