7th Circuit Upholds Public High School Graduations In Church Building

In John Doe, 3 v. Elmbrook School District, (7th Cir., Sept. 9, 2011), the 7th Circuit, in a 2-1 decision, upheld against an Establishment Clause challenge the practice by two Wisconsin public high schools of holding their graduation ceremonies in a Christian church that the district rented for the occasion. Judge Ripple's majority opinion held:

We do not doubt that symbols can be used to proselytize or that, in the appropriate circumstances, coerced engagement with religious iconography and messages might take on the nature of a religious exercise or forced inculcation of religion.....

On this record, however, graduates are not forced—even subtly—to participate in any religious exercise “or other sign of religious devotion,” ... or in any other way to subscribe to a particular religion or even to religion in general. They are not forced to take religious pamphlets, to sit through attempts at proselytization directed by the state or to affirm or appear to affirm their belief in any of the principles adhered to by the Church or its members. Instead, the encounter with religion here is purely passive and incidental to attendance at an entirely secular ceremony.

Judge Flaum, dissenting, however argued:

I believe that conducting a public school graduation ceremony at a church—one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join “school ministries”—runs afoul of the First Amendment’s establishment clause.... 

In this case, high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the pre-eminent symbol of Christianity.... [T]he sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.

AP reports on the decision.

Commission Studying Policies On Tax-Exempt Religious Nonprofits Appoints Expert Panels

The Evangelical Council for Financial Responsibility announced yesterday that its Commission on Accountability and Policy for Religious Organizations has appointed the members of  three panels who will work with it in developing a report to Sen. Charles Grassley on issues growing of a a Senate committee staff report on the financial affairs of six high profile Christian ministries. The Commission will also examine other tax policy issues relating to non-profits. (See prior posting.) The Panel of Religious Sector Representatives is comprised of 25 leaders from various faith groups.  The Panel of Nonprofit Sector Representatives is made up of 18 leaders in the non-profit sector.  The Panel of Legal Experts includes 23 lawyers with extensive experience in the area of exempt organizations, religious organizations, and/or constitutional law.

Among the issues being considered by the Commission are whether churches should be more accountable to the federal government; possible changes in the clergy housing allowance exclusion; whether there should be a change in the current prohibition against political campaign intervention by churches and other nonprofits; whether the rules on reasonableness of nonprofit executive compensation should be made more stringent;  and whether penalties should be expanded for nonprofits and nonprofit leaders who engage in prohibited activities.

One 4th Circuit Judge Rejects Religion Clause Challenges To Health Care Reform

On Thursday, the U.S. 4th Circuit Court of Appeals issued two decisions rejecting challenges to last year's health care reform act.  In Commonwealth of Virginia v. Sebelius, (4th Cir., Sept. 8, 2011), the court held unanimously that the state of Virginia lacked standing to challenge the law.  In Liberty University v. Geithner, (4th Cir., Sept. 8, 2011), two judges concluded that the federal tax Anti-Injunction Act bars the court from considering the challenge to the law.  The opinion of the court was written by Judge Motz.  Judge Wynn concurred, but said that if he were to get to the merits, he would find that Congress had authority under its taxing power to enact the individual and employer mandates in the law.  Judge Davis dissenting, argued that the Anti-Injunction Act does not apply, and that Congress had authority under the commerce clause to enact the individual and employer mandates.

In a little-noticed portion of his 73-page dissent, Judge Wynn rejected free exercise, RFRA and Establishment Clause challenges to the statute, saying:

Appellants allege that the Act compels them to violate their “sincerely held religious beliefs against facilitating, subsidizing, easing, funding, or supporting abortions” and prohibits the University from “providing health care choices for employees that do not conflict with the mission of the University and the core Christian values under which it and its employees order their day to day lives.”... This argument is unavailing.... The Act is a neutral law of general applicability and so does not violate the Free Exercise Clause....

I also reject the claim that application of the individual mandate to appellants would run afoul of the Religious Freedom Restoration Act of 1993 (RFRA).... The [Affordable Care] Act contains provisions to ensure that federal funds are not used for abortions (except in cases of rape or incest, or when the life of the woman would be endangered).... and that each state’s health benefit exchange will include at least one plan that does not cover (non-excepted) abortions.... I cannot say that appellants’ complaint makes it plausible that the Act “substantially burdens [their] exercise of religion.” ...

