Justice Sunday III Host Criticized For Political Ties

On Tuesday, Americans United for Separation of Church and State issued a release criticizing Philadelphia Pastor Herb Lusk, who, on Sunday, is hosting the "Justice Sunday III" rally. The event, which will be held at Lusk's Greater Exodus Baptist Church, will be broadcast nationwide. It is designed to rally support for the confirmation of Supreme Court nominee Samuel Alito Jr. Americas United said that Lusk has a long history of partisan activity on behalf of Republicans and has been awarded more than $1 million in "faith-based" grants by the Bush administration. Yesterday's New York Times explored Lusk's background further.

Rev. Barry W. Lynn, exeutive director of AU, said: "Government funding too often sucks churches into partisan politics. After all, if church leaders want to keep the pipeline to tax funding open, they had better back administration policies."

Pennsylvania Senator Rick Santorum will be among those speaking at the Justice Sunday rally, according to yesterday's Pittsburg Post-Gazette.

Church's Libel Suit Rejected

Harvest House Publishers v. The Local Church, decided January 5 by a Texas state court of appeals, has rejected a libel claim by a church against a publisher and two authors who included the church in The Encyclopedia of Cults and New Religions. The court held that merely being labeled a "cult" is not actionable because the truth or falsity of the statement depends on one's religious beliefs which should not be tried in a court of law. Similarly accusing a church of accepting occult powers or promoting idolatry are statements concerning religious beliefs that cannot be proved true or false. While some of the characteristics of cults discussed in the book may have been defamatory, the court held that it cannot reasonably be found that those characteristics were attributed to every group discussed in the book.

Recently Published On Religion, Law and Politics

Recently published Books of interest:

• Former Senator Gary Hart has published God and Ceaser In America: An Essay On Religion and Politics (Fulcrum Books, Nov. 2005).
• Glenn Feldman, ed., Politics and Religion in the White South (University of Kentucky Press, 2005).
• Peter W. Edge. Religion and Law-- An Introduction (Ashgate, 2005).

Articles from SmartCILP:

• Boston University Law Professor Jay D. Wexler, The Scopes Trope, (Reviewing Larry A. Witham, Where Darwin Meets the Bible: Creationists and Evolutionists in America), 93 Geogetown Law Jour. 1693-1721 (2005).
• David L. Abney, Religion and Housing for the Homeless: Using the First Amendment and the Religious Land Use Act to Convert Religious Faith Into Safe, Affordable Housing, 8 Scholar: St. Mary’s Law Review on Minority Issues 1-15 (2005).
• B. Jessie Hill, Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test, 104 Mich. L. Rev. 491-545 (2005).
• Alenka Kuhelj, Religious Freedom in European Democracies, 20 Tulane European & Civil Law Forum 1-35 (2005).
• Eric Stein, The Church and the Constitution for Europe: On the Margin of ... (Reviewing Joseph Weiler, Un' Europa Cristiana -- Un Saggio Esplorativo.) 11 Columbia Journal of European Law 451-460 (2005).

From Bepress:

• Haoliang Wu and Bingbin Lu, Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights, Global Jurist Frontiers: Vol. 5: No. 1, Article 3 (2005).
• Brendan Michael Groves, Winning Wirzburger and Defeating the Blaine Amendments: Arguing Present Efficacy Instead of Past Intent (2005).

Court Finds Muslim Prisoner's Dietary Requirements Were Met

In Cox v. Kralik, 2005 U.S. Dist. LEXIS 37826 (SDNY, Dec. 29, 2005), a New York federal district court rejected a Muslim prisoner's free exercise claim. It held that a prison facility need not offer him Halal food when it had given him a choice of a kosher or vegetarian diet, either of which he could eat without violating his religious beliefs.

Fla. High Court Invalidates School Vouchers Without Reaching Aid To Religion Issue

In Bush v. Holmes, decided today, the Florida Supreme Court struck down Florida's school voucher program on state constitutional grounds without reaching the question of whether the program violates Florida's Blaine amendment that prohibits any state financial aid to any religious denomination or sectarian institution. By a vote of 5-2, the Court held that Florida's Opportunity Scholarship Program violates Article IX, Sec. 1(a) of the state's constitution. The opinion said:

The relevant words are these: "It is ... a paramount duty of the state to make adequate provision for the education of all children residing within its borders." Using the same term, "adequate provision," article IX, section 1(a) further states: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools." ... [W]e find that the OSP violates this language. It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not "uniform" when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.

[Thanks to Anthony Picarello via Religionlaw for the information.]

Clergy To Consecrate Senate Alito Hearing Room

At 1:00 this afternoon, the Christian Defense Coalition and National Clergy Council will hold a service in the Hart Senate Office Building to consecrate the hearing room where confirmation hearings on Supreme Court nominee Judge Samuel Alito will be held. In reporting on the planned event, the Christian Wire Service yesterday quoted Rev. Rob Schenck, President of the National Clergy Council: "The act of consecrating a special place for sacred use has a long and Biblical history to it. In setting apart the Senate hearing room for God's purpose, we will ask for His will to be done in all that is said by the senators and Judge Alito. We are praying that both parties be faithful to the Constitution, honest in their exchange and devoted to the truth. As to the outcome, we pray only that God's will be done on earth as it is in heaven."

Ohio Gubernatorial Candidate's Ad Criticized For Religious Content

In Ohio, a bitter 3-way race for the Republican nomination for Governor in 2006 is well underway. Yesterday, an op-ed piece in the Ohio State Lantern by Dan Magestro criticized the religious nature of an ad being run by one of the candidates, state Attorney General Jim Petro. The ad, which can be seen on Petro's website, begins with Petro asking "What does God expect of us?" Petro answers, "To do justice, to love kindness." Then, as the Lantern describes it:

The camera floats above a certificate of Christian baptism as Petro talks about his pro-life stance and 33-year marriage. "We believe that we have to do all that we can to advocate the protection of all life," he says. The camera then hovers gracefully over a Bible (yes, a Bible) resting on a table next to a wedding ring, while Petro discusses the sacred bond of marriage between a man and a woman. Petro closes with this shocker: "Our worship and our faith gives me the opportunity to make decisions that are more effective for people."

Magestro concludes: "When the OSU quarterback humbly praises God for his athletic talents, I respect and admire his personal faith. When the attorney general of our state calls on his Christian faith for making decisions on behalf of all Ohioans, I'm appalled."

