Archbishop Speaks On U.S. Church-State Principles As Model For Other Countries

Denver Catholic Archbishop Charles Chaput yesterday delivered an interesting keynote address (full text) at a Georgetown University conference on "Religion in American Politics: A Model for Other Countries?". Here are some excerpts from the talk which Chaput said emerged from his experience on the U.S. Commission on International Religious Freedom:

Principles that Americans find self-evident — the dignity of the human person, the sanctity of conscience, the separation of political and sacred authority, the distinction between secular and religious law, the idea of a civil society pre-existing and distinct from the state — are not widely shared elsewhere.... We need to ask ourselves why this is the case....

It's impossible to talk honestly about the American model of religious freedom without acknowledging that it is, to a significant degree, the product of Christian-influenced thought. Dropping this model on non-Christian cultures – as our country learned from bitter experience in Iraq – becomes a very dangerous exercise. One of the gravest mistakes of American policy in Iraq was to overestimate the appeal of Washington-style secularity, and to underestimate the power of religious faith in shaping culture and politics.....

What we see today is a repudiation of [the American] model by atheist regimes and secular ideologies, and also unfortunately by militant versions of some non-Christian religions. The global situation is made worse by the inaction of our own national leadership in promoting to the world one of America's greatest qualities: religious freedom.

This is regrettable because we urgently need an honest discussion on the relationship between Islam and the assumptions of the modern democratic state.... [W]e need to encourage an Islamic public theology that is both faithful to Muslim traditions and also open to liberal norms. Shari'a law is not a solution. Christians living under shari'a uniformly experience it as offensive, discriminatory and a grave violation of their human dignity.

A healthy distinction between the sacred and the secular, between religious law and civil law, is foundational to free societies. Christians, and especially Catholics, have learned the hard way that the marriage of Church and state rarely works. For one thing, religion usually ends up the loser, an ornament or house chaplain for Caesar. For another, all theocracies are utopian – and every utopia ends up persecuting or murdering the dissenters who can't or won't pay allegiance to its claims of universal bliss.

Yemini Islamist Leader Interjects Call For Islamic State Into Anti-Government Demonstrations

The New York Times today reports that a new element has been introduced into the anti-government protests in Yemen. Sheik Abdul Majid al-Zindani, head of the Islamist Al Islah party, spoke to several thousand anti-government protesters today calling for replacement of the present government with an Islamic state. It is unclear how much support among largely secularist demonstrators al-Zindani has.  Al-Zindani has been on the U.S. Treasury Department's list of "specially designated global terrorists" since 2004. The Christian Science Monitor says that al-Zindani has been a supporter of  President Saleh until yesterday when he renounced him.

Indian Court Sentences 11 To Death For 2002 Attack On Hindus

Last week, a  court in India's state of Gujarat found 31 Muslims guilty of murder and criminal conspiracy in the 2002 attack that set fire to a train carrying Hindu pilgrims. The attack killed 59 and set off counter anti-Muslim riots that killed up to 2000. (See prior posting.) Today, according to AFP, the court imposed death sentences on 11 of the defendants and life sentences on the 20 others. According to the special prosecutor in the case, the court found the death sentences justified, seeing the crimes as ones that come "under the category of the rarest of the rare."

Judge Should Have Given "Deific Command" Instruction In Murder Trial

In State of New Jersey v. Singleton, (NJ App., Feb. 28, 2011), the New Jersey Superior Court Appellate Division reversed the conviction of Boyce Singleton who had been found guilty of murdering his pregnant girlfriend, finding the trial judge's instructions on the insanity defense were incomplete.  The court remanded for a new trial at which the judge is to add an instruction on the insanity standard where defendant believes he was commanded by God to act. The court said:

[T]he record contained evidence from which the jury could have found that defendant believed he had received a deific command to murder Michelle. With only the model jury charge as a guide, the jury could have rejected the insanity defense -- even if it found persuasive the deific command evidence -- by finding defendant understood his actions were contrary to law. To avoid that possibility, a judge must provide ... the further explanation that insanity may be found -- even if defendant knew his actions were contrary to law -- if he proved by a preponderance of the evidence that he acted pursuant to a delusion of receiving a deific command. In other words, in such an instance, the judge must instruct that the defendant may not be held responsible for his actions "where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.

The Trentonian reports on the decision.

