New Motions To Dismiss ACLU Suit Challenging Minnesota Cultural Identity Charter School

In 2009, the ACLU of Minnesota filed a federal lawsuit  against Tarek ibn Ziyad Academy (TiZA), a publicly-funded cultural identity charter school operating in the Twin Cities area, alleging that school policies promote Islam and that the school has improperly leased land from sectarian organizations-- all in violation of the Establishment Clause as well as various state constitutional and statutory provisions. (See prior posting.) The lawsuit also named the state commissioner of education as a defendant.  The St. Paul Pioneer Press and the Minneapolis Star-Tribune on Wednesday reported on two new developments in the case. The state's new education commissioner, Brenda Cassellius, filed a motion in court to dismiss the suit against the state, arguing that TiZA made multiple misrepresentations to the state which interfered in the state's ability to oversee the charter school. Meanwhile separately TiZA filed a motion to dismiss the case on the ground that the ACLU of Minnesota cannot bring the suit because it was administratively dissolved  by the Minnesota Secretary of State in 2006 for inadvertently failing to renew its registration.

Eruv Dispute in The Hamptons Goes To Court

27 East and Hampton Bays Patch both report that a lawsuit was filed in federal district court in New York yesterday by the East End Eruv Association challenging actions by the villages of Westhampton Beach and Quogue and the town of Southampton in preventing agreements with Verizon and the Long Island Power Authority for use of utility poles to create an eruv-- a symbolic boundary that allows Orthodox Jews within it to carry items on the Sabbath. (See prior related posting.) The suit against the Long Island villages and town claims that local officials are campaigning against the eruv.  Officials assert that attaching small markings or strips (lechis) to utility poles violates local zoning rules and sign codes, and that since the poles are in the municipalities' rights of way, government approval is required.  The lawsuit alleges that blocking the eruv amounts to religious discrimination. It asks the court to rule that there is no basis for asserting that local law prohibits creation of the eruv, demands that defendants drop their objections to the eruv, and asks for damages.

Suit Challenges County's Refusal To Display Church-State Separation Posters

Yesterday Americans United announced that it has filed a federal lawsuit on behalf of a resident of Johnson County, Tennessee who sought to have the county display two posters on the separation of church and state in the lobby of the county court house.  The complaint (full text) in Stewart v. Johnson County, Tennessee,  (ED TN, filed 1/13/2010), alleges that the county has adopted a limited public forum policy permitting local residents and organizations to donate displays of historical documents that "directly relate to the development of law, the universally-valued principle of equal justice under the law, the history and heritage of the law of Johnson County, State of Tennessee, or the United States, and/or the specific function of the Courthouse itself."

Among the displays already in the court house is a display that features the Ten Commandments and other historical documents along with a 26-page pamphlet that includes an introduction titled "From Biblical Morality to Modern Law."  Plaintiff's proposed 44 inch by 28 inch posters were titled "On the Legal Heritage of the Separation of Church and State" and "The Ten Commandments Are Not the Foundation of American Law." The county rejected them because they did not contain historical documents.The lawsuit contends that the display of the Ten Commandments while rejecting these posters violates plaintiff's free speech rights, the Establishment Clause and Art. I, Sec. 3 of the Tennessee Constitution that prohibits giving legal preference to any religion. [Thanks to Bob Ritter for the lead.]

Appeals Court Rejects Anti-SLAPP Motion In Suit Growing Out of Sikh Temple Elections

In Grewal v. Jammu, (CA App., Jan. 11, 2011), a California appellate court rejected defendants' motion to strike plaintiff's defamation claims under California's anti-SLAPP statute.  The claims grew out of a series of articles published in the Punjab Times relating to contentious elections of members of the Supreme Council of the San Francisco Bay Area Sikh Temple.The articles made various allegedly false charges of religious and financial wrongdoing by plaintiff, including charges that plaintiff had referred to the Temple school as a training school for terrorists and students of the Taliban. In a decision that is highly critical of misuses of the anti-SLAPP statute, the court concluded that the statute did not apply here because plaintiff had carried his burden of showing that he was likely to succeed on the merits of his defamation claims. The court described defendants' anti-SLAPP motion as one "that should never have been brought, generating an appeal that ... is utterly lacking in merit."

