ACLU Survives Summary Judgment In Establishment Clause Suit Against Minnesota Charter School

In ACLU of Minnesota v. Tarek ibn Ziyad Academy, (D MN, April 20, 2011), a Minnesota federal district court rejected defendants' motion for summary judgment in the ACLU's Establishment Clause challenge to a state funded charter school. The court held:

Viewing the record in the light most favorable to Plaintiff, the Court determines that a reasonable juror could conclude that TiZA’s practices establish a pervasively sectarian atmosphere for the purpose of promoting Islam. In particular, a reasonable juror could conclude that TiZA was founded specifically to create a religious school and that elements of its operation have the primary principal effect of advancing the religion of Islam. Accordingly, the Court denies TiZA Defendants’ motion for summary judgment on Plaintiff’s Establishment Clause claims.

In the course of its opinion, the court also held that the Minnesota ACLU could bring the lawsuit despite its failure to make make required corporate filings in a timely manner; and that private parties have a right to assert challenges under the Establishment Clause of the Minnesota constitution. The court rejected various other challenges by defendants to the relief sought, holding in part that plaintiff can seek a refund to the state of a portion of state aid given to the school. Finally the court dismissed certain individual capacity claims and granted cross claims for indemnification by the Minnesota Commissioner of Education and the school; sponsoring organization. The St. Paul Pioneer Press reports on the decision. (See prior related posting.)

Florida Pastor To Stand Trial On Posting Bond Before Anti-Muslim Demonstration

At a hearing yesterday in Dearborn, Michigan, a state trial court ordered Florida pastor Terry Jones to either post a bond to cover costs that his Good Friday demonstration in front of a large Dearborn mosque will create, or else stand trial on Friday at which time a jury will determine whether Jones should be required to post bond. The Detroit Free Press reported yesterday that Jones-- who has gained notoriety from his church's burning of a Qur'an-- chose to stand trial. Jones says he is concerned that the Friday trial might interfere with the planned 5:00 pm demonstration.  The Michigan ACLU says that the state is depriving Jones of his free speech rights by demanding a bond. (See prior related posting.)

Cert. Petition Filed In Utah Highway Patrol Memorials Case

A petition for certiorari (full text) in Davenport v. American Atheists, Inc. has been filed with the U.S. Supreme Court, according to a press release by Utah's attorney general. In the case, the 10th Circuit held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up on public land some 13 crosses, each 12 feet high, as memorials to Patrol members who were killed in the line of duty. (See prior posting.) The 10th Circuit refused en banc review with 4 judges filing 2 dissenting opinions. (See prior posting.) The cert. petition asserts: "a three-way circuit split has developed over the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause." ABC4 News reports that former Texas Solicitor General Ted Cruz will represent Utah in the case pro bono.

Nepalese Christians Seek Burial Grounds

According to Compass Direct News earlier this week, in Nepal a Christian group has filed a petition with the country's Supreme Court in an attempt to obtain burial grounds in Nepal for Christians.  Up to now, Christians were allowed to use forested land belonging to a Hindu Temple for burials. However, earlier this month the Pashupati Area Development Trust (PADT) said it would no longer allow forest lands to be used.  So a Christian pastor filed a petition asking the Supreme Court to intervene, and one judge ordered the government and the PADT to stop interfering with Christian use of forest land until the courts resolve the issues. But then a Hindu activist filed a counter-suit attempting to keep Christians from using Hindu Temple property for Christian burials. Meanwhile the recently formed Christian Burial Ground Prayer and National Struggle Committee began a relay hunger strike in Kathmandu asking for Christian cemeteries in all 75 districts of Nepal. The government has appointed a committee to look into the demand and to report back in two weeks.

County's Denial of Permit For Nativity Scene On Road Median Upheld

In Satawa v. Board of County Road Commissioners of Macomb County, 2011 U.S. Dist. LEXIS 42196 (ED MI, April 19, 2011), a Michigan federal district court upheld Macomb County, Michigan's refusal to permit plaintiff to set up a nativity display on the median of a heavily traveled road.  Plaintiff's family had erected the display at this site almost every year since 1945, but in 2008 the county for the first time received a complaint about it. The court concluded that the road median is not a traditional public forum, and that even if it is, the county had a compelling safety interest in banning the display.  A church, a few hundred yards away, was available as an alternative site. The court also rejected plaintiff's Establishment Clause and equal protection arguments. (See prior related posting.)