Appellants also challenge the Act’s religious exemptions themselves, claiming that they violate the Establishment Clause and equal protection because “they grant preferred status only to certain religious adherents.”... The religious conscience exemption simply incorporates the exemption created by [26 USC] section 1402(g)(1), which has survived every Establishment Clause challenge to it over the last forty years.... The exemptions easily survive appellants’ equal protection challenge as well.

Military Looks At Revised Insignia For Chaplains

Yesterday's Washington Post reports that Major Gen. Cecil Richardson, chairman of the Armed Forces Chaplains Board, has appointed an advisory committee to make recommendations on creating a new chaplain's insignia for military chaplains to wear.  As the chaplaincy corps becomes more diverse, the separate insignia currently worn by chaplains of each faith sometimes makes it difficult to identify the person's position. So Pentagon officials have endorsed a proposal by retired chaplain Rabbi Arnold Resnicoff to have a new insignia which will carry an identical symbol for all chaplains, and next to it a specific symbol of the individual chaplain's religious affiliation.

Controversial Pastor Appointed South Africa's Chief Justice

Both AP and AFP yesterday report that South Africa's President Jacob Zuma has appointed a Christian pastor as the country's new Chief Justice. Mogoeng Mogoeng, who has been a member of the Constitutional Court for two years, is a pastor in the Winners Chapel International Church. The church not only offers to save souls and cure disease, it also says its prayer and counseling will cure "deviations" such as homosexuality. Mogoeng's appointment was opposed by women's and gay rights groups, the country's main labor federation and by opposition parties.  Criticism focused on opinions Mogoeng has written in which he reduced sentences or dismissed cases against men charged with rape of women, but increased the sentence of a man charged in a homosexual rape.

ACLU Distributes New Guide On Religion In Public Schools

The ACLU of Tennessee yesterday released a new guide on religion in schools designed for administrators and teachers. The 4-page document titled Know Your Rights: Religion in Public Schools, covers a range of issues that commonly arise in school settings, including prayer, holiday celebrations and Bible distribution. A letter accompanying the publication urges superintendents to share the document with principals and teachers.

In Hungary, Public Schools Increasingly Being Turned Over To Churches

According to ENI News yesterday, in Hungary municipal governments are increasingly turning state-owned schools over to churches to operate.  Reduced state subsidies, heavy municipal debt and decreasing numbers of students mean that local councils are finding it increasingly difficult during the current economic recession to afford to continue to operate the schools. More than 60 schools have been transferred to religious organizations in recent months, with the churches as public service providers receiving the same state subsidy as when the school is government run.  However, at least Hungary's Reformed Church is moving cautiously in agreeing to take over schools. Before the Communist takeover of Hungary after World War II, most of the country's schools were operated by the Reformed, Lutheran and Roman Catholic churches.

Merger Raises Question of Whether University Hospital Is A Public Institution

Yesterday's Louisville (KY) Courier Journal reports that church-state questions are being raised regarding the agreement for the proposed merger of Louisville's University Hospital with two other Kentucky health care systems to create a state-wide network that would be controlled by Catholic Health Initiatives.  All of the participating hospitals, including University Hospital and Louisville's Jewish Hospital, have agreed to follow Catholic health care policies.  This means, for example, that none of the hospitals would perform tubal ligations or dispense birth control devices or medications.  At issue is whether University Hospital should be considered a public institution subject to constitutional constraints on endorsing religion.  It is the main teaching hospital for the University of Louisville, a state institution, and the University owns the hospital real estate. The hospital is also the city's main provider of indigent care. The University, however, says this does not make the hospital a public institution. The merger must still be approved by the governor of Kentucky, as well as by the Catholic bishops of Lousville and Lexington.