11th Circuit Issues Unusual Order Clearing Attorney In Textbook-Sticker Case

The U.S. 11th Circuit Court of Appeals yesterday issued an unusual order clearing Atlanta attorney Jeff Bramlett of charges that he purposely misrepresented the timing of events in his brief and oral argument last month in the case of Selman v. Cobb County School District. The Associated Press reported on the order. During oral argument, the 3-judge panel had sharply questioned Bramlett about whether a petition from religious supporters of intelligent design preceded or followed the Cobb County School Board's decision to place stickers on biology books questioning the theory of evolution. (See prior posting.)

Earlier this week, the Fulton County Daily Report said that 11th Circuit Judge Edward E. Carnes had demanded that Bramlett provide a written explanation of his assertions about timing. On Dec. 22, a week after the argument, Bramlett filed a 127-page response saying that there were two petitions -- one with more than 2,300 signatures delivered to the school board before the books were purchased, and a smaller petition delivered after the sticker plan was implemented. Upon receiving that explanation, the Court of Appeals instructed the school board's attorney to provide "any evidence regarding the timing of any petitions that may have been filed with the School Board."

After yesterday's order, attorney Bramlett said: "I appreciate the court going to the trouble of putting out that order and, as they say, removing implications."

Maryland Muslim Students Seek Expansion of School Holiday Calendar

In suburban Baltimore Maryland, Islamic students are asking the county school system to include important Muslim festivals on the school's holiday calendar. The Towson, Maryland Northeast Booster yesterday said a school board committee is studying the issue. County resident Muhammad Jameel said Muslim children feel excluded because schools close for Christian and Jewish holidays, but not Muslim ones. School spokeswoman Kara Calder said religious absences are considered "excused". Students are permitted to make up the work and tests they miss. The school tries not to schedule tests on those days. However, excused absences do count against a student's perfect attendance record, which is sometimes important to qualify for certain scholarships.

Indiana House Speaker Will Not Defy Federal Judge On Prayer

The Baptist Press reported yesterday that in Indianapolis, Indiana Speaker of the House Brian Bosma refused urgings to defy the order of a federal judge banning the opening of legislative sessions with sectarian prayer. (See prior posting.) Bosma said that while the case is being appealed, members could have "informal" and "uncensored" prayers on the floor of the House before each legislative day begins -- but not a formal prayer from the podium. Under the judge's ruling prayers on the floor, rather than from the podium, can invoke Christ's name. Before Bosma spoke, members had already prayed together at the back of the House. Democrat Peggy Welch used "Holy Spirit" in her prayer, while Republican Eric Turner invoked the name of Christ.

In Dover Re-Vote, Challenger Wins Again

In Dover, Pennsylvania on Tuesday, a revote for one seat on the school board resulted in challenger Bryan Rehm again defeating incumbent James Cashman, according to the York Dispatch. The re-vote was limited to 800 voters and was held because a voting machine malfunctioned on election day. (See prior posting.) Rehm will now join seven other candidates fielded by Citizens Actively Reviewing Educational Strategies, a group that opposed the district's controversial plan-- now found to be unconstitutional-- to tell students about Intelligent Design in biology classes. (See prior postings 1, 2 .)

Thai Committee Recommends Establishing Buddhism As National Religion

In Bangkok, Thailand, The Nation yesterday reported that after extensive studies, a Senate committee is about to propose 15 changes to the nation's Constitution. One of the recommendations would insert a provision in the Constitution making Buddhism the national religion. The current Constitution already requires that the king must be a Buddhist (Sec. 9) and provides that the government is to protect Buddhism and other religions (Sec. 73).

Massachusetts Legislature To Consider Bills Affecting Catholic Church

The Boston Globe reports today that over 60 co-sponsors have been obtained for a bill that would partially eliminate Massachusetts' current $20,000 limit on liability for churches and other non-profits. (Gen. L. Mass., Chap. 231, Sec. 85K). The proposed change in the state's charitable immunity law would apply to cases involving sexual abuse of minors, and comes as new negotiations for settlement between sex abuse victims and the Boston Archdiocese were reported. The legislative change would follow similar action last month by New Jersey. (See prior posting.)

Three other bills affecting the Catholic Church have also been introduced into the Massachusetts legislature, but face opposition. Two would restructure the state's statute of limitations in civil and criminal cases involving sexual abuse of minors. A fourth bill, already approved by the Massachusetts Senate, is scheduled for House consideration this month. It would require financial reporting to the attorney general by religious organizations. (See prior posting.) The Massachusetts Catholic Conference particularly opposes the proposed changes in the statute of limitations. Its executive director, Edward Saunders, said, ''The position for the church is that it is opposed to any legislation that crosses the lines of separation of church and state." He said the organization opposes elimination of the statute of limitations for sex abuse because ''as time goes by there is a weakening of testimony and evidence."

Breakaway Church and PCUSA In Court Over Title To Property

The Times Record-Herald (Hudson Valley, New York) yesterday chronicled the background of a case currently pending in a New York trial court pitting the 18-member Ridgebury Presbyterian Church in Wawayanda, New York against the Prebyterian Church USA. In a theological schism over homosexuality, abortion and scriptural interpretation, the Ridgebury congregation notified PCUSA that it was leaving the denomination. Now the two groups are fighting in court over who owns the church building and property. The congregation says it holds deeds to the property which has been in its hands since the congregation was founded in 1792. But PCUSA and the Hudson River Presbytery claim that in 1983, a legally binding property trust clause was inserted into PCUSA's internal constitution. (Book of Order, Chap. VIII, Sec. 2). The clause provides that local congregations hold church property in trust for PCUSA as long as they are members. PCUSA says the provision simply codified what had been a longtime church practice. As the Times-Herald Record reporter points out: "For little congregations wishing to break away on theological grounds, a ruling upholding the trust clause could serve as a material leash on spiritual dissent."

Israeli Religious Parties Reject Religious Affairs Changes

Today's Jerusalem Post reports on a proposal to reduce Israeli national government involvement in Religious Affairs and increase local control of Religious Councils. The Ne'emanei Report was presented earlier this week to the chairmen of three leading Israeli political parties. It suggested that synagogues, funded by a voluntary religion tax, should employ the local rabbi and provide basic educational services and a place of worship. Services that individual synagogues could not provide, such as marriages, burials, ritual baths and kashrut supervision, would be provided by one or more national unions of synagogues. Leaders of the major religious parties, Shas and NRP, rejected the proposal, saying that it would be a first step toward separation of religion and state. National Religious Party chairman Zevulun Orlev said, "Religious services must remain an intrinsic part of the state. This is fundamental to the definition of Israel as a Jewish democratic state."

Dover School Board Rescinds Intelligent Design Policy

The Associated Press reports that in Dover, Pennsylvania on Tuesday, the recently-elected school board rescinded the prior board's policy of presenting students a statement on "intelligent design" as an alternative to evolution in high school biology classes. This move was expected, and came two weeks after a federal judge found the teaching of intelligent design to be unconstitutional. (See prior related postings 1, 2 .)