Church is Employer of Parish School Custodian for Workers' Comp Purposes

In Bravo v. Church of the Annunciation at Manhattanville, (S. Ct. NY, Jan. 10, 2011), a New York state trial court held that a Catholic Church exercised complete domination and control over a parish school so that the Church will be seen as the employer of  a custodian at the Annunciation School. This finding precludes the custodian, who has received workers' compensation payments for an injury suffered while working at the school, from bringing suit for additional recovery against the Church. Workers compensation precludes further recovery from one's employer. Had the court found that the School, which had a separate tax identification number, was the custodian's employer, a suit could have been maintained against the Church for additional damages.

Westboro Agrees Not To Picket Tucson Funerals In Exchange For Radio Appearances

The Topeka (KA) Capital-Journal reports that the Westboro Baptist Church has agreed to call off its planned picketing of the funerals of victims of the Tucson shooting massacre (see prior posting) in exchange for appearances by church spokesperson Shirley Phelps-Roper on several radio talk shows.The protest at the funeral of 9-year old Christina Green was bartered for appearances on talk shows on a suburban Phoenix station and a Canadian station. Picketing of the other funerals was called off after the nationally syndicated talk show hosted by Mike Gallagher offered time to Phelps-Roper and her daughters on Monday's show.

Sarah Palin's Use of Term "Blood Libel" Draws Jewish Criticism

The Washington Post reports on the controversy that has been stirred up by Sarah Palin in her release of a video criticizing those who are blaming the Tucson shooting tragedy on political rhetoric such as hers. Her statement included the following:

Journalists and pundits should not manufacture a blood libel that serves only to incite the very hatred and violence they purport to condemn.

Jewish groups, such as the National Jewish Democratic Council, took umbrage at her use of the term "blood libel", pointing out that the term has traditionally described the anti-Semitic canard that Jews use the blood of Christian children for rituals such as baking of Passover matzoh. Critics found use of the term particularly insensitive because wounded Congresswoman Gabrielle Giffords is Jewish. However some, like Harvard law professor Alan Dershowitz, defended Palin saying that the term blood libel has taken on a broader meaning of any kind of untrue charges.

Vanderbilt's Nurse Residency Application Challenged As Violating Church Amendment

Alliance Defense Fund announced yesterday that it had filed a complaint (full text) with the U.S. Department of Health and Human Services Office for Civil Rights challenging Vanderbilt University's nurse residency application requirements. A federal statute, 42 USC 300a-7 (known as the "Church Amendment"), prohibits any entity reveiving grants under various federal programs from discriminating against applicants for training or study "because of the applicant's reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant's religious beliefs or moral convictions."  The Vanderbilt application packet contains an acknowledgement that must be signed by applicants seeking admission to the Women's Health Track of the Nurse Residency Program which states in part:

If you are chosen for the Nurse Residency Program in the Women's Health track, you will be expected to care for women undergoing termination of pregnancy....  It is important that you are aware of this aspect of care and give careful consideration to your ability to provide compassionate care to women in these situations. If you feel you cannot provide care to women during this type of event, we encourage you to apply to a different track of the Nurse Residency Program to explore opportunities that may best fit your skills and career goals.

UPDATE: On Jan. 12, Vanderbilt announced that it was changing its nurse residency application, according to a release by ADF. The application now says that "no health care provider is required to participate in a procedure terminating a pregnancy if such participation would be contrary to an individual’s religious beliefs or moral convictions." [Thanks to Friendly Atheist for the update.]