Report Surveys Indiana's School Choice Programs

As a lawsuit challenging Indiana's new Choice Scholarship program on state constitutional grounds proceeds through the courts (see prior posting), Indiana University's Center for Evaluation and Education Policy last week released a report evaluating three Indiana school choice provisions: Choice Scholarships, School Expenditure Deductions, and the School Scholarship Tax Credit. The 20-page report, School Choice Issues in Indiana: Sifting through the Rhetoric, describes each program in detail, surveys their economic impact and discusses the legal issues raised by the programs. The report also puts forward recommendations for implementation of the programs.  A related Fact Sheet was also released.

Meanwhile, today's Indiana Daily Student reports that so far, parents have applied for only about half of the 7,500 vouchers available under the Indiana Choice Scholarship program this year.

Fashion Designer Gets Light Sentence From French Court For Anti-Semitic Rants

Reuters and The Guardian both report that British fashion designer John Galliano was found guilty today by a French court of making "public insults" based on origin, religion, race or ethnicity.  Charges against the former head Dior designer grew out of two anti-Semitic rants at a Paris bar, one last October and the other in February.  In the most recent incident, Galliano hurled 30 anti-Jewish insults at a French couple in the bar within a 45-minute period.  Galliano testified at his trial that he could not remember the incidents because of his addictions to alcohol, sleeping tablets and Valium.  The court sentenced Galliano to a suspended fine of 6000 Euros ($8421 US), over 5000 Euros in legal fees and nominal damages of 1 Euro to each of the civil parties in the case.  He could have been sentenced to as much as 6 months in prison. Justifying the light sentence, the court pointed to a lack of prior criminal convictions, Galliano's previous regard for respect and tolerance and the treatment for drug and alcohol addiction he obtained after his arrest. (See prior related posting.)

South Bend's Transfer of Land To Catholic High School Violates Establishment Clause

In Wirtz v. City of South Bend, Indiana, (ND IN, Sept. 7, 2011), an Indiana federal district court held that the city's transfer to a Catholic high school of land the city purchased with $1.2 million of economic development funds violates the Establishment Clause. St. Joseph's High School planned to build a football stadium and track on the property, which was adjacent to its new school building. In exchange for the land,the school agreed to permit the South Bend community to use the stadium, track and other portions of its campus for ten years, on specified terms.  In finding that the transfer would amount to an unconstitutional government endorsement of religion, the court said:

The City’s actual intent is likely to endorse the high school’s construction project, not the high school itself or the religion with which the high school is affiliated. As already discussed, though, the endorsement test looks to the perception of the well-informed observer, not the governmental actor. Furthermore, since the development project as a whole appears to not be contingent at all on the donation, the action will appear to such an observer as more of an endorsement to aid a religious school after the fact than an enticement to bring about redevelopment.

AP reports on the decision. (See prior related posting.)

Court Hears Contempt Charges Against Rabbi Who Refuses To Testify Before Grand Jury

The Los Angeles Times reports that a hearing was held in federal district court in Los Angeles yesterday at which prosecutors asked the court to hold 64-year old Rabbi Moshe Zigelman in contempt for refusing to testify before a grand jury in a tax evasion case involving his Hasidic Spinka sect.  The case involves charges that the sect helped wealthy donors claim fraudulent tax deductions by soliciting charitable contributions and then secretly funneling 80% to 95% of the contribution back to the donors. Zigelman is invoking the religious doctrine of mesira, which prevents him from informing on a fellow-Jew to civil authorities. In 2008, Zigelman plead guilty to participating in the tax scheme, but on similar grounds refused to cooperate with authorities or testify at trial. He was sentenced to two years in prison. (See prior posting.)  Zigelman's attorney yesterday argued that holding his client in contempt would be futile because he will not change his mind and testify merely because he is jailed.

New York Rejects Church As Polling Place After Orthodox Jewish Objection

According to a JTA report this week, New York City election officials have changed their mind about permanently moving the polling location for New York's 73rd and 74th election districts from a public school to St. Agatha's Catholic Church in Brooklyn. Officials have been concerned that the public school site is too small. The decision to reject St. Agatha's came after Assemblyman Dov Hikind, an Orthodox Jew, intervened, complaining that many Orthodox Jews would not vote at the church that featured large crosses inside and outside. Officials are looking for a new site. Meanwhile, apparently voting in an upcoming primary for Civil Court Judge will still be held at St. Agatha's, but individuals may instead vote at the Brooklyn Board of Elections by checking "Religious Scruples" on their ballot application. [Thanks to Joel Alan Katz (Relig. & State In Israel) for the lead.]