Italian Case On Proving Existence of Christ Proceeds

Under the Italian Penal Code, both "abuse of popular credulity" (Sec. 661) and "impersonation"(Sec. 494) are offenses. Luigi Cascioli, who lives in Viterbo, a town north of Rome, is a retired agronomist who once studied for the priesthood but later became a militant atheist. He has written a book titled The Fable of Christ. A priest, Father Enrico Righi of Bagnoregio, denounced Cascoli in the parish newsletter for questioning Christ's historical existence. In September,2002, Cascoli responded by filing suit. The trial judge dismissed the case but the Court of Appeal held that Signor Cascioli had a reasonable case for his accusation that Father Righi was "abusing popular credulity". So yesterday the trial judge, Gaetano Mautone, set a preliminary hearing for next month. The London Times reports on the case as one in which Father Righi will be required to prove that Jesus Christ existed. It also reports, not surprisingly, that "the Vatican has so far declined to comment".

In an e-mail sent last September to the Archbishop of Bologna, Cascioli said he would drop the suit if Righi offered just one proof of the existence of Jesus. Cascioli has made many of the documents in his lawsuit available on his website. From the complaint, here is an excerpt from his explanation of the charges:

According to article 661 of the Italian Penal Code, there is an abuse of popular credulity when someone, by means of fraud, deceives a great number of people. In this particular case, the ministers of religion of the Catholic Church, like Righi in the present case, by committing historical falsity, therefore presenting invented facts as if true and actually occurred – but useful to religious doctrine – they deceive all the people that come into contact with the teachings of such religion, by inducing them to believe in that religion, not on the basis of purely theological reasoning (totally legitimate and admissible), but on the basis of a deceptive representation of the facts.

Vermont Enforces Unconstitutional Liquor Regulation

According to today's Rutland Herald, the state of Vermont continues to enforce a liquor control regulation that fairly clearly violates the Establishment Clause. Department of Liquor Control Regulation No. 35 provides that no liquor license may be granted for a premise within 200 feet of a church or school without the church or school's permission. In 1982, in Larkin v. Grendel's Den Inc. the U.S. Supreme Court held that a similar Massachusetts statute violates the 1st Amendment.

Sikh Temple Dispute Goes On As Members Await Court Appeal

In Bedford, Ohio, a dipute that is working its way through the courts required police to be present at midnight New Years Eve services at the Guru Gobind Singh Sikh Sikh Temple. Yesterday's Cleveland Plain Dealer reports on the dispute between less traditional Sikhs who are longtime members of the temple, and more numerous newcomers who favor a return to tradition, including beards and turbans. The longtime leadership also wishes to restrict who can be a voting member of the temple. But a group of the newcomers, claiming they are the newly elected leaders of the Temple, grabbed the microphone at the midnight prayer service, and then returned later Sunday to continue their takeover. Police finally left Sunday after the longtime leaders agreed to leave the temple.

A Cuyahoga County Common Pleas Court judge ruled in 2004 that the Temple's membership could be expanded with the many newcomers and that all members are entitled to vote and view financial records. That paved the way for the new leadership. But the old leaders filed a notice of appeal and aruge that until the 8th Ohio District Court of Appeals rules, they should remain in place as Temple leaders.

Two Prisoner Cases From A Few Months Ago

The decisions in two prisoner free exercise cases from several months ago have just become available. Ford v. Martel, 2005 U.S. Dist. LEXIS 37318 (ED Cal., Sept. 14, 2005), involved complaints about limits on religious services during a prison lock down imposed after weapons-related materials were found near where Muslim inmates had just participated in Ramadan services. A U.S. Magistrate recommended dismissal of complaints that during the Ramadan lock down inmates were given access to a Muslim imam only in their cells.

In Pineda-Morales v. De Rosa, 2005 U.S. Dist. LEXIS 37179 (D. NJ., July 6, 2005), a prisoner complained that he was not allowed separate services for the Apostolic Faith Church, arguing that the "trinity doctrine" of other Protestant churches was inconsistent with teachings of his faith. The court denied prison officials' summary judgment motion on one claim, finding that questions of fact remained on whether prison officials employed the least restrictive means when they denied denominational recognition and Saturday meeting time to Plaintiff's group. However summary judgement on various other claims was granted based on exhaustion, statute of limitations and immunity.

Op-Ed Criticizes Democrats' Outreach To Religious Voters

An op-ed piece in today's New York Times by Joseph Loconte is worth reading. Titled Nearer, My God, to the G.O.P., it accuses the Democrats of now misusing religion as badly as the right. It points out that after the 2004 election, Democrats decided to try to reclaim religious voters. In the House they set up the Democratic Faith Working Group. In the Senate, minority leader Harry Reid added a page called Word to the Faithful to his website.

Pending Federal Legislation On Religious Liberty and Church-State

As Congress reconvenes later this month, at least 20 bills impacting free exercise or church-state relations are pending in committee or at other stages of the legislative process. Here they are:

• Workplace Religious Freedom Act- S.677; H.R. 1445.
  
• Houses of Worship Free Speech Restoration Act- H.R. 235.
  
• Denial of tax exemption for discriminatory social clubs- H.R. 237.
  
• Family Education Freedom Act- H.R. 406.
  
• Bill to allow clergy to revoke their Social Security exemption- H.R. 451.
  
• Trade sanctions for countries that violate human rights- H.R. 967.
  
• Tools For Community Initiatives Act- H.R. 1054.
  
• Tax code's definition of "convention or association of churches"—H.R. 1411.
  
• Responsibility of pharmacies to fill prescriptions- H.R. 1539, H.R. 1652, S. 809.
  
• Liberty List Act- H.R. 1662.
  
• War Memorial Preservation Act—H.R. 2229.
  
• Religious Freedom Peace Tax Fund Act- H.R. 2631.
  
• Public Expression of Religion Act- H.R. 2679.
  
• Commission on Religious Freedom and Respect in the Armed Forces- H.R. 3108.
  
• Disaster Relief Equity Act- H.R. 3208.
  
• Religious exemption from furnishing tax identifying numbers- H.R. 3410.
  
• Voluntary non-denomination prayer at military academies- H.R. 3430.
  
• Reinstating harboring sanctions for paid alien religious volunteers- H.R. 4321.
  
• Public Prayer Protection Act- H.R. 4364.
  
• Extending Equal Access Act to Elementary schools- S. 483.

