Religion Clause

Monday, May 28, 2012

Suit Challenges New Ten Commandments Monument

On Friday, a lawsuit was filed challenging a 5 foot tall stone Ten Commandments monument that was put up earlier this month by the county commission in the courtyard of the Bradford County, Florida Courthouse. The complaint (full text) in American Atheists, Inc. v. Bradford County, Florida, (MD FL, filed 5/25/2012), alleges that the monument, which was unveiled in conjunction with a religious prayer ceremony, violates the Establishment Clause. A press release from American Atheists announced the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

District Court Invalidates DOMA and Related Care Insurance Restrictions

In Dragovich v. U.S. Department of the Treasury, (ND CA, May 24, 2012), a California federal district court held unconstitutional Sec. 3 of the federal Defense of Marriage Act and federal provisions (26 USC Sec. 7702B(f)) that effectively bar states from permitting same-sex domestic partners or same-sex spouses from participating in state-maintained long-term care insurance policies. DOMA was defended by the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) since the administration refused to defend its constitutionality. In striking down the provisions, the court said in part:

the legislative record contains evidence of anti-gay animus and the BLAG has failed to establish that § 3 of the DOMA is rationally related to a legitimate government interest. Accordingly, Plaintiff same-sex spouses are entitled to summary judgment that § 3 of the DOMA is invalid under the Constitution’s equal protection principles to the extent that the law blocks their access to the CalPERS long-term care plan....

Because Congress’s restriction on state-maintained long-term care plans lacks any rational relationship to a legitimate government interest, but rather appears to be motivated by antigay animus, the exclusion of registered domestic partners of public employees from § 7702B(f)’s list of individuals eligible to enroll in state-maintained long-term care plans violates the Constitution’s equal protection guarantee.

Metro Weekly reports on the decision.

Document Leaks, Bank President's Ouster Create Crisis Atmosphere At Vatican

Two parallel developments in the Vatican were described yesterday by Reuters as a "widening scandal." Last Thursday the Supervisory Board of the Institute for the Works of Religion (the Vatican Bank) dismissed the president of the bank, Prof. Gotti Tedeschi. (Vatican press release.) Tedeschi says he was ousted because of his attempts to make the bank more transparent. The band has been attempting in recent years to meet international anti-money laundering standards. (See prior posting.) However Vatican officials say the ouster had nothing to do with that. Reuters says that instead it was the result of "progressively erratic personal behavior" and his failure to defend the bank "in the face of inaccurate media reports".

Meanwhile, on Saturday the Pope's personal butler, Paolo Gabriele, was arrested (Vatican press release) in an ongoing investigation of theft of confidential papers that have been published. They allege cronyism and corruption among the Cardinals. (See prior posting.) AP reports that Gabriele has agreed to cooperate with investigators.

Friday, May 25, 2012

8th Circuit: Freethinkers Have Standing To Challenge 10 Commandments Monument

In Red River Freethinkers v. City of Fargo, (8th Cir., May 25, 2012), the U.S. 8th Circuit Court of Appeals held that a organization dedicated to promoting atheist and agnostic views has standing on behalf of its members to challenge a Ten Commandments monument that has stood for 50 years outdoors on city property in Fargo, North Dakota. City Council had originally decided to move the monument, but reversed its decision after an initiative petition to keep the monument on city property garnered over 5,200 signatures. In reaching its conclusion on standing, the court said:

The injuries to Freethinkers’s members are no doubt actual and imminent. The City’s display of the Ten Commandments monument has continued now for fifty years, with no end in sight. Those members have encountered the monument, causing them “to feel isolated and unwelcome in the city.” ... Furthermore, those injuries are personal to Freethinkers’s members.....

The City displays a Ten Commandments monument; it has enacted an ordinance prohibiting the removal of that monument; no other monument is so protected; and the City has a policy of not accepting other monuments in the mall where the Ten Commandments monument stands.... The claimed injury—direct and unwelcome contact with the monument—is “fairly traceable” to the alleged Establishment Clause violation....

The City’s assertion—that there is “no basis in law” for removal of the monument—is wrong. If the City’s monument violates the Establishment Clause, then a court can order its removal....

By a 2-1 vote, the court remanded the case to the district court for further proceedings. Judge Shepherd, while agreeing that plaintiffs had standing, argued that the case should be dismissed on the merits:

The Commission’s initial decision to move the existing monument from its long-standing site can best be understood as an exercise in pragmatism—one intended to forestall a challenge to its decision not to accept Freethinkers’s offer to erect a “sister” monument. In light of this background, no reasonable observer would conclude that the Commission’s adoption of the initiated ordinance also adopted and conferred upon the monument the religious views of the ordinance’s proponents.

