3rd Circuit: School Board Prayer Governed By School Prayer Tests, Not By Test For Legislative Invocations

In Doe v. Indian River School District, (3d Cir., Aug. 5, 2011), the U.S. 3rd Circuit Court of Appeals held that the test for whether prayers opening school board meetings violate the Establishment Clause is the test used for prayer at school events (Lee v. Weisman) , not the test for when invocations are permitted in legislative bodies  (Marsh v. Chambers). The Indian River, Delaware, school board routinely opened its meetings with a prayer offered by one of the board members, on a rotating basis. The prayers that were delivered were almost always Christian in their orientation. The court held that since students almost always attend Board meetings, either to receive awards or as part of their extracurricular activities or to comment on school policies, these meetings are analogous to graduation ceremonies which, while not technically mandatory, nevertheless result in students feeling coerced into participating in religious exercises. The court then found that the Board's prayer policy has the primary effect of advancing religion and involves excessive entanglement of government with religion. Board members are government actors composing and delivering prayers.  The Wilmington News Journal reports on the decision. (See prior related posting.)

President Takes Steps To Counter Future Mass Atrocities and Genocides

The White House yesterday announced two major steps taken by President Obama designed to help prevent mass atrocities and prevent the United States from becoming a haven for serious human rights violators.  Obama issued a Presidential Study Directive on Mass Atrocities (full text) creating an Interagency Atrocities Prevention Board and ordering an interagency study on implementing the new Board's role.  The memorandum explains the goal of the new arrangements:

Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed. By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing. The actions that can be taken are many they range from economic to diplomatic interventions, and from non combat military actions to outright intervention. But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.

Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide. This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.

Obama also issued a Presidential Proclamation (full text) barring (with exceptions for foreign policy reasons) entry into the United States of:

(a) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race; color; descent; sex; disability; membership in an indigenous group; language; religion; political opinion; national origin; ethnicity; membership in a particular social group; birth; or sexual orientation or gender identity, or who attempted or conspired to do so.

(b) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so.

Priest Abuse Plaintiffs In Delaware Settle With Religious Order

In Delaware yesterday, plaintiffs in numerous priest sexual abuse lawsuits agreed to a settlement with the Oblates of St. Francis Desales.  According to WDEL News, the Catholic religious order will pay $24.8 million to 39 plaintiffs. This comes a week after a federal bankruptcy court confirmed a bankruptcy plan of reorganization of the Diocese of Wilmington. (See prior posting.) Earlier this year, the Delaware Supreme Court rejected a challenge by the Oblates of St. Francis Desales to the state law that created a 2-year window for filing of sex abuse claims that were previously barred by the statute of limitations. (See prior posting.)

Jeffs Convicted On 2 Counts of Sexual Assault of Child

According to CNN, a jury in San Angelo, Texas yesterday found FLDS leader Warren Jeffs guilty on two counts of sexual assault of a child.  The victims were 12 and 14 year old girls who were Jeffs' "spiritual wives".  The jury deliberated for less than 4 hours in reaching its verdict, after a trial in which Jeffs represented himself and invoked religious freedom as a defense. A second phase of the trial which began yesterday evening will determine Jeffs' sentence, which could be as much as life in prison. The Salt Lake Tribune reports that yesterday also the Principle Rights Coalition-- representing 5 polygamous churches-- denounced Jeffs' child abuse (full text of statement), saying in part:

As new evidence has surfaced in Texas detailing reprehensible acts of sexual abuse against children as young as twelve years old, we are alarmed that such depravity could have been perpetrated by anyone... We repudiate and denounce Warren Jeffs’ inappropriate actions in linking his despicable and unconscionable acts to the Gospel of Jesus Christ and to Joseph Smith Jr. and Mormonism.

6th Circuit Refuses Modification of 16 Year Old Church Zoning Consent Decree

In Northridge Church v. Charter Township of Plymouth, (6th Cir., July 28, 2011), the U.S. 6th Circuit Court of Appeals refused to set aside or modify a consent judgment that had been entered 16 years earlier in a case involving an attempt by a large congregation to obtain zoning approval for construction of a church building and related recreational facilities. Among the restrictions set out in the consent decree were limitation of the church's total auditorium seating to no more than 3,500 and no more than 1,167 parking spaces. At the time of the consent decree, average Sunday church attendance was 1,100. It has now grown to 14,000-- requiring multiple weekly services and costly shuttle buses. The court rejected the church's argument that the enactment of RLUIPA 5 years after the entry of the consent decree voided the judgment. The court also concluded that RLUIPA did not create sufficient changed legal circumstances to justify a modification of the decree since at the time of the decree RFRA was in effect and had not yet been invalidated in its application to states. Finally the court concluded that there had not been a sufficient change in factual circumstances to find that the district court had abused its discretion in refusing to modify the consent judgment. [Thanks to Brian D. Wassom for the lead.]

