Church Complains About Its Cross Being Removed From State Park

Yesterday's Mobile (AL) Press-Register reports that the Orange Beach (AL) United Methodist Church is complaining that the recently appointed superintendent of Gulf State Park has removed a 10-foot tall cross made from driftwood that church members erected in 2008 with permission of the prior park superintendent.  Apparently the cross has been disposed of by maintenance personnel. Since 2008, the church has held evening services on the beach near the cross every Sunday from May to August. There have also been 35 baptisms performed in front of the cross. Park superintendent Michael Guinn says he removed the cross because of concern about separation of church and state.  He was unaware of the history of the cross or that it belonged to the United Methodist Church.  The church's pastor, Alan McBride, says they would have taken the cross down if the park had contacted them. The park superintendent admits that he acted hastily, and plans to meet with Rev. McBride to "try to make it up to them."

Idaho High Court Rejects Free Exercise Challenge To Marijuana Possession Conviction

In State of Idaho v. Fluewelling, (ID Sup. Ct., March 17, 2011), the Idaho Supreme Court rejected a criminal defendant's argument that his conviction for possession of marijuana violated his free exercise rights under the U.S. and Idaho constitutions.The court held that prosecution for conduct that violates a neutral statute of general applicability is not unconstitutional merely because the defendant engaged in the conduct for religious reasons. The court also rejected defendant's argument that his conviction should be reversed because a different state statute that permits peyote to be used in Native American religious ceremonies unconstitutionally grants a preference to one religious denomination.

Biblical Reference In Closing Argument Does Not Invalidate Guilty Verdict

In Powell v. State, (GA App., March 16, 2011), the Georgia Court of Appeals affirmed an appellant's conviction for aggravated assault, rejecting his claim that the trial judge allowed improper religious-based statements by the prosecution during closing argument. At issue was this statement to the jury by the prosecution:

let me call your attention to Matthew, Mark, Luke and John, four books of the Bible, first four books in the New Testament. They all have a little minor inconsistency between each of them, here and there, and that's because of perspective. But what do we call those four books of the Bible, ladies and gentlemen? We call them the gospel truth, ladies and gentlemen, the gospel truth.

The court concluded:

the biblical reference at issue here did not invite jurors to base their verdict on extraneous matters, or exhort jurors to reach a verdict on religious grounds, instead the prosecutor used the references to encourage jurors to overlook inconsistencies in the evidence.

Italy's High Court Upholds Ouster of Judge Who Refused To Preside In Court Room With Crucifix

In Italy earlier this week, the Cassation Court-- Italy's highest appellate court-- upheld last year's dismissal by the Supreme Council of Magistrates of Judge Luigi Tosti. According to Life in Italy last Monday, the Court concluded that Tosti was guilty of refusing to perform his judicial duties when, from May 2005 to January 2006 he withdrew from 15 hearings because a crucifix was displayed in the courtroom in which the hearing was scheduled.  Tosti, who is Jewish, argued that the presence of the crosses was a threat to religious liberty. He says he will now take his case to the European Court of Human Rights. (See prior related posting.)

Property of Break-Away Church In Texas Belongs To Episcopal Diocese

In Masterson v. Diocese of Northwest Texas, (TX App, March 16, 2011), the Texas Court of Appeals held that the property of the Church of the Good Shepherd in San Angelo, Texas, belongs to the Episcopal Diocese of Northwest Texas and the continuing parish leaders, not to the break-away congregation that joined the more conservative Anglican Diocese of Uganda. The court held that this conclusion follows using either under the "neutral principles of law" approach or the rule of mandatory deference to determinations by hierarchical church bodies. Discussing the "neutral principles" approach, the court said:

Though the deed to the property is held in Good Shepherd's name, the parish agreed from its inception to be a part of the greater Episcopal Church and to be bound by its governing documents. These governing documents make clear that church property is held in trust for the Episcopal Church and may be subject to Good Shepherd's authority only so long as Good Shepherd remains a part of and subject to the Episcopal Church and its Constitution and Canons.