AP reports on the decision.

Paper Criticizes Candidate Roy Moore's Involvement On Issue That May Come To State Supreme Court

An editorial in the Anniston, Alabama Star yesterday strongly criticized former Alabama Chief Justice Roy Moore, who is again a candidate for that position in the fall election, for becoming involved on one side of an issue that the Alabama Supreme Court may eventually be called to rule upon. The city of Sylvania, Alabama placed a verse from the New Testament-- "One Lord, One Faith, One Baptism"-- on the town's four Welcome sign. In April, the Freedom From Religion Foundation objected (full text of letter) and convinced the town to remove the signs. (FFRF press release.) Earlier this month, however, the town council voted to place the Biblical quotation back on the signs, and the Foundation for Moral Law, headed by former Chief Justice Moore, promised to defend the town's position. A press release from the Foundation quotes Moore as saying: "The Freedom From Religion Foundation has an agenda to remove any acknowledgement of God or religion from the public square and are trying to bully towns like Sylvania with threatening letters that grossly misrepresent the Constitution." Here is a portion of Anniston Star's editorial on the matter:

One can — and should — question the propriety of an Alabama chief justice GOP nominee heading a foundation dedicated to a constitutional position on which he might one day have to rule. More important, one can — and should — wonder why Moore is personally getting involved in the first place.

Here is a prime example of the sort of controversy on which a chief justice should avoid taking a public stand. If and when matters such as this come before his court, he can then rule on them and explain in legal terms the reasoning behind his decision.

We hoped this was what Roy Moore would do. He has disappointed us again.

Mary Ann Glendon Appointed To USCIRF

On Wednesday, Senate minority leader Mitch McConnell appointed Mary Ann Glendon to the U.S. Commission on International Religious Freedom, according to a press release from USCIRF. Glendon is Professor of Law at Harvard University, President of the Pontifical Academy of Social Sciences, and former U.S. Ambassador to the Holy See. One vacancy, to be filled by President Obama, remains on the 9-member Commission. When USCIRF was reauthorized late last year, the authorizing legislation required 5 of its commissioners to resign. (See prior posting.)

California City Settles RLUIPA Suit With Buddhist Group

According to the Walnut Patch, the Walnut, California City Council voted Wednesday to approve a $900,000 settlement with the Chung Tai International Chan Buddhist Association in a RLUIPA lawsuit. In 2008, the city denied a conditional use permit to the Association, then known as the Chung Tai Zen Center. The Buddhist group wanted to build a temple on land it owned. The denial led the Zen Center to move to another facility in Pamona. The Justice Department filed a RLUIPA lawsuit, and the Buddhist Association then intervened as a plaintiff in order to attempt to recover damages. The Justice Department settled with the city last year, obtaining changes in the city's zoning policies. (See prior posting.) The settlement involves a public apology by the city as well as the monetary payment.

Thursday, May 24, 2012

Court Upholds Termination of Catholic School Principal, Rejecting Retaliatory Discharge Claim

In Petschonek v. Catholic Diocese of Memphis, 2012 Tenn. App. LEXIS 330 (TN App., May 23, 2012), a Tennessee state appeals court dismissed a retaliatory discharge claim brought by the former principal of a Catholic school against the Diocese of Memphis. Plaintiff claimed that the Diocese terminated her employment in retaliation for her refusal to remain silent about the misuse of $50,000 raised by parents to purchase computer equipment for student use. The court refused to decide whether plaintiff's claim was barred by the ministerial exception doctrine because the issue had not been not been certified for interlocutory appeal, decided by the trial court, or raised as an affirmative defense by the Diocese. However the court added:

In so doing, we express no opinion on whether an action alleging common law retaliatory discharge, a cause of action intended to protect the public by encouraging employees to report an employer's illegal or unethical activity ... is sufficiently similar to a cause of action alleging retaliatory discharge in violation of the ADA, a statute protecting certain individuals from discrimination in the work place, to warrant application of the ministerial exception.

The court however granted summary judgment for defendant, holding that the retaliatory discharge doctrine applies only to employees at will. Plaintiff here was under contract. The contract permitted the Diocese to discharge plaintiff without cause before the end of the contract period, and entitled plaintiff to 30 days' pay if that happened.

George Washington's Letter On Religious Tolerance To Go Back On Public Display

CNN reported yesterday that George Washington's famous 1790 letter to the Hebrew Congregation in Newport, Rhode Island, will go back on public display after sitting in storage for nearly a decade. The Forward, which has pressed for release of the letter, reported earlier this month as well on the agreement with the Morris Morgenstern Foundation. The arrangement permits the letter to be displayed at the National Museum of American Jewish History in Philadelphia for 3 months per year for the next 3 years. The letter (full text) is an early affirmation of religious tolerance in the United States:

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

The letter will be displayed this year as part of an exhibit titled "To Bigotry No Sanction: George Washington and Religious Freedom," which will run June 29 to September 30.