Role of Shariah In Malaysia Increasingly Questioned

In Malaysia, criticism is growing of Islamic fundamentalists who control the government's Islamic Affairs Department that administers Shariah law. Two events have prompted calls for change: (1) the passage last December of a new Islamic family law that makes divorce and polygamy easy and allows a husband to claim his wife's properties, and (2) the the forced Islamic burial last week of Mt. Everest climber, M. Moorthy, over his Hindu wife's objections. Western-educated Muslim feminists criticize the Islamic Affairs Department's strict interpretation of the Quran. The main opposition Democratic Action Party has called for a major review of Article 121(1A) of the Malaysian constitution, added in 1988, that strips civil courts of jurisdiction over "any matter" within the jurisdiction of the Shariah courts. A long background report on the situation today by Spero News says these developments have led to a questioning of "the role of an increasingly puritanical Islam in a multi-ethnic society that prides itself on tolerance and an easygoing, modern way of life".

Colorado Mayor Launches Faith-Based Program

Colorado Springs, Colorado mayor Lionel Rivera is initiating his Mayor's Faith Based and Community Initiatives program, according to today's Colorado Springs Gazette. He will use the mayor's office to link charities in need of volunteers with churches, synagogues and mosques that can supply them. This will be done through the city's Web site and e-mails the mayor sends to a database of leaders in the religious and nonprofit communities. Citizens Project executive director Ellie Collinson questions the approach. "For the government to target specifically faith-based organizations, I think, is not the best use of taxpayer money, and I would rather see the private sector get involved in that sort of activity," Collinson said. "And certainly the mayor could endorse it as a worthwhile effort, but I don't see the need for spending city services in order to make the project happen." The mayor says he will gladly accept nonfaith-based groups into his program.

Happy New Year To Religion Clause Readers

Dear Religion Clause Readers,

Happy New Year. A bit over 8 months ago, I began this blog, somewhat on a whim, but with the perception that there was a need for the type of coverage it provides. A half hour after the New Year arrived on the East Coast of the United States, visitor number 22,228 logged onto Religion Clause. That hardly ranks it at the top of world readership, but I am pleased to have attracted those numbers.

Thanks in particular to my regular readers. Your comments, tips, and links from your own blogs are appreciated. If you enjoy Religion Clause, please take a moment today to e-mail others who you think might like to add the blog to their daily reading.

I invite all readers to e-mail me with comments or ideas-- whether on coverage, format, linking policy or other topics. I cannot promise to incorporate every suggestion—after all one of the virtues of blogs is that they permit an author to indulge a personal style and approach without the intervention of editors and marketers. However, I will read all suggestions with an open mind. Happy New Year!

[photo from New Media Journal.us]

Conscientious Objector Claims In U.S. Military Growing

Yesterday, the Associated Press reported on the small, but growing, number of U.S. soldiers, disillusioned with the Iraq war, who are applying for conscientious objector status. In 2004, some 110 applied, a four-fold increase from 2000. About half the applications were approved.

Creditors of Portland Archdiocese Can Reach Parish Properties

Yesterday, U.S. Bankruptcy Judge Elizabeth Perris in Portland, Oregon, issued three separate opinions in Roman Catholic Archbishop of Portland v. Tort Claimants Committee. The two major opinions held that parish church, school and cemetery properties are part of the assets of the Archdiocese and that at least some of those properties are available to creditors of the Archdiocese to satisfy their claims in the Archdiocese bankruptcy proceedings.

In the major opinion, the court rejected First Amendment challenges to its jurisdiction, holding that a determination of whether parish properties are part of the bankruptcy estate does not involve its deciding a theological or doctrinal matter. Finding that the Archdiocese had not separately incorporated its parishes or schools, the court said:

What defendants ask this court to do in the name of religious freedom is to disregard the choice debtor has made about how to hold property under civil law, because of their argument that the choice leads to a result not consistent with canon law. It is not for the civil courts to enforce canon law if the actions of the religious organization under applicable civil law do not effectuate what canon law requires.

However, the court had more difficulty with the Archdiocese claim that the Religious Freedom Restoration Act protected it from having church and school properties sold off to satisfy creditors' claims. In its second opinion, focusing on the bankruptcy trustee's right to ignore claims of parishes and schools to the properties, the court said:

that there is a question of fact whether application of the avoidance powers under Sec. 544(a)(3) might substantially burden the exercise of religion in violation of RFRA, if it were to result in the loss of so many parish churches and Archdiocesan high schools that it would leave defendants with no place to worship and study.

However the court left that determinationn to future litigation, suggesting that it might limit the number of properties that could be sold off.

Finally, a third opinion focused on the scope of questioning that the Tort Claimants Committee could engage in when taking the depositions of the Archbishop and other witnesses. Among other things, the court held that the First Amendment does not protect against questions about internal church governance where that is relevant to the Church's patterns, practices, and policies in addressing priest sexual misconduct with minors.

The Associated Press, reporting on the opinions, points out that they mirror an earlier decision in the bankruptcy of the Diocese of Spokane, Washington.

Atypical RLUIPA Issues Decided

Two RLUIPA cases that have recently become available address some of the more obscure issues posed by RLUIPA.

Lighthouse Institute For Evangelism, Inc. v. City of Long Branch, 2005 U.S. Dist. LEXIS 36425 (D NJ, Dec. 27, 2005) involved a challenge to Long Branch, New Jersey's Redevelopment Ordinance by a church that wished to locate in an area in which churches were not a "permitted use." One of the church's RLUIPA claims was brought under 42 USC 2000cc(b): "No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." Rejecting the approach of some other courts, New Jersey federal district Judge William Walls held that subsection (b) is violated only if there has been a "substantial burden" placed on the church's free exercise of religion.

The opinion in Williams v. Gerges, 2005 U.S. Dist. LEXIS 36958 (ED NY, July 26, 2005), which has only recently become available even though it was decided 5 months ago, holds that the four year statute of limitations under 28 USC 1658(a) applies to RLUIPA actions. That provision applies to civil actions arising under any federal law enacted after December 1, 1990. This is so even thought the statute of limitations for a First Amendment claim brought under 42 USC Sec. 1983 may be shorter. Courts have found the limitations period under Section 1983 to be the statute of limitations applicable to personal injury actions occurring in the state in which the federal court sits.

It's Not Over In Dover-- Election Re-Run For 1 Board Seat Tuesday

It was widely reported in November that residents of Dover, Pennsylvania voted out the 8 incumbent school board members who supported the teaching of intelligent design, and elected challengers who opposed teaching this alternative to evolution in science classes. (See prior posting.) However, the election battle is not over. Today's Harrisburg Patriot-News reports on the little-noticed development. Board incumbent James Cashman lost to challenger Brian Rehm by only 96 votes. Cashman sued, and a county judge has now ordered a partial re-vote because it appears that one voting machine malfunctioned. Cashman received only one vote on that machine, while other incumbents each received about 100 votes. So next Tuesday there will be a special election open only to the 817 people who voted on Nov. 8 at the precinct in question.

