Religion Clause

Thursday, February 02, 2012

Court Denies Preliminary Injunction On Promotions Of Non-Liturgical Navy Chaplains

In In re: Navy Chaplaincy, (D DC, Jan. 30, 2012), the D.C. federal district court denied a preliminary injunction in an Establishment Clause challenge to the Navy Chaplain Corps’ selection board process for voting on the promotion of chaplains. Plaintiffs claimed that the process favors Catholic and liturgical Protestant chaplains, while leaving non-liturgical chaplains underrepresented in the Navy. The court held that plaintiffs lack standing because they have failed to show that they will suffer an injury. Also they have not shown a substantial likelihood of success on the merits: "plaintiffs have submitted no evidence from which the court could assume that the future promotion boards will follow any putative pattern of alleged past discrimination." (See prior related posting.)

Wednesday, February 01, 2012

Indiana Senate Passes Creationism Bill Which Is Criticized By Intelligent Design Advocates

Yesterday, the Indiana state Senate passed SB 89 (full text) by a vote of 28-22. The bill allows public schools to:

offer instruction on various theories of the origin of life. The curriculum for the course must include theories from multiple religions, which may include, but is not limited to, Christianity, Judaism, Islam, Hinduism, Buddhism, and Scientology.

Interestingly, the Discovery Institute, the leading center promoting the theory of intelligent design, issued a press release criticizing the Indiana Senate's passage of the bill. Attempting to distinguish intelligent design from creationism, the Institute said in part: "There are plenty of scientific criticisms of Darwin’s theory today, and science students should be able to hear about them, not about religion.”

Sweden's New Home Schooling Limits Being Tested By Chabad Rabbi

In Sweden, a change in law took effect January 1 that limits mores narrowly the situations in which parents can home-school their children. It is now permitted only in "extraordinary" circumstances. The new law aims to make education across the country more uniform. (See prior posting.) Chabad Lubavitch World HQ / News reported yesterday that one of the first tests of the new law involves Rabbi Alexander and Leah Namdar, Chabad representatives to Sweden. Four of the Namdar children are studying in an online international school. Authorities in Gothenburg have formally notified the Namdars that they will be fined the equivalent of $2400 (US) per week if they do not enroll their children in a Swedish school by Feb. 1. The Namdars' supporters say the Swedish law was aimed at immigrant children who were illiterate. The Namdar children, by contrast, are being educated along with 500 other students in the online school, and this is supplemented by private tutoring. They have a full morning schedule of Judaic studies including Hebrew, while their afternoons are devoted to English, Swedish, mathematics, geography, science, music, art, and gymnastics. Apparently Swedish schools have significant bullying problems, and the Namdars are concerned that as the only Orthodox Jews in Gothenburg, the children would stand out in a Swedish school and become targets for anti-Semitism. The Namdars say that their right to give their children a Jewish education, which the public schools cannot accommodate, is at stake.

White House Press Secretary Responds To Bishops' Criticism of HHS Policy

At yesterday' White House press briefing (full text), Press Secretary Jay Carney engaged in a lengthy exchange with reporters on the Catholic Bishops' strong opposition to new rules under the Affordable Care Act requiring most health insurance policies to fully cover contraceptive services. Narrow exceptions for religious employers would not cover most Catholic schools and hospitals. (See prior posting). Here is a substantial part of the exchange in the press briefing:

Q: ... It was a pretty extraordinary situation on Sunday in parishes all across the country, individual priests were reading letters from their bishops in that particular parish that were pretty much denouncing the Obama administration about these provisions dealing with contraception, Catholic hospitals and whatnot in connection with the Affordable Care Act. I guess my question would be, how does the administration justify having the federal government institute a law that basically forces people to violate their religious beliefs?

MR. CARNEY: Well, that misrepresents actually ... the ... decision about the implementation of the Affordable Care Act.... The decision was made... after very careful consideration, and the administration believes that this proposal strikes the appropriate balance between respecting religious beliefs and increasing access to important preventive services. We will continue to work closely with religious groups during this transitional period to discuss their concerns.

It’s important -- to go to your point -- that this approach does not signal any change at all in the administration’s policy on conscience protections. The President and this administration have previously expressed strong support for existing conscience protections, including those relating to health care providers. That support continues.

I also would just note that our robust partnerships with the Catholic Church and other communities of faith will continue. The administration has provided over $2 billion to Catholic organizations over the past three years in addition to numerous nonfinancial partnerships that promote healthy communities and serve the common good.

