Tennessee Legislature Passes Bill On Teaching of Evolution and Similar Topics

The Tennessee legislature this week gave final passage to HB 368, on the teaching of scientific subjects such as biological evolution, the chemical origins of life, global warming, and human cloning that may cause debate and disputation. The bill encourages schools to help students "respond appropriately and respectfully to differences of opinion about scientific subjects required to be taught under the curriculum framework developed by the state board of education." It goes on to provide that "teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught within the curriculum framework developed by the state board of education." The bill cautions:

This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.

Passed by a vote of 25-8 in the Senate and 72-23 in the House, the bill goes to Gov. Bill Haslam for his signature.  Yesterday's Chattanooga Times Free Press reports that the governor is under pressure from prominent scientists to veto the bill. They claim it will allow the introduction of creationism and intelligent design into science classrooms. The issue is particularly sensitive in Tennessee because it is the site of the famous 1925 Scopes Monkey Trial.

The Inside Story On Religious Accommodation By Texas High School Basketball League

The Huffington Post on Monday carried a lengthy and interesting article detailing the legal and strategic decisions on both sides in the widely-publicized battle of a Houston, Texas Orthodox Jewish school to get officials to accommodate its Sabbath observance in a recent statewide basketball tournament. (See prior posting.) The battle pitted parents of students at the Beren Jewish Academy against the the Texas Association of Private and Parochial Schools (TAPPS), a league originally comprised of a few dozen Christian schools.  As the league expanded to over 200 schools, it added Jewish and Seventh Day Adventist (but not Muslim) ones, but without dealing with the issue of religious accommodation:

By admitting to the league but not accommodating Saturday Sabbath observers, TAPPS could cling to some semblance of its Christian and non-ecumenical identity while seeming to obey the law and not discriminate against other religions. 

The legal moves began when a parent of a Beren basketball player phoned Washington, DC lawyer Nathan Lewin, perhaps the best known litigator on behalf of Jewish interests:

The stars seemed aligned for the supposed plaintiffs and their litigators. On the one side, an intransigent and unaccommodating association of religious schools; on the other side, a squad of kids with knitted yarmulkes longing for a chance to score hoops..... [However] the school wanted nothing to do with the suit or the effort. Beren's head of school Rabbi Sinoff verbalized the reluctance this way: "We do value success in the modern world. But not at the expense of who we are -- Shomer Shabbos (strict Sabbath observers)." Rabbi Sinoff added a phrase right out of Jewish history stating, "This is about asking nicely, not about demanding a right. No demand."

However, lawyers in a Dallas law firm, enlisted by Lewin, ultimately moved ahead and filed a request for a TRO. Within two hours, TAPPS backed down and agreed to reschedule the Beren games to accommodate their Sabbath observance. However the furor is creating problems for TAPPS. The Texas Catholic Conference, whose schools comprise nearly 20% of TAPPS is reconsidering its membership in the league, both because of the way the Beren issue was handled and because of the league's refusal to admit Muslim schools.

ACLU Says FBI Collection of Intelligence From Mosques Violated Privacy Act

In a release yesterday, the ACLU said that documents it uncovered through a Freedom of Information Act lawsuit show that the FBI, thorough its San Francisco "Mosque Outreach" program, collected and stored Muslim religious leaders' and their congregants' identities, personal information and religious views and practices. The ACLU says that this violated the federal Privacy Act of 1974 that limits the ability of the government to collect and retain information about individuals' First Amendment activities. (Background ACLU memo).

Federal Tax Claim Should Not Be Heard By Ecclesiastical Court

In United States v. Augustine, 2012 U.S. Dist. LEXIS 40792 (D MN, March 26, 2012), a Minnesota federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 40769, March 2, 2012) and denied taxpayer defendants' motion to remove the case to the "Ecclesiastical Court of Justice."  The court reasoned:

Here ... the Court is not presented with disputes over church polity or church administration. Instead, this case is a suit brought by the United States to obtain payment of taxes from the Augustines. This determination in no way involves any question of church doctrine or hierarchy. Therefore, the First Amendment does not require that the United States' claims against the Augustines be heard in an ecclesiastical court.

