5th Circuit Interprets "Equal Terms" Clause of RLUIPA

In The Elijah Group, Inc. v. City of Leon Valley, Texas, (5th Cir., June 10, 2011), the U.S. 5th Circuit Court of Appeals weighed in on an issue that has split various circuits-- what test to use to determine whether a zoning decision violates RLUIPA's "equal terms" clause. At issue was the city's zoning law that prohibits churches from operating in areas zoned B-2 (business).  Plaintiff argued that it was being treated on less than equal terms because it could not apply for a special use permit to operate in B-2 areas. The court held that the equal terms clause:

does require the Church to show more than simply that its religious use is forbidden and some other nonreligious use is permitted. The “less than equal terms” must be measured by the ordinance itself and the criteria by which it treats institutions differently. When we analyze the City’s ordinance within this framework, we are convinced that it is invalid because it prohibits the Church from even applying for a SUP when, e.g., a nonreligious private club may apply for a SUP.... 

The court added in a footnote: "This analysis should not be interpreted as necessarily adopting any of the tests heretofore adopted by the other circuits." Becket Fund issued a press release on the decision. The release contains links to the briefs that were filed in the case.

Two Cases Decide On Tax Exempt Status of Property Owned By Religious Groups

Two recent unrelated cases involve disputes over whether certain property is used for religious purposes so that it is exempt from property taxes.  In First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, (PA Commonwealth Ct., June 14, 2011), a Pennsylvania appellate court upheld the denial of tax exempt status for property of a former seminary that was acquired at a sheriff's sale by a church, but which appeared to be largely unused and in disrepair.

In Congregation Rabbinical College of Tartikov, Inc. v. Town of Ramapo, (NY Ct. App., June 14, 2011), New York's highest court held that Ramapo tax authorities improperly revoked the tax exemption for property that was being used for a religious summer camp. While a contractor was operating the camp on behalf of the rabbinical college that owned the land, the rabbinical college "retained general supervision and control over the camp's operation, including the right to approve the hiring of camp personnel, the purveyors of kosher food for camp lunches, and the religious curriculum." (See prior related posting.)

House Committee Opens Hearings On Radicalization of Muslims In U.S. Prisons

Yesterday, the U.S. House Committee on Homeland Security began two days of hearings on "The Threat of Muslim-American Radicalization in U.S. Prisons." The full text of the opening statement by Committee Chairman Peter King, as well as of statements by yesterday's four witnesses is available from the Committee's website. Rep. King also announced three witnesses who will appear at the continuation of the hearings today. The Los Angeles Times yesterday reported that the hearing "erupted in bipartisan anger Wednesday, with Democrats charging Muslims were being unfairly targeted and the Republican committee chairman vowing to continue investigating what he views as threats to national security."

Bankruptcy Court Says DOMA Is Unconstitutional; Same-Sex Couple Can File Joint Petition

A California federal bankruptcy court has declared the federal Defense of Marriage Act unconstitutional insofar as it would preclude a same-sex married couple from filing a joint bankruptcy petition under Chapter 13 of the Bankruptcy Code. 11 USC 302 permits joint petitions by a debtor and the debtor's spouse. The couple involved in the case was one of 18,000 same-sex couples legally married in California before the passage of Proposition 8. In In re Balas and Morales, (CD CA, June 13, 2011), the court held that DOMA violates  the couple's equal protection rights afforded by the 5th Amendment, whether the court applies heightened scrutiny or rational basis review.  The court explained:

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors’ right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. 

This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors. Debtors have urged that recent governmental defenses of the statute assert that DOMA also serves such interests as “preserving the status quo,” “eliminating inconsistencies and easing administrative burdens” of the government. None of these post hoc defenses of DOMA withstands heightened scrutiny..... In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law.... 

In an unusual move, all 20 judges of the bankruptcy court signed the opinion in the case. Wall Street Journal reports on the decision.

U.S. Congressman Will Introduce Bill To Bar San Francisco's Attempt To Outlaw Circumcision

Rep. Brad Sherman (D-CA) announced yesterday that he plans to introduce a bill into Congress that would prevent San Francisco and other cities from banning male circumcision of minors.  Currently, San Francico voters are scheduled to vote on a ban in November. (See prior posting.) Sherman said: "The Religious and Parental Rights Defense Act of 2011ensures that Jewish and Muslim families will continue to be able to enjoy the free exercise of their religious beliefs." According to the Los Angeles Jewish Journal, Sherman's bill takes an approach similar to that taken by RLUIPA in protecting religious freedom in prisoner and zoning cases. [Thanks to Jonah Lowenfeld for the lead.]