White House Releases New Plan For Supporting Local Efforts Against Violent Extremism

The White House yesterday released the President's plan for Empowering Local Partners to Prevent Violent Extremism in the United States (full text). The report sets out a community-based approach that includes greater support and information sharing with local officials.  In his introduction to the report, President Obama says:

As we approach the 10th anniversary of the September 11 attacks, we remember that al-Qa'ida tried to spark a conflict between faiths and divide us as Americans. But they failed.

Addressing the threat of extremist propaganda, the report says:

we must counter al-Qa’ida’s propaganda that the United States is somehow at war with Islam.... Al-Qa’ida and its supporters spread messages of hate, twist facts, and distort religious principles to weave together a false narrative that Muslims must attack Americans everywhere because the United States is waging a global war against Islam. While al-Qa’ida claims to be the vanguard of Islam, the overwhelming majority of its victims are Muslim.

We will challenge this propaganda through our words and deeds, defined by the very ideals of who we are as Americans. As the President has stated repeatedly, the United States is not, and never will be, at war with Islam. Islam is part of America, a country that cherishes the active participation of all its citizens, regardless of background and belief. We live what al-Qa’ida violently rejects—religious freedom and pluralism.... 

The report also emphasizes that : "Strong religious beliefs should never be confused with violent extremism."

U.S. House Files Memo In Court Supporting DOMA

As previously reported, after the Obama administration announced that it would no longer defend the constitutionality of the federal Defense of Marriage Act, the U.S. House of Representatives decided to defend the constitutionality of the statute.  New York Law Journal reports that on Monday, lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives filed a memorandum of law (full text) in one of the cases in which the House is defending DOMA.  The case is Windsor v. United States, (SD NY), in which the surviving spouse of a same-sex marriage performed in Canada is seeking to have her marriage recognized for federal estate tax purposes. The memo argues that the court should apply merely rational basis review in assessing the challenge to DOMA, and that the courts should leave any redefinition of marriage to the democratic process. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Tennessee City's Resolution Supporting Israel Criticized For Religious References

The Mt. Juliet, Tennessee City Commission at its July 25 meeting passed, by a 4-1 vote, a resolution (full text Word.doc) supporting the nation of Israel.  The Tennessean, however, reports that one person at the meeting objected on First Amendment grounds to one of the eight "Whereas" clauses with which the resolution begins.  That clause reads: "WHEREAS, the Lord of Abraham, Isaac, and Jacob promises in Genesis 12:3 to bless those that bless Israel: 'I will bless them that bless thee, and curse him that curseth thee: and in thee shall all families of the earth be blessed.'" The vice-mayor said he saw nothing in the resolution that established a state-run church.

Court Upholds Constitutionality of New York's Kosher Law Protection Act

In Commack Self-Service Kosher Meats, Inc. v. Hooker, (ED NY, Aug. 3, 2011), a New York federal district court upheld the constitutionality of New York's 2004 Kosher Law Protection Act (Agr. and Mkts. L. Sec. 201-A to 201-D).  The law was passed after an earlier version was declared unconstitutional.  Under the 2004 law, producers, sellers and certifiers of kosher food are required to file various disclosures with the state identifying the qualifications of certifiers of food being sold as kosher. This information is made available in an online registry for consumers. The court rejected an Establishment Clause challenge, finding that the state had a secular purpose in enacting the law and that the law does not favor one religious group over another. The court said:

The State cannot define what is and is not kosher because that is a matter of religious law. But the state is entitled to protect all purchasers of food represented to be kosher, whatever their religion, from fraud....

In contrast to the previously challenged statutes, which constituted the advancement of Orthodox Judaism because they defined "kosher" as meeting "orthodox Hebrew religious requirements," the current version of the Act is purely a labeling and disclosure law.

