Court Issues Temporary Injunction Approving Cheerleaders' Bible Banners

Just a day after Texas attorney general filed a petition to intervene on behalf of high school cheerleaders who wish to continue to display their own banners and run-throughs featuring Bible verses (see prior posting), a Texas state trial judge issued a temporary injunction granting the cheerleaders' request.  In Matthews v. Kountze Independent School District, (TX Dist. Ct., Oct. 18, 2012), the court concluded that the school district was prohibiting private religious expression. It ordered the district to cease and desist from preventing the cheerleaders from displaying banners or run-throughs at sporting events, or censoring the sentiments displayed on them. In a press release applauding the decision, Texas Attorney General Greg Abbott said:

Students' ability to express their religious views adds to the diversity of thought that has made this country so strong. Texas law supports students' right to freely express their religious beliefs without discrimination. We will not allow groups or individuals to wage a war on religion by trying to intimidate students into embracing a secular mindset.

According to a New York Times report on the decision, an Anti-Defamation League spokesman called the decision misguided, arguing that the banners are a school-sponsored religious message.

British Court Rejects Conscience Defense In B&B Owner's Refusal To Rent Room To Gay Couple

A trial court in Britain yesterday held that a gay couple suffered unlawful discrimination when the Christian owner of a bed and breakfast, Susanne Wilkinson, refused to allow them to stay in a double room because of the her religious views. The Reading Crown Court awarded each man damages of £1800 according to the London Telegraph. The court, in finding that defendant had violated regulation 4 of the Equality Act (Sexual Orientation) Regulations 2007, said in part:

The business is conducted from her home but it is still a business with a significant number of guests. I do not agree with the submission that if the restriction is unlawful the defendant would have to remove herself from public life.

My conclusion is that the application of the regulations to the defendant bed and breakfast establishment and the finding that the refusal of the double room constituted direct discrimination, are not in breach of her [ECHR] Article 9 Rights [freedom of conscience and religion].

2nd Circuit in 2-1 Decision Finds DOMA Unconstitutional

In Windsor v. United States, (2d Cir., Oct. 18, 2012), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that Section 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification:

A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

None of the justifications offered for DOMA-- maintaining a uniform definition of marriage; protecting the fisc; preserving a traditional understanding of marriage; or encouraging responsible procreation-- are strong enough to justify the discrimination involved.  In concluding, Chief Judge Jacobs, writing for the majority said:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition.  But law (federal or state) is not concerned with holy matrimony.  Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples.  A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it.  For that, the pair must go next door.

Judge Straub dissented, arguing first that the issue is controlled by the Supreme Court's summary dismissal of a similar challenge in 1972 in Baker v. Nelson. He concluded further that DOMA should be subject only to rational basis review, and that several of the rationales advanced for the law satisfy that level of scrutiny.

AP reports on the decision. In May, the 1st Circuit also found DOMA unconstitutional. (See prior posting.)

Venice Commission Opinion Criticizes Azerbaijan Law On Religion; Government Responds

On Oct. 15, the European Union's Venice Commission  along with the OSCE's Office for Democratic Institutions and Human Rights issued a Joint Opinion (Opinion 681 / 2012) finding numerous problems with Azerbaijan's 2011 Law on Freedom of Religious Belief.  The Opinion concludes that the Law "sets a legal framework which is in several aspects contrary to international standards and would benefit from additional revisions in order to meet these standards." The Opinion sets out 15 key recommendations for change, along with 9 additional recommendations. The key recommendations include items such as expanding the law to include "belief" as well as religion, eliminating the ban on proselytism by foreigners, providing for alternative service for conscientious objectors and liberalizing restrictions on religious organizations. The government of Azerbaijan delivered its response to the Joint Opinion on Oct. 16 (full text). According to a report published in Turkish Weekly, the Head of Azerbaijani Presidential Administration Social and Political Department says he thinks that the Venice Commission now believes that the law fully meets the European standards.