Federal Court Says Judge Did Not Need To Recuse Himself In Proposition 8 Case

Yesterday, California federal district judge James Ware held, in Perry v. Schwarzenegger, (ND CA, June 14, 2011), that now-retired federal judge Vaughn Walker did not act improperly in failing to recuse or disqualify himself from deciding a challenge to California's Proposition 8. That state constitutional amendment barred same-sex marriage in the state, and Judge Walker's decision found Proposition 8 to be inconsistent with the federal constitution. (See prior posting.) Judge Walker was involved in a same-sex relationship at the time he heard and decided the case. However in yesterday's decision, Judge Ware held:

The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification.

The New York Times reports on yesterday's decision.

Also yesterday in a separate opinion in the case (full text), Judge Ware found no reason to require the parties in the case to return to the court video copies of the trial proceedings that had been given to them. He also set an August 29 hearing date on a motion to lift the protective order that bars public disclosure of the trial videos.

UPDATE: AP reports that backers of Proposition 8 will appeal Judge Ware's decision that refused to disqualify Judge Walker.

UEP Trust Fiduciary Wants Utah To Pay Administrative Costs That Are Owed

In the latest twist in the convoluted litigation attempting to reform the polygamous FLDS Church's United Effort Plan Trust, Bruce Wisan, the special fiduciary for the trust appointed by a Utah judge, is now asking that the court order the state to pay the $4.6 million in administration costs that have accumulated for the trust.  The Deseret News reported Monday that fees owed to lawyers and to Wisan's own accounting firm remain unpaid, as do amounts owed to an engineering firm, a surveying firm and a public relations firm.  Also some $2 million in property taxes is owed.  These costs were supposed to have been paid from proceeds of the sale of property and from court-imposed monthly occupancy fees that were assessed on those living on trust property.  However most FLDS members have refused to pay the occupancy fees, and litigation challenging the trust reformation has prevented property sales from being completed. The Utah Attorney General's office, however, argues that Wisan's request violates court orders freezing everything but the most necessary administrative work pending the outcome of challenges to jurisdiction of the Utah state courts over the trust. (See prior posting.)

Push In New York For Same-Sex Marriage, Opposed By Catholic Church

In the closing days of the legislative session in New York state, efforts are again under way by Gov. Andrew Cuomo to obtain passage of a bill to legalize same-sex marriage.  The state Senate defeated a same-sex marriage bill in 2009, but now, according to the Wall Street Journal yesterday, several senators have shifted their positions and the measure-- which has apparently not yet been formally introduced-- is only two votes shy of passage. So far only one Republican Senator has publicly pledged to vote in favor of the bill, but (according to AP) others Republican votes would follow if  the legislation contained exemptions so that churches, religious organizations and individuals opposed to gay marriage could not be required to perform or host them. New York's Catholic Archbishop Timothy Dolan has strongly opposed the measure.  In a posting yesterday on the Archdiocese's website, he said:

Last time I consulted an atlas, it is clear we are living in New York, in the United States of America – not in China or North Korea. In those countries, government presumes daily to “redefine” rights, relationships, values, and natural law. There, communiqués from the government can dictate the size of families, who lives and who dies, and what the very definition of “family” and “marriage” means.

But, please, not here! Our country’s founding principles speak of rights given by God, not invented by government, and certain noble values – life, home, family, marriage, children, faith – that are protected, not re-defined, by a state presuming omnipotence.

Please, not here! We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a “right.” And, what about other rights, like that of a child to be raised in a family with a mom and a dad?
Our beliefs should not be viewed as discrimination against homosexual people. The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like. This is not about denying rights. It is about upholding a truth about the human condition.

U.S. Religious Freedom Ambassador Calls On Political Leaders To Condemn Religious Intolerance

The United States' new Ambassador-at-Large for International Religious Freedom, Suzan Johnson Cook, spoke yesterday in Geneva, Switzerland at a panel on "Combating Intolerance and Discrimination Based on Religion or Belief" arranged by the Office of the U.N. High Commissioner for Human Rights. (Full text of remarks.) She said in part:

States have tools at their disposal to combat religious intolerance; in many cases what is needed is the political will to use them. Governments need to develop robust legal protections to address acts of discrimination against individuals and bias-inspired violent crimes. Each country should determine if it has laws on the books that allow it to prosecute individuals who discriminate on the basis of religion in hiring, access to public accommodation and other aspects of public life, or who commit violence on that basis. Each country should determine if it has a capable and dedicated band of investigators and prosecutors to enforce such laws. Even more importantly, leaders in government, politics, religion, business and the rest of society must stand ready to condemn hateful ideology; and to vigorously defend the rights of individuals to practice their religion freely and exercise their freedom of expression. Leaders who remain silent are contributing to the problem and should be held politically accountable.....

