Religion Clause

Tuesday, February 22, 2011

Two States Propose New Limits On Religious Exemptions To Immunization Requirements

Natural News today reports on proposed legislation in Washington state and New Jersey that would place new limits on religious exemptions from mandatory vaccination requirements.Washington SB 5005 would require that applications for religious, philosophical or medical exemptions include a statement by a health care practitioner that the parent or guardian has been informed of the benefits and risks of immunization to the child. New Jersey's ACR 157 is a resolution reviewing recently adopted state administrative rules on immunizations finding that they violate legislative intent. The resolution calls for the Commissioner of Health and Senior Services to withdraw the regulations or amend them to require parents applying for a religious exemption to furnish a written statement explaining how the administration of the vaccine conflicts with the bona fide religious tenets or practices of the student or the parents or guardians. The Natural News article discusses potential 1st Amendment challenges to the proposed new restrictions on exemptions.

Felony Enhancement For Church Burglary Does Not Violate Establishment Clause

In Burke v. State of Indiana, (IN App., Feb. 21, 2011), the Indiana Court of Appeals upheld the constitutionality of a provision that enhances burglary to a Class B felony if the building involved was one that is used for religious worship. The court rejected a federal Establishment Clause challenge, finding that the statute has secular purposes-- churches traditionally have less security measures, society finds such crimes more repulsive and these offenders take more time to rehabilitate. The court also found no excessive entanglement. Finally it rejected a state constitutional challenge, finding the law does not materially burden the right to be free from a preference for a particular religion or religion in general, protected by Art. I, Sec. 4 of the Indiana Constitution.

Monday, February 21, 2011

Tunisia Now Faces Question of Role of Islam In New Government

Today's New York Times reports that Tunisia, in the wake of its successful revolution, now faces questions of the role of Islam in politics. Many in the traditionally secular and socially liberal country fear that conservative forces will press for infusing Islam into government. On Saturday thousands marched in Tunis demanding separation of religion and government. The country's main Muslim movement, Ennahdha, opposes imposition of Islamic law in the country. However, last week security forces had to be called out to protect Tunis' brothels from rock-throwing protesters who shouted "No to brothels in a Muslim country!"

Sunday, February 20, 2011

Using Prison Chapel As Courtroom Violates Establishment Clause; But Harmless Error

Jones County, Texas has designated the Chapel at the French Robertson Unit of the Department of Criminal Justice as a branch courthouse. It is used for non-jury proceedings when French Roberson inmates are charged with offenses. In Lilly v. State of Texas, (TX App., Feb. 17, 2011), an inmate who pleaded guilty to assaulting a public servant challenged on free exercise and Establishment Clause grounds the holding of his criminal proceedings in the Chapel which contains various religious depictions. The court concluded that use of the Chapel constituted an Establishment Clause violation, saying:

If it is appropriate to use a Christian chapel as a courtroom, it must also be permissible to use a synagogue, mosque, or temple for the same purpose. A reasonable observer watching a trial in any of these facilities would perceive that a message supporting that particular religion was being sent to those in attendance.

The court went on to conclude however that the Establishment Clause violation played no role in petitioner's decision to plead guilty, so there is no basis to reverse his conviction or sentence.

Rabbi Gets 4 Years For Extortion; Lower Than Max Based on "Good Works"

Friday's New York Daily News reports that a New York federal district court judge has sentenced 64-year old Rabbi Milton Balkany to 4 years in prison for extorting $4 million in contributions to two religious schools from a hedge fund. Balkany sought the funds in exchange for telling a prisoner he was counselling not to report insider trading to authorities. (See prior posting.) Balkany faced a possible 9-year sentence, but Judge Denise Cote said that the lower sentence was "appropriate based on a lifetime of good works and generosity for those in need and people who are the forgotten of society, the most unfortunate among us." However the judge said some prison time was called for given Balkany's lack of contrition and remorse.

