VA May Not Require Memorial Day Invocation At National Cemetery To Be Non-Denominational

In Rainey v. U.S. Department of Veterans Affairs, (SD TX, May 26, 2011), a Texas federal district court issued a temporary restraining order preventing the Department of Veterans Affairs from regulating the content of the invocation and benediction that are to be delivered at a Memorial Day ceremony in Houston's National Cemetery.  The annual ceremony is put on by a charitable organization.  The director of the National Cemetery required ministers to deliver the text of their prayers in advance to assure that the prayers are non-denominational and inclusive of all beliefs. Invoking that policy, the Veterans Affairs Department told Rev. Scott Rainey that he could not deliver his invocation if he did not remove references to Jesus and to his religious beliefs. Rainey sued.  In a rather colorful opinion, the court wrote that the government cannot gag a citizen in the name of "some bureaucrat's notion of cultural homogeneity." The court went on:

The government's compulsion of a program's inclusion or exclusion of a particular religion offends the Constitution. The Constitution does not confide to the government the authority to compel emptiness in a prayer, where a prayer belongs. The gray mandarins of the national government are decreeing how citizens honor their veterans....

These people say that remarks need to be content-neutral messages. The men buried in the cemetery fought for their fellow Americans-- for us. In those fights, they were served by chaplains, chaplains of two faiths and many denominations.... No deputy general counsel of the Department of Veterans Affairs was in the Ia Drang Valley....

The government cannot realistically speak for the religious sensibilities of the numerous and varied people of America, even if it were constitutional for it to try. It is for them to speak for themselves as when the President asked Rick Warren to speak for him in Jesus' name at his inauguration. Americans are free-- free to read, write, talk, and pray without permission from George III or other governmental power.

The Houston Chronicle reported on the decision yesterday. [Thanks to Kate Shellnutt for the lead.]

UPDATE: The Houston Chronicle reported Friday that the Department of Veterans' Affairs has informed the court that it will no longer raise an objection to Rev. Rainey's planned invocation. [Thanks to Don Byrd for the update lead.]

6th Circuit Invalidates Ban On Leafleting Outside Dearborn's Arab International Festival

In Saieg v. City of Dearborn, (6th Cir., May 26, 2011), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, held unconstitutional on free speech grounds the city of Dearborn's leafleting restrictions that barred a Christian group from proselytizing on public sidewalks surrounding the city's annual Arab International Festival. The decision comes in time for the 2011 Festival which will be held June 17-19. The court held that while the leafleting restriction is content neutral, it does not further a substantial governmental interest. The adjacent inner perimeter sidewalks are kept open for public traffic and sidewalk vendors are permitted to operate there. Leafleting is no more disruptive than the sidewalk tables in the same area. Leafleting restrictions on outer perimeter sidewalks do not implicate a substantial interest in crowd control merely because the proselytizers might attract a few listeners. The city's interest there is in vehicular traffic control and parking. Assuming this to be a substantial interest, the restriction on pedestrian leafleting is substantially broader than necessary to further this interest.

Judge Daugherty filed a one paragraph dissent, relying on the district court's reasoning (see prior posting) that found the leafleting restrictions to be a reasonable time, place and manner restriction. The Dearborn Press and Guide reports on the decision. The 6th Circuit had previously issued a preliminary injunction to cover last year's Festival.

Herman Cain Backs Off Of Prior Anti-Muslim Statement

The Iowa Independent reports that Herman Cain, former CEO of Godfather Pizza and a candidate for the Republican Presidential nomination, is backing away from a statement he previously made that he would be uncomfortable appointing a Muslim to his cabinet or as a federal judge because Sharia law does not belong in our government. Appearing on Fox News Glenn Beck's radio program, Cain said that his remarks had been misconstrued.  He told Beck:

I immediately said, without thinking, ‘No, I would not be comfortable.’ I did not say that I would not have [Muslims] in my cabinet. If you look at my career, I have hired good people regardless of race, religion, sex gender, orientation and this kind of thing.

Rockford, Illinois Catholic Diocese Will End Adoption and Foster Care Services Over Civil Union Law

The Catholic Diocese of Rockford, Illinois announced yesterday that its Catholic Charities office will stop offering state-funded foster care and state-funded adoption services. At a press conference (full text), diocese officials said that the move comes in reaction to the failure of the state legislature to enact an explicit exemption from the state's new civil unions law for religious entities. They explained:

On June 1, 2011 the Illinois Religious Freedom Protection and Civil Unions Act will take effect. This new law may allow unmarried cohabitating couples, whether same‐sex or opposite sex, to apply for adoptions and licenses to become foster parents.... [T]he Catholic Church does not condone same‐sex unions or unmarried cohabitation between individuals of the opposite sex.