Q: The bishops are saying just the opposite. They’re saying that basically if somebody is working in a Catholic hospital and they don’t cover contraception for their employees, that they’re in violation of federal law. So I don’t understand how you’re saying that there are still conscience protections. They would violate the law, wouldn’t they?

MR. CARNEY: Well, this does not direct an individual to do anything, first of all. The new guidelines require most private health plans to cover preventive services, including contraception, for women without charging a copay, coinsurance or deductible.

The guidelines were recommended by the nonpartisan, independent Institute of Medicine. The administration also released a proposed regulation that allows nonprofit, religious employers that offer insurance to their employees the choice of whether or not to cover contraception services.

After reviewing comments from the public, the administration announced that the final rule on preventive health services will ensure that women with health insurance coverage will have access to the full range of recommended preventive services, including all FDA-approved forms of contraception.

And I would just note that we will work with religious groups during a transitional period to discuss their concerns. But this decision was made after careful consideration by Secretary Sebelius, and we believe that the proposal strikes the appropriate balance between religious beliefs on the one hand and the need to increase access to important preventive services for women.

Q ... [A] Democrat who’s Catholic, E.J. Dionne, wrote in The Washington Post yesterday that the President ... “utterly botched this policy.” And he said he, “threw his progressive Catholic allies under the bus.” ....

MR. CARNEY: ... Ed, all you’re pointing out is that there are people who disagree with the decision. We understand that not everyone agrees with it. All I can tell you is it was made after very careful consideration based on the need to balance those two issues and that the necessity to provide access to preventive services for women was an important consideration.

Q What about the constitutional right to freedom of religion?...

MR. CARNEY: I don’t believe there are any constitutional rights issues here, but I would refer you to others to discuss that. ... I understand that there’s controversy ... and we will continue to work with religious groups to discuss their concerns. But on the other side of this was the important need to provide access to women to the preventive services that they require....

Q The bishop of Phoenix said Catholics shouldn’t comply with this law. Will there be any consequences for not --

MR. CARNEY: I’m the wrong guy to ask.

Forest Service Renews Use Permit For Ski Resort Jesus Statue

The U.S. Forest Service has agreed to renew a controversial special use permit in a ski area in Montana. As previously reported, in October the U.S. Forest Service withdrew an earlier decision and instead sought public comment on reissuing a special use permit to the Knights of Columbus for a statue of Jesus that has since 1955 been located on land in the Flathead National Forest. Between Oct. 19 and Dec. 8, the Forest Service received 95,000 comments. In a press release issued yesterday, the Forest Service said in part:

The permit is reauthorized for ten years and is for the display of a statue of Jesus Christ on a 25 foot by 25 foot parcel of land near the top of Chair Two at Whitefish Mountain Resort.

[Flathead National Forest Supervisor, Chip] Weber says he is reauthorizing the permit because “I understand the statue has been a long-standing object in the community since 1955, and I recognize that the statue is important to the community for its historical heritage based on its association with the early development of the ski area on Big Mountain.” The statue’s historic value and eligibility for listing on the National Register of Historic Places is in part directly linked to the current physical location of the statue.

KBZK News reports on these developments in an article that carries photos of the statue. All of the Project Documents are also available online. The Washington Post reports that the decision means that Rep. Denny Rehberg will withdraw his bill that would have authorized a land swap so that the land on which the statue sat would have been privately owned. The Post also points out that the statue was originally put up by Knights of Columbus members who were inspired by similar statues in European mountains that many saw in World War II.

Tuesday, January 31, 2012

Unofficial Sharia Court In India Orders Expulsion of Christian Priests

In India's only Muslim-majority state, Jammu & Kashmir, an unofficial sharia court (which was not created by the government) on Jan.19 issued a fatwa ordering the expulsion of three Christian priests. It also urged the government to take over management of missionary schools, introduce Islamic prayer and Islamic studies classes. In particular, the court demanded that a prayer written by an Urdu poet be recited at morning assemblies in all Christian missionary schools. The Asia Times and Hindustan Times report on developments

The court's decree came after one of the priests "confessed" to having converted 15 Muslim boys to Christianity. Last October, footage appeared on the Internet showing Pastor Chander Mani Khanna baptizing Kashmiri Muslim youth, and a reaction included calls for killing Khanna. Later an inflammatory article quoted one of the boys who converted as saying that Khanna used a girl to entice him to drink alcohol and eat "swine meat." Conversion is legal in Jammu & Kashmir. However Khanna was arrested, and then released on bail, charged under Sections 153A of the Ranbir Penal Code that bars "promoting enmity between different groups ... and doing acts prejudicial to maintenance of harmony," as well as under Section 295A that prohibits "deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs". Meanwhile, separatist leader Syed Ali Geelani criticized the court's decree, saying: "Kashmiris cannot ignore the contributions of Christian missionary schools towards the educational system in the Valley. Unfortunately, Muslims have not been able to build an educational institution like those by the Christian missionary schools despite all available resources."