Anti-Catholic Conversations Created Hostile Work Environment

In Haley v. Kopf, (AK St. Commn. Hum Rts., April 8, 2011), the Alaska State Commission for Human Rights awarded a former employee of a general store damages of $76,853 after finding that the store's owner violated AS 18.80.220(a)(1) by creating a hostile work environment based on religion. After Paul Kopf purchased Goldstream General Store, he began talking about religion extensively and made anti-Catholic statements to Lynn Dowler, a 27-year employee who was currently the store manger. She and three other employees resigned after receiving a new set of work rules from Kopf, one of which stated: "The OWNER of this BUSINESS is a very active CHRISTIAN who by nature of personality strives with lifetime goals to the benefit of humanity. The OWNER is by nature prone to religious and philosophic conversations. Anyone who thinks they can WEAR their religion/ philosophy/ ideology/ expression of who they are and does not want to hear someone else's said state of being will be considered hypocritical and incompatible with the group...." AP reports on the decision.

Free Exercise Challenge To Kansas Medicaid Rules Argued

The Kansas City Star reports on an interesting free exercise challenge to Kansas' Medicaid rules argued in the Kansas Court of Appeals on Tuesday. Mary Stinemetz, a Jehovah's Witness, needs a liver transplant. Kansas will pay for the surgery if performed at the University of Kansas Hospital. However, Stinemetz, for religious reasons, insists on transplant surgery without any blood transfusion-- a procedure which is available in an Omaha, Nebraska hospital, but not in Kansas. State Medicaid rules pay for out-of-state treatment only when it is "medically necessary." Kansas officials say that the patient's religious objections to blood transfusions do not amount to medical necessity.

New Arizona Law Exempts Churches From Political Committee Registration

On Monday, Arizona Governor Jan Brewer signed S.B. 1282 that provides no religious assembly or institution will be required to register as a political committee, so long as it does not spend a substantial amount of time or assets influencing legislation, or any referendum, initiative or constitutional amendment. The American Independent reported Monday that the new law is aimed at assuring-- as required by 9th Circuit precedent-- that campaign finance laws do not apply to speech by churches on issues of public importance that appear on the election ballot. A 2009 case decided by the 9th Circuit invalidated application of Montana's campaign finance laws to a Church that engaged in limited activities in support of a constitutional initiative banning same-sex marriage. (See prior posting.)

Appeals Court Defers To Church Synod In Dispute Over Church Closing

In Southeastern Pennsylvania Synod of the Evangelical Lutheran Church in America v. Meena, (PA Commonwealth Ct., April 18, 2011), a Pennsylvania appellate court, in a 6-2 decision written by Judge Pellegrini, held that it must defer to the decision of the governing Synod to impose synodical administration on a local church and close it because of its diminished attendance and income.  Judge Leavitt, joined by Judge McCullough dissented arguing that the case should be remanded for the trial court to determine, under neutral principles of Pennsylvania corporate law, whether the bylaw of the Synod that authorized it to take control of the local church is inconsistent with the Synod's Charter.

Controversial Pastor Wants To Demonstrate Against Islam In Dearborn On Good Friday

Florida pastor Terry Jones, who has gained notoriety for placing the Qur'an on trial and burning a copy in his small Florida church (see prior posting), is planning to hold a Good Friday demonstration in front of Dearborn, Michigan's Islamic Center of America. Police fear that the demonstration will cause a riot, and say that Jones and an associate will both be carrying guns. Police fear Jones will burn another Qur'an at his demonstration, though Jones denies this and says he will merely be demonstrating against Sharia and extremist Islam. According to the Detroit News, Michigan prosecutors want Jones to post a bond before the demonstration, and to pay the projected $100,000 in extra police overtime costs that will be incurred because of the demonstration.  A state court judge has set a hearing for 3:00 p.m. on Thursday. Meanwhile, Dearborn Mayor Jack O'Reilly has written a powerful open letter to Jones (full text) asking him to hold his demonstration at the city's "Permit Free Zone" in front of City Hall.  The mayor says that if Jones instead demonstrates in front of the Islamic Center, he will also be blocking access to Good Friday services at four nearby Christian churches.