(See prior related posting.)

Australian State Defeats Bill To Exempt Religious Groups From Some Equal Opportunity Requirements

Parliament in the Australian state of Victoria on Thursday defeated by a 44-43 vote a proposal to create an exemption for religious organizations from the state's Equal Opportunity Act 2010. The Act takes effect August 2011. (Background.) The amendment would have permitted faith-based groups to refuse to hire workers on the basis of religion, sexuality, marital status or gender. According to The Age, the defeat of the amendment proposed by the governing Liberal Party came because Women's Affairs Minister Mary Woolridge missed the vote and Liberal speaker Ken Smith voted against the bill. Woolridge said she was embarrassed at not making it to Parliament in time for the vote and would later explain what had happened. The government will try to have a new vote on the proposed amendments next week.

CBO Analyzes Options For Changing Tax Treatment of Charitable Contributions

Yesterday the Congressional Budget Office announced the release of a new report, Options for Changing the Tax Treatment of Charitable Giving. The report analyzes the likely impact on charitable giving of 4 options:

 Retaining the current deduction for itemizers but adding a floor.
 Allowing all taxpayers to claim the deduction, with or without a floor.
 Replacing the deduction with a nonrefundable credit for all taxpayers, equal to 25 percent of a taxpayer’s charitable donations, with or without a floor.
 Replacing the deduction with a nonrefundable credit for all taxpayers, equal to 15 percent of a taxpayer’s charitable donations, with or without a floor.

The report further refines its analysis by discussing the differential impact of these changes on individuals at different income levels.

Included in the report (at pg. 6) is a breakdown of charitable contributions currently by type of recipient and income group (based on 2005 data). This reveals that donors with annual income under $100,000 give 67% of their donations to religious organizations. Those in the $100,000 to $200,000 income bracket give 57% to religious causes.  Those earning $200,000 to $1 million give 23% to religious organizations. Those earning over $1 million give 17% to religious organizations. [Thanks to Steven H. Sholk for the lead.]

Resident's Rejection of Hasidic Synagogue Leads To Arson Attack

The Lower Hudson Valley Journal News yesterday reported that in New Square, New York (a town populated primarily by members of the Jewish Skverer Hasidic movement) 18-year old Shaul Spitzer has been charged with attempted murder, attempted arson and assault on 43-year old Aron Rottenberg in an incident allegedly growing out of a religious dispute.  Grand Rabbi David Twersky has apparently decreed that all of his followers must worship at his synagogue. However, Rottenberg along with two dozen other New Square residents, has been boycotting Twersky's synagogue and instead worshiping a mile away at the Friedwald Center. This led to months of protests outside Rottenberg's house last fall.  An attorney hired by Rottenberg's family charges that the attack by Spitzer-- who works in Twersky's house and is the cousin of the town's mayor--"culminated months of increasingly violent and coordinated religiously biased attacks on Mr. Rottenberg triggered by the victim's choice of synagogue and religious leader." The arson attack, which consisted of throwing gasoline-soaked rags onto the rear deck of Rottenberg's house at 4 a.m. last Sunday, inflicted third degree burns over 50% of Rottenberg's body.

Evangelical Journalist Says Vote For Romney Would Advance "False Teachings" of Mormon Church

Patheos website on Tuesday published a controversial article by evangelical journalist Warren Cole Smith titled "A Vote for Romney Is a Vote for the LDS Church." The article argues in part:

As Theodore Roosevelt said, the presidency is a "bully pulpit." Indeed, it has become the bulliest pulpit in the world. The entire planet hangs on what the occupant of that pulpit says and does.

Placing a Mormon in that pulpit would be a source of pride and a shot of adrenaline for the LDS church. It would serve to normalize the false teachings of Mormonism the world over. It would also provide an opening to Mormon missionaries around the world, who could start every conversation: "Let me tell you about the American president." To elect a Mormon President is to advance the cause of the Mormon Church.

The article is part of a broader symposium on Faith and the Future of Social Conservatism. Another article in the symposium by J.E. Dyer is titled "Yes, Christians Can Vote for Mormons" and one by Jeremy Lott is titled "In Defense of Mormons."