President Objects To House Passed Defense Bill's LGBT Related Provisions

The U.S House of Representatives last week passed, and sent to the Senate, HR 4310, the 2013 National Defense Authorization Act (full text.) The bill contains two provisions relating to same-sex unions and to broader issues of conscience rights in relation to gays and lesbians. Section 536 of the bill provides in part:

(a) Protection of Rights of Conscience- The Armed Forces shall accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality and may not use such conscience, principles, or beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.....

(b) Protection of Chaplains- .... (2) No member of the Armed Forces may--

(A) direct, order, or require a chaplain to perform any duty, rite, ritual, ceremony, service, or function that is contrary to the conscience, moral principles, or religious beliefs of the chaplain, or contrary to the moral principles and religious beliefs of the endorsing faith group of the chaplain; or

(B) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a direction, order, or requirement prohibited by subparagraph (A)....

Section 537 of the bill provides:

A military installation or other property owned or rented by, or otherwise under the jurisdiction or control of, the Department of Defense may not be used to officiate, solemnize, or perform a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.

Last week the White House issued a Statement of Administration Policy objecting to several provisions in the bill. The Statement says in part:

The Administration strongly objects to sections 536 and 537 because those provisions adopt unnecessary and ill-advised policies that would inhibit the ability of same-sex couples to marry or enter a recognized relationship under State law. Section 536 would prohibit all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline. Section 537 would obligate DOD to deny Service members, retirees, and their family members access to facilities for religious ceremonies on the basis of sexual orientation, a troublesome and potentially unconstitutional limitation on religious liberty.

LifeSite News on Tuesday reported on the controversy over these provisions.

New Hampshire High Court Upholds Partial Tax Exemption For Church Property

In Appeal of Liberty Assembly of God, (NH Sup. Ct., May 22, 2012), the New Hampshire Supreme Court held that under state statutory law, space in a house of worship must be used and occupied directly for religious training or for other religious purposes in order to be tax exempt. It thus upheld a decision of the New Hampshire Board of Tax and Land Appeals exempting only 60% of a church's main building. The court observed, however: "that an apportionment inquiry 'must not be taken to an absurd extreme so that every square foot of a building is rigidly scrutinized. Rather, . . . judgment is the touchstone.'" The court also rejected the argument that civil authorities would become unconstitutionally entangled with religion, in violation of the Establishment Clause, if they examine the religious uses and purposes of each room in the main building. The Concord Monitor reports on the decision.

Wednesday, May 23, 2012

Egyptian Court Convicts 12 Christians In Sectarian Violence; Acquits Muslims

On Monday, Egypt's State Security Court sentenced 12 Christians to life in prison after they were found guilty of sowing public strife, possessing illegal weapons and killing two Muslims in Minya province last April. Eight Muslims were acquitted of possessing illegal weapons and burning down Christian-owned homes and businesses. AP reports:

The religious tension in Minya spilled over into violence last year when a Muslim microbus driver, angered by a speed bump outside a wealthy Christian man's villa, got into a scuffle with security guards who beat him.

After returning to his village ... that evening, he rounded up the villagers who then gathered outside an ultraconservative Islamist group's main office there to protest his beating.... [T]he Christians nearby thought they were going to be attacked and shot from their rooftops down at the crowd, killing two and wounding two others.

For several days after, angry villagers torched dozens of Christian homes and stores.

The sentences are not appealable, and only the ruling military council can request a retrial.

Jury Holds Baptist Convention Liable For Abuse By Minister It Sponsored

The Orlando Sentinel and Louisville Courier Journal report on a jury's verdict last week in state court in Tavares, Florida, holding the Florida Baptist Convention liable for sexual abuse of a 13-year old boy by a former pastor. Douglas Myers, who is serving a 7-year prison sentence after pleading guilty to molesting the boy in 2005, founded two churches in Lake County, Florida, after receiving funding and training from the Convention. The Convention ran a background check on Myers, but did not call his references or his prior churches where there had been allegations of sexual abuse against him. This is the first time the Convention has been held liable in a case like this. Baptist churches are run independently, but here the Convention was more involved since it sponsored him as a "church planter".