Rather than seek prohibitions on offensive expression, the United States advocates for other measures such as urging political, religious, and societal leaders to speak out and condemn offensive expression; creating a mechanism to identify areas of tension between communities; training government officials on outreach strategies; and encouraging leaders to discuss causes of discrimination and potential solutions with their communities. Indeed, we believe that laws seeking to limit freedom of expression in the name of protecting against offensive speech are actually counterproductive. The suppression of speech often actually raises the profile of that speech, sometimes giving even greater voice to speech that others might find offensive. In some countries, politicians will not condemn offensive speech, but instead will defer to the courts to judge if it is legally prohibited. In our view it is far more effective if political leaders know that they cannot point to the law as an excuse for doing little to nothing. They have a moral and political obligation to use their own freedom of expression to lead a strong counter effort, and should be held to account politically.

Cert. Petition Filed In Courtroom 10 Commandments Poster Case

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in DeWeese v. ACLU of Ohio Foundation, Inc.  In the case, the U.S. 6th Circuit Court of Appeals held that a display posted in a courtroom by a state common pleas court judge violates the Establishment Clause. Next to a poster of the Bill of Rights, the judge hung another poster that compared the "Moral Absolutes" of the Ten Commandments with ten parallel principles of "Moral Relatives: Humanist Principles." (See prior posting.) ACLJ issued a press release announcing the filing of the cert. petition.

Spanish Parliamentarian Is Sworn In Using Crucifix

In Spain, a Catholic member of Parliament, Juan Cotino, provoked some criticism when he insisted on taking his oath of office using a crucifix.  CNA yesterday reported that Cotino placed a crucifix next to a copy of the Constitution and the Bible as he was sworn in on June 9. Father Jose Maria Gil Tamayo, a member of the Pontifical Council for Social Communications, however, praised Cotino, saying that his act was "an eloquent and courageous public gesture."

Supreme Court Denies Review In Pledge of Allegiance Case

The U.S. Supreme Court yesterday denied certiorari in Freedom From Religion Foundation v. United States, (Docket No. 10-1214, cert. denied 6/13/2011) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals rejected an Establishment Clause challenge to New Hampshire's School Patriot Act that requires a time during the school day for voluntary recitation of the pledge of allegiance. (See prior posting). School Law yesterday reported on the denial of cert.

Lawsuit Challenges Tennessee Limits On Local Bias Laws

WSMV-TV reported  on a state court lawsuit filed yesterday challenging a new Tennessee law barring local governments from enacting different anti-discrimination protections than are provided by state law. (See prior posting.) The new law invalidates a Nashville ordinance that goes beyond state law by prohibiting companies doing business with the city from discriminating on the basis of sexual orientation.  The state law apparently also invalidates a Nashville school board policy that protected gay and lesbian students against bullying.  Plaintiffs in the lawsuit include three Nashville city council members and a former Belmont University soccer coach who was forced to resign when she disclosed that her same-sex partner was pregnant. The lawsuit claims that the state law violates the constitution's equal protection clause.

Suits Challenge Religious Leaders In Two New York Hasidic Enclaves

AP reported yesterday on lawsuits were filed  by religious dissidents in two New York towns that are essentially Orthodox Jewish Hasidic enclaves.  In a federal court lawsuit, followers of Brooklyn Satmar Rabbi Zalman Teiltelbaum who make up some 40% of the population of Kiryas Joel sued seeking dissolution of the city or alternatively a ban on religious leaders holding city office for 25 years.  Plaintiffs claim that the majority in Kikryas Joel, followers of grand rebbe Aron Teiltelbaum (brother of Zalman), have taken over the village and selectively enforce the village's property tax and zoning laws in a manner to discriminate against plaintiffs. It also alleges voting fraud and intimidation of voters.