British Court Struggles With Conflict Between Christian Beliefs and Foster Care Rules On Sexual Orientation

In Britain yesterday, the Queen's Bench Division of the High Court of Justice refused to issue a declaratory order in a case pitting a Christian couple's beliefs regarding homosexuality against a proposed interpretation of government standards for approval of applicants who wish to serve as foster care givers.  R Johns v. Derby City Council, (EWHC, Feb. 28, 2011), involves questions  raised by a social worker who interviewed Eunice and Owens Johns as to whether they would be able to give appropriate support to a foster child who might be confused about his or her sexuality.  The government's National Minimum Standards for Fostering Services requires that young people be provided with foster care services that value diversity and promote equality. Derby City Council's Fostering Panel postponed a decision on whether to approve the Johns' application pending further consideration of the legal issues. Both parties agreed to seek a judicial ruling.  The court observed that the proceedings are "most unusual" because they seek a determination in the abstract. However the Court strongly rejected plaintiffs' contention that the case is about whether the government is relegating Christians to second class status.

Groups such as the Christian Legal Centre have issued statements strongly critical of language in the opinion such as the following statement that is part of the court's analysis:

If children, whether they are known to be homosexuals or not, are placed with carers who ... evince an antipathy, objection to or disapproval of, homosexuality and same-sex relationships, there may well be a conflict with the local authority's duty to "safeguard and promote" the "welfare" of looked-after children. There may also be a conflict with the National Minimum Standards for Fostering Services and the Statutory Guidance. Religion, belief and sexual orientation are protected characteristics under the Equality Act 2010.... While as between the protected rights concerning religion and sexual orientation there is no hierarchy of rights, there may ... be a tension between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 of the National Minimum Standards for Fostering and the Statutory Guidance indicate that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence.

Yesterday's London Telegraph reports on the decision, focusing on the court's statement that the judges serve a multi-cultural community of many faiths, "but the laws and usages of the realm do not include Christianity, in whatever form."

Review Denied In Pastor's Defamation Claim

Today the U.S. Supreme Court denied certiorari in Cooke v. Tubra, (Docket No. 10-559, cert. den. 2/28/2011). (Order List.)  In the case, an Oregon appellate court reversed a trial court's dismissal of a pastor's defamation claim against his former church and two of its officers.  The Virginia Court of Appeals held that statements made by a religious organization which do not concern its religious beliefs and practices or which are made for a nonreligious purpose are subject to a qualified privilege.  But they do not enjoy an absolute privilege as the trial judge had held. (See prior posting.)  For further background on the case, see the discussion last year at Volokh Conspiracy.

US Imposes Sanctions on 2 More Iranian Officials For Human Rights Violations

Last week, the U.S. Treasury and State Departments announced the designation of two additional Iranian officials as being responsible for or complicit in serious human rights abuses in Iran since June 2009.  The designation results in freezing assets of the officials, barring transactions with them by U.S. persons and the imposition of visa sanctions.  The two-- Abbas Jafari Dolatabadi, Tehran Prosecutor General, and Mohammed Reza Naqdi, commander of the IRGC’s Basij Forces-- join 8 others named in an executive order issued last September. (Background.)  One of the two added yesterday-- Mohammad Naqdi-- was identified by the U.S. Commission on International Religious Freedom in its annual report issued last year as being responsible for particularly severe violations of religious freedom.  In a release last week, USCIRF welcomed the action taken by State and Treasury.

Recent Articles of Interest

From SSRN:

• Tommaso Pavone, Redefining Religious Neutrality: Lautsi vs. Italy and the European Court of Human Rights, (February 16, 2011).
• Lance McMillian, Atticus Finch - Christian?, (Tennessee Law Review, Vol. 77, No. 1, 2010).
• Richard Schragger, The Relative Irrelevance of the Establishment Clause, (Texas Law Review, Vol. 89, p. 583, 2011).
• Mary Szto, Strengthening the Rule of Virtue and Finding Chinese Law in 'Other' Places: Gods, Kin, Guilds, and Gifts, (February 21, 2011).
• Ryan Keith Bach, The Lord Giveth: Christian 'Health Insurance', the Role of State Insurance Regulation, and the Aftermath of Kentucky v. Reinhold, (February 22, 2011).
• Gregory Engle, An Unholy Union? The Use of Religion in the Courtroom, (December 3, 2010).
• Brooke N. Walker, Unequal Application of RLUIPA's 'Equal Terms' Provision, (February 24, 2011).
• Robert Luther, Marketplace of Ideas 2.0: Excluding Viewpoints to Include Individuals, (Hastings Constitutional Law Quarterly, Vol. 38, p. 673, 2011).
• Julie A. Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, (Hastings Constitutional Law Quarterly, Vol. 38, p. 631, 2011).
• Danielle Keats Citron and Helen L. Norton, Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, (Boston University Law Review, Vol. 91, 2011).