Belgium To Become Second European Country To Ban Burqa In Public Places

M&C reported yesterday that Belgium is about to become the second European country to ban the wearing of the burqa or other full face veils in public. The Chamber of Deputies approved the ban on April 28, and the Senate had 15 days to intervene, which it failed to do. (Background on legislative process.)  The law will go into effect ten days after its publication in Belgium's official journal. Anyone who appears in public with their face fully or partly covered, impairing identification, can under the law be fined 15 to 20 Euros and imprisoned up to 7 days. A burqa ban-- with significantly greater penalties-- went into effect in France in April. (See prior posting.)

Algeria Orders 7 Protestant Churches Closed For Lack of Permits

AFP reported yesterday that all seven Protestant churches in Algeria's Bejaia region have been ordered closed, apparently because they have not obtained permits as required by a law enacted in 2006.   However Mustapha Krim, president of the Protestant Church in Algeria, says the churches will continue to operate because they were functioning before the 2006 law was enacted.

Santa Monica May Be Next City To Place Circumcision Ban On Ballot

The Los Angeles Jewish Journal reported last week that on May 19, a proponent filed a Notice of Intent To Circulate Petition (full text) with the Santa Monica (CA) City Clerk's Office indicating that she plans to seek signatures for a ballot measure banning circumcision of males under 18.  The proposed measure is identical to the one that will appear on San Francisco's ballot in November. (See prior posting.) The measure specifically excludes any exception based on belief that circumcision "is required as a matter of custom or ritual." The language of this exclusion is apparently based on similar language in the Federal Prohibition of Female Genital Mutilation Act of 1995 (18 USC 116(c)). [corrected]

Subpoena For Missionary Records Does Not Violate Free Exercise or Establishment Clause

In Cason v. Federated Life Insurance Co., 2011 U.S. Dist. LEXIS 54778 (ND CA, May 20, 2011), plaintiff sued Federated Life Insurance for disability insurance bad faith.  As part of discovery in the case, Federated issued a subpoena to Optimum Health Institute (OHI)-- which claims to be a church.  Plaintiff, in a deposition, indicated either that she worked at OHI or received some kind of treatment or therapy there. At issue in this case was OHI's claim of privilege for plaintiff's attendance records, her missionary application, and her missionary check-in, time sheet and requests for extension. The court rejected OHI's claim that requiring it to produce these would violate the state and federal establishment and free exercise clauses, privacy protections and the clergy-penitent privilege.

Tennessee Governor Signs Bill Voiding Nashville's Anti-Discrimination Ordinance; Lawsuit Planned

On Monday, Tennessee Governor Bill Haslam signed HB 600 that prohibits local governments from imposing anti-discrimination provisions that vary from those in state law. The new law invalidates a Nashville ordinance that prohibits contractors from doing business with the city if they discriminate on the basis of sexual orientation or gender identity.  News Channel 5 reports that opponents of the state law are planning to file a lawsuit challenging it as discriminating against gays and lesbians. They say the bill has also done away with local protections against discrimination on the basis of disability or veteran status. State lawmakers who supported the bill say that Nashville's ordinance would have created confusion for businesses.

Suit Challenges Denial of Zoning Permit For Special Needs School In Church Building

A church in Fredericksburg, Virginia on Monday filed a lawsuit against the city challenging City Council's denial of a special use permit that would allow the church to operate a private school for special needs children in the church's facility. The complaint (full text) in Calvary Christian Center v. City of Fredericksburg, Virginia, (ED VA, filed 5/23/2011), alleges that the only reasons given by the city for denying the permit were discriminatory and stereotypical safety concerns for day care students in the same building as mentally and emotionally challenged children. The suit alleges violations of RLUIPA, the free exercise and free speech clauses of the 1st Amendment, the ADA and the Rehabilitation Act. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Hawaii Supreme Court Hears Arguments On Native Hawaiian Rights

Art. XII, Sec 7 of Hawaii's Constitution provides:

The State reaffirms and shall protect all rights, customarily and traditionally exercised for  subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.

Last week, the Hawaii Supreme Court heard oral arguments (audio recording of arguments) in State of Hawaii v. Pratt, (No. SCWC-27897, 5/19/2011), in which a kahu (native Hawaiian religious practitioner) argued that he had the right to take up residence in a state wilderness park to act as a hoa'aina or caretaker of the land and restorer of ancient Hawaiian sites. The Court of Appeals split 2-1 in upholding Pratt's conviction for camping without a permit in Na Pali State Park on the island of Kauaʻi. (Majority opinion, concurrence, dissent). The major issue on appeal is whether, in considering a defense of Native Hawaiian practices, the court should balance against this the state's interest in regulating. The Honolulu Star Advertiser reports on the oral arguments.

