ADL Supports World Trade Center Cross

As previously reported, in July the American Atheists filed a lawsuit challenging on Establishment Clause grounds the moving of cross-shaped steel beams found in the rubble of 9-11 and known as the World Trade Center Cross to the site of the National September 11 Memorial. Now a leading advocate of church-state separation, the Anti-Defamation League, has issued a statement supporting installation of the cross at the memorial. The ADL said in part:

Allowing this cross to be included in the memorial along with other artifacts found at the site does not constitute government endorsement of a religious message. Rather, it is an acknowledgement that these beams – part of the infrastructure of one of the towers – acquired historical significance by giving comfort to many who lost loved ones in the attacks, as well as those who spent days and weeks sifting through the ash and debris.

Amish Men Sentenced To Jail For Refusing To Pay Fines

In Mayfield, Kentucky yesterday, a state trial court judge sentenced nine men who are members of the Old Order Swartzentruber Amish sect to terms between 3 and 10 days in jail for refusal to pay fines imposed on them.  The fines of $148 to $600 grew out of defendants' refusal to display bright orange-red safety triangles on the backs of their horse-drawn buggies. According to the Louisville Courier-Journal, the defendants believe paying the fine would amount to complying with the law that violates their religious principles against wearing bright colors or trusting in man-made symbols for their safety. In June the Kentucky Court of Appeals upheld their sentences (see prior posting), and an appeal is pending in the Kentucky Supreme Court. Graves District Court Judge Deborah Hawkins Cook has 44 additional cases involving similar charges still on her docket. The county jail has ordered special dark-colored jump suits for the Amish men because of their religious objections to wearing the usual orange ones. One of the nine defendants avoided jail when a friend paid his fine.

Mississippi Supreme Court Rejects Challenge To "Personhood" Initiative On Ripeness Grounds

In Hughes v. Hosemann, (MI Sup. Ct., Sept. 8, 2011), the Mississippi Supreme Court rejected on ripeness grounds an attempt to remove from November's ballot an initiative measure that would define "person" in the state constitution as including "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." The court held that: "Pre-election challenges of voter initiative proposals are subject only to the review of the sufficiency of the petition itself (i.e., its form) and not its constitutionality (i.e., its substance)."

A dissent by Justice Kitchens, joined by Justice King, argued that:

Measure 26 is defective ... because the text of the measure purports to add a new section to this state’s Bill of Rights and to modify the meaning of two words which appear some twenty times in our Bill of Rights. This is in direct contravention of Section 273(5)(a) of our state constitution, which reads: “The initiative process shall not be used [f]or the proposal, modification or repeal of any portion of the Bill of Rights to this Constitution.”

Responding to this argument, the majority writes:

The dissent worries that Measure 26 “seeks to modify the definition” of “person or persons” as they appear in the Mississippi Constitution. But those terms have never been defined. Therefore, Measure 26 cannot modify a definition that does not now exist.

Kentucky Counties Borrow Funds To Pay Winners' Legal Fees In 10 Commandments Litigation

Two Kentucky counties that were involved in an unsuccessful 11-year battle all the way to the U.S. Supreme Court over posting a Ten Commandments display have now had to borrow funds to pay legal fees of the prevailing plaintiffs.  Saturday's Lexington (KY) Herald Leader reports that  Pulaski County has sent the ACLU a check for $231,662, while McCreary County has yet to pay its share-- which will be somewhat larger as interest continues to accrue.  Pulaski County will repay its bank loan this year, but McCreary County-- which is in worse financial condition-- will take longer to do so. The counties plan to write national religious organizations seeking donations to help them with the repayments. Meanwhile, in the Pulaski County Courthouse, a frame displays a sign reading: "The Ten Commandments were proudly displayed in this frame. Removed by Judge Jennifer Coffman, Eastern Ky. District Federal Court....", and then referring to the appellate decisions upholding the removal.