Moderate Islamic Party Recognized In Egypt

Bikyamasr today reports that the first political party to be offically recognized since President Hosni Mubarak's resignation is al-Wasat al-Gadeed, a moderate Islamic party that broke off from the Muslim Brotherhood. The party, founded in 1996, has a centrist platform and believes in translating principles of Islam into a liberal democratic system. In 2009, the party was denied a license. A party spokesman says it will run candidates in the next parliamentary election. The party embraces religious tolerance and has some Christian members.

Recent Prisoner Free Exercise Cases

In Knox v. Bland, (10th Cir., Feb. 14, 2011), the 10th Circuit rejected an inmate's claim that his constitutional rights were violated when a state court refused to grant his petition to change his name for religious reasons to Ali Ishmael Mandingo Warrior Chief. The 10th Circuit relied on the Rooker/ Feldman abstention doctrine and other jurisdictional limits.

In Scott v. Pierce, 2011 U.S. Dist. LEXIS 13943 (SD TX, Feb. 3, 2011), a Texas federal district court refused to dismiss 1st Amendment and RLUIPA claims by a Jehovah's Witness inmate complaining that he and his co-religionists were not permitted to meet on a number of Saturdays because no outside volunteer to lead their religious services was available.

In Burnight v. Sisto, 2011 U.S. Dist. LEXIS 13794 (ED CA, Feb. 10, 2011), a California federal magistrate judge recommended denying an inmate's habeas corpus petition. Petitioner claimed the parole board denied him parole in part because he failed to attend a faith-based Alcoholics Anonymous program. The court concluded that attendance was not required in order to be found suitable for parole.

Saturday, February 19, 2011

HHS Narrows Health Care Workers' Conscience Protections

In late 2008, the Department of Health and Human Services adopted a broad set of regulations to protect health care providers who have moral or religious objections to performing various health care services. (See prior posting.) Lawsuits were quickly filed challenging the rule as, among other things, interfering with a woman's right to contraceptive and reproductive health care services. (See prior posting.) With the advent of a new administration in 2009, HHS proposed a repeal of these broad rules in favor of narrower protections focusing only on individuals who object to providing abortion services. (See prior posting.) On Thursday, HHS, after reviewing over 300,000 comments received on its proposals, adopted a final rule which, while not totally repealing the 2008 rule, eliminated much of it. (Full text of HHS release.) As explained by the Washington Post:

The decision guts one of President George W. Bush's most controversial legacies: a rule that was widely interpreted as shielding workers who refuse to participate in a range of medical services, such as providing birth control pills, caring for gay men with AIDS and performing in-vitro fertilization for lesbians or single women....

The new rule leaves intact only long-standing "conscience" protections for doctors and nurses who do not want to perform abortions or sterilizations. It also retains the process for allowing health workers whose rights are violated to file complaints....

The rule will retain a provision that empowers the HHS Office of Civil Rights to investigate any complaints by workers who believe their rights under existing federal law were being violated..... That office also will launch "a new awareness initiative for our grantees . . . to ensure they understand the statutory conscience protections," according to an HHS statement.

[Thanks to Steven H. Sholk for the lead.]

Spruce Serving As National Christmas Tree Felled By High Winds

The New York Times reports that high winds which swept through Washington, DC today felled the 40-foot tall Colorado blue spruce growing on the Ellipse behind the White House. The tree has served as the National Christmas Tree since 1978. Every year the National Christmas Tree is lit by the President in a widely broadcast ceremony. The tradition first began in 1923. The Park Service had previously identified a successor tree, and now it will be moved to the Ellipse in late spring.

Fired Manager Wins Religious Discrimination Lawsuit Against Aviation Company

In a San Antonio, Texas state trial court yesterday, the former manager of a fueling and concierge service for private jets won a religious discrimination lawsuit against Mark Fessler, president of the company, and Fessler's father, a part owner of the business. According to the San Antonio Express News, Steven Hecht was awarded back pay, damages for mental anguish and exemplary damages of $150,000 after the jury found that he was fired at least in part because he stopped attending the same church as the Fesslers. Hecht testified to a number of incidents in which the Fessler's religious beliefs were infused into the business of Million Air San Antonio, while the Fesslers claimed that Hecht was trying to find another job before he was fired and that Hecht's attorney was using religious discrimination to inflame the jury .