Oklahoma School Districts Sue To Challenge Voucher Program

Yesterday's Tulsa World reports that two Oklahoma school districts have filed suit in state court to challenge the constitutionality of Oklahoma's Lindsey Nicole Henry Scholarships for Students with Disabilities Act, as amended. The law provides funds for parents to send special needs children to private schools.  The school districts claim that the law violates the provisions of the Oklahoma constitution, including Art. II. Sec. 5 that bars the use of public funds to aid sectarian institutions.  The districts named as defendants parents who had previously sued the districts in federal court for refusing to provide the scholarships. (See prior posting.) Subsequently amendments to state law transferred administration of the voucher program to the State Department of Education.

New Report Surveys American Attitudes On Religious Diversity

The Brookings Institution and the Public Religion Research Institute yesterday released a new report titled What It Means to be an American: Attitudes in an Increasingly Diverse America Ten Years after 9/11. Much of the 41-page report focuses on mixed attitudes of Americans toward Muslims. Here is an excerpt:

Americans strongly affirm the principles of religious freedom, religious tolerance, and separation of church and state. Nearly 9-in-10 (88 percent) Americans agree that America was founded on the idea of religious freedom for everyone, including religious groups that are unpopular. Ninety-five percent of Americans agree that all religious books should be treated with respect even if we don’t share the religious beliefs of those who use them. Nearly two-thirds (66 percent) of Americans agree that we must maintain a strict separation of church and state.

As a number of findings below demonstrate, however, Americans do not always apply these principles evenly or consistently....

... More than 8-in-10 Americans ... report holding favorable views of Catholics (83 percent) and Jews (84 percent).... Mormons are viewed favorably by two-thirds (67 percent) of the public, and a majority of the public also reports holding a favorable view of American Muslims (58 percent). Atheists are viewed least positively of any religious or ethnic group with less than half (45 percent) of the public reporting a favorable view....

Americans are evenly divided over whether the values of Islam are at odds with American values and way of life.... There are large differences of opinion by political and religious affiliation, age, and trusted media source.....By a margin of 2-to-1, the general public rejects the notion that American Muslims ultimately want to establish Shari’a law as the law of the land in the U.S. (61 percent disagree, 30 percent agree)....

Americans employ a double standard when evaluating violence committed by self-identified Christians and Muslims. Americans are much more willing to say that Muslims who commit violence in the name of Islam are really Muslims than they are to say that Christians who commit violence in the name of Christianity are really Christians.

Another section of the report deals with attitudes toward immigrants and immigration.

Afghan Army Works To Bolster Its Muslim Image

Yesterday's Washington Post reports that in Afghanistan, the battle between the Taliban and Afghan government forces has become in part a battle over which group are true Muslims. The Taliban has undermined popular support for the Army by telling residents that Army members are "fake Muslims." So the government has developed a strategy aimed at strengthening the Islamic credentials of the armed forces. Billboards with a verse from the Qur'an and added attempts to assure that Islamic law is observed in the Army are part of the effort.  So is the building of mosques on Army bases. American funded radio stations encourage military personnel to discuss religious issues on the air.

Religion Clauses of South Sudan's Transitional Constitution Revealed

While the full text of South Sudan's Transitional Constitution has apparently not yet been publicly released, Minister of Justice, John Luk Jok, on Monday told employees of the Ministry of Justice that the Constitution separates religion from politics.  According to the Sudan Tribune, the Justice Minister said that Article 8 (1) of the Transitional Constitution states clearly that religion and state are be separate, while paragraph (2) provides that all religions are to be treated equally.  Article 23 of the Transitional Constitution protects the right to worship or assemble in connection with any religion or belief and the right to establish and maintain places of worship. It goes on to provide that the government will extend any assistance to religions that request it, without prejudice.