Sunrise Rock Cross Litigation Becomes Even More Complicated

The complex procedural history of the Establishment Clause challenge to the Sunrise Rock Cross in the Mojave Preserve veterans' memorial has just become more complicated. Liberty Institute announced yesterday that it has filed a new lawsuit on behalf of the VFW seeking to enforce the statute passed by Congress in 2003 (Defense Appropriations Act 2004, Sec. 8121) directing the Secretary of Interior to transfer title to the property to the VFW. The constitutionality of the transfer statute was challenged on Establishment Clause grounds in a previous lawsuit. Last year the U.S. Supreme Court reversed the 9th Circuit's decision that had found Establishment Clause problems with the transfer. However the Supreme Court's reversal and remand -- in six fragmented opinions-- did not clearly decide the merits of the case. (See prior posting.) Now in VFW Post 385 v. United States, (CD CA, filed 1/10/11) (full text of complaint), the VFW asks the court to quiet title to the parcel of land, to issue a declaratory judgment that the VFW is the owner of the land and to issue an injunction requiring the Secretary of Interior to consummate the land transfer. The lawsuit was apparently triggered by the district court's recent decision refusing to permit the VFW to intervene in the case on remand from the Supreme Court. Riverside (CA) Press Enterprise reports on the new lawsuit. For other developments, see prior related posting. [Thanks to Alliance Alert for the lead.]

Regional NLRB Decision Holds Manhattan College Is Secular; Representation Election Ordered

In In re Manhattan College, (NLRB, Jan. 10, 2010), a National Labor Relations Board regional director held that the judicially and administratively developed exemption from NLRB coverage for colleges whose purpose is the propagation of a religious faith does not apply to New York's Manhattan College. The holding comes in response to a petition by the Manhattan College Adjunct Faculty Union to hold an election for it to become the collective bargaining representative for part-time adjunct faculty.  The decision concludes that the evidence shows the purpose of the college is secular. It finds that there is little risk that exercising NLRB jurisdiction will lead to unconstitutional entanglement of government and religion because the "school's stated purpose does not involve the propagation of a religious faith, teachers are not required to adhere to or promote religious tenets, a religious order does not exercise control over hiring, firing, or day-to-day operations, and teachers are given academic freedom..." According to Inside Higher Ed yesterday, the case has been closely followed by both labor unions and religious organizations. The college administration has emphasized the Catholic nature of the institution. (See prior related posting.)

Pakistani Court Imposes Life In Prison For Blasphemy In Disagreement Between Sunni Sects

AFP reported yesterday on another controversial blasphemy conviction in Pakistan. An anti-terrorism court in the town of Muzaffargarah sentenced imam Mohammad Shafi and his son Mohammad Aslam to life imprisonment for tearing down and trampling a poster containing Quar'anic verses. The poster, which had been  put up outside their grocery store, advertised an event in a nearby village celebrating the birthday of the Prophet Muhammad.  Islamic sects differ on whether celebrating Mawlid (the Prophet's birth) is permissible. (Background.) Apparently those promoting the event were members of the Barelvi sect of Sunni Islam which publicly celebrates Mawlid, while defendants are members of the Deobandi sect of Sunni Islam which considers the celebration forbidden.

Arizona Moving To Pass Funeral Picketing Law In Face of Westboro Plans To Picket Massacre Victims' Funerals

The notorious Westboro Baptist Church has announced that it will picket the funerals of the six shooting victims in Tucson, Arizona. It claims God sent the shooter because of a veteran's plans last month to shoot at WBC members. The announcement also claimed that shooting a federal judge and a member of Congress occurred because WBC was placed on trial in Baltimore and because Congress' passed three laws against WBC. CNN reports that Tucson residents plan to shield mourners at the funeral of 9-year old victim Christina Green by wearing 8 x 10 foot angel wings. Meanwhile, according to TPM today, members of the Arizona state legislature are reacting by moving to quickly enact a law barring funeral protests.

UPDATE: Politico reports that on Jan. 11 the legislature passed and the governor signed SB 1101 barring protests within 300 feet of a funeral from one hour before to one hour after the ceremony.