Chief Rabbis Raise Issue of Religious Accommodation In Israeli Army

Yesterday's Jerusalem Post reports on a problem of accommodating religious beliefs of Orthodox Jewish soldiers in the Israeli army.  At the traditional annual meeting of Israel's two chief rabbis with IDF Chief of General Staff Lt.- Gen. Benny Gantz, the rabbis raised the issue of exempting religious male soldiers from military events that involve women singing.  Orthodox Jewish law prohibits men from hearing women sing-- a prohibition referred to as kol isha. Last week, nine officer cadets walked out of an army event that featured a performance by women soldiers, and some refused to return even though their commander ordered them to do so.  Four of the soldiers were expelled from officer training school over the incident. Lt. Gen. Gantz said he was reviewing the issue.

Recent Articles of Interest

From SSRN:

• Claudia E. Haupt, Transnational Nonestablishment, (George Washington Law Review, Forthcoming).
• Frederick Mark Gedicks, Lynch v. Donnelly and the Terminal Silliness of Secularized Religious Symbols, (Nevada Law Review, 2011).
• Roland Pierik and Wibren Van der Burg, What is Neutrality, (Amsterdam Law School Research Paper No. 2011-20, 2011).
• Kenneth Lasson, Antisemitism in the Academic Voice: Confronting Bigotry Under the First Amendment, (in "Global Antisemitism: A Crisis of Modernity," Forthcoming, 2012).
• Rob E. Atkinson, The Future of Philanthropy: Questioning Today’s Orthodoxies, Re-Affirming Yesterday’s Foundations, (FSU College of Law, Public Law Research Paper No. 542, 2011).

From SmartCILP:

• Pierre M. Gaunaurd, Hdeel Abdelhady and Nabil A. Issa, Islamic Finance, 45 The International Lawyer 271-285 (2011).
• Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepperdine Law Review 945-1020 (2011).

10th Circuit Rejects Challenge To Polygamy Ban As Frivolous

In Adgeh v. Oklahoma, (10th Cir., Sept. 8, 2011), the U.S. 10th Circuit Court of Appeals in a brief opinion (after refusing to hear oral argument in the case) rejected as frivolous a claim that Oklahoma's statute barring polygamy is unconstitutional. Based on that finding, the court refused to allow plaintiff to proceed in forma pauperis.  Plaintiff's original complaint had primarily cited Biblical examples of polygamy as a basis for his claim. The decision is non-precedential, but may be cited for any persuasive value it has. This is important because another more substantial constitutional challenge to state polygamy laws is pending in the 10th Circuit-- a suit filed in July by the polygamous family featured on the TLC series "Sister Wives" challenging the constitutionality of Utah's statute. (See prior posting.)  [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

Arizona Police Charge Phoenix Goddess Temple Was Prostitution Operation

In Arizona last week, Maricopa County officials announced the arrest and indictment of 18 individuals in connection with a house of prostitution operating in two locations under the guise of a religious organization. Male and female "practitioners" were charged with performing sexual acts in exchange for monetary "donations" at the Phoenix Goddess Temple in Phoenix and Sedona.  They claimed to be providing "Neo Tantric" healing therapies. Saturday's International Business Times reports further on the arrests.

Recent Prisoner Free Exercise Cases

In Elfand v. County of Sonoma, 2011 U.S. Dist. LEXIS 99173 (ND CA, Aug. 29, 2011), a California federal district court permitted a Jewish inmate to proceed with his claim that the Sonoma county jail has a policy of not providing for temporary religious meals while an inmate is attempting to request them, and that this caused him not to receive kosher meals for approximately one month.

In Lefler v. McKee, 2011 U.S. Dist. LEXIS 99256 (WD MI, Sept. 2, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 99232, Aug. 10, 2011) and dismissed an inmate's complaint that the prison's chaplain failed to organize a Seventh Day Adventist religious group in a timely manner and when he did he scheduled the group to meet on Thursdays instead of Saturdays.