En Banc Review Sought In Ban On Charter School's Use of Religious Texts

AP reported yesterday that a petition for en banc review has been filed with the 9th Circuit in Nampa Classical Academy v. Goesling. In the case, a 3-judge panel of the 9th Circuit held that Idaho did not violate the 1st Amendment when it barred use of religious texts or documents in classrooms of a public charter school. The panel concluded that the curriculum of a public charter school is speech of the government, and thus not subject to 1st Amendment protection from government infringement. (See prior posting.)

Virginia County Settles With Justice Department On Claimed RLUIPA Violations

Henrico County, Virgina in 2008 refused to rezone 5.2 acres of undeveloped land that had been purchased by a Muslim group seeking to construct a mosque and community center. The group challenged the rezoning refusal by filing a suit in state court.  Subsequently, the U.S. Department of Justice also began to investigate the matter, and yesterday the Justice Department announced that it had reached an agreement with the county on a consent decree.  A complaint (full text) charging violations of both the anti-discrimination and the undue burden provisions of RLUIPA was filed by the government yesterday in a Virginia federal district court, along with a proposed consent order (full text).  The complaint charges that the rezoning refusal was motivated by hostility to the mosque and its members on the basis of religion. Under the consent order, if approved by the court, the county will permit the mosque to be constructed, will agree to comply with RLUIPA in the future, will provide future religious use applicants notice of their rights under RLUIPA, will provide training on RLUIPA to various county officials, and will implement various reporting, record keeping and monitoring requirements. [Thanks to Eric Treene for the lead.]

Presidential Candidates Talk of Free Exercise, Religious Beliefs At Tea Party Forum

Five Republican candidates participated in a Presidential Forum in South Carolina yesterday hosted by Tea Party-supported Sen. Jim DeMint and televised by CNN. (Full transcript.) Issues of free exercise and personal faith arose several times during the extensive discussions.

One of the questioners, Princeton University Prof. Robert George, asked both Michelle Bachmann and Herman Cain whether the federal government should act to prevent Illinois from refusing to contract with religiously affiliated foster care and adoption agencies that do not place children with same sex couples. Much of Illinois funding for these services comes from the federal government. Here is Bachmann's response:

 BACHMANN: I believe in equal protection under the law. And this is clearly a situation where we have seen a disadvantage to children who are about to be placed either in foster care or in adoptive care. And, again, I believe that is one more example why the rulings of activist judges acting outside the original intent of the Constitution are so very dangerous to the foundation of the country....

GEORGE: But if a state legislature refuses to make funding available on equal terms to those providers who, as a matter of conscience, will not place children in same-sex homes, should federal legislation come in to protect the freedom of conscience of those religious providers, even if the discrimination comes not from the courts, but from the legislature?

 BACHMANN: Well, yes, I do, because I believe that that is a right that is guaranteed to every American under our Constitution and Bill of Rights.....

Here is Cain's answer:

CAIN: ... I believe in the first amendment. So the federal government should not be subsidizing any situation where it's discriminatory against any legitimate religion in this country.....

Both Newt Gingrich and Mitt Romney spoke about asking for God's guidance in decision making.

GINGRICH: ... I think anyone who would not face the most serious questions by asking God's guidance and God's grace and asking God's help would be a person who totally misunderstood the nature of life and who would be dangerous holding a major office.

So, I think -- I would hope anyone would answer you by saying, in a truly big decision, or, frankly, small decisions -- I find myself very often praying just before I speak or just before -- there are -- having -- seeking God's guidance strikes me as being the heart of whether or not you can survive in a world of danger and in a world of temptation and in a world where evil always lurks.....

And here is part of the exchange with Romney:

SENATOR JIM DEMINT...: In this heavy load that the presidential might well be, the time comes when the very difficult decisions are made when there are life and death decisions that direct the destiny of the United States, and you've taken all the information in from each side of the argument and you have to finally say to all the advisers, now I'm alone with my decision, can you tell us how you would do that?

... ROMNEY: Well, I'm a highly analytical guy. So I look at all the data and analysis and summarize it and look at it with my eyes before me. I talk to my wife and get her feelings and sense of confidence and comfort. I go on my knees.

I'm a person of faith. I look for inspiration. I remember seeing President George W. Bush and he showed me a room in the White House where he said he looked at the paintings of other president who made tough decisions.

And then with all that God has endowed with your mind and values, you make that decision.....