White House Hosts Passover and Easter Events

This week the White House has hosted both Passover and Easter events. On Monday evening, the President and First Lady hosted a small Passover Seder in the Old Family Dining Room of the White House. A White House release points out that during the 2008 Presidential campaign, Obama began his tradition of hosting a Seder. This year the White House included on its website interesting recipes from 8 Jewish chefs around the country.

On Tuesday morning, the President hosted the White House's 2nd annual Easter Prayer Breakfast in the East Room. Christian clergy and leaders from around the country were in attendance. In his remarks (full text included in White House Release), Obama said in part:

I wanted to host this breakfast for a simple reason -– because as busy as we are, as many tasks as pile up, during this season, we are reminded that there’s something about the resurrection -- something about the resurrection of our savior, Jesus Christ, that puts everything else in perspective.

Supreme Court Holds Inmates May Not Recover Damages Against States In RLUIPA Suits

In an important interpretation of the Religious Land Use and Institutionalized Persons Act, the U.S. Supreme Court on Tuesday in Sossamon v. Texas (US Sup. Ct., April 20, 2011) held, in a 6-2 decision, that states which accept federal funding for their prisons retain sovereign immunity to monetary damage claims under RLUIPA. Section 4 of RLUIPA provides that inmates may “obtain appropriate relief against a government” that has substantially burdened their religious exercise without having a compelling interest for doing so, and which does not use the least restrictive means in achieving that interest. The majority opinion, written by Justice Thomas, concluded that waiver of sovereign immunity requires an express and unequivocal statement to that effect in the statute, and that this standard has not been met here as to the imposition of monetary damages. A dissent, written by Justice Sotomayor and joined by Justice Breyer disagreed. They argued that it should have been clear to state officials that “appropriate relief” includes monetary damages and not just equitable relief.  They worried that without the possibility of monetary damages, often effective relief will be unavailable. Justice Kagan took no part in the decision.  UPI reports on the decision.  (See prior related posting.)

Cert. Denied In Kentucky Baptist Homes Cases

The U.S. Supreme Court today denied certiorari in two companion cases, Kentucky Baptist Homes v. Pedreira (Docket No. 09-1121, cert, den. 4/18/2011) and Pedreira v. Kentucky Baptist Homes (Docket No. 09-1295, cert. den. 4/18/2011). (Order List.) In the case the 6th Circuit first rejected an employment discrimination claim brought brought by a Family Specialist who had been fired because she was a lesbian. Second, the 6th Circuit held that federal taxpayers lack standing to challenge the channeling of federal child care funds to KBHC by the state of Kentucky, but that state taxpayers have standing to challenge state funds paid to KBHC for the care of children. (See prior posting.) Courthouse News Service reports on the Supreme Court's denial of review. [Thanks to Don Byrd for the lead.]

Companion Arizona Tuition Organization Tax Credit Case Summarily Decided By Supreme Court

Today, the U.S. Supreme Court disposed summarily of Arizona School Choice Trust v. Winn, (Docket No. 09-988) granting certiorari and remanding the case to the 9th Circuit for further proceedings. (Order List)  The case was a companion case to Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn that the Court decided together earlier this month, holding that taxpayers lack standing to challenge Arizona's school tuition organization tax credit program. The cases decided together had the same counsel, while different counsel represented petitioners in the case disposed of today.

Senate Confirms International Religious Freedom Ambassador

CBN News reports that on April 14 the U.S. Senate finally confirmed Dr. Suzane D. Johnson Cook as Ambassador at Large for International Religious Freedom.  President Obama nominated Cook initially in 2010, but when the 111th Congress failed to vote on her confirmation, the President resubmitted it this year. (See prior posting.) [Thanks to Religion News Service for the lead.]