Trial Court Strikes Down Oklahoma School Voucher Program

An Oklahoma state trial court judge yesterday, in a ruling from the bench, struck down Oklahoma's school voucher program for special needs students, finding that the program violates the state Constitution's ban on use of public funds to benefit any sectarian institution. (Constitution, Art. II-5). 38 of the 40 schools eligible to enroll students under the program are Christian schools. Public school officials have strongy opposed the program, seeing it as the first step toward a broader voucher program.  AP and the Broken Arrow Ledger both report on the decision. The decision is likely to be appealed directly to the Oklahoma Supreme Court under a provision that allows cases of statewide importance to go that route. (See prior related posting.)

Cert. Filed In 3 Church Property Cases

Anglican Curmudgeon reported last week that petitions for certiorari to the U.S. Supreme Court have been filed this month in three cases involving property disputes between parent churches and break-away congregations. At issue in each of the cases is a holding that under the neutral principles of law doctrine, the break-away church's property was held in trust for the parent church.  Two of the decisions came from the Georgia Supreme Court (see prior posting)--  Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, Inc. (full text of cert. petition) and Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc. (full text of cert. petition).

The third case is Episcopal Church in the Diocese of Connecticut v. Gauss. In the case, the Connecticut Supreme Court in an Oct. 11, 2011 opinion (full text) held that the Dennis Canon applies in the case to establish an express trust of church property in favor of the Episcopal Church and the Diocese of Connecticut. The petition for certiorari (full text) was coordinated with the Christ Church petition. All of the cases raise the same question, framed in the Episcopal Church cases as follows:

Whether a trust allegedly imposed on local church property by provisions in denominational documents must be treated as legally cognizable under the “neutral principles” doctrine of Jones v. Wolf, 443 U.S. 595 (1979), and the First Amendment, even where such provisions do not satisfy generally applicable rules of state property and trust law.

Tunisia's Constitution Will Not Enshrine Shariah

Despite pressure from harder-line Islamist parties to enshrine Shariah law into Tunisia's new Constitution (see prior posting), the moderate Islamist Ennahda party has announced that the first article of the new constitution will remain the same as that in the current constitution:

Tunisia is a free, sovereign and independent state, whose religion is Islam, language is Arabic and has a republican regime.

The Ennahda party holds 40% of the seats in the new Constituent Assembly, and has forged an agreement with secular parties to reject demands for this kind of constitutional change. According to AP, the founder of the Ennahda Party said at a press conference:

We do not want Tunisian society to be divided into two ideologically opposed camps, one pro-Shariah and one anti-Shariah. We want above all a constitution that is for all Tunisians, whatever their convictions."

Suit Challenging Mormon Influence on Utah's Liquor Policy Dismissed With Leave To Amend

As previously reported, Utah's hospitality trade group has sued to challenge a new law that eliminates discount pricing of alcoholic beverages offered by social clubs and ties the number of liquor licenses to population and number of police officers. Part of the suit questions the influence of the Mormon Church on the state's alcohol policy.  The Salt Lake Tribune reports that in a ruling from the bench yesterday, the court dismissed the lawsuit, giving plaintiffs 20 days to file an amended complaint describing specific harm to restaurant and bar owners from the new law. It also reports:

In another aspect of the lawsuit, [Judge Bruce] Jenkins brushed aside claims by the association that officials from The Church of Jesus Christ of Latter-day Saints had unduly influenced state lawmakers in passing restrictive liquor laws, saying Mormons have a right to consult with legislators....

In his ruling from the bench, Jenkins said that "since territorial days in Utah, there has always been an interest in alcohol," noting that Mormon colonizer Brigham Young pushed for an inspector of spirits to ensure quality controls in the manufacture of alcohol.

Suit Challenges Pennsylvania's "Year of the Bible" Resolution

The Freedom From Religion Foundation announced yesterday that it had filed a federal lawsuit challenging the constitutionality of a resolution passed by the Pennsylvania state House of Representatives that declares 2012 to be "The Year of the Bible." (See prior posting.) The complaint (full text) in Freedom From Religion Foundation, Inc. v. Saccone, (MD PA, filed 3/26/2012), alleges that the sponsor of the resolution intended it to recognize an integral relationship between church and state. The suit asks for a declaration that the resolution violates the Establishment Clause, an order barring further publication or public distribution of the resolution, and an order declaring that the theocratic principles of the Bible do not constitute the official, preferred, or endorsed religion of Pennsylvania. Yesterday's Washington Post reports on the decision.