8th Circuit En Banc Upholds Funeral Picketing Ordinance

In Phelps-Roper v. City of Manchester, (8th Cir., Oct. 16, 2012), the U.S. 8th Circuit Court of Appeals sitting en banc upheld against facial First Amendment challenges the current version of a Manchester, Missouri ordinance regulating picketing at funerals. The suit was brought by members of the Wesstboro Baptist Church which has a history of picketing veterans' funerals with signs deploring homosexuality.  Finding that challenges to earlier versions of the ordinance are moot, the court held that the current version is a valid content-neutral time, place, and manner regulation. The law bans picketing or other disruptive activity within 300 feet of a funeral or burial service during the period from 1 hour before to 1 hour after the service.  Applying intermediate scrutiny, the court concluded that:

mourners attending a funeral or burial share a privacy interest analogous to those which the Supreme Court has recognized for individuals in their homes... and for patients entering a medical facility.... Mourners have a similarly "significant and legitimate" interest in avoiding "potential trauma" when attending a funeral or burial....   Mourners ... must ... be in a certain place at a certain time to participate in a funeral or burial and are therefore unable to avoid unwelcome speech at that place and time.  A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of "unimpeded access" to a funeral or burial....

Judge Smith wrote a separate concurring opinion "to express concern about the extension of the unique protection afforded the sanctuary of the home to funerals and burials."  He argued that emotional offensiveness alone should not be enough to justify restriction of otherwise lawful speech. [Thanks to Steven Jamar via Religionlaw for the lead.]

Swedish Appeals Court Permits Home Schooling Of Chabad Children

According to Chabad Lubavitch News, an appellate court in Sweden yesterday struck down a law that barred Chabad parents from home schooling their children through Chabad's International Shluchim Online School and private lessons.  The law requiring all students to attend state schools except in extraordinary circumstances was originally enacted to protect immigrant children who were being denied an education and who grew up illiterate.  However, the rabbi and his wife in Gothenburg who filed the lawsuit were providing a high quality education to their children. The court said that the government's refusal to recognize religious objections to state schools contravenes Sweden's international obligations. (See prior related posting.)

Texas AG Petitions To Intervene In Case To Support Cheerleaders' Signs With Bible Verses

As previously reported, last month a Texas state court issued a temporary restraining order allowing Kountze (TX) Independent School District football cheerleaders to continue to display banners, including run-through banners, containing Bible verses. The banners are not made on school property and no school money is used to make them. The Texas Association of School Boards had advised the school district to ban the run-throughs after a complaint from the Freedom From Religion Foundation. Yesterday Texas Attorney General Greg Abbott filed a petition to intervene (full text)  in the case to support the cheerleaders. In a press release announcing the filing of the petition to intervene, Abbott referred to the Freedom From Religion Foundation as "an organization with a reputation for bullying school districts." The Houston Chronicle reports on the attorney general's action.

Church Nursery School Teacher Sues After Being Fired For Living With Fiancee

The Macon (GA) Telegraph reports on a lawsuit filed in a Georgia federal district court on Oct. 3 by a woman who claims religious and gender discrimination in her termination as nursery school coordinator at Friendship Baptist Church in Warner Robins, Georgia.  Plaintiff Jessica Atkinson says that she was asked to resign after church officials complained to her about her relationship with her fiancée, asked her what she planned to do about living in sin and whether she was being a good Christian. Before filing suit, Atkinson filed a complaint with the EEOC.

Suit Charges Evangelical Church Officials Abetted Sexual Abuse of Children By Church Members

A suit was filed yesterday in state court in Montgomery County, Maryland against six pastors and church officials of the Sovereign Grace Ministries, a group of some 80 evangelical churches. AP reports that the 3 female plaintiffs:

allege a conspiracy spanning more than two decades to conceal sexual abuse committed by church members. They accuse church representatives of permitting suspected pedophiles to interact with children, supplying them with free legal advice to avoid prosecution and forcing victims to meet with and "forgive" the person that had molested them.....

The lawsuit, filed in Montgomery County, Md., includes claims of intentional infliction of emotional distress, negligence and conspiracy, among others. It says there are other victims, both male and female, who have raised allegations but are not yet identified as named plaintiffs.

Two of the current plaintiffs allege they were abused as toddlers.

Court Rejects Biblical Objection To Conviction Under Law Defining Defendant As A "Person"

In Fond Du Lac County v. Manke, (WI App., Oct. 17, 2012), a Wisconsin state appeals court rejected an unusual religious liberty defense to a speeding ticket.  Defendant Jeffrey Manke was convicted of violating a state statute that prohibits any "person" from driving over 55 miles per hour unless a higher speed limit is posted.  Manke argued that according to the Bible, he is a "man", not a "person," so that convicting him as a person violates his religion and his due process rights. The appeals court held that as a man, defendant met the definition of person under the statute. The Fox 11 News reports on the decision.