Malta Ambassador Douglas Kmiec Resigns After Criticism of His Religious Writing

AP and National Catholic Reporter both report on the resignation of U.S. Ambassador to Malta, Douglas Kmiec. Last week he announced he will resign as of August 15 after a State Department Inspector General's report criticized him for spending too much time writing and speaking about his Catholic religious beliefs. (See prior posting.) In his April 13 resignation letter to President Obama (full text) asking the President to "accept my resignation effective on the Feast of Assumption 2011," Kmiec said that he doubted very much whether one could ever spend too much time trying to find common ground between faiths. In a letter sent to Secretary of State Hillary Clinton (full text), Kmiec complained that the Inspector General's office "failed to read any of my writing or see its highly positive effect on our bilateral relations."

Obama Extends Passover Wishes To Those Celebrating the Festival

The Jewish holiday of Passover begins tonight.  On Friday, President Obama issued a statement (full text) extending warmest wishes from him and his family to all those celebrating the holiday. The statement said in part:

The Seder, with its rich traditions and rituals, instructs each generation to remember its past, while appreciating the beauty of freedom and the responsibility it entails.

This year, that ancient instruction is reflected in the daily headlines as we see  modern stories of social transformation and liberation unfolding in the Middle East and North Africa.

Recent Articles of Interest

From SSRN:

• John Witte and Joel A. Nichols, Faith-Based Family Laws in Western Democracies?, (Fides et Libertas: The Journal of the International Religious Liberty Association, pp. 119-132, 2010).
• Raj Bhala, Doha Round Betrayals, (Emory International Law Review, Vol. 24, pp.147-183, 2010).
• Barak D. Richman, Saving the First Amendment from Itself: Relief from the Sherman Act Against the Rabbinic Cartels, (April 12, 2011).
• William P. Umphres, ‘Justice is a Bad Idea for Christians’: Religious Identity in Political Deliberation, (April 1, 2011).
• Nicholas Aroney and Rex Ahdar, The Topography of Shari’a in the Western Political Landscape, (Shari'a In the West, Rex Ahdar and Nicholas Aroney (eds), Oxford: Oxford University Press, 2010).
• Hannibal Travis, Youtube from Afghanistan to Zimbabwe: Tyrannize Locally, Censor Globally, (Florida International University Legal Studies Research Paper No. 11-10, April 1, 2011).
• Hannibal Travis, Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan, (Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan, Carolina Academic Press, 2010).
• I. Glenn Cohen and Sadath Sayeed, Fetal Pain, Abortion, Viability and the Constitution, (The Journal of Law, Medicine and  Ethics, Vol. 39, 2011).
• Deana Pollard-Sacks, Snyder v. Phelps: A Slice of the Facts and Half an Opinion, (Cardozo Law Review De Novo, p. 64, 2011).

Court Says Factual Issues Remain As To Reasonable Accommodation of Sabbath Observance

In Maroko v. Werner Enterprises, Inc., (D MN, April 14, 2011), a Minnesota federal district court refused to grant summary judgment to a Seventh Day Adventist employee who was terminated from his position as a delivery truck driver because he refused to work on his Sabbath-- sundown Friday to sundown Saturday. In plaintiff's Title VII action, the court concluded that disputed factual issues exist as to whether the employer had offered plaintiff a reasonable accommodation. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Why Has The Niqab Become So Controversial In France?

Today's New York Times carries and interesting and provocative analysis of why wearing of the niqab (full face veil) by Muslim women has become such a controversial issue in France. (A French ban on wearing the full face veil in public took effect last week.)  Here are some excerpts:

In French culture, the eyes are supposed to meet in public, to invite a conversation or just to exchange a visual greeting with a stranger. Among Muslims, the eyes of men and women are not supposed to meet, even by chance, and especially not in public or between strangers....

French tradition has also long encouraged mixing of the sexes in social situations. “The veil ... interrupts the circulation of coquetry and of paying homage, in declaring that there is another possible way for the sexes to coexist: strict separation.”

A more familiar explanation for French antagonism to the facial veil is historical and political: the deep-rooted French fear, resentment and rejection of the “other” — the immigrant, the invader, the potential terrorist or abuser of human rights who eats, drinks, prays and dresses differently, and refuses to assimilate in the French way.....

Meanwhile, France will remain France — the land where the uncovered body is celebrated. Billboards and posters on Paris streets regularly feature naked breasts and buttocks.