In an unrelated state lawsuit, the family of a victim of an arson attack (see prior posting) is seeking $36 million in damages from New Square, New York's grand rebbe David Twersky-- the leader of the town's Skverer Hasidic sect. The suit claims that Twersky directed the arson attack that injured New Square dissident Aron Rottenberg who began attending a different synagogue outside New Square.

Republican Debate Includes Discussion of Church-State Issues and Attitudes Toward Muslims

Last night's CNN debate among 7 Republican candidates for the Presidential nomination included an extensive exchange on separation of church and state, and attitudes toward American Muslims. Here is a lengthy excerpt from the full transcript:

[Question from audience:] I'm just wondering what your definition of the separation of church and state is and how it will affect your decision-making.

KING: Governor Pawlenty, I want you to take that one first.

PAWLENTY: Well, the protections between the separation of church and state were designed to protect people of faith from government, not government from people of faith. This is a country that in our founding documents says we're a nation that's founded under God, and the privileges and blessings at that we have are from our creator. They're not from our member of Congress. They're not from our county commissioner.

And 39 of the 50 states have in the very early phrases of their constitutions language like Minnesota has in its preamble. It says this, "We the people of Minnesota, grateful to God for our civil and religious liberties," and so the Founding Fathers understood that the blessings that we have as a nation come from our creator and we should stop and say thanks and express gratitude for that. I embrace that.

(CHEERS AND APPLAUSE)

KING: Let's spend a little time talking. Let's spend a little bit of time talking about it.
Senator, let's start with you. Just what role does faith play in your political life? Are there decisions, certain issues where some might you just, let's meet with my advisers, what does my gut say, and others where you might retreat and have a moment of private prayer?

SANTORUM: I'm some who believes that you approach issues using faith and reason. And if your faith is pure and your reason is right, they'll end up in the same place.

I think the key to the success of this country, how we all live together, because we are a very diverse country -- Madison called it the perfect remedy -- which was to allow everybody, people of faith and no faith, to come in and make their claims in the public square, to be heard, have those arguments, and not to say because you're not a person of faith, you need to stay out, because you have strong faith convictions, your opinion is invalid. Just the opposite -- we get along because we know that we -- all of our ideas are allowed in and tolerated. That's what makes America work.

KING: Congressman Paul, does faith have a role in these public issues, the public square, or is it a personal issue at your home and in your church?

PAUL: I think faith has something to do with the character of the people that represent us, and law should have a moral fiber to it and our leaders should. We shouldn't expect us to try to change morality. You can't teach people how to be moral.

But the Constitution addresses this by saying -- literally, it says no theocracy. But it doesn't talk about church and state. The most important thing is the First Amendment. Congress shall write no laws -- which means Congress should never prohibit the expression of your Christian faith in a public place.

KING: OK. Great. Let's go down to Josh McElveen, and let's continue the conversation.

(CHEERS AND APPLAUSE)

MCELVEEN: Thank you.

While we're on the topic of faith and religion, the next question goes to Mr. Cain. You recently said you would not appoint a Muslim to your cabinet and you kind of back off that a little bit and said you would first want to know if they're committed to the Constitution. You expressed concern that, quote, "a lot of Muslims are not totally dedicated to this country."

Are American-Muslims as a group less committed to the Constitution than, say, Christian or Jews?

CAIN: First, the statement was would I be comfortable with a Muslim in my administration, not that I wouldn't appoint one. That's the exact transcript.

And I would not be comfortable because you have peaceful Muslims and then you have militant Muslims, those that are trying to kill us.

And so, when I said I wouldn't be comfortable, I was thinking about the ones that are trying to kill us, number one.

Secondly, yes, I do not believe in Sharia law in American courts. I believe in American laws in American courts, period. There have been instances -

(CHEERS AND APPLAUSE)

CAIN: There have been instances in New Jersey -- there was an instance in Oklahoma where Muslims did try to influence court decisions with Sharia law. I was simply saying very emphatically, American laws in American courts.

KING: So, on that point, Governor Romney let me come to you on this.

What Mr. Cain is saying that he would have -- my term, not his -- a purity test or a loyalty test. He would want to ask a Muslim a few question or a few questions before he hired them, but he wouldn't ask those questions of a Christian or Jew.

CAIN: Sorry. No, you are restating something I did not say, OK? If I may, OK?

KING: Please let's make it clear.