Constitutionality of San Francisco's Proposed Circumcision Ban Debated

A number of posts around the blogosphere in recent days debate the constitutionality of San Francisco's upcoming ballot issue (see prior posting) that would ban male circumcision on individuals under 18 years of age except in cases of clear medical necessity, with no exception for religiously mandated circumcision. The posts look at three related issues: free exercise issues (under state and federal law), parental rights issues, and the so-called "hybrid rights" doctrine (free exercise claims reinforced by a parental rights claim). Here are links to some of the more thoughtful analyses:

• Eugene Volokh, Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom In This Post) [discussing parental rights issues].
• Eugene Volokh, Proposed San Francisco Circumcision Ban, and Religious Freedom
• Slate's Jeremy Singer-Vine, Snip: A San Francisco ballot measure would ban circumcision. Is that legal? [discussing free exercise issues]
• Michael Helfand, Why San Francisco Ballot Measure Proposing Circumcision Ban Is Unconstitutional [discussing hybrid rights theory]
• Mirror of Justice, Circumcision and Hybrid Rights

[Thanks to Steven H. Sholk for the lead on some of this.]

21 Endorsing Agencies For Military Chaplains Ask For New Conscience Protections

Yesterday, 21 Christian organizations that act as endorsing agents of U.S. military chaplains sent a joint letter (full text) to the Chief Chaplains of the three services urging adoption of "broad, clear, and strong protections for conscience" as the repeal of "Don't Ask, Don't Tell" is implemented.  The letter was apparently triggered by concerns after the Navy's Chief of Chaplains issued, and then suspended, a memo making base chapels available for same-sex marriages and blessing of civil unions in states where these are legal. (See prior posting.) Yesterday's joint letter reads in part:

Chaplains have a tremendous moral responsibility to insure that when they preach, teach or counsel, they do so in accordance with their conscience and in harmony with the faith group by which they are endorsed. When guidance, however, is forthcoming from senior leadership that implies protected status for those who engage in homosexual behavior and normalizes same-sex unions in base chapels, any outside observer would conclude that both homosexuality and homosexual unions officiated as marriages in base chapels are normative. This creates an environment that is increasingly hostile to the many chaplains—and the service members they serve—whose faith groups and personal consciences recognize homosexual behavior as immoral and unsafe and do not permit same-sex unions.

Alliance Defense Fund issued a press release announcing the joint letter.

5th Circuit Hears Oral Arguments On Qualified Immunity In "Candy-Cane" Case

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Morgan v. Plano Independent School District. (Audio recording of oral arguments.) In the case, a 3-judge panel refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items-- including candy cane pens with religious messages-- during school parties and at other non-curricular times. However, the panel (in an amended opinion) added that the trial court might find immunity if the facts show that the students' activities were disruptive. (See prior posting.) OneNewsNow yesterday reported on the case.

Suit Planned In Nigeria To Challenge Shariah Banking Rules

On Dec. 31, 2010, the Central  Bank of Nigeria issued Guidelines on Shariah Governance for Non-Interest Financial Institutions.The Guidelines require all non-interest banks and financial institutions to comply with Shariah and to appoint a Shariah Advisory Committee. Nigerian Compass reported yesterday that a lawsuit is planned to challenge the new Guidelines as unconstitutionally excluding non-Muslims from the non-interest banking business. Opponents of the Guidelines also say that introducing religion is inconsistent with the Banking and Other Financial Institutions Act of 1991 that bars banks from using various religious terms in their names.

Huntsman Defines His Religious Affiliation

Former Utah governor  and more recently ambassador to China, John Huntsman, Jr., is considering running for the Republican nomination for the Presidency (Salt Lake Tribune).  Religion Dispatches suggests that Huntsman will not allow his Mormonism to define him.  Huntsman's comments about his religious beliefs in an interview last week on ABC's Good Morning America (full text) have been garnering attention. Here is what he said when asked whether he is a practicing Mormon:

I believe in God. I'm a good Christian. I'm very proud of my Mormon heritage. I am Mormon. Today, there are 13 million Mormons. It's a very diverse and heterogeneous cross-section of people. And you're going to find a lot of different attitudes and a lot of different opinions in that 13 million.... And I probably add to that diversity somewhat.

Huntsman also said that he did not think that his religious affiliation would be an issue in the campaign.