California's Extension of Time To Sue For Childhood Sexual Abuse Upheld

On Dec. 21, the U.S. District Court for the Southern District of California issued an opinion in Melanie H v. Defendant Doe 1 (Civ. No. 041596-WQH-(WMc), rejecting a constitutional challenge by the Catholic Church to California's extension of the statute of limitations in priest childhood sexual abuse cases. The opinion is not yet available online, except through the court's PACER system (account required). The Bishop of San Diego and Sisters of Precious Blood argued that California's SB 1779 (Cal. Code of Civil Procedure Sec. 340.1) violates the free exercise, establishment, due process, ex post facto and bill of attainder clauses of the U.S. Constitution.

The court concluded that SB 1779 does not burden the Church's choice, supervision or retention of priests, and that the financial burden in defending lawsuits is not a burden on religious belief or practice. It also found that the statute does not favor or disfavor one religion over others, nor will it lead to excessive entanglement of Church and state. The court found that the claim that defendants due process rights were violated is premature and that SB 1779 is not per se unconstitutional under the Due Process Clause. Finally, it rejected the ex post facto and bill of attainder claims.

Reporting on the decision, last week's Los Angeles Times pointed out that this is the second case to reject constitutional challenges to SB 1779.

NJ Township Permits Creation Of Eruv

In Maplewood Township, New Jersey, the Township Committee has approved a proposal by two Orthodox Jewish congregations to mark existing telephone poles and wires in order to create an eruv around the town-- a symbolic boundary that will permit observant Jews to carry objects and push strollers on the Sabbath. Yesterday's New Jersey Jewish News reports that the proposal was approved by a vote of 4-1. The lone dissenter, Vice Mayor Ian Grodman, said: "I have a problem with the township getting involved in what amounts to a violation of the Establishment clause." However, in 2002 in a case from Tenafly, New Jersey, the U.S. Third Circuit Court of Appeals rejected the argument that permitting an eruv would create establishment clause problems.

Top Ten 2005 Church-State/ Free Exercise Developments

Here are my picks for the Top Ten developments in Church-State Separation/Free-Exercise of Religion in the United States in 2005. Each development has been the subject of many postings over the year. A link to one typical story on the issue accompanies each pick. I invite comments by those who agree or disagree with my choices.

1. Supreme Court rules on 10 Commandments displays.
2. Intelligent Design is at center of public controversy.
3. Supreme Court nominees are scrutinized over their 1st Amendment religion views.
4. The "Christmas wars" heat up-- "holiday" vs. "Christmas".
5. Government funding of faith-based organizations remains controversial.
6. Proselytization at the Air force Academy creates controversy.
7. RLUIPA is upheld as constitutional by Supreme Court and lower courts.
8. Courts strike down sectarian legislative prayers.
9. Christian student groups demand university recognition: non-discrimination vs. free exercise.
10. Accommodation of Muslim religious beliefs and practices increases.

Also you might want to compare my picks with the Religion Newswriters Association's top 10 news events of 2005, a somewhat broader category than mine.

Judge Denies Request To Amend Indiana Legislative Prayer Ruling

Indiana federal district judge David Hamilton on Wednesday denied a request to amend his order banning sectarian prayer in the Indiana House of Representatives. (See prior posting). This clears the way for an appeal. House Speaker Brian Bosma argued that the ruling was too vague to enforce. The Indianapolis Star today reports that the refusal was accompanied by this warning from Judge Hamilton: "If the speaker or those offering prayers seek to evade the injunction through indirect but well understood expressions of specifically Christian beliefs, the audience, the public, and the court will be able to see what is happening. In that unlikely event, the court will be able to take appropriate measures to enforce" the injunction.

Hindu Couple Appeals Ban On Cows In City Limits

Yesterday's New York Newsday reports that a Hindu couple, Stephen and Linda Voith, earlier this month filed an appeal of a New York trial court's decision that prohibits them from keeping their six cows within the city limits of Angelica, NY. An Angelica village ordinance prohibits the keeping of farm animals without a permit unless the owner has at least 10 acres of land on which the animals can graze. Hinduism considers protecting cows a sacred obligation. The Voiths, members of the Krishna Consciousness branch of Bhakti Hinduism, claim that the cows are not farm animals. They see them as being among their family members and integral to the practice of their religion. A supporter of the Voith's position has even created a website to explain and advocate their cause.

Contempt Finding After Settlement Of Church Dispute Dismissed

In Foster v. Collins, (TN Ct. App., Dec. 27, 2005), a Tennessee appellate court dismissed a case involving a dispute between church members and church leadership over expenditure of church funds and renewal of the employment contract of the church's pastor, Dr. Frank Thomas. Originally a group of church members sued claiming that members should vote on whether or not to retain Thomas. Church leadership agreed to hold an election under court-ordered election guidelines. Members voted to renew, and plaintiffs then filed a petition to hold the leadership in contempt for violating the election guidelines. The parties negotiated a settlement of this claim, but then members filed another series of contempt petitions, alleging violation of that settlement agreement. The trial court found defendants in contempt. However, the Court of Appeals ordered the case dismissed, finding a lack of jurisdiction from the beginning because selection and termination of clergy are ecclesiastical matters in which courts cannot, under the First Amendment, interfere. Since the order on which the Chancery Court based its finding of contempt was void, the court could not find disobedience of that order constituted contempt.

RLUIPA and Church Signs

In Baltimore County, Maryland, the zoning Board of Appeals is considering another twist on RLUIPA, according to yesterday's Towson Times. In June, a state circuit court judge ordered the Board to consider the impact of RLUIPA on the request by Trinity Assembly of God Church in Ruxton for a zoning variance to permit it to put up a neon, 25-foot-high, 250-square-foot sign with a changing electronic message. The Church wants to place the sign on its property next to the Baltimore Beltway to help eastbound drivers find the megachurch. At hearings on Dec. 21, Trinity's lawyer, C. William "Bud" Clark, argued that it would place a "substantial burden" on the church to require a smaller sign because there would be no room for scriptural messages or times of services. The county argued however that neutral application of sign controls in a residential zone is not a burden on religious exercise. The Board plans public deliberations on the matter at a future date.

O Centro Oral Argument Transcript Now Online

The full transcript is now online of the November 1 oral arguments in the U.S. Supreme Court in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal. The case involves the federal government's attempt to bar a New Mexico church from using a hallucinogenic tea in religious ceremonies. (See prior posting.) Usuallly transcripts are posted by the Supreme Court 2 to 3 weeks after argument. The Court did not explain the delay in this case.