CAIN: When you interview a person for a job, you look at their -- you look at their work record, you look at their resume, and then you have a one-on-one personal interview. During that personal interview, like in the business world and anywhere else, you are able to get a feeling for how committed that person is to the Constitution, how committed they are to the mission of the organization --

KING: When I asked -- I asked this question the other night, though, you said you want to ask a Muslim those questions but you didn't you have to ask them to a Christian or a Jew?

CAIN: I would ask certain questions, John. And it's not a litmus test. It is simply trying to make sure that we have people committed to the Constitution first in order for them to work effectively in the administration.

KING: Should one segment, Governor -- I mean, one segment of Americans, in this case, religion, but in any case, should one segment be singled out and treated differently?

ROMNEY: Well, first of all, of course, we're not going to have Sharia law applied in U.S. courts. That's never going to happen. We have a Constitution and we follow the law.

No, I think we recognize that the people of all faiths are welcome in this country. Our nation was founded on a principal of religious tolerance. That's in fact why some of the early patriots came to this country and we treat people with respect regardless of their religious persuasion.

Obviously, anybody who would come into my administration would be someone who I knew, who I was comfortable with, and who I believed would honor as their highest oath -- their oath to defend and protect the Constitution of the United States.

KING: Mr. Speaker, go ahead.

GINGRICH: I just want to comment for a second. The Pakistani who emigrated to the U.S. became a citizen, built a car bomb which luckily failed to go off in Times Square was asked by the federal judge, how could he have done that when he signed -- when he swore an oath to the United States. And he looked at the judge and said, "You're my enemy. I lied."

Now, I just want to go out on a limb here. I'm in favor of saying to people, if you're not prepared to be loyal to the United States, you will not serve in my administration, period.

(APPLAUSE)

GINGRICH: We did this -- we did this in dealing with the Nazis and we did this in dealing with the communists. And it was controversial both times, and both times we discovered after a while, you know, there are some genuinely bad people who would like to infiltrate our country. And we have got to have the guts to stand up and say no. 

Republican Presidential Debate Covers Gay Marriage, DADT, Abortion Rights

Last night's CNN debate between 7 Republican candidates for the Presidential nomination included a lengthy exchange on same-sex marriage, repeal of "don't ask, don't tell" and abortion rights.  Here is the excerpt from the full transcript:

[JOHN] DISTASO:... Congresswoman Bachmann, let's turn to a serious subject.
New Hampshire is one of five states where individuals who happen to be gay can marry legally. This is a question of conflicting interest. I know you're opposed to same-sex marriage.
As president, would you try to overturn -- what influence would you use from the White House to try to overturn these state laws despite your own personal belief that states should handle their own affairs whenever possible and in many circumstances?

BACHMANN: Well, I do believe in the 10th Amendment and I do believe in self-determination for the states.

I also believe that marriage is between a man and a woman. I carried that legislation when I was a senator in Minnesota, and I believe that for children, the best possible way to raise children is to have a mother and father in their life.

Now, I didn't come from a perfect background. My parents were divorced. And I was raised by a single mother. There's a lot of single families and families with troubled situations. That's why my husband and I have broken hearts for at-risk kids and it's why we took 23 foster children into our home.

DISTASO: What would a President Bachmann do to initiate or facilitate a repeal law on the state level? Anything at all from the White House? Would you come into the state of New Hampshire, for instance, and campaign on behalf of a repeal law?

BACHMANN: I'm running for the presidency of the United States. And I don't see that it's the role of a president to go into states and interfere with their state laws.

(CHEERS AND APPLAUSE)

KING: On that point -- on that point, to voters out there for whom this is an important issue, let's try to quickly go through it. Let me start at this end, we'll just go right through. I'll describe it this way. Are you a George W. Bush Republican, meaning a constitutional amendment to ban same-sex marriage, or a Dick Cheney who, like I believe, the congresswoman just said, this should be made -- this decision, same sex marriage, should be a state's decision?

CAIN: State's decision.

QUESTION: Yes.

PAWLENTY: I support a constitutional amendment to define marriage between a man and woman. I was the co-author of the state -- a law in Minnesota to define it and now we have courts jumping over this.

KING: OK. Let's just go through this.

PAUL: The federal government shouldn't be involved. I wouldn't support an amendment. But let me suggest -- one of the ways to solve this ongoing debate about marriage, look up in the dictionary. We know what marriage is all about.

But then, get the government out of it. Why doesn't it go to the church? And why doesn't it to go to the individuals? I don't think government should give us a license to get married. It should be in the church.