Friday, February 18, 2011

DOJ May Intervene To Defend RLUIPA In Connecticut Zoning Case

Yesterday's Hartford Courant reports that the U.S. Department of Justice's Civil Division is seeking approval from the Solicitor General's office to intervene to defend the constitutionality of the Religious Land Use and Institutionalized Persons Act which is being challenged by defendants in a Connecticut federal district court lawsuit. In the suit, Chabad Lubavitch of Lichtfield County is challenging Lichtfield's refusal to allow it to renovate a house in the town's historic district for Chabad to use as living quarters for its rabbi, a synagogue and community center. The lawsuit claims that the refusal was motivated by anti-Hasidic animus (see prior posting), and last August the claims survived a motion to dismiss. In a court filing on Wednesday (full text), the Civil Division said that its intervention would be unnecessary if the court decides the case without reaching the constitutional issues or upholds RLUIPA before the Solicitor General's Office makes a decision regarding intervention.

Canadian Cabbie Loses Challenge To Fines For Displaying Religious Items

In Canada yesterday, according to the Toronto Globe and Mail, a Montreal municipal court judge upheld over constitutional attack four tickets given to cab driver Arieh Perecowicz for violating a Bureau du taxi rule that bars drivers from having items or inscriptions in their cab that are not necessary for the cab to be in service. However she reduced the fine and gave him a year to pay it. Perecowicz had his cab decorated with family photos, a Canadian flag and a number of items reflecting his Jewish faith, including a picture of former Lubavitch leader Rabbi Menachem Schneerson and two mezuzahs (small parchment scrolls). A taxi inspector testified that Perecowicz's cab was the messiest she had seen in five years. However apparently other cabs in Montreal often hang rosary beads or a display statue of the Virgin Mary on their dashboards. The judge concluded that the objects were in Perecowicz's cab only for his personal comfort. Perecowicz has filed a complaint with the Quebec Human Rights Commission and says he is prepared to appeal his case. He says if there is a crucifix over the Speaker's chair in Quebec's National Assembly, he should be able to have mezuzahs on the doors of his cab.

Opposition to Ahmadiyah Creates Continued Political Division In Indonesia

In Jakarta, Indonesia today, 500 people joined a rally organized by the Islamic Defenders Front calling for the disbanding of the Ahmadiyah sect. According to the Jakarta Post, protesters said they would force the President to resign if he did not disband the sect that is considered heretical by other Muslims because it does not believe that Muhammad was the final prophet. (See prior related posting.) According to another Jakarta Post article today, the Indonesian Ulema Council says that the solution is to declare Ahmadiyah to be a separate non-Muslim religion. Human rights proponents disagree, saying this would violate their rights and would not guarantee they would not be persecuted.

Cert. Filed In Challenge To San Francisco's Resolution Criticizing Catholic Church's Adoption Stance

A petition for certiorari (full text) was filed with the U.S. Supreme Court on Tuesday in Catholic League for Religious and Civil Rights v. City and County of San Francisco. The case involves an Establishment Clause challenge to a Board of Supervisors resolution criticizing Cardinal Levada for directing Catholic Charities to end adoption placement in same-sex households. A majority of the 9th Circuit, en banc, dismissed the case on standing grounds. (See prior posting.) The petition urges the court to adopt a new Establishment Clause test for government religious speech-- allowing broader scope for government religious speech that "is reasonably related to our nation's history and traditions" than for government speech that is not. Thomas Moore Law Center issued a release announcing the filing of the cert. petition.