European Court's Grand Chamber Upholds Italy's Placement of Crucifixes In State Schools

Today in a 15-2 ruling, the Grand Chamber of the European Court of Human Rights held that the required display of crucifixes in state school classrooms in Italy does not violate the European Convention on Human Rights. In Case of Lautsi and Others v. Italy, (ECHR, March 18, 2011), the European Court reversed a Chamber Judgment issued by a 7-judge panel of the Court in November 2009 that had found the practice violates Article 2 of Protocol No. 1 taken together with Article 9 of the European Convention on Human Rights. (See prior posting.) In today's Grand Chamber judgment, the majority said in part:

[I]t is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.

That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.... [A] crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality.... It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.... [T]he presence of crucifixes is not associated with compulsory teaching about Christianity....

Italy opens up the school environment in parallel to other religions.... [I]t was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were "often celebrated" in schools; and optional religious education could be organised in schools for "all recognised religious creeds" .... Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.

In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency.... [A]pplicant retained in full her right as a parent to enlighten and advise her children... and to guide them on a path in line with her own philosophical convictions....

Three concurring opinions were filed.  In one of them, Judge Bonello wrote:

A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity.... A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

A dissenting opinion by Judge Malinverni, joined by Judge Kalaydjieva, argued in part:

[T]he presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts.... [N]egative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves.  Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol.

The Court also issued a press release describing today's decision.

Malaysian Court Upholds Rule Limiting Syariah Law Practice To Muslims

In Malaysia yesterday, the High Court (Appellate and Special Powers) upheld the requirement that only Muslims can practice as Syariah lawyers. The Star reports on the decision which upholds Rule 10 of the Peguam Syarie Rules 1993. Victoria Jayaseele Martin, a non-Muslim woman who earned a Diploma in Syariah Law and Practice in 2004 from the International Islamic University Malaysia, challenged the requirement imposed by the Federal Territory of Kuala Lumpur's Islamic Religious Council that only Muslims can be admitted to practice before its Syariah Court. (See prior posting.) In yesterday's decision, Justice Rohana Yusuf concluded that: "The requirement (for a Syarie lawyer to be) of Muslim faith is necessary to ensure the effectiveness of legal representation." Martin's lawyers plan to appeal the decision.

Belk Settles Religious Accommodation Suit Filed By EEOC

A settlement has been reached between the EEOC and Belk, Inc. in a lawsuit brought by the EEOC charging Belk with failing to accommodate the religious beliefs of a Jehovah's Witness employee in its Raleigh, North Carolina store.  (EEOC press release.) Employee Myra Jones-Abid was fired when she refused to wear a Santa hat and apron because her religious beliefs bar her from recognizing holidays. Under the settlement, Belk will pay Jones-Abid $55,000 in damages and will provide annual training on religious discrimination to managers at the store involved. It will also post a notice at the store on employees' rights and report to the EEOC on its responses to employee requests for religion accommodation.

Lawsuit Challenges Arizona Day of Prayer Declaration

The Freedom from Religion Foundations announced that it filed a lawsuit on Tuesday challenging Arizona Governor Jan Brewer's declaration of May 6, 2010 as Arizona Day of Prayer. The complaint (full text) in Freedom from Religion Foundation Inc. v. Brewer, (D AX, filed 3/15/2011) seeks a declaratory judgment that Brewer's proclamation violates the Establishment Clause as well as  Art. II, Sec. 12 and Art. XX, Sec. 1 of the Arizona constitution. It also asks for an injunction barring the governor from proclaiming days of prayer in 2011 or thereafter.

Knesset Committee Hears From Chief Rabbi On Israel's Recognition of Orthodox Conversions

Haaretz reports on a special meeting of the Knesset (Israeli Parliament) Immigration Committee on Tuesday in the office of Israel's Chief Sephardi Rabbi Slomo Amar in which Amar defended a controversial policy of the Chief Rabbinate and the Interior Ministry adopted two years ago regarding recognition of conversions to Judaism performed by Orthodox rabbis abroad.  The policy limits recognition of conversions to those performed by members of specific rabbinical organizations, such as the Rabbinical Council of America. The Interior Ministry's recognition is important in determining whether an immigrant is entitled to immigrate under the Law of Return. Amar told the Knesset Committee that he had received reports of some rabbis abroad performing conversions in exchange for large sums of money.  In an interesting twist, the Israeli Supreme Court has previously ruled that the Interior Ministry must recognize Reform and Conservative conversions from abroad for purposes of the Law of Return.  However, because the Court has not passed on the issue of Orthodox conversions abroad, the Interior Ministry retains control over which it will recognize. Government representatives are working on drafting a new policy on recognition of Orthodox conversions that will withstand legal challenge.