From SmartCILP:

• Journal of Law and Religion, Vol 26, No. 1, 2010- 2011 has recently been issued. (Table of contents). Full text available online for Dohrman W. Byers, The Morality of Human Rights, A Secular Ground and Jeffrey M. Lipshaw, Can There Be a Religion of Reasons? A Response to Leiter's Circular Conception of Religious Belief.

From Bepress:

• Muslim World Journal of Human Rights, Vol. 7, Issue 2 (Jan. 2011) has been published online. (Full text of articles).

Recent Prisoner Free Exercise Cases

In Crump v. Unknown Patrick, 2011 U.S. Dist. LEXIS 16807 (WD MI, Feb. 18, 2011), a Michigan federal district court dismissed a Muslim inmate's free exercise, RLUIPA and equal protection claims. Plaintiff claimed that on two occasions he was mistakenly given pork meals and on a third occasion a food worker's neglect in changing gloves cross contaminated his food with pork. Among other things, plaintiff alleged that his prayers to Allah were not answered for 40 days because of his eating the pork products.

In Smith v. Sisto, 2011 U.S. Dist. LEXIS 17133 (ED CA, Feb. 15, 2010), a California federal magistrate judge recommended rejecting an inmate's claim that his rights under the Free Exercise and Establishment clauses were infringed when he was denied parole in part for failure to attend faith-based Alcoholics Anonymous or Narcotics Anonymous programs. The court found that the parole board, while mentioning the programs, did not indicate plaintiff was required to attend, and plaintiff never told the board that the programs conflicted with his religious beliefs.

In Koenig v. Maryland Division of Corrections, 2011 U.S. Dist. LEXIS 16992 (D MD, Feb. 22, 2011), a Maryland federal district court rejected a Mormon inmate's complaint that Mormons were not granted a full 90 minutes of religious services each week and that he was not permitted to retain more than four religious items.

In Newman v. Brandon, 2011 U.S. Dist. LEXIS 16976 (ED CA, Feb. 14, 2011), a California federal magistrate judge rejected plaintiff's claim that his free exercise and RLUIPA rights were violated when prison authorities spilled coffee on his Bible.

In Sanders v. Swarthout, 2011 U.S. Dist. LEXIS 17646 (ED CA, Feb. 22, 2011), a California federal magistrate judge recommended denying an inmate's habeas corpus application, finding that while the parole board discussed petitioner's participation in AA, it did not indicate he was required to participate in any faith-based substance abuse program to be eligible for parole. Also petitioner never told the parole board that his religious beliefs conflicted with participation in AA.

In Gordon v. County of Rockland, 2011 U.S. Dist. LEXIS 17305 (SD NY, Feb. 18, 2011), an inmate claimed that a jail chaplain distributed to the inmate population copies of two pamphlets defamatory to the Muslim faith. A New York federal district court dismissed the claim against the chaplain in her official capacity but allowed plaintiffs to proceed in their personal capacity free exercise claims and their claims of lack of administrative remedies in the jail.

Gingrich's 2012 Campaign Places More Emphasis On Religious Faith

Today's New York Times reports that as former House speaker Newt Gingrich gears up for a run for the 2012 Republican nomination for President, in his public appearances he is placing a new emphasis on religious faith.  The Times says that on the campaign trail, Gingrich will:

have to grapple with aspects of his life and career that could give pause to elements of the Republican primary electorate, including a lack of a well-established association with religious conservatives and attendant questions about his two divorces. So as he travels the country, he is striking two related notes: that the nation faces not just a fiscal crisis but also a loss of its moral foundation, and that his conversion to Catholicism two years ago is part of an evolution that has given him a deeper appreciation for the role of faith in public life.

ACLU Says High School Students Should Be Allowed To Post 10 Commandments On Their Lockers

According to WSLS-TV News, the ACLU of Virginia is supporting the right of Floyd County, Virginia high school students to post their personal views-- including copies of the Ten Commandments-- on their own school locker doors. Apparently Floyd County High School administrators removed copies of the Ten Commandments from lockers of members of the Fellowship of Christian Athletes under a school policy that requires school approval for postings on lockers other than messages such as "happy birthday" or "go team." The ACLU's e-mail to the school principal on Friday (quoted in full in the WSLS-TV report) points out that "allowing students to express their religious views on their lockers is not the same as the school itself posting the Ten Commandments or other religious documents." The ACLU says that the 1st Amendment bars the school from treating students' religious speech less favorably than other forms of speech.

Afghanistan Releases Man Jailed For Converting To Christianity

AP reports that in Afghanistan earlier this week, Sayed Mussa, who had been held in jail for nine months on charges of converting to Christianity, was released. After a campaign on his behalf by Christian activists and international diplomats, prosecutors determined that they did not have enough evidence to charge Mussa. U.S. officials say that Mussa is now safely out of Afghanistan.