Supreme Court Denies Cert. In Two Religion In School Cases

Yesterday the U.S. Supreme Court denied certiorari in Nampa Classical Academy v. Goesling, (Docket No.  11-786, cert. denied 3/26/2012). (Order List). In the case, the 9th Circuit upheld Idaho's decision to bar publicly funded charter schools from using religious texts in the classroom, even for teaching of secular subjects.  The 9th Circuit held that the First Amendment’s speech clause does not give charter school teachers, students, or parents a right to have such texts included as part of the school curriculum. (See prior posting.) KBOI2 reports on the Supreme Court's denial of review.

The Supreme Court also denied review in Johnson v. Poway Unified School District, (Docket No. 11-910, cert. denied 3/26/2012). (Order List). In the case, the 9th Circuit rejected claims by a high school calculus teacher that his California school district violated his free speech rights, as well as the Establishment Clause and Equal Protection clause, when it required him to remove large banners he had posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. (See prior posting.)

Supreme Court: Courts Have Jurisdiction Over Congress vs. State Department On Jerusalem Listing

The U.S. Supreme Court today, in Zivotofsky v. Clinton, (Sup. Ct., March 26, 2012), held that the political question doctrine does not prevent federal courts from ruling in a dispute between Congress and the State Department over which branch of government may control the content of passports.  At issue is the State Department's determination that the city of Jerusalem is still disputed territory, so that Americans born in Jerusalem are to have "Jerusalem", not "Israel", listed as their place of birth. In a 2003 statute, Congress mandated that those born in Jerusalem would now have the option of listing Israel as their place of birth.  The Executive Branch claims that this statute unconstitutionally interferes with the President's constitutional authority to conduct the country's foreign affairs.  Today's decision does not decide that dispute. It only holds that the lower courts may now tackle the question.  The D.C. Circuit had held that the court could not get to that issue because the political question doctrine deprived them of jurisdiction over it. However, Chief Justice Roberts, writing for 6 justices, said that all the court is being asked to do is to decide the constitutionality of the Congressional statute.

The case will likely be remembered primarily for its discussions of the nuances of the political question doctrine. In a concurring opinion, Justice Sotomayor had a different view of the meaning of the political question doctrine. Justice Breyer agreed with her general approach to the political question doctrine, but, in a dissent, disagreed as to its application to the facts of this case. Justice Alito also wrote a concurring opinion. The Washington Post reports on the decision. [Thanks to Joel Katz (Relig & State in Israel) for the lead.]

Bankruptcy Code Limit On Deducting Tuition Is Not Free Exercise Infringement

In In re Meyer, (Bankr. ED WI, March 22,2012), a Wisconsin federal bankruptcy court upheld the constitutionality of a provision in Title 7 of the Bankruptcy Code that limits the amount of private school tuition that may be included in the computation of allowable living expenses and the determination of whether granting bankruptcy relief would be abusive.  7 USC 707(b) limits the tuition amount to $1775 per year per child. Here the debtors, who sent their children to a Catholic parochial school with higher tuition, argued that the limit forced them to choose between the free exercise of religion and their right to a discharge in bankruptcy. But the court rejected debtors' free exercise argument. It said in part:

the law is not discriminatory in its object or purpose; the Bankruptcy Code's means test has a purely economic purpose and neither advances nor inhibits religion. And finally, the actual operation of the statute does not target the practices of a particular religion for discriminatory treatment.... 

While the debtors have the right to the free exercise of religion and the right to direct the education and upbringing of their children, that right is not independent of their personal economic limitations and choices. There is no duty of either the government or the debtors' creditors to fund their religious choices.

Recent Articles of Interest

From SSRN:

• Robert A Kahn., Who’s the Fascist? Uses of the Nazi Past at the Geert Wilders Trial, (U of St. Thomas Legal Studies Research Paper No. 12-10, 2012).
• Michael Heise and Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts, (U of St. Thomas Legal Studies Research Paper No. 12-07, 2012).
• Sahar F. Aziz, Countering Religion or Terrorism? Selective Enforcement of Material Support Laws Against Muslim Charities, (Institute for Social Policy and Understanding, Policy Brief #47, September 2011). 
• Oren Gross, Violating Divine Law: Emergency Measures in Jewish Law, (Perspectives on Perogative, B. Kleinerman, C. Fatovic, eds., Oxford University Press, 2012).
• Salim Farrar, Accommodating Islamic Banking and Finance in Australia, (University of New South Wales Law Journal, Vol. 34, No. 1, pp. 413-442, 2011).