India's Parliament Allows Separate Registration of Sikh Marriages

The Tribune (Chandigarh, India) reports that both houses of India's Parliament this week passed a long-pending amendment to the Anand Karaj Act 1909 that will now allow separate registration of Sikh marriages solemnized under the Anand Karaj ritual. The bill will become law when the President assents to it. The new law however is only a first step toward Sikhs obtaining separate recognition. India's Constitution (Art. 25) still defines Sikhs as Hindus. The new law is not even a full separate Sikh marriage law, since it says nothing about divorce. It merely will permit the central government to direct states to maintain separate marriage registers for Sikhs and designate separate bodies to register Sikh weddings.

Details on Monday's Lawsuits By Catholic Groups Challenging Health Insurance Mandate

Tuesday, May 22, 2012

Article Faults Operation of School-Choice Scholarship Tax Credit Programs

Today's New York Times carries a long front-page story on abuses in school-choice scholarship tax credit programs. The programs generally give individuals or corporations tax credits for their donations to private non-profit scholarship organizations that, in turn, distribute scholarship funds to students in private schools, mostly religiously affiliated ones. Here is an excerpt from the extensive report:

Spreading at a time of deep cutbacks in public schools, the programs are operating in eight states and represent one of the fastest-growing components of the school choice movement. This school year alone, the programs redirected nearly $350 million that would have gone into public budgets to pay for private school scholarships for 129,000 students....

While the scholarship programs have helped many children whose parents would have to scrimp or work several jobs to send them to private schools, the money has also been used to attract star football players, expand the payrolls of the nonprofit scholarship groups and spread the theology of creationism, interviews and documents show. Even some private school parents and administrators have questioned whether the programs are a charade.

Most of the private schools are religious. Nearly a quarter of the participating schools in Georgia require families to make a profession of religious faith, according to their Web sites. Many of those schools adhere to a fundamentalist brand of Christianity. A commonly used sixth-grade science text retells the creation story contained in Genesis, omitting any other explanation. An economics book used in some high schools holds that the Antichrist — a world ruler predicted in the New Testament — will one day control what is bought and sold.

Vatican Says Leaking Of Confidential Letters Was A Criminal Act

Reacting to a recently published book, the Vatican press office last week issued a statement saying: "The latest publication of documents of the Holy See and private documents of the Holy Father can no longer be considered a questionable – and objectively defamatory – journalistic initiative, but clearly assumes the character of a criminal act." According to a report by CNA yesterday, the statement comes in response to the book by Italian journalist Gianluigi Nuzzi, Sua Santita (His Holiness) which sets out a series of leaked letters addressed personally to Pope Benedict XVI. Last month the Pope set up a special commission of 3 cardinals to investigate the source of the leaks.

Group Claims Baptist Church Violated Limits On Non-Profit Political Involvement

According to a press release yesterday from Americans United, the organization has written the Internal Revenue Service (full text of letter) asking it to investigate whether a Kentucky Baptist church has violated the rules that preclude Sec. 501(c)(3) non-profit organizations from becoming involved in political elections by endorsing or opposing candidates. At issue is the sermon delivered by Pastor Ronnie Spriggs of Hager Hill Freewill Baptist Church in Hager Hill, Kentucky in which he took issue with President Obama's backing of same-sex marriage and said:

We need to really be prayerful, and we need to get active. If you’ve ever opened your mouth, you better open it now. Between now and November, God’s people ought to thunder this country. We ought to let this country know that we will not be silent on these issues....

You know why that Obama said he believes that? Because the polls represent more people in the United States believe they ought to marry than others do. So this is an advantageous time. You know what we got to show him? There’s more saved people in the United States then he thinks there are. And if we don’t voice our opinion now, we’ll lose our country….

New Lawsuits Challenge Health Insurance Contraceptive Coverage Mandate

Politico reports that 12 new lawsuits were filed yesterday around the country by some 40 Catholic institutions challenging the Obama administration's mandate requiring contraceptive coverage in health insurance policies these institutions offer to their employees and, in the case of universities, to students. Among the suits-- all coordinated by the Jones Day law firm-- is one filed in federal district court in Indiana by the University of Notre Dame. (Full text of complaint.) Commenting on the lawsuits (full text of statement), Cardinal Timothy M. Dolan, president of the U.S. Conference of Catholic Bishops, said:

We have tried negotiation with the Administration and legislation with the Congress – and we’ll keep at it – but there's still no fix. Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now.....

Monday, May 21, 2012

Move of Prayer To Precede City Council Meeting Draws Protest

Mount Vernon, Ohio's city council has traditionally opened its 7:30 meetings with a prayer. Yesterday's Columbus Dispatch reports that after council received a letter from atheist Ryan Kitko, a graduate student at Ohio State University, asking council to drop the prayer in order to respect the city as a diverse community, council president Bruce Hawkins moved the prayer 2 minutes earlier so it would precede the meeting. However, near the end of the council meeting, 4 council member spoke out against the change, and complaints from members of the public ensued.