Secular-Religious Tensions In Tunisia Explored

The New York Times in an article posted yesterday explores the struggle in post-revolutionary Tunisia between secular and religious forces. One symbol of the tensions is the trial, now postponed until April, of a television director for broadcasting the French animated movie "Persepolis", a film about a girl's childhood in revolutionary Iran. The Times reports:

Nearly everyone here seems to agree that “Persepolis” was broadcast Oct. 7 on Nessma TV as a provocation of some sort.... [M]any in Tunisia, both pious and less so, were taken aback by the brief scene in which God was personified — speaking in Tunisian slang no less. A week later, a crowd of Salafis ... attacked the house of Nabil Karoui, the station’s director, and he was soon charged with libeling religion and broadcasting information that could "harm public order or good morals."

CNN Analyzes Likely Evangelical Vote In Florida

Today is the Republican presidential primary in Florida. Last week CNN analyzed the likely evangelical vote in Florida:

There are signs that Florida’s evangelical voters may be more forgiving of Romney’s past social liberalism than their Iowa and South Carolina brethren – and more willing to support a Mormon candidate..... As a percentage of GOP voters, there are fewer evangelicals in Florida compared to South Carolina and Iowa, where Rick Santorum won the presidential caucuses.... And compared to those other early primary states, Florida is much more religiously diverse.... Still, evangelical Christians claim a bigger share of the Florida Republican vote than any other religious tradition. There also are signs they may be more tolerant of a Mormon candidate than born-again Christians in the Bible Belt and Midwest.

Bankruptcy Court Sells Off Religious Community's Llama Herd At Fire Sale Price

AP reports that an Iowa federal bankruptcy judge on Monday took the unusual step of ordering a "fire sale" of a herd of llamas that came under court control two weeks ago after a self-proclaimed priest, Ryan Patrick Scott, filed for bankruptcy. Scott led a small religious community in Independence, Iowa that raised the llamas. The llamas were sold for $7500 to Steve and Sandy Auld who already raise llamas and were caring for Scott's animals under federal supervision since they were taken over by the court. Scott had argued that the animals belong to his non-profit corporation, not to him personally. The Aulds will also be paid $100 per day for the time they cared for the animals before the sale.

Catholic Churches Around Nation Read Letters Attacking HHS Health Insurance Requirement

CBS News reports that last Sunday Catholic Churches around the country read similar letters from their local bishops condemning the Obama administration's new rules requiring contraception coverage by most health plans, with exemptions that are too narrow to include most Catholic schools and hospitals. (See prior posting.) A typical letter quoted in full by the CBS report read in part:

The U.S. Department of Health and Human Services announced last week that almost all employers, including Catholic employers, will be forced to offer their employees’ health coverage that includes sterilization, abortion-inducing drugs, and contraception..... In so ruling, the Obama Administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty.... [W]e Catholics will be compelled to either violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so)..... We cannot—we will not—comply with this unjust law. People of faith cannot be made second class citizens.

Monday, January 30, 2012

Syrian Uprising Becoming Shiite-Sunni Conflict

Yesterday's Christian Science Monitor reports that as the fighting goes on in Syria, the conflict is moving from a popular uprising to a confrontation between Sunnis and Shiites, explaining:

The regime’s reliance on Alawite militiamen, known as the Shabiha, to help suppress the 10-month uprising is mirrored by elements of the armed rebel forces rallying around their Sunni identity through religious and sectarian motifs and language. The minority Alawite sect draws upon some Shiite traditions and is considered heretical by conservative Sunnis.

Shiite Iran and Hezbollah support the Alawites.

Sunday, January 29, 2012

Retired General With Anti-Muslim Record Scheduled To Speak At West Point Prayer Breakfast

American Muslim yesterday reported on objections that have been raised to the invitation extended by the Chaplain's Office at the U.S. Military Academy at West Point to retired Lt. Gen. William "Jerry" Boykin to speak at the Academy's Feb. 8 National Prayer Breakfast. Boykin has a long record of anti-Muslim statements. Both the Military Religious Freedom Foundation and VoteVets have written officials urging that the invitation be retracted. According to Thursday's Washington Post, a West Point spokesperson has reacted to the criticism, saying: "The National Prayer Breakfast Service will be pluralistic with Christians, Jewish, and Muslim cadets participating. We are comfortable and confident that what retired Lt. Gen. Boykin will share about prayer, soldier care and selfless service, will be in keeping with the broad range of ideas normally considered by our cadets." God and Country blog also has a report on the controversy.