Hawaiian Group In Contempt For Refusing Disclosure of Artifacts

Hawaii KITV reported yesterday on the latest installment in the dispute between Hui Malama and 13 other Hawaiian groups. (See prior posting.) Hawaii federal district court judge David Ezra Tuesday found four members of Hui Malama I Na Kupuna O Hawaii Nei in contempt and jailed one of them-- Edward Halealoha Ayau, executive director of the group-- for refusing to say where they buried Native Hawaiian burial artifacts borrowed from Bishop Museum. Other Hawaiian groups had claimed that they had a right to participate in determining the disposition of the objects. Hui Malama refused to obey the court order to return the artifacts both because they said the cave could collapse if they opened it, and because their religious beliefs hold that digging up the artifacts will violate the kupuna (ancestors). Today's Honolulu Star-Bulletin chronicles the courtroom disruptions that Judge Ezra faced during the contempt hearing.

Orthodox Jewish Group Supports Alito

The Orthodox Union, representing a large segment of Orthodox Jews in the United States, has sent a letter to the Senate Judiciary Committee supporting Supreme Court nominee Samuel Alito, Jr. , according to a report yesterday from the JTA. The letter from O.U.’s Institute for Public Affairs said it is impossible to view Alito’s positions on the separation of church and state as out of the mainstream. "Only those who would advocate the most extreme views of religion-state relations in America — either total separation or total integration — could assert as much," the letter said.

Malaysia Court Rules Against Hindu Widow On Burial

In Malaysia today, a High Court judge held that he had no jurisdiction to overrule the findings of a Sharia court that an ex-army commando, M. Moorthy, was a Muslim convert and should be buried as a Muslim. Moorthy, who Died December 20, took part in a nationally celebrated Malaysian expedition to Mount Everest in 1997. According to today's China Post, the High Court refused to turn Moorthy's body over to his Hindu wife, instead giving possession to the Islamic Affairs Department. Judge Raus Sharif also refused to issue an order preventing cremation or burial of body while Moorthy's widow appeals. The Islamic Affairs Department did not provided any documentary proof of the Moorthy's alleged conversion, saying he did it verbally. His widow claims he remained a Hindu.

Curandero Indicted For Practicing Medicine Without License

In Travis County, Texas on Tuesday, William G. Martinez of San Antonio was indicted for practicing medicine without a license after he advertised his services as a "curandero" (a Santeria spiritual healer or witch doctor). Today's Austin-American Statemsan reports that an Austin man suffering from stomach pains responded to Martinez's television advertisement, and was told that he had three animals in his stomach. Martinez treated the man with charcoal and an unknown liquid, and later conducted religious rituals to rid him of his ailments, for which Martinez (also known as Gregorio) was paid almost $9000.

Korean Commission Urges Alternate Service For Conscientious Objectors

South Korea's National Human Rights Commission Monday recommended that the Ministry of Defense and the National Assembly find alternate forms of service for conscientious objectors who refuse military conscription. The Korea Times reports that the Ministry of Defense responded negatively to the recommendation. The Chosun Ilbo editorialized against the recommendation, pointing out that last year Korea's Constitutional Court upheld the Military Service Law that punishes conscientious objectors, saying "a recognition of conscientious objection harms the common benefit of national security, a prerequisite to the state's survival and all freedoms." The editorial argues that at least the Commission should draw up criteria to determine when a conscientious objector is genuine.

Texas School Agrees To Accommodate Muslim Prayer

Last week, the Becket Fund for Religious Liberty announced the agreement it had reached with Richardson, Texas school officials to accommodate religious practices of Muslim high school students. Muslim students in L.V. Berkner High School (outside Dallas) complained that they were no longer being allowed to pray their daily zuhr prayer on campus, or at best were required to forego their lunch in order to do so. Between October and April, the required time for such prayers falls only while the school day is in session. A December 16 letter from the school board's general counsel describes the detailed arrangement for students to "step outside the classroom just after the tardy bell to the hall alcove closest to the classroom to complete the prayer". The full text of the exchange of letter between school officials and the Becket Fund is available online.

Israeli Politicians Argue Over Hanukkah Grants To Yeshiva Students

Today's Haaretz reports on bitter political exchanges between members of Israel's Knesset as Finance Committee Chair Yaakov Litzman (Agudath Israel) Monday obtained an extra Hanukkah grant for yeshiva students. The grants total NIS 44 million. Over the next few days, each unmarried student in the ultra-Orthodox religious schools will receive NIS 330 (US $72), and each married student will get NIS 600 (US $130). MK Ronnie Brizon, of the secularist party, Shinui, was outraged, saying that the government was disbursing funds "like hot potato pancakes on Hanukkah." Brizon called the yeshiva students "people who contribute almost nothing to society, but receive almost everything from it".

No Liquor In Massachusetts On Monday After Christmas

Many residents of Massachusetts will be surprised to find that no liquor may be purchased today, says Saturday's Boston Globe. In 2003, Massachusetts law (Title XX, Chap. 138, Sec. 33) was amended to eliminate many of the restrictions on Sunday liquor sales. However, the legislature retained the prohibition on sales on Christmas day, and on the day after Christmas when Christmas falls on Sunday. The rationale for the Monday ban is not clear, but Massachusetts Historical Society librarian Peter Drummey suggested that it was meant to curb drunkeness on the day Christmas is observed by the state, as well as on the day it is celebrated by religion.

Free Exercise Challenge To Polygamy Ban Avoided

Article 20, Sec. 2 of the Arizona Constitution prohibits polygamy. An accused Colorado City member of the Fundamentalist Church of Jesus Christ of Latter Day Saints was planning to challenge the validity of that provision by asserting his religious freedom rights under the U.S. Constitution. However, the Provo, Utah Daily Herald reported on Saturday that his attempt to do this has been stymied as prosecutors dropped an underage sex charge against Randolph J. Barlow, and proceeded only on charges of sexual assault where the defense would not be relevant.

Recently Published Books On Religion, Law and Politics

Recently published books of interest to Religion Clause readers:

Barbara A. McGraw and Jo Renee Formicola (eds.), Taking Religious Pluralism Seriously: Spiritual Politics on America's Sacred Ground (Baylor Univ. Press). Reviewed in Sunday's New York Times.

Elizabeth Anne Oldmixon, Uncompromising Positions: God, Sex, and the U.S. House of Representatives (Georgetown Univ. Press).

Birgit Meyer and Annelies Moors (eds.), Religion, Media, and the Public Sphere (Indiana Univ. Press).