KING: Governor Romney, constitutional amendment or state decision? ROMNEY: Constitutional.

KING: Mr. Speaker?

GINGRICH: Well, I helped author the Defense of Marriage Act which the Obama administration should be frankly protecting in court. I think if that fails, at that point, you have no choice except to (ph) constitutional amendment.

KING: We heard the congresswoman's answer, Senator.

SANTORUM: Constitutional amendment. Look, the constitutional amendment includes the states. Three-quarters of the states have to -- have to ratify it. So the states will be involved in this process. We should have one law in the country with respect to marriage. There needs to be consistency on something as foundational as what marriage is.

KING: Very quickly?

BACHMANN: John, I do support a constitutional amendment on -- on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

KING: All right, let me ask you another question. The Obama administration is in the process -- and Leon Panetta, who's the new defense secretary, will implement -- essentially, the repeal of "don't ask/don't tell" so gays will be allowed to serve openly in the military. I want to ask each of you -- and, again, if we can be quickly, because then we want to get to the voters question -- if you were president -- if you become president of the United States, now gays are allowed to serve openly in the military, would you leave that policy in place or would you try to change it, go back to "don't ask/don't tell," or something else?

CAIN: If I had my druthers, I never would have overturned "don't ask/don't tell" in the first place. Now that they have changed it, I wouldn't create a distraction trying to turn it over as president. Our men and women have too many other things to be concerned about rather than have to deal with that as a distraction.

KING: Leave it in place if you inherit the new Obama administration policy or try to overturn it?

PAWLENTY: John, we're a nation in two wars. I think we need to pay deference to our military commanders, particularly our combatant commanders, and in this case, I would take my cues from them as to how this affects the military going forward. I know they expressed concerns -- many of the combatant commanders did -- when this was originally repealed by the Obama administration.

KING: Congressman?

PAUL: I would not work to overthrow it. We have to remember, rights don't come in groups. We shouldn't have gay rights. Rights come as individuals. If we would (ph) have this major debate going on, it would be behavior that would count, not the person who belongs to which group.

(APPLAUSE)

KING: Leave it in place, what you inherit from the Obama administration or overturn it?

ROMNEY: Well, one, we ought to be talking about the economy and jobs. But given the fact you're insistent, the -- the answer is, I believe that "don't ask/don't tell" should have been kept in place until conflict was over.

KING: Mr. Speaker?

GINGRICH: Well, I think it's very powerful that both the Army and the Marines overwhelmingly opposed changing it, that their recommendation was against changing it. And if as president -- I've met with them and they said, you know, it isn't working, it is dangerous, it's disrupting unit morale, and we should go back, I would listen to the commanders whose lives are at risk about the young men and women that they are, in fact, trying to protect.

KING: Congresswoman?

BACHMANN: I would -- I would keep the "don't ask/don't tell" policy.

KING: So you would -- whatever the Obama administration does now, you would go -- try to go back? You'd try to reverse what they're doing?

BACHMANN: I would, after, again, following much what the speaker just said, I would want to confer with our commanders-in-chief and with -- also with the Joint Chiefs of Staff, because I'd want to know how it was being implemented and if it has -- had had the detrimental effects that have been suggested that will come.

KING: All right. Last word on this issue, Senator?

SANTORUM: The job of the United States military is to protect and defend the people of this country. It is not for social experimentation. It should be repealed. And the commanders should have a system of discipline in place, as Ron Paul said, that punishes -- that punishes bad behavior.

KING: Let's go back down to the floor here. Jennifer Vaughn has a question.

VAUGHN: Thanks, John.

Senator Santorum, staying with you for a moment, if I may, you are staunchly pro-life. Governor Romney used to support abortion rights until he changed his position on this a few years ago. This has been thoroughly discussed. But do you believe he genuinely changed his mind, or was that a political calculation? Should this be an issue in this primary campaign?

SANTORUM: I think -- I think an issue should be -- in looking at any candidate is looking at the authenticity of that candidate and looking at their -- at their record over time and what they fought for. And I think that's -- that a factor that -- that should be determined.

You can look at my record. Not only have I been consistently pro-life, but I've taken the -- you know, I've not just taken the pledge, I've taken the bullets to go out there and fight for this and lead on those issues. And I think that's a factor that people should consider when you -- when you look, well, what is this president going to do when he comes to office?