From SmartCILP:

• Brian Sites, Religious Documents and the Establishment Clause, 42 University of Memphis Law Review 1-71 (2011).
• Erica Weitzman, Beyond the Legality Principle: Sacher-Masoch's Economies of "Jewish Justice," [Abstract], 23 Law & Literature 442-470 (2011).
• Islamic Law and Islamic Legal Professionals in Southeast Asia. Introduction by Mark E. Cammack, R. Michael Feener and Clark B. Lombardi; articles by Clark B. Lombardi, R. Michael Feener, Mark E. Cammack, Euis Nurlaelawati, Abdurrahman Rahim, Ratno Lukito, Farid S. Shuaib, Najibah M. Zin, Amanda Whiting, Ahmad Nizam bin Abbas, Muhammad Haniff Hassan, Sharifah Thuraiya Su'ad Ahmad Alhabshi and Nik Hasyila Bte Nik Ibrahim. 21 Pacific Rim Law & Policy Journal 1-221 (2012).
• Religion and Bankruptcy: Perspectives Thereon and Treatment Therein. Articles by Keith Sharfman, G. Ray Warner, Geoffrey P. Miller, Theresa J. Pulley Radwan, Haider Ala Hamoudi, Lyman Johnson and Steven H. Resnicoff. 19 American Bankruptcy Institute Law Review 453-584 (2011).

UN Human Rights Council Adopts By Consensus 2 Religious Liberty Resolutions

Last week, the United Nations Human Rights Council adopted two resolutions on religious liberty. (UN Watch list of resolutions.) Both were adopted without a formal vote.  The first (press release 3/22) was a resolution introduced by Denmark on behalf of the European Union titled Freedom of religion or belief.  The second (3/23) was a resolution submitted by Pakistan on behalf of the Organization of the Islamic Conference, titled Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief. In a press release, Human Rights Watch applauded the fact that again this year, like last year, the resolution omits any reference to the controversial concept of "defamation of religion."

Recent Prisoner Free Exercise Cases

In Sisney v. Reisch, (8th Cir., March 19, 2012), the 8th Circuit agreed with the district court that a Jewish prisoner was not entitled to compensatory damages for authorities' refusal to permit him to erect and eat his meals in a Sukkah during the holiday of Sukkot. The PLRA permits damages only if there has been physical injury.  The 8th Circuit also agreed that defendants were entitled to qualified immunity.


In Munoz v. Tilton, 2012 U.S. Dist. LEXIS 35412 (ND CA, March 15, 2012, a California federal district court allowed an inmate to move ahead with his claim that his free exercise and RLUIPA rights were infringed when authorities withheld religious CDs mailed to him because they were not from an approved vendor.


In Black v. Walker, 2012 U.S. Dist. LEXIS 35076 (MD GA, March 15, 2012), a Georgia federal district adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 35142, Feb. 13, 2012) and permitted a Muslim inmate to move ahead with his complaint that he has been disciplined for refusing to shave his beard.

In Kempvanee v. Skolnik, 2012 U.S. Dist. LEXIS 34858 (D NV, March 14, 2012), a Nevada federal district court adopted a magistrate's recommendations 2012 U.S. Dist. LEXIS 34857 (Feb.13, 2012),  and dismissed free exercise and RLUIPA claims by an inmate who practices the Asatru religion. Plaintiff objected to confiscation of his cardboard religious altar and refusals to permit him to use the sweat lodge/sauna.

In Soria v. Nevada Department of Corrections, 2012 U.S. Dist. LEXIS 33956 (D NV, March 14, 2012), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 33953, Feb. 7, 2012) and dismissed a Jewish inmate's claim that his rights were infringed when authorities would not furnish him outdoor space and materials or funds for a Sukkah.

In Lute v. Johnson, 2012 U.S. Dist. LEXIS 36179 (D ID, March 16, 2012), a Jewish inmate alleged that he was wrongfully denied a kosher diet. The Idaho federal district court refused to dismiss his claim at this time, but gave him 10 days to submit evidence of the sincerity of his religious beliefs.

In Smith v. Perlman, 2012 U.S. Dist. LEXIS 36642 (ND NY, March 19, 2012), a New York federal district court permitted a Muslim plaintiff to move ahead with has claim that while in keeplock he was wrongly denied permission to attend congregate religious services. However it dismissed his complaint that on one occasion he was not taken to a Saturday study group. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 36838, Feb. 28, 2012.