Court Says Any Accommodation of Jehovah's Witness Would Impose Undue Hardship On Employer [Corrected]

In Berry v. MeadWestvaco Packaging Systems, LLC, (MD AL, March 14, 2011), an Alabama federal district court dismissed a Title VII religious discrimination claim brought by a Jehovah's Witness employee who was assigned to work at times that conflicted with his scripturally mandated Tuesday and Wednesday evening religious meetings. The company allowed Thomas Berry, a gluer operator, to swap shifts with other operators and to use his vacation time. However, he had insufficient vacation time and no other operator was willing to switch with him. The court concluded that while there is an issue of fact as to whether the company offered Berry reasonable accommodation, any available accommodation would have created "undue hardship" to the employer and therefore could not be imposed on the company. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.] (Note-- an earlier version of this posting incorrectly indicated that the case involved a Seventh Day Adventist. I apologize for the error.)

Federal Judge Urges Settlement Negotiations In FLDS UEP Trust Case

As previously reported, last month a Utah federal district court held unconstitutional the five years of Utah state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust.  The state plans to appeal the ruling. Meanwhile, Fox13Now reports that during a status conference on Tuesday, federal district judge Dee Benson urged attorneys for the state, the FLDS Church and the trust to re-institute settlement negotiations. The parties appear willing to try again, but the matter is complicated by ex-FLDS members who have now moved into some homes on trust property.

Malaysia Will Release Impounded Christian Bibles, Subject To Conditions

In Malaysia, the Home Ministry on Tuesday decided to release back to the Bible Society of Malaysia and The Gideons 35,000 copies of a Malaysian translation of the Christian Bible that had been impounded. (See prior posting.)  UPI and The Star report that the Performance Management  and Delivery Unit originally seized the Bibles that came in two separate shipments because they use the word "Allah" as a translation for "God." However the Ministry’s Publications Control and Quranic text division has now decided to permit the Bibles to be imported, subject to certain conditions. The Ministry has stamped on each Bible the warning: "The Good News Bible is for the use of Christians only."  It also wants serial numbers and the official Ministry stamp on the Bibles. The Bible Society has concerns over these conditions and wants to discuss them further. Some Malaysian states have laws prohibiting use of the word "Allah" by non-Muslims and a challenge to a similar ban by the Home Ministry is still pending in Malaysian courts. (See prior posting.)

Establishment Clause Challenge To City's Invocation Policy Survives Motion To Dismiss

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (MD FL, March 15, 2011), a Florida federal district court allowed plaintiffs to proceed with their federal and state Establishment Clause claims challenging the invocation policy of the Lakeland (FL) City Commission. The city maintains a list from which they invite various clergy to deliver prayers at the beginning of each meeting. Plaintiffs claim that the city's practice, with one exception, has been to exclude non-Christians and the non-religious. After the lawsuit was filed, the city passed a new policy, but plaintiffs claim both that the official policy is unconstitutional and that the actual practice deviates from the formal policy. However plaintiffs' equal protection and free speech claims were dismissed. Tuesday's Lakeland (FL) Ledger reports on the decision.

Democrats In Congress Introduce Bill To Repeal DOMA

The Hill reported yesterday that Democrats in both the House and Senate have introduced the Respect for Marriage Act (full text). The bill would repeal the Defense of Marriage Act and instead recognize as valid for federal law purposes any same-sex marriage that was legally entered into in the jurisdiction where it was performed. On the Senate side, the bill was introduced by Sen. Dianne Feinstein and is co-sponsored by 18 other Senate Democrats. (Press release.) In the House, the bill was introduced by Representatives Jerrold Nadler and John Conyers, and is co-sponsored by four gay and lesbian members of Congress. The Hill says that the chances of the bill passing the House are slim.