Warsaw Convention Pre-Empts Religious Discrimination Claim Against Foreign Airline

In Sewer v. LIAT (1974) Ltd., (D VI, Feb. 16, 2011), a Virgin Islands federal district court held that the Warsaw Convention pre-empts a claim brought by a Virgin Islands citizen against a foreign airline for alleged discriminatory exclusion of plaintiff from a flight originating in the British Virgin Islands.  Plaintiff, a black West Indian Rastafarian who wears dreadlocks alleged that Liat airlines discriminated against him on the basis of race, origin and beliefs. The court concluded that Liat's bumping of Sewer from his flight to Antigua was based on neutral selection criteria. It went on to hold that even if there was discrimination, the only remedy is under the Warsaw Convention, and that document gives no claim to plaintiff because there was no "accident" and no bodily injury alleged. Today's Antigua Observer reports on the decision.

Federal Court Says Utah's Reformation of FLDS Trust Violates Establishment Clause

In a surprising decision yesterday, a Utah federal district court held unconstitutional the five years of state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust. Utah courts have attempted to carry out the reforms using non-religious neutral principles of law.  The Trust holds title to property on which FLDS members live. The reformation proceedings grew out of a 2005 petition by the Utah and Arizona Attorneys General asking a Utah state court to remove or suspend the UEP trustees who failed to defend the trust against tort lawsuits.  (See prior posting.) In Fundamentalist Church of Jesus Christ of Latter Day Saints v. Wisan, (D UT, Feb. 24, 2011), the Utah federal district court held:

By reforming a religious trust and managing it without regard to religion, the state actors became impermissibly entangled with religion. While it is accurate to say the states' actions did not establish a religion, their actions certainly went a long way toward disestablishing one.... The primary effect of the state court's decision to rewrite the Trust and administer it as a secular instrument was to inhibit religion. The resulting intrusion into the everyday life of the FLDS church and its members fostered not only "excessive government entanglement with religion," but was a virtual takeover by the state.

Judge Dee Benson observed that attempting to separate the secular parts of the UEP Trust from the religious parts is like trying "to eliminate football from the Super Bowl."  While much of the attention given to the case has stemmed from the polygamous practices of the FLDS Church and its leaders, the court said:

While it is true the state court judge in reforming the Trust recognized that the FLDS church practiced polygamy, which is illegal, and that the Special Fiduciary would not in any manner be allowed to make Trust administration decisions on the basis of polygamist practices, the state judge nowhere based her decision to reform or administer the Trust on a finding that it was being used to commit or support criminal activity.

Deseret News reports on the decision.

Maryland Senate Approves Same-Sex Marriage Bill

The Maryland state Senate yesterday passed the Civil Marriage Protection Act (SB 116), by a vote of 25-21. The bill authorizes same-sex marriage in the state, and provides that clergy may not be required to solemnize marriages in violation of their free exercise of religion.  The bill also exempts religious organizations from provisions calling for non-discrimination in public accommodations and insurance when they refuse on religious grounds to provide facilities, services or benefits for same-sex marriages. The bill now goes to the House of Delegates where, according to yesterday's Washington Post, its prospects for passage are uncertain. Opposition to the bill has come particularly from the Maryland Catholic Conference and from members of the state's black churches.

Refusal To Delay Civil Trail For Plaintiff's Religious Observance Was Abuse of Discretion

In Neustadter v. Holy Cross Hospital of Silver Spring, Inc., (MD Ct. App., Feb. 24, 2011), Maryland's Court of Appeals-- the state's highest court-- held that a trial court abused its discretion when it refused to suspend a civil medical malpractice trial for two days when plaintiff and his attorney could not attend because of religious obligations imposed by the Jewish holiday of Shavuot.  During their absence, defendant  put on its entire case in chief. The majority opinion, without reaching constitutional free exercise claims, held that the trial court abused its discretion in denying plaintiff a reasonable accommodation of his religious beliefs to permit him to participate in his trial. While plaintiff had delayed informing the trial court of the scheduling conflict, the majority held that plaintiff was not so untimely as to indicate an utter lack of diligence.