Cert. Filed In Challenge To Ban On Carrying Firearms In Church

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in GeorgiaCarry.org, Inc. v. State of Georgia. In the case, the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship. (See prior posting.) The petition asks the Supreme Court to review the case and rule that a law that specifically targets places of worship may violate the free exercise clause even if it does not burden a sincerely held religious belief. The Atlanta Journal Constitution reports on the filing of the cert. petition.

Mediation With Victims Fails In Milwaukee Archdiocese Bankruptcy

The Milwaukee Journal Sentinel reports that bankruptcy court-ordered mediation between the Catholic Archdiocese of Milwaukee and 575 victims of sexual abuse has failed after 3 months. Both sides confirmed on Monday that the talks have broken down. The victims represent the largest class of creditors asserting claims in the Archdiocese's Chapter 11 bankruptcy proceedings. This means that the claims will be back in court, with victims seeking to expand the assets that are considered part of the bankruptcy estate, while the Archdiocese seeks to assert defenses to reduce the number of claims eligible for compensation.

Drafts Of Proposed Egyptian Constitution Released

According to Ahram Online, two separate drafts of a proposed constitution for Egypt have been released during the last week.  The drafts, while criticized from various sides, do reflect compromises on some issues worked out between secularists and Salafists. The full text of "Part I, State and Society" as reflected in the most recently released draft has been published in English translation by Daily News Egypt. Among the proposed provisions are the following:

Article 2
Islam is the state religion, its official language Arabic, and the principles of Islamic Shari’a are the main source of legislation.

Article 3
For Egyptian Christians and Jews, the principles of their religious laws are the main source of legislation in personal and religious matters as well as in the selection of their spiritual leaders.

Article 4
Al-Azhar is an independent Islamic body and it alone addresses its internal affairs. Its scope covers the Muslim nation and the entire world. It spreads religious studies and the call to Islam. The state guarantees sufficient funds for it to achieve its goals. The law determines the method for selecting Al-Azhar’s Grand Imam, who shall be independent and cannot be removed from office.

The opinion of Al-Azhar’s Council of Grand Scholars shall be taken in matters related to Islamic Shari’a.....

 Article 10
The state is obliged to sponsor and protect ethics and public morals, empower authentic Egyptian traditions, take into account a high level of nurturing, religious and patriotic values, scientific facts, Arab culture, the historical and cultural heritage of the people, as regulated by the law....

Article 24
The state is obliged to revive and encourage the religious endowments system.

The law regulates religious endowments, determines the procedures for founding and managing them, investing them, and distributing their returns on beneficiaries as per the terms of the endowers.

Challenge To County's Prayers and In God We Trust Posting Dismissed When Plaintiff Fails To Appeaar

In Wood County, Texas yesterday, a state trial court dismissed a lawsuit that had been brought challenging the County Commissioners' routine opening of their sessions with prayer and seeking removal of the "In God We Trust" motto prominently displayed in the county commissioners' meeting room.  Plaintiff Charles Scott said he is a devout Christian and believes that elected officials cannot honor the word of God if they also honor the Constitution's freedom of religion.  According to KLTV News, the court dismissed the case for lack of evidence when Scott failed to appear in court. Scott told reporters that he was unable to go to court because the Lord did not provide him with a means to get there.

Kenyan Court Upholds High School's Ban on Hijabs

Last month, in Republic v. The Head Teacher, Kenya High School, (High Ct. Kenya, Sept. 18, 2012), the High Court in Narobi, Kenya upheld the uniform requirements of Kenya High School which bar Muslim girls from wearing the hijab. Among other things, plaintiffs argued that the ban violated provisions of Kenya's Constitution that assure equality before the law and which protect freedom of religion and bar religious discrimination. In rejected plaintiff's arguments, the court said in part:

The significant and critical role played by standardized dress codes and observance of rules in controlled environments... cannot be overemphasized.... In my view, the most important role played by a standardized school uniform is that it creates uniformity and visual equality that obscures the economic disparities and religious backgrounds of students who hail from all walks of life.