A lot of folks run for president as pro-life and then that issue gets shoved to the back burner. I will tell you that the issue of pro-life, the sanctity and dignity of every human life, not just at birth, not just on the issue of abortion, but with respect to the entire life, which I mentioned welfare reform and -- and the dignity of people at the end of life, those issues will be top priority issues for me to make sure that all life is respected and held with dignity.

(APPLAUSE)

KING: Governor Romney, let me give you -- take -- take 20 or 30 seconds, if there's a Republican out there for whom this important, who questions your authenticity on the issue?

ROMNEY: People have had a chance to look at my record and look what I've said as -- as I've been through that last campaign. I believe people understand that I'm firmly pro-life. I will support justices who believe in following the Constitution and not legislating from the bench. And I believe in the sanctity of life from the very beginning until the very end.

KING: Is there anybody here who believes that that's an issue in the campaign, or is it case closed?

(UNKNOWN): Case closed.

KING: Case closed it is. All right. Let's move on to the questions.
Tom Foreman is standing by up in Rochester.

FOREMAN: Hi, John. Representative Bachmann, I have a question for you. Governor Pawlenty says he opposes abortion rights except in cases of rape, incest, or when the mother's life is at stake. Do you have any problem with that position? And if so, why?

BACHMANN: I am 100 percent pro-life. I've given birth to five babies, and I've taken 23 foster children into my home. I believe in the dignity of life from conception until natural death. I believe in the sanctity of human life.

And I think the most eloquent words ever written were those in our Declaration of Independence that said it's a creator who endowed us with inalienable rights given to us from God, not from government. And the beauty of that is that government cannot take those rights away. Only God can give, and only God can take.

And the first of those rights is life. And I stand for that right. I stand for the right to life. The very few cases that deal with those exceptions are the very tiniest of fraction of cases, and yet they get all the attention. Where all of the firepower is and where the real battle is, is on the general -- genuine issue of taking an innocent human life. I stand for life from conception until natural death.

(APPLAUSE)

KING: All right. Governor Pawlenty, it was your position that was brought into the question. We'll give you a few seconds.

PAWLENTY: Well, this is a great example where we can look at our records. The National Review Online, which is a conservative publication, said based on results -- not just based on words -- I was probably the most pro-life candidate in this race.

As governor of the state of Minnesota, I appointed to the Supreme Court a conservative court for the first time in the modern history of my state. We passed the most pro-life legislation anytime in the modern history of the state, which I proposed and signed, including women's right to know, including positive alternatives to abortion legislation, and many others.

I'm solidly pro-life. The main pro-life organization in Minnesota gives me very, very high marks. And I haven't just talked about these things; I've done it.

UK Court Faces Prisoner Free Exercise Claim

A prisoner free exercise decision handed down last month by Britain's Administrative Court is interesting as a comparison to the approach under the 1st Amendment and RLUIPA routinely taken to such cases in the U.S. In Bashir, R (on the application of) v The Independent Adjudicator , (EWHC Admin., May 3, 2011), a devout Muslim prisoner on the advice of an imam was engaged in a 3-day personal fast in religious preparation for his Court of Appeal appearance when he was asked for a urine sample for a random drug test.  He was convicted of violating prison regulations when he refused to drink enough water to allow him to give a sufficient urine sample for the test.  The court reversed the conviction imposed by the independent adjudicator, holding that under Art. 9 of the European Convention on Human Rights it needed to be determined whether the interference with religion was proportionate to the end pursued. The court concluded:

There was no evidence before the Adjudicator which enabled him to conclude (as apparently he did) that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required to do so for the purposes of providing a MDT sample regardless of the circumstances. In any event some care needs to be taken before a Court accepts at face value assertions of an un-particularised sort that making reasonable adjustments would be too administratively inconvenient or too expensive to be contemplated.

UK Human Rights Blog reported on the decision last week. [Thanks to Peter Griffith for the lead.]