Some Claims On Behalf of Muslim Student Over Classroom Content May Proceed

In Doe v. Cape Henlopen School District, (D DE, Jan. 7, 2011), the mother of a Muslim student sued claiming that her daughter's fourth-grade teacher created a classroom environment that promoted Christianity and excluded Muslim beliefs. The suit also alleged that the daughter was traumatized by a transfer to another classroom and her friends' reactions to her after that. The Court granted defendants' summary judgment on certain of the claims but found that as to a number of others there remained genuine issues of material fact so that the claims should proceed to trial. At issue were teacher Cindy Cunningham's class discussions of the events of 9/11 and her reading of Christmas books to her class every day between Thanksgiving and Christmas. The court concluded that the issue of whether the Christmas readings violate Art. 1, Sec. 1 of the Delaware Constitution (protecting religious freedom and barring religious preferences) and the federal equal protection clause should go to trial, but dismissed claims regarding the 9/11 textbook used and a deliberate indifference claim. The court also found that the student's transfer to another classroom may have been retaliation and ordered that claim to go to trial, and refused to find at this point that defendants had qualified immunity. [corrected]

Cert. Denied In RLUIPA Zoning Decision

The U.S. Supreme Court yesterday denied certiorari in Board of County Commissioners v. Rocky Mountain Christian Church,(Docket No. 10-521, cert. denied 1/10/2011) (Order List).  In the case, the 10th Circuit held that sufficient evidence was presented at trial to justify the jury's determination that the denial of a special use application to Rocky Mountain Christian Church violated the equal terms and unreasonable limitations provisions of RLUIPA. (See prior posting.) The Boulder (CO) Daily Camera reported on the Supreme Court's refusal to review the case.

Catholic Bishop At Odds With Rhode Island's New Governor

Tension seems to be developing already between Providence, Rhode Island Catholic Bishop Thomas Tobin and Rhode Island's newly-inaugurated governor, Lincoln Chafee. According to the Providence Journal, last week, for the first time in at least 20 years, no Catholic bishop offered a prayer at the governor's inauguration ceremony.  In a column published two days later in The Rhode Island Catholic, Bishop Tobin took issue with the reason for Chaffee's decision not to begin inauguration day with a public prayer service. Chaffee's spokesman said that the decision was made out of respect for the principle of separation of church and state. Bishop Tobin complained:

The point is this: religion has an important, indeed a unique contribution to make to the governance of our society. Can we, once and for all then, put to rest the bogus interpretations of the “separation of church and state” so often cited these days?

The Governor's spokesman later said that had misspoken.  He meant to say that the governor believed individuals should pray in their own ways instead of in a prayer service organized by the governor's office. Within days, Bishop Tobin again criticized Gov. Chaffee, this time for his support for a bill to legalize same-sex marriage in Rhode Island. According to the Providence Journal, a gay-marriage bill supported by the governor was introduced in the legislature last Friday.  Tobin called the bill morally wrong and divisive.

Aga Khan Wins Canadian Copyright Case Against Followers Who Published His Pronouncements

The Aga Khan, currently a resident of France, is the spiritual leader of the Shia Imani Ismaili Muslims around the world.  He gives advice and guidance to his followers through issuing Farmans (recorded talks) an Talikas (written religious messages). In 2009, one of the Aga Khan's followers, Nagib Tajdin (with the assistance of others) published Farmans 1957-2009 – Golden Edition Kalam-EIman-E-Zaman, a collection of the Aga Khan's Farmans and Talikas. Ismaili authorities asked them to cease publication, but they refused, claiming that they had the consent of the Aga Khan to publish them.  Tajdin claimed that a letter from the Aga Khan asking him to cease publication was a forgery.  This led to the Aga Khan bringing suit in Canada's Federal Court claiming copyright infringement. In Aga Khan v. Tajdin, (Fed. Ct. Canada, Jan. 7, 2011), the court concluded that the Aga Khan had not given his consent to others to publish his pronouncements and permanently enjoined defendants from publishing or distributing the Golden Edition.  It also issued a reference for the determination of damages. Vancouverite reports on the decision.