New Hampshire High Court Upholds Public Schooling Over Home Schooling In Parental Dispute

In a widely followed case, the New Hampshire Supreme Court has upheld a trial judge's order that an 11-year old girl be enrolled in public school rather than continue to be primarily home schooled by her mother.  The issue arose when the girl's divorced parents who shared parental responsibilities could not agree on schooling plans.  While the mother argued that the trial court's order violated parental rights to control the education of their children in conjunction with the free exercise of religion, the court said:

While this case has religious overtones, it is not about religion. While it involves home schooling, it is not about the merits of home versus public schooling. This case is only about resolving a dispute between two parents, with equal constitutional parenting rights and joint decision-making responsibility, who have been unable to agree how to best educate daughter.

In In re Kurowski, (NH Sup. Ct., March 16, 2011), the court concluded:

Because the parents in this case reached an impasse on the exercise of their respective parenting rights, the trial court properly utilized the best interests standard to resolve the dispute. The trial court’s decision is not subject to strict scrutiny review merely because the case involves the fundamental parental right to make decisions for daughter’s education and the parents' divergent religious convictions.

Alliance Defense Fund issued a press release on the decision. (See prior related posting.)

Harvard Law Prof. William Stuntz Dies

In a tribute to "an examined life of thoughtfulness and grace", Harvard Law School yesterday announced that renowned criminal justice scholar and beloved teacher William Stuntz died on March 14 after a long battle with cancer. At a conference last year, one participant described Prof. Stuntz's scholarship as follows:

Stuntz’s work builds a bridge between the religious and the secular, the pragmatic and the evangelical, with his intellectual commitments both rooted in faith and insistent on reasoned evidence. In the world of criminal legal discourse, this is an invaluable contribution.

On his blog, which he co-authored with David Skeel, he and Skeel said: "We are both law professors and evangelical Protestants – a weird combination in our time. We hope it’s also an interesting combination."
[Thanks to Legal Theory blog for the lead.]

9th Circuit En Banc Finds Court Holding Facility Is Covered By RLUIPA

The U.S. 9th Circuit Court of Appeals yesterday in an en banc decision in Khatib v. County of Orange, (9th Cir., March 15, 2011), concluded that the holding facility at the Santa Ana (CA) courthouse is a "pretrial detention facility" that is covered by RLUIPA. The issue arose in the context of a lawsuit by a Muslim woman who was held in the facility for a number of hours after the court revoked her probation. Officers there insisted that she remove her headscarf even though this was a violation of her religious beliefs.  A 3-judge panel in the case had held, 2-1, that the holding cell was not covered by RLUIPA. The 11-judge en banc panel disagreed unanimously. Neither of the two judges in the majority on the 3-judge panel were among the eleven that heard the case en banc. Courthouse News Service reports on the decision.

Proposed Tajik Law Banning Children's Participation In Religious Activities Draws Objections

Forum 18 reports that in Tajikistan yesterday the public consultation period ended on a controversial proposed Law on Parental Responsibility for the Education and Upbringing of Children.  After receiving more than 30,000 comments on the proposed law, the President's office said opinions of religious communities will be taken into account and changes will be made in the draft.  The proposal, initiated by Tajikistan's President Emomali Rahmon last year, would require parents to prohibit their children from participating in organized religious activities, except for funerals.  Apparently its goal is to stop children from attending mosques in the majority-Muslim country.  However it will also negatively impact the minority Russian Orthodox community.  Other provisions in the law require parents to give children names that reflect national values. It requires that children be educated in the spirit of respect for the homeland, national and universal values. It requires school uniforms and bans children having access to materials that contain violence, extremism, terrorism or other manifestations against morals.

Utah Police Arrest Man Who Used Animal Parts and Human Skulls For Religious Rites

According to NBC News, in Clearfield, Utah on Sunday detectives arrested Roberto Casillas-Corrales for investigation of abuse or desecration of a human body.  While executing a search warrant as part of a drug investigation, officers found a shed full of animal carcasses, along with two human skulls, behind Casillas-Corrales' home. Casillas-Corrales says he is a Santeros, or priest, and that he uses the skulls and animal parts for religious ceremonies.  He apparently purchased the skulls from individuals who took them from graves in Cuba.  It is unclear whether the animal parts will lead to additional charges.  Federal immigration agents are also involved in the investigation since Casillas-Corrales is not a U.S. citizen.