Recent Articles Of Interest

From SSRN:

• Thomas Charles Berg, The Story of the School Prayer Decisions: Civil Religion under Assault, (First Amendment Stories, Richard Garnett, Andrew Koppelman, eds., Foundation Press, 2011).
• Zachary R. Calo, Review of Defending Constantine by Peter Leithart, (Modern Age, Forthcoming).
• Aviva Orenstein, Once We Were Slaves, Now We are Free: Legal, Administrative, and Psychosocial Issues Raised by Passover Celebrations in Prison, (Indiana Legal Studies Research Paper No. 195, June 6, 2011).
• Michaek G. Freedman, Prosecuting Terrorism: The Material Support Statute and Muslim Charities, (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, pp. 1113-1147, 2011).
• Marie A. Failinger, Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court, (Michigan Journal of Race and Law, Forthcoming).
• Marie A. Failinger, Islam in the Mind of American Courts: 1800-1960, (Boston College Third World Law Journal, Forthcoming).
• Ruth E. Gavison, Can Israel Be Both Jewish and Democratic?, (R. Gavison, Israel as a Jewish and Democratic State, p. 115, 2011).
• Kevin Lee Brady, Religious Sincerity and Imperfection: Can Lapsing Prisoners Recover Under RFRA and RLUIPA?, (University of Chicago Law Review, 2011).
• Ross J. Corbett, Locke's Biblical Critique, (March 3, 2011).
• Nimat H. Barazangi, Why Muslim Women are Re-Interpreting the Qur'an: A Transformative Scholarship Activism, (Sept 16, 2010).
• Nomi Maya Stolzenberg, Righting the Relationship between Race and Religion in Law, (Oxford Journal of Legal Studies, 2011).

From SmartCILP and elsewhere:

• Jose Ambrozic, Beyond Public Reason on Energy Justice: Solidarity and Catholic Social Teaching, [Abstract], 21 Colorado Journal of International Environmental Law and Policy 381-398 (2010).
• Jorge O. Elorza, Secularism and the Constitution: Can Government Be Too Secular?, 72 University of Pittsburgh Law Review 53-117 (2010).
• Symposium: The Future of Rights of Conscience in Health Care: Legal and Ethical Perspectives. Preface by James W. Devine; articles by Lynn D. Wardle, Kent Greenawalt, Robert K. Vischer, Armand H. Matheny Antommaria, Robin Fretwell Wilson, Richard S. Myers, Jill Morrison, Micole Allekotte and T.A. Cavanaugh. 9 Ave Maria Law Review 1-206 (2010).
• Reviewing Douglas Laycock's Religious Liberty, Volume One: Overviews and History. Book reviews by Thomas C. Berg, Steven D. Smith and Jay Wexler; response by Douglas Laycock. 89 Texas Law Review 901-966 (2011).
• Signs of the Times: The First Amendment and Religious Symbolism. Essays by Peter Irons and Thomas C. Berg; panel discussion with Joseph Thai, moderator; Carl H. Esbeck, Eduardo Penalver, Kevin Theriot, Micheal Salem and Rick Tepker. 63 Oklahoma Law Review 1-100 (2010).
• Symposium. Civil Religion in the United States and Europe. Introduction by Silvio Ferrari; articles by Blandine Chelini-Pont, Pasquale Annicchino, Emmanuel Tawil, Alessandro Ferrari, Andrew Koppelman, Winnifred Fallers Sullivan, Frederick Gedicks, David Fontana, Pierre-Henri Prelot, Michael Perry, Marco Ventura, and Talip Kucukcan; afterword by Brett Scharffs. 41 George Washington International Law Review 749-1000 (2010).
• Meir Katz, The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application, Engage Volume 12, Issue 1, June 2011.
• Luke Goodrich, The Health Care and Conscience Debate, Engage Volume 12, Issue 1, June 2011.

Canadian School Board Proposes Elaborate Religious Guidelines

In Canada, Ontario's Hamilton-Wentworth school district has posted for comment an elaborate and interesting 11-page set of guidelines for religious accommodation in the schools. (Full text). Life Site News last week reported, however, that conservative Christian groups are criticizing the guidelines because of the guidelines' definition of what constitutes a protected religious creed:

Creed does not include secular, moral, or ethical beliefs or political convictions. This policy does not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that purport to have a religious basis, but which contravene international human rights standards or criminal law.

The head of the local Family Action Council contends that this language: "unjustly discriminates against Christians by re-defining religion to exclude moral beliefs."

Sri Lanka's Promotion of Buddha Statues Interferes With Secular Image of Nation

Sri Lankan diplomats are concerned about the Sri Lankan government's decision to send 26 Buddha statues to Sri Lankan missions overseas.  Today's Sri Lanka Sunday Leader reports that the move, organized by the Sri Lanka Bureau of Foreign Employment and the Presidential Secretariat last week, interferes with attempts to portray the country internationally as a secular state. The statues were sent to mark the 2,600th Sambuddhathva Jayanthi. Religious ceremonies surrounded the transport of the statues to Colmbo en route to their overseas destinations.