The court also rejected claims of excessive entanglement of religion and state.  Plaintiff argued that "there is entanglement between the Orthodox religious community and the State's political elite."  But the court said that  prohibited entanglement is only present when the government is being charged with enforcing a set of religious laws. Additionally, court also rejected plaintiffs' free exercise claims, finding that the law does not restrict any religious practice, nor does it require the use of any particular symbol to identify food as kosher. Reuters reports on the decision.

Justice Department Settles With California City In RLUIPA Zoning Case

The Department of Justice announced yesterday that it has entered a settlement agreement with the city of Walnut, California in a lawsuit claiming the city violated the Religious Land Use and Institutionalized Persons Act when, in 2008, it denied a conditional use permit to the Chung Tai Zen Center that wanted to build a temple on land it owned.  The denial led the Zen Center to move to another facility in Pamona.  Under the agreement, which must still received court approval, the city, in the future, will not impose differential zoning or building requirements on houses of worship. It will clarify the zoning appeals process for houses of worship. Also various city officials and employees will receive RLUIPA training. (See prior related posting.)

Utah Court Orders State AG To Advance Fees To Fiduciary In United Effort Plan Trust Case

The complex Utah state court litigation to reform the FLDS United Effort Plan Trust has gotten even more complex.  According to the Salt Lake Tribune, State 3rd District Court Judge Denise Lindberg on Monday ordered the Utah Attorney General's Office to advance $4.7 million to court-appointed special fiduciary Bruce Wisan for unpaid fees owed to lawyers and Wisan's accounting firm for work relating to the Trust. (See prior related posting.) The order contemplates that the Trust will eventually reimburse the state for the fees. The costs at issue 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. Utah Attorney General is considering an appeal of the decision that he calls "strange and surprising" and which he says contains personal and biased misstatements.

Israel To Use More Secular Version of Memorial Prayer At Military Ceremonies

Haaretz today reports on the latest volley in the battle between religious and secular Jews in Israel over the text used at the official military ceremonies remembering fallen soldiers, including the state ceremony each year at the end of Memorial Day and the beginning of Israel Independence Day. In 1920, a prayer written by Berl Katznelson after the battle of Tel Hai, became the memorial prayer used. It began "May the people of Israel remember" (Yizkor Am Yisrael).  In 1963, the Israel Defense Forces officially changed the prayer to begin "May God Remember" (Yizkor Elohim), which is the text of the traditional memorial prayer in Jewish religious ceremonies. However, that change was not enforced until two year ago when military rabbis pushed for the modified version. Two months ago, the IDF told a journalist that Yizkor Elohim is the official version. That in turn generated protests from many secular parents of deceased soldiers, and the IDF appointed a special committee to study the matter.  Now the Ministerial Committee on Ceremonies and Symbols says the prayer will return to its original version (Yizkor Am Yisrael) at ceremonies.

9th Circuit: University Rule On Student Groups Upheld On Its Face, But Remanded On Discriminatory Application Claim

In Alpha Delta Chi-Delta Chapter v. Reed, (9th Cir., Aug. 2, 2011), the U.S. 9th Circuit Court of Appeals upheld the facial constitutionality of a San Diego State University policy that denies recognition to any student group that "restricts membership or eligibility to hold appointed or elected student officer positions ...  on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition." However, the court concluded that plaintiffs had raised a triable issue of fact as to whether the University applied the policy in a discriminatory manner in denying recognition to a Christian fraternity and sorority, while granting recognition to certain other groups that limited their membership. Judge Ripple concurred on the ground that the University's policy marginalizes religiously based groups because their members' shared beliefs coincide with their shared status as members of a religion. Courthouse News Service reports on the decision.

House Homeland Security Committee Holds Hearing On Al Shabaab's Activities In US

Largely lost in last week's focus on Congress' debt ceiling debate was the hearing held on last Wednesday by Peter King's House Homeland Security Committee on Al Shabaab: Recruitment and Radicalization within the Muslim American Community and the Threat to the Homeland. (Links to full texts of hearing testimony.)  In opening the hearing, Rep. King said:

At this hearing, the third in a series, we will examine Somalia-based terrorist organization al Shabaab’s ongoing recruitment, radicalization, and training of young Muslim-Americans and al Shabaab’s linking up with al-Qaeda in the Arabian Peninsula (AQAP).

In connection with the hearing, King released and investigative report (full text) on al Shabaab.