Henrik Syse, Natural Law, Religion, and Rights (St. Augustine's Press).

Santorum Withdraws From Thomas More Center Advisory Board

The decision last week by Judge John E. Jones in the Kitzmiller case rejecting the teaching of intelligent design in public schools has had its own political fallout, according to an AP story last week. Last Thursday, Republican Pennsylvania Senator Rick Santorum withdrew from the advisory board of the Thomas More Law Center which had backed the school board's experiment in teaching intelligent design and had represented the school board in the litigation. Santorum is in the midst of a hotly contested Senate race. He explained that his previous statements backing intelligent design meant that teachers should have the freedom to mention intelligent design -- not be required to do so. Santorum's leading Democratic challenger in his 2006 reelection bid, state Treasurer Robert P. Casey Jr., accused him of political expediency.

Menorah Compromise In Peabody, Massachusetts

In Peabody, Massachusetts, the church-state issues involved in menorah displays on public property have led to a compromise plan for this year, according to yesterday's Salem News. Last year, Chabad lit a menorah at City Hall on the first night of Hanukkah, and the mayor participated in the ceremony. This year, when a repeat of the ceremony was suggested, the city's Clergy and Ministerial Association-- which includes the city's Jewish congregations-- raised church-state concerns. So Mayor Michael Bonfanti reached a compromise with the groups. He did not attend the City Hall lighting ceremony last night, and a sign was placed on the menorah showing that it belongs to Chabad and not the city. In addition, though, instead of a one-day lighting, the menorah will be out for all eight days of Hanukkah this year.

President's Christmas Message

Here is President George W. Bush's 2005 Christmas Message, issued on Dec. 19:

'Behold, a virgin shall conceive and bear a son, and his name shall be called Emmanuel' which means, God with us. ---Matthew 1:23

More than 2,000 years ago, a virgin gave birth to a Son, and the God of heaven came to Earth. Mankind had received its Savior, and to those who had dwelled in darkness, the light of hope had come. Each Christmas, we celebrate that first coming anew, and we rejoice in the knowledge that the God who came to Earth that night in Bethlehem is with us still and will remain with us forever.

Christmas is a season of hope and joy, a time to give thanks for the blessing of Christ's birth and for the blessings that surround us every day of the year. We have much to be thankful for in this country, and we have a responsibility to help those in need. Jesus calls us to help others, and acts of kindness toward the less fortunate fulfill the spirit of the Christmas season.

On Christmas, we pray for freedom, justice, and peace on Earth. We remember those who have made the ultimate sacrifice for our country and for our freedom, and we ask for God's blessing on their loved ones. We ask God to watch over all of our men and women in uniform. Many are serving in distant lands, helping to advance the cause of freedom and peace. Our entire Nation is grateful to them and prays for their safe return.

Laura and I send our best wishes for a blessed and merry Christmas.

Iraqi Shiites Extend Christmas Greetings To Christian Countrymen

Apparently attempting to calm fears that a theocratic Shiite government is about to be established, the Iraqi government went out of its way to wish Iraqi Christians a Merry Christmas on Saturday. M&C News reports on the attempt to assure Iraqi Christians that they will have a role in the country's political future. Al-Iraqiya television, a station that reflects the government's views, gave air time for Moslem Iraqis to send greetings. A Christmas eve program featured telephone calls from inside and outside Iraq with holiday greetings to the 750,000 Christians in the country. The program also covered an hour-long mass from inside Baghdad's St. Joseph's Chaldean church. President Jalal Talabani, Vice-President Ghazi al-Yawer and Shiite Interior Minister Bayan Jaber Solagh all appeared on the program.

National Menorah To Be Lit Tonight

Tonight at 4:00 p.m., not far from the National Christmas Tree on the Ellipse, the first candle of the National Menorah will be lit. The festival of Hanukkah begins at that time. The AP reports that Homeland Security Secretary Michael Chertoff will be taking part in the ceremony. The National Menorah stands 30 feet tall - the maximum allowed by Jewish law.

Defense Bill Includes Rita-Katrina School Voucher Program

The Defense Appropriations Bill passed by Congress on Thursday included a school voucher program for students displaced by Hurricanes Rita and Katrina. According to the Alliance for School Choice, the bill provides tuition reimbursement up to $6,000 per student ($7,500 for special education students) for public or private schools that provided educational refuge. The funds will run through state and local governments. On Thursday, the Anti-Defamation League issued this statement:

We are very sympathetic to the plight of the students who attend the devastated schools in the Gulf Coast region, but this funding scheme does not provide appropriate firewalls against taxpayer funding of religious instruction and proselytizing – and sets a disturbing precedent for the future.

The provisions approved by Congress do not include necessary prohibitions against using these funds for religious education – or even worship services. Under the bill, parents would be forced to affirmatively act to 'opt-out' their children from these religious worship activities or classes. In addition, this bill would permit federally funded religious discrimination in hiring teachers for these private and religious schools.

Tax Court Rejects Establishment Clause Claim On Deductions

Sklar v. Commissioner, decided by the U.S. Tax Court on Dec. 21, held that no part of tuition paid to an Orthodox Jewish day school was deductible for federal income tax purposes as a charitable contribution. The school offered both secular and religious instruction. Taxpayers had argued that the portion paid for religious instruction was deductible under Section 170 of the Internal Revenue Code and that the IRS's refusal to allow a deduction violated the Establishment Clause because the IRS allows members of the Church of Scientology to deduct as charitable contributions "auditing" and "training" payments. However, the court rejected these arguments, distinguishing cases involving churches organized exclusively religious purposes. The taxpayers had previously litigated similar claims for an earlier year's tax return. [Thanks to Steven H. Sholk for the lead.]

UPDATE: Here is a link to the 9th Circuit decision in the earlier litigation. [Thanks to Expatriate Owl.]

Mosques Secretly Checked For Radiation

A story in U.S. News & World Report on Thursday revealed that the federal government since 9/11 has run a top secret program to monitor radiation levels at over a hundred Muslim sites in Washington, D.C., as well as in 5 other cities. The sites included prominent mosques. Federal officials claim that warrants are not required for this kind of radiation sampling, but some legal scholars disagree. Officials said that the monitoring targets were not chosen on the basis of religious affiliation or ethnicity, but only on the basis of intelligence findings. The equipment used took air samples near suspected targets. In some cases, the tests involved driving a vehicle into a mosque parking lot.