Recent Prisoner Free Exercise Cases

In Watkins v. Donnelly, 2012 U.S. Dist. LEXIS 6118 (WD OK, Jan. 19, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 151825, Dec. 19, 2011) and dismissed on qualified immunity grounds an inmate's complaint that he was denied a religious diet for 3 meals in one day.

In Walker v. California, 2012 U.S. Dist. LEXIS 6806 (ED CA, Jan. 19, 2012), a California federal magistrate judge recommended dismissing an inmate's complaint that he was denied parole for failure to attend faith-based AA or NA programs.

In Williams v. Texas Department of Criminal Justice Correctional Institutions Division, 2012 U.S. Dist. LEXIS 8018 (SD TX, Jan. 24, 2012), a Texas federal district court permitted Muslim inmates to proceed with most of their statutory and constitutional religious liberty claims challenging prison officials' interrupting of a Friday Jumah service for a special head count and strip search. The court pointed out that there is a documented history of discrimination against Muslim inmates by the Texas correctional system as evidenced by a prior consent decree ordering officials to permit Muslim worship services. The court concluded that defendants did not show that allowing the Jumah service to conclude would have jeopardized the effective functioning of the prison.

In Hersey v. Lanigan, 2012 U.S. Dist. LEXIS 8138 (D NJ, Jan. 23, 2012), a New Jersey federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that his request for observance of a Messianic Passover Seder was denied and instead he was provided a Rabbinic Jewish Passover Seder which did not include partaking of a roasted leg of lamb (but only included a lamb shank bone).

In Brown v. Medill, 2012 Kan. App. Unpub. LEXIS 35 (KS App., Jan. 20, 2012), a Kansas state appellate court permitted a Rastafarian inmate who was placed in segregation for refusing to cut his dreadlocks to proceed with his claim for damages for infringement of his free exercise rights and for malicious prosecution (the administrative proceeding that led to his being placed in segregation). The state's rescission of its grooming policy mooted his claims for equitable relief.

In Wilkins v. Walker, 2012 U.S. Dist. LEXIS 9307 (SD IL, Jan. 26,2012), an Illinois federal district court permitted a former inmate who is a member of the African Hebrew Israelite faith to proceed with damage claims for violations of the free exercise, establishment and equal protection clauses that allegedly occurred when officials refused to hire an AHI chaplain or furnish plaintiff AHI material. State law claims, federal RLUIPA claims, and a religious diet claim were all dismissed.

In Cole v. Danberg, 2012 U.S. Dist. LEXIS 9123 (D DE, Jan. 24, 2012), a Delaware federal district court denied a temporary restraining order against a prison policy that requires Muslim inmates to get rid of their colored kufis and, in the future, wear only white kufis that can be purchased at the prison commissary.

South Dakota Supreme Court Refuses To Order Church Dissolution Because of Religious Issues Involved

Wipf v. Hutterville Hutterian Bretheren, Inc., (SD Sup. Ct., Jan. 25, 2012) is the South Dakota Supreme Court's second installment in a factional dispute in a South Dakota Hutterite colony, and one of the first cases to cite the U.S. Supreme Court's recent Hosanna-Tabor decision. After a 1992 schism in the North American Schmiedeleut Hutterian Church, two competing factions vied for governing control of the local colony which was organized as a non-profit corporation under South Dakota law. In its first decision (see prior posting), the state supreme court, affirming the trial court, held that the governance question depends on resolving a dispute over membership in and expulsion from the "true" Hutterite church by the "true" church elders, and the First Amendment shields such issues from scrutiny by civil courts. Just before that supreme court decision was handed down, the state circuit court judge in the case held that the Hutterville colony dispute should be dealt with by dissolving the colony, selling off its assets and distributing the proceeds to its members.

Now the South Dakota Supreme Court has held that state courts also lack jurisdiction to order dissolution in this case:

When Hutterville made following the Hutterian religion a condition of corporate membership and weaved religious doctrine throughout its corporate documents, it limited a secular court’s ability to adjudicate any corporate disputes. We cannot uphold the circuit court’s order, findings, and conclusions without also endorsing its decision on the identity of corporate leaders and members. “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC et al., ___ U.S. ___, ___, ___ S. Ct. ___, ___, ___ L. Ed. 2d ___ (2012). We conclude that the underlying religious controversies over church leadership so pervade the dissolution of the religious corporation that the dissolution is beyond a secular court’s jurisdiction.