Faith-Based Director Follows Up Obama's Statements On Hiring By Grantees

Last month, President Obama at a University of Maryland town hall meeting endorsed the status quo as to faith-based hiring by religious organizations receiving federal grant monies. (See prior posting.) Groups such as the Interfaith Alliance and the Secular Coalition for America criticized Obama's statement, urging a policy of non-discrimination in hiring by all faith-based grantees. (Huffington Post.) On Monday, Joshua DuBois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships, posted a statement on the White House website that was apparently intended to be a response to these criticisms. The statement reads in part:

There has been some talk lately about the Administration’s commitment to the separation of church and state. President Obama strongly believes that while faith-based organizations play an integral role in providing social services, their interactions with government must be grounded in sound law and policy, and must respect the Constitution....

We established an Advisory Council on Faith-based and Neighborhood Partnerships and charged a taskforce of church/state experts with addressing key issues related to faith-based partnerships with government....

The bottom line is this: while critical issues remain, President Obama and we in the Office of Faith-based and Neighborhood Partnerships are committed to ensuring that we lead with our values: of constitutional separation of church and state, respect for faith-based and secular service providers alike, and commitment to doing the most good for individuals and families in need.

Women's Group in Lebanon Rejects Muslim Opposition To Family Violence Bil

Lebanon's Daily Star today reports that the Lebanese Women's Council has issued a statement supporting a proposed law to protect women from domestic violence.  The statement comes after both Dar-al Fatwa, the country's highest Sunni organization, and the Higher Shiite Council came out in oposition to the bill that was approved by the Cabinet and sent to Parliament in April 2010. Dar-al-Fatwa claimed that the proposed law is a Western idea designed to destroy the Muslim family. It is also concerned that the law undermines the role of religious courts.

Federal Government Asserts State Secrets Privilege In Mosque Surveillance Lawsuit

AP reported yesterday that the federal government has taken the unusual step of asserting the state secrets privilege in a motion to dismiss most of a lawsuit filed in federal district court in southern California against the FBI over its use of informants to infiltrate mosques. The lawsuit, filed by the ACLU of Southern California and CAIR alleged that targeting Muslim Americans amounts to religious discrimination and asked for the FBI to turn over or destroy all information gathered through the investigation.It also sought damages for emotional distress for three named plaintiffs. (See prior posting.) The motion filed Monday by Attorney General Eric Holder asserts that it could cause significant harm to national security if the government is required to disclose the subjects of a 2006 mosque-surveillance operation, disclose why it was undertaken and describe how the monitoring was carried out.

Religious Employer Exception Added To Required Women's Preventive Care Coverage

A memo from McDermott, Will and Emery reports that the recently issued federal guidelines on preventive health care services for women have been amended to provide an exemption for religious employers.  The guidelines under the Affordable Care Act require that various preventive services for women be covered fully, without co-payment, co-insurance or deductibles. Among the covered items are contraceptive services. However, pursuant to new authority granted to it in a release from the Department of Labor, Treasury and HHS issued on July 28 (full text), the Health Resources and Services Administration has exempted various religious employers from the required contraceptive coverage. [Thanks to Steven H. Sholk for the lead.]

UPDATE: The Heritage Foundation (Aug. 2) claims that the definition of religious employer in the new exemption is too narrow.

Mexico Electoral Commission Orders Fines Against Catholic Archdiocese

Time reported yesterday on a decision handed down last month by Mexico's Federal Electoral Institute (IFE).  It ordered the country's Interior Minister to impose substantial fines on Mexico City's Catholic archdiocese and its spokesman Rev. Hugo Valdemar for violating provisions of the Religious Associations Law that ban religious organizations from publicly endorsing or opposing political candidates.  Earlier this year, the archdiocese urged voters to not vote for political parties that support legalized abortion or gay marriage.

Australian State Charges Worldwide Jehovah's Witness Organizations Under Working With Children Act

JW News reported last week that the Australian state of Victoria has filed criminal charges against the entire worldwide corporate and religious hierarchy of the Jehovah's Witness church, claiming failure to comply with Victoria's Working With Children Act 2005. The Act requires a Working With Children Check on individuals who are engaged in child-related work. It is claimed that The Governing Body of Jehovah’s Witnesses and the Watch Tower Society were notified of their obligation to comply with the law and were offered assistance in doing so, but they refused. Five separate Jehovah's Witness organizations were each charged with 7 criminal violations. Each charge carries a fine of up to AUS$144,000 ($157,766 US).