If the court were to allow the applicant’s quest to wear hijab in school, the 48 Muslim girls in the school would look different from the others and this might give the impression that the applicants were being accorded special or preferential treatment. This may in all probability lead to agitation by students who profess different faiths to demand the right to adorn their different and perhaps multi-coloured religious attires of all shapes and sizes which the school administrators will not be in a position to resist.... Such an eventuality should be avoided at all costs since it is in the public interest to have order and harmonious co-existence in schools.... 

It is important to bear in mind that the Republic of Kenya is a secular State.... [A]llowing the applicant’s prayer in this motion would in my opinion be tantamount to elevating the applicant and their religion to a different category from the other students who belong to other religions. This would in fact amount to discrimination of the other students who would be required to continue wearing the prescribed school uniform.

Kenya's Daily Nation today reports on the decision.

Vatican- Equatorial Guinea Sign Accord

Zenit reports that last Saturday an official accord was signed between the Holy See and the Republic of Equatorial Guinea recognizing the juridical personality of the Catholic Church and Church institutions. The agreement contains 19 articles and a protocol, and deals with issues such as canonical marriage, places of worship and spiritual care of the sick and imprisoned. The government of Equatorial Guinea also announced the signing of the agreement.

New Texas-Focused Religious Advocacy Group Is Launched

A new religious advocacy organization began to operate last week, as Liberty Institute announced the launch of Texas Values. The new, state-focused organization "stands for biblical, Judeo-Christian values" in Texas, emphasizing religious liberty, families and human life. A link to the new group's website has been added to the Religion Clause sidebar's listing of Advocacy Groups.

Bhutan Bans Public Religious Events For 6 Months Before Elections

AP reported yesterday on the action of the Election Commission in the small, largely Buddhist nation of Bhutan banning public religious events from Jan. 1, 2013 until Parliamentary elections (expected to be held in June 2013) are completed.  Designed to prevent the mixing of religion and politics, the Commission's Oct. 1 Notification (full text) says in part:

The Constitution of the Kingdom of Bhutan provides for the political system in Bhutan to be secular where Religion is elevated to the higher pedestal through the declaration: “Religion shall Remain Above Politics”....

We  are  hopeful that  with  your  Prayers and Blessings, the conduct of  the Second Parliamentary Elections in early 2013 will be smooth and peaceful as the First. However, as a safety and preventive measure the ECB seeks the kind indulgence and the support  of the Religious Communities  in the Kingdom  to schedule public events to be carried out only after the Parliamentary Elections are completed.

Israeli Court On Procedural Grounds Refuses To Order YouTube To Remove Anti-Muslim Video

Times of Israel reports that the District Court in Jerusalem today rejected a petition by United Arab List and a group of Arab public figures seeking an order to require Google to remove from YouTube Israel the trailer for the controversial video "The Innocence of Muslims."  While noting that removing the video from YouTube would not prevent people accessing it on other sites, the basis for the court's decision was a procedural one.  YouTube was not included as a defendant in the case. Only its parent, Google, Inc., was named in the lawsuit.

Controversial Historian Raises Question of LDS Church Influence Over Romney's Decisions

Vanity Fair today carries an article by Michael Quinn, a controversial historian of the Church of Jesus Christ of Latter Day Saints, titled When Mormons Go To Washington. It argues that

Though Mitt Romney and his supporters invoke J.F.K.’s 1960 talk, most Mormons do not believe in the America of which Kennedy spoke. He described a nation “where no public official either requests or accepts instructions on public policy from” any “ecclesiastical source.” By contrast, L.D.S. politicians (both Democrats and Republicans) have sought instructions from their church’s leaders for more than a century. Republican officeholders have been most susceptible to such political “counsel,” while L.D.S. Democrats have often objected to it—sometimes stridently.

Quinn goes on to chronicle a notable exception who strongly resisted Church pressure-- Utah Republican Senator Reed Smoot, and quotes a Romney assertion that he would never expect a call from the L.D.S. Church president, because the obligation of national officials is to the nation. Quinn, who was excommunicated from the LDS Church in 1993, ends his article with these tendentious questions:

Is there any evidence that L.D.S. headquarters has abandoned its interest in influencing the decisions of L.D.S. officeholders in Washington, D.C.? Have Mormon Republicans departed from their historical patterns of embracing political direction from the L.D.S. Church hierarchy? Is Mitt Romney an unwavering statesman who is resistant to such pressures?