Saturday, January 28, 2012

EEOC Sues Arkansas Cooperative For Refusing Jehovah's Witness One Day Off

The EEOC announced Thursday that it has filed suit against the Arkansas-based Ozarks Electric Cooperative Corporation for refusing to allow a call center customer service representative who was a Jehovah’s Witness to take one day off to attend a religious convention. The company not only refused her request but ultimately fired her over it, according to the EEOC's complaint.

6th Circuit: Christian Counseling Student May Go To Trial Over Required Counseling of Gay Client

In Ward v. Polite, (6th Cir., Jan. 27, 2012), the U.S. 6th Circuit Court of Appeals reversed a Michigan trial court's grant of summary judgment in favor of Eastern Michigan University (see prior posting) and held that a former graduate student's free-speech and free-exercise claims should go to trial. At issue was whether counseling student Julea Ward, who was enrolled in a practicum course, could because of her Christian religious beliefs refuse to counsel a gay client or at least have her faculty supervisor refer the client to another counselor if same-sex relationship issues arose. The University took disciplinary action against Ward under its rules that prohibit counseling students from discriminating on the basis of sexual orientation and require them to affirm a client’s values during counseling sessions. The 6th Circuit, held, however:

The key problem with the university’s position is not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice. It is that the school does not have a no-referral policy for practicum students and adheres to an ethics code that permits values-based referrals in general. When the facts are construed in Ward’s favor, as they must be at this stage of the case, a reasonable jury could conclude that Ward’s professors ejected her from the counseling program because of hostility toward her speech and faith, not due to a policy against referrals.....

The court explained:

Although educators may “limit[]” or “grade[] speech in the classroom in the name of learning,” and although they may control their own speech and curriculum, the First Amendment does not permit educators to invoke curriculum “as a pretext for punishing [a] student for her . . . religion.”... Even in the context of a secular university, religious speech is still speech, and discriminating against the religious views of a student is not a legitimate end of a public school.

The court emphasized that the ultimate outcome of the case will depend on how a jury evaluates conflicting claims:

a jury might credit the university’s claim that ... practicum students were subject to a general ban on referrals, making it difficult for Ward to demonstrate that she was expelled on pretextual grounds as opposed to the ground that she refused to adhere to a general and reasonable curricular requirement.

The Detroit Free Press reports on the decision.

Friday, January 27, 2012

Today Is International Holocaust Commemeration Day

Today is the United Nations'-declared annual International Day of Commemoration in Memory of the Victims of the Holocaust. Haaretz reports on plans in countries across Europe for marking the day. The January 27 date was chosen because it is the anniversary of the liberation in 1945 of the Auschwitz-Birkenau death camp by Soviet forces. The United Nations has sponsored a series of Holocaust Remembrance events this month, with an emphasis on this year's theme-- "Children and the Holocaust."

State Trial Court Upholds School Voucher Program

A trial court in Arizona's Maricopa County yesterday rejected state constitutional challenges to the state's "empowerment scholarship" program that makes school vouchers available to students with special needs so they can attend private or parochial schools. According to the Arizona Daily Star, the court rejected claims that the program violates the state constitutional prohibition on appropriating public money in aid of any private or sectarian school (AZ Const., Art. 9, Sec. 10), and the provision in Art. 2, Sec. 12 of the state constitution that bars the appropriation of public money for religious instruction. The court held that there are substantive differences in the operation of this program and the ones struck down by the Arizona Supreme Court in 2009. (See prior posting.)

Pennsylvania House Declares 2012 As Year of the Bible

On Tuesday, the Pennsylvania House of Representatives adopted House Resolution 535 by a unanimous vote of 193-0. The Resolution (full text) provides in part:

That the House of Representatives declare 2012 as the "Year of the Bible" in Pennsylvania in recognition of both the formative influence of the Bible on our Commonwealth and nation and our national need to study and apply the teachings of the holy scriptures.

The Resolution begins with a number of "Whereas" clauses, such as one declaring that "the Bible, the word of God, has made a unique contribution in shaping the United States as a distinctive and blessed nation and people." The resolution was introduced as "noncontroversial" under House Rule 35. This permitted the resolution to be voted on within 2 days of being introduced and without first going to committee. The Examiner reports on passage of the resolution.