In Funtanilla v. Williams, 2012 U.S. Dist. LEXIS 36808 (ED CA, March 16, 2012), a California federal district court permitted a Seventh Day Adventist inmate to move ahead with his claims that he was not permitted to place a copy of the Ten Commandments above his cell door, he was not provided with enough food so that he did not have to walk on the Sabbath, and was not allowed to attend group services. His claim as to lack of a pastor on Saturdays was dismissed.

Pope Begins Visit To Mexico and Cuba

Pope Benedict XVI began his visit to Mexico and Cuba on Friday. (See prior related posting.) While on his way, he followed the tradition is sending telegrams from the Papal plane to the leaders of the countries he was flying over. (Full text of English language telegrams.) His messages were sent to the leaders of Italy, France, Great Britain, Ireland, Denmark,  Canada and the United States. Zenit reports on the Pope's press conference on board his plane covering topics such as violence in Mexico, liberation theology and liberty in Cuba. The Pope's first speech in Mexico was at the welcoming ceremony in Guanajuato (full text of remarks.) The Pope made reference in his remarks to freedom of religion. Subsequently, according to MSN News, a spokesman expanded on that theme, tying it to the debate in Mexico over proposed legislation (already approved by the Lower House) that would end the restriction on religious ceremonies in public places and the ban on religious involvement in politics. Opponents say the government is using the Pope's visit to promote the legislation and also criticize the Pope for visiting just a week before campaigning starts for the July 1 general elections.

Secularist Rally On National Mall Draws Thousands

Billed by supporters as "the largest gathering of the secular movement in world history," yesterday between 10,000 and 20,000 people gathered on the National Mall in Washington for the Reason Rally according to a report by Metro Weekly. The featured speaker was British author and scientist Richard Dawkins. No current politicians spoke at the rally, but former Iowa Senator Tom Harkin and former California Representative Pete Stark sent greetings.

Indian Court Dismisses Petition By Woman Who Married A Hindu But Claims She Retained Her Zoroastrian Religion

A court in India has dismissed a petition by a Parsi (Zoroastrian) woman who had married a Hindu man and who wanted a court order that would assure her right to enter Parsi religious places to witness the last rites for her parents when they die.  The Valsad Parsi Anjuman Trust had previously barred another woman under similar circumstances from attending her parents' last rites at a fire temple and tower of silence.  Indian Express and Ahmedabad Mirror reported yesterday that a 3-judge panel of the Gujarat High Court dismissed the petition.  Two of the three judges held that there is a presumption under the Special Marriage Act that a woman acquires the religion of her husband, unless she obtains a court declaration that she has maintained her prior religion. Justice Kureshi, while concurring in the dismissal of the petition, disagreed with the majority on the question of whether the wife should be presumed to have changed her religion.

Allowing Bishops To Limit Uses of Trafficking Victims Act Funds Violates Establishment Clause

In American Civil Liberties Union of Massachusetts v. Sebelius, (D MA, March 23, 2012), a Massachusetts federal district court held that the Department of Health and Human Services violated the Establishment Clause when, in selecting the U.S. Council of Catholic Bishops to administer funds under the Trafficking Victims Protection Act, it permitted USCCB to impose religious restrictions on use of grant funds. The Bishops prohibited grantee subcontractors from using grant funds to refer trafficking victims for abortion services or contraceptive materials. After concluding that plaintiffs had standing and that the case was not moot despite the fact that the HHS contract with USCCB had expired, the court found Establishment Clause problems with the arrangements.  Permitting USCCB to place a religiously motivated restriction in contracts with grantees amounts to a governmental endorsement of a religious belief. HHS, in delegating to a religious organization the authority to exclude certain services from government funding provides a significant symbolic benefit to religion.  Religion Dispatches reports on the decision. (See prior related posting.)

Russian Court Rejects 2nd Narrower Attempt To Ban Bhagavad Gita Commentary

According to The Hindu, earlier this week a Russian court for a second time rejected attempts by prosecutors to ban the Russian translation of the book, Bhagavad Gita As It Is.  As previously reported, in December a court in Tomsk dismissed an attempt to classify the book as extremist literature. Following that, the prosecutor changed the petition to seek a ban not the text of the Bhagavad Gita but only on the Russian translation of the comments to it written by A.C Bhaktivedanta Swami Prabhupada.  However the court also rejected this attempt.