In Grimes v. Tilton, 2011 U.S. Dist. LEXIS 99944 (SD CA, Sept. 6, 2011), a California federal district court refused to grant defendants summary judgment on qualified immunity grounds in a Christian inmate's First Amendment challenge to prison regulations-- subsequently modified-- that called for verification of an inmate's religious beliefs before the inmate would be provided with a vegetarian diet.

In Dawson v. California Department of Corrections and Rehabilitation, 2011 U.S. Dist. LEXIS 100287 (ND CA, Sept. 7, 2011), a California federal district court dismissed an inmate's free exercise and equal protection challenges to regulations barring family visits for prisoners serving a life sentence without a parole date, or for prisoners housed in heightened security status. Plaintiff had claimed that the regulations prevented him and his wife "from 'consummating their marriage,' which has 'placed he and his wife on a path to temptation and sin, and ultimately divorce, which also is in contradiction with his faith.'"

In Daley v. Lappin, 2011 U.S. Dist. LEXIS 100624 (MD PA, Sept. 7, 2011), a Pennsylvania federal district court dismissed a complaint by a Rastafarian inmate who complained that he was denied an "Ital" (vegan) diet consistent with his religious beliefs.

In McCray v. McElvogue, 2011 U.S. Dist. LEXIS 101034 (D SC, Sept. 1, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 100879, July 20, 2011) and dismissed a Muslim inmate's complaint that he cannot purchase religious oils, and that prayer rugs are not sold at the prison commissary. His complaint he was not permitted to speak to Muslim instructors was contradicted by a fellow-inmate's affidavit.

In Phillips v. Ayers, 2011 U.S. Dist. LEXIS 100459 (CD CA, Sept. 7, 2011), a California federal district judge adopted a magistrate's amended report and dismissed a Muslim inmate's claims. The magistrate's report-- apparently before it was amended-- is at 2011 U.S. Dist. LEXIS 100461 (April 8, 2011). It rejects claims that plaintiff's rights were violated by rules prohibiting use of the prison chapel for group prayers unless supervised by staff or a volunteer chaplain.

In O'Neal v. San Bernardino Sheriff's Department, 2011 U.S. Dist. LEXIS 100460 (CD CA, Sept. 7, 2011), a California federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 143671, Dec. 6, 2010) and dismissed with leave to amend a pre-trial detainee's claim that his free exercise rights were violated because of problems with receiving sufficient food in his vegan diet. Plaintiff failed to allege a connection between veganism and his Baptist faith.

In Strickland v. Sumner County Jail, 2011 U.S. Dist. LEXIS 101533 (MD TN, Sept. 8, 2011), a Tennessee federal district court dismissed claims by a jail inmate that his 1st Amendment rights were violated by his being "forced" to listen to Christian teachings.

President's Ground Zero Remarks Are Psalm 46

In the wake of criticism by some religious leaders that clergy were not included in the official memorial ceremony at the World Trade Center site in New York (New York Times, 9/8), President Obama's remarks at the ceremony consisted solely of reading Psalm 46. Neither in speaking, nor in the White House release of the official transcript of the President's remarks, was the source of the text identified. Last week Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, said of the mayor's decision on who would participate in the ceremony: "Unfortunately Mayor Bloomberg's decision demonstrates the mindless secularist prejudice of the political establishment on our nation's Eastern Seaboard."

President Declares National Days of Prayer and Remembrance

In a Presidential Proclamation issued Friday, President Obama designated Friday, September 9 through Sunday, September 11, 2011, as National Days of Prayer and Remembrance.  The Proclamation reads in part:

I ask that the people of the United States honor and remember the victims of September 11, 2001, and their loved ones through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities. I invite people around the world to participate in this commemoration.

In a separate Proclamation, implementing Congressional resolutions, the President also declared today to be "Patriot Day and National Day of Service and Remembrance."

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.