Church Sues San Diego Over Park Fee Schedule

In San Diego, California last Tuesday, Canyon Ridge Baptist Church sued the city of San Diego over the rental fee schedule for the Kearney Mesa Recreation Center, operated by San Diego's Park and Recreation Department. The complaint (full text) alleges that the fee schedule unconstitutionally discriminates against religious groups by charging them the "Private Group" rather than the "Community Group" rate for using the facility. Today's Christian Post reported on the suit. Representing the church, the Alliance Defense Fund said: "Landlords shouldn't treat Christian tenants any differently than other tenants. Cities cannot single out religious organizations for unequal treatment compared to all other similarly situated groups."

Pope Held To Have Diplomatic Immunity

The Associated Press reports that on Thursday, a federal district court in Houston, Texas held, at the urging of the U.S. Justice Department, that Pope Benedict XVI has diplomatic immunity. (See prior posting.) The issue arose in a civil lawsuit accusing the Pope of conspiracy to cover up the sexual abuse of minors by a seminarian. Judge Lee Rosenthal wrote: "After a suggestion of immunity is filed, it is the court's duty to surrender jurisdiction." The ruling found that Benedict was the "head of a foreign state, the Holy See," not merely the head of a religious entity. Previously, plaintiffs' lawyer in the case said that if the court found diplomatic immunity here, he would challenge the constitutionality of U.S. recognition of the Vatican.

Judge Refuses To Prevent Border Stops For Islamic Spirit Attendees

A federal district court judge in Buffalo, New York has rejected the request of several Muslim-Americans for an order that would prohibit border agents from stopping and searching individuals based solely on their attendance at the upcoming Reviving the Islamic Spirit conference in Toronto. (See prior posting.) The Associated Press reported that on Thursday U.S. District Judge William Skretny dismissed the suit that was brought to prevent a repeat of last year's border problems. While characterizing last year's stops as "understandably frustrating," he said that the searches did not violated the attendees' constitutional rights to practice religion and avoid unlawful searches. He wrote: "Plaintiffs were delayed for an extended period of time and subjected to unexplained inspection techniques that were inconvenient and made them feel uncomfortable. The government readily admits that plaintiffs' experience at the border was not ideal . . . As unfortunate as this incident may have been, I find that it was not unconstitutional."

On its website, the New York Civil Liberties Union, along with a release decrying the decision, has an intake form for use by anyone detained after attending this year's conference.

UPDATE: The full opinion in Tabbaa v. Chertoff is now available at 2005 U.S. Dist. LEXIS 38189 (WD NY, Dec. 22, 2005).

Pew Survey On Attitudes To Christmas Greetings and Displays

A survey released on December 15 by the Pew Research Center for the People and the Press reveals a mixed attitude by average Americans to the "Christmas wars". In response to one question, 60% of those surveyed say they prefer the greeting "Merry Christmas" over "Happy Holidays". However when given the option of answering that the form of greeting doesn't matter to them, 45% chose that alternative and 12% said they prefer a less religious greeting than "Merry Christmas".

In response to another question, 83% of respondents favored the display of Christmas symbols on public property, but only 44% supported them if they are displayed alone without symbols of other traditions. Finally, more Americans said they are bothered at least to some extent by the commercialization of Christmas (52%) than were concerned about opposition to religious symbols in public places (35%).

Scientologist Wins German Court Challenge of Hamburg Practices

In Germany, the Church of Scientology has won a court victory against governmental practices that have been criticized by the U.S. State Department's International Religious Freedom Report. Federal and seven state Offices for the Protection of the Constitution in Germany have had the Church of Scientology under observation, claiming that the Church's teachings and practices are opposed to the democratic constitutional order or violate human rights. (Background memo.) Scientology's website reported on Thursday that the Federal Supreme Administrative Court in Leipzig has ruled that the Hamburg state government violated the constitutional right to freedom of religion of a Scientologist when it advised a private employer to have anyone employed by or conducting business with it sign a "filter" to disavow the works of L. Ron Hubbard, founder of Scientology.

Recently Published In Law Journals

The Autumn 2005 issue of the Journal of Church and State has been published. Its table of contents and excerpts are available online.

From SmartCILP: L. Scott Smith, Constitutional Meanings of "Religion" Past and Present: Explorations In Definition and Theory, has recently been published in 14 Temple Political & Civil Rights Law Rev. 89-142 (2004).

Finland Looks At Its Guidelines On Christmas In Schools

Helsingen Sandomat reports that Finland's National Board of Education is rethinking it present Guidelines on religious celebrations in schools. Under Finland's Constitution (Section 11), students must be allowed to opt out of activities that violate their religious beliefs. According to an earlier report by the same paper, the growth of Finland's Muslim population seems to be the impetus for the rethinking. Under present Guidelines, an opt-out is permitted for church services and morning assemblies with a religious theme. However, Kirsi Lindroos, Director General of the Board, says that neither the singing of hymns nor the presentation of the events surrounding the birth of Jesus make an event a religious occasion that pupils would have the right to opt out of. She says that a line is crossed if there are prayers or the reading of the Biblical Christmas Story.

In most schools, there have been negotiations with parents of children of various religious denominations in order to have a celebration that everyone can attend. Some schools hold two different Christmas celebrations - a neutral one in school and one with more religious content in a nearby church. In one school, the Christmas Gospel texts are read at the beginning of the school Christmas party, and non-Christian children do not come to the party until after the reading is over.

Bill Assures Jamboree Funding and Equal Local Treatment For Boy Scouts

While the Defense Appropriations Act (H.R. 2863) yesterday stumbled temporarily over ANWR oil drilling, less attention has been given to another provision in the Conference version of the bill. This provision, almost certain to eventually be adopted, directs the Pentagon to continue to provide support for the National Boy Scout Jamboree. This directive was included despite a federal court ruling last June finding that, given the scouts' substantial religious component, such support violates the Establishment Clause. (See prior posting.)

Buried in Section 8173 of the 293-page appropriations bill, the provision is part of the "Support Our Scouts Act of 2005" contained in the Defense Appropriations Act. A press release from Senate Majority Leader Bill Frist who authored the provisions praised the bill.

[CORRECTED] The Act also requires state and local governments that receive federal housing funds and community development money to afford equal access for the Boy Scouts to meet in public facilities that are open to other groups. Yesterday's 365Gay reports that Congressman Barney Frank objected to the provision, saying:

The Boy Scouts of America have been found by States and cities to be violating their anti-discrimination policies with regard to both sexual orientation and religion, and some cities have said that they do not want anyone who fails to follow their State or city's policy getting free facilities. That I suppose can be debated or not as to whether it is right or wrong, but it does not seem to me that there is any argument for having it in the Armed Services authorization bill in a Congress run by supposed States rights conservatives, a provision that says to every city in America you will let the Boy Scouts use your facilities for free whether or not you think they violate the law against discrimination based on religion or sexual orientation.