French Leaders Plan Debate on Role of Islam in the Country

Reuters and France 24 report that France's governing UMP party plans to lead a debate beginning in April on the role Islam in light of France's tradition of secularism-- an issue that promises to be a major focus in France's 2012 election campaign. Last week French president Nicolas Sarkozy said that multiculturalism in France had failed. After a meeting with UMP legislators on Wednesday, the new initiative was announced. Jean-Francois Cope, secretary-general of the UMP party, said that the upcoming debate would focus on items such as the financing and building of mosques, contents of Friday sermons and the education of imams. Muslim prayer gatherings in French streets outside of overcrowded mosques have caused particular concern. In December, right wing National Front leader Marie Le Pen compared the street prayers to Nazi occupation of France in World War II. Sarkozy wants his party to lead to debate on the role of Islam in order to keep the discussion under control.

Religious Leaders Object To Planned House Hearings On Radicalization of U.S. Muslims

Think Progress reported yesterday that over 80 leaders of Catholic, Protestant, Jewish, Muslim and Hindu congregations on Long Island have signed a letter (full text) to U.S. Rep. Peter King, chairman of the House Homeland Security Committee, asking him to cancel a planned congressional hearing into radicalization of the American Muslim community. The letter says in part:

Muslim-Americans have consistently denounced terrorism and worked closely with law enforcement to prevent violence. Building and maintaining trust with the Muslim community is crucial to furthering this cooperation, and we fear your hearings will only sow greater distrust and division at a time when unity and moral courage are needed.

Earlier this month, in a letter to the ranking Democrat on the committee who also raised objections to the planned hearing, King said: "I will not allow political correctness to obscure a real and dangerous threat to the safety and security of the citizens of the United States."

Hawaii Senate Passes and Sends To Governor Bill Authorizing Civil Unions

The Hawaii Senate on Wednesday by a vote of 18-5 passed and sent to the governor for his signature SB 232, a bill authorizing same-sex (as well as opposite-sex) civil unions in the state. The Honolulu Star Advertiser reports that Gov. Neil Abercrombie has promised to sign the bill into law. Last year, former governor Linda Lingle vetoed a similar bill. (See prior posting.) Under the bill, parties to a civil union have the same rights and responsibilities as a married couple. Any judge or member of the clergy may be licensed to solemnize a civil union, but no one is required to perform civil union ceremonies, nor may anyone be penalized for refusing to do so. Hawaii will be the seventh state to authorize civil unions, but not same-sex marriages. Also on Wednesday, the Hawaii Senate unanimously approved the governor's appointment of Circuit Judge Sabrina McKenna-- who is openly gay-- to the state Supreme Court.

Thursday, February 17, 2011

California High Court Accepts Certified Question On Standing In Prop 8 Challenge

Last month in Perry v. Schwarzenneger -- the challenge to the constitutionality of California's Proposition 8 that bars same-sex marriage-- the U.S. 9th Circuit Court of Appeals certified to the California Supreme Court the question of whether under California law "official proponents of an initiative measure" have, under state law, a sufficient interest to give them standing to defend the constitutionality of the initiative when the public officials refuse to do so. (See prior posting.) Yesterday, the California Supreme Court granted the certification request. AP reports that the Court may hear oral arguments as early as September.

New Poll Reveals American Attitudes Toward U.S. Muslim Community

Public Religion Research Institute yesterday announced the results of a poll (full results) of 1,015 adults completed last week seeking the views of Americans on the Muslim community in the U.S. The poll reveals that 56% of Americans say that upcoming Congressional hearings on alleged extremism in the American Muslim community are a good idea. 72% say Congress should investigate religious extremism anywhere it exists, and not focus just on the Muslim community. 46% believe that American Muslims have not done enough to oppose extremism in their communities. 49% reject the idea that Muslims have been unfairly targeted by law enforcement. 62% believe Muslims are an important part of the American religious community. 22% believe that Muslims want to establish Shari'a law as the law of the land in the U.S. The poll also shows that there is a significant correlation between trust in Fox News and negative attitudes toward Muslims. Religion Dispatches reports on the poll.