Pope Addresses Diplomatic Corps Calling For Expanded Religious Liberty

Yesterday Pope Benedict XVI delivered his annual address (full text) to the diplomatic corps accredited to the Holy See-- ambassadors from 178 countries. Zenit reports that Vatican officials characterized the Pope's remarks as opening a new chapter in the commitment to religious liberty. Here are a few excerpts:

[T]he attacks which brought death, grief and dismay among the Christians of Iraq, even to the point of inducing them to leave the land where their families have lived for centuries, has troubled us deeply. To the authorities of that country and to the Muslim religious leaders I renew my heartfelt appeal that their Christian fellow-citizens be able to live in security, continuing to contribute to the society in which they are fully members.

In Egypt too, in Alexandria, terrorism brutally struck Christians as they prayed in church. This succession of attacks is yet another sign of the urgent need for the governments of the region to adopt, in spite of difficulties and dangers, effective measures for the protection of religious minorities.....

Among the norms prejudicing the right of persons to religious freedom, particular mention must be made of the law against blasphemy in Pakistan: I once more encourage the leaders of that country to take the necessary steps to abrogate that law, all the more so because it is clear that it serves as a pretext for acts of injustice and violence against religious minorities....

Turning our gaze from East to West, we find ourselves faced with other kinds of threats to the full exercise of religious freedom. I think in the first place of countries which accord great importance to pluralism and tolerance, but where religion is increasingly being marginalized. There is a tendency to consider religion, all religion, as something insignificant, alien or even destabilizing to modern society, and to attempt by different means to prevent it from having any influence on the life of society.....

UPDATE: The Jan. 11 Wall Street Journal reports that in response to the Pope's criticism, Egypt recalled its ambassador to the Vatican. [Thanks to Pew Sitter for the lead.]

Canadian Court Rejects Exemption for Marriage Commissioners from Performing Same-Sex Unions

The Court of Appeal for Saskatchewan has held that it would be unconstitutional under Canada's Charter of Rights and Freedoms for the provincial legislature to accommodate the religious beliefs of government marriage commissioners by exempting those who object from solemnizing same-sex marriages.  The decision came in Marriage Commissioner's Reference, (Ct. App. SK, Jan. 10, 2011), a request of the Saskatchewan government to pass on the validity of two possible amendments to the Marriage Act. Here is a summary of the court's holding as set out in the court's case summary:

The reasoning of the Court is grounded in section 15(1) of the Charter.. prohibit[ing] discrimination based on various characteristics including sexual orientation.... [A] law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.

... [T]he Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples.... [M]arriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies.... [T]he obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship.... [A]llowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.

CTV News reports on the decision. Toronto Globe and Mail reports that Saskatchewan will not appeal the ruling.

Cert. Denied In RLUIPA Prisoner Free Exercise Case

The U.S. Supreme Court today denied certiorari in Thunderhorse v. Pierce, (Docket No. 09-1353, cert. denied 1/10/11) (Order List). In the case, the 5th Circuit rejected a RLUIPA claim by a Native American inmate, upholding prison restrictions denying him permission to grow his hair, prohibiting him from performing pipe ceremonies in his cell, and limiting vendors from whom he could buy a headband. (See prior posting.) The petition for review (via Scotus blog), focusing on the prison's grooming rule, asserts that there is a split in circuits on the question of how much deference to give to prison officials under RLUIPA in deciding whether the government has used the least restrictive means to achieve a compelling interest.

New Hampshire High Court Hears Arguments In Home Schooling Case

The New Hampshire Supreme Court last week heard oral arguments (video of full arguments) in a divorce case that has gained national attention through the publicity given to it by groups that see it as an important religious freedom test.  As reported by AP, at issue is a disagreement between parents with joint custody of their 11-year old daughter over her schooling.  Amanda, daughter of Brenda Voydatch and Martin Kurowski, was home schooled by her mother through the fourth grade using Christian-based material from Bob Jones University. In 2009, Amanda's parents were unable to agree on where she should continue her education. Amanda's father wanted her exposed to different points of view and more social interaction than was available through home schooling. When the parents could not agree on an alternative, a state family court judge ordered that Amanda attend public school. The mother's attorneys characterize this as punishing the mother and daughter for their religious views. However the case may turn on whether the lower court order is seen as a modification of the parenting plan, which would require the father to show that Amanda was being harmed by home schooling. [corrected]