A concurring opinion by Judge Harrell, joined by Judge Murphy, engaged in a lengthy analysis of the free exercise issues involved in the case-- rejecting plaintiff's free exercise claim-- while nevertheless saying that the majority was correct in not reaching the constitutional issues.  The concurrence concluded that:

the judge’s denial of Petitioner’s motions to postpone the trial was the judicial analog to a generally-applicable legislative act, in that there is no evidence in the record from which one could conclude that the judge’s ruling would have been any different if faced with nonreligious justifications for the requested postponement.... Petitioner was free to celebrate Shavuot as he deemed fit; the trial court did not compel his presence in court in violation of the Jewish faith. Accordingly ... I do not think a "substantial burden" was placed upon his Free Exercise rights.

The concurrence went on however to find an abuse of discretion because "the facts in evidence ... do not support the proffered rationales for denying Petitioner's motions to postpone the trial."

A second concurrence by Judge Adkins argues that the court should reach the constitutional issues presented and should conclude that because the trial court's action was neutral and of general applicability, no heightened scrutiny was called for.  She agreed, however, with the majority's analysis of the trial court's abuse of discretion. She added: "I would not address the intriguing issue Judge Harrell raises of whether the Free Exercise clause is 'applicable with equal force to the judicial branch.'" (See prior related posting.) The Baltimore Sun reports on the decision.

Iraqi Supreme Court Interprets Constitutional Provision Barring Laws From Violating Settled Rulings of Islam

An op-ed published on Jurist earlier this month discusses a little-noticed decision handed down last December by Iraq's Federal Supreme Court which for the first time interpreted the provision in Iraq's Constitution (Art. 2) prohibiting civil laws from violating "settled rulings" of Islam.  At issue was a provision in Iraq's Law of Evidence requiring contracts over a certain amount to be proved by showing a writing.  The lower court had refused to accept oral evidence of the existence of a construction contract. Appellant claimed that requiring a writing was inconsistent with sharia, and thus invalid. The Federal Supreme Court, instead of merely holding that there was no "settled ruling" against requiring written contracts, engaged in its own interpretation of the Qur'an, citing two verses which it said supported requiring a written document. Haider Ala Hamoudi, writer of the op-ed, suggests that while Islamic religious authorities were not exercised by the Court's interpretation of religious law here, it would be very different if the Federal Supreme Court challenged religious authorities on core matters such as women's divorce rights.

Canadian Street Preacher Convicted For Using Sound Amplification System

In the Canadian province of Alberta, the Calgary Court of Queen's Bench yesterday reversed a provincial court's dismissal of charges against street preacher Artur Pawlowski who violated city park rules by using a sound amplification system. (See prior posting.) According to the Calgary Herald, the court rejected the argument that the ban on amplification systems was vague and overly broad. Justice Robert Hall wrote:

I am . . . satisfied that the intention of the bylaw is not to restrict the use of such items as hearing aids, cellphones, iPods or transistor radios within a park, none of which affect the safety, accessibility and enjoyment of the parks by the general public. The only reasonable interpretation of this section, when viewed in harmony with the scheme and object of the bylaw, is that it is intended to prohibit noise amplified to such an extent as to interfere with the enjoyment of the park by other users.

The court apparently also rejected arguments that the ban violated Pawlowski's freedom of expression and religion protected by the Charter of Rights and Freedoms in imposing penalties on Pawlowski.

Defendant Pleads Guilty To Hate Crime Against Mosque Playground

A Department of Justice press release reports that yesterday in a Fort Worth, Texas federal district court, Henry Clay Glaspell pleaded guilty to a hate crime charge growing out of his setting fire to playground equipment at an Arlington, Texas mosque.  The arson was part of a series of ethnically motivated acts directed at persons associated with the mosque who were of Arab or Middle Eastern descent. Glaspell also admitted that he stole and damaged mosque property, threw used cat litter at the front door of the mosque, and shouted racial or ethnic slurs. Sentencing is set for July 11.

Tennessee Legislators Propose Elaborate Anti-Sharia Bills

The most elaborate example yet of an anti-Sharia bill was introduced last week in the Tennessee House and Senate.  The Tennessean reports that SB 1028 (full text), and the identical HB 1353, were filed on Thursday to meet the deadline for introducing bills for the current session of the legislature, and that they may yet be amended.  The bills outlaw providing material support to any organization that the state Attorney General designates as a "sharia organization." The bill declares that it is not directed at the peaceful practice of Islam.  Instead it is premised, among other things, on the bill's declaration that "Sharia requires all its adherents to actively and passively support the replacement of America’s constitutional republic, including the representative government of this state with a political system based upon sharia." The 20-page bills, introduced by State Sen. Bill Ketron, R-Murfreesboro, and state Rep. Judd Matheny, R-Tullahoma, were drafted by David Yerushalmi, an Arizona attorney who heads the Society of Americans for National Existence. Critics say the bills are based on a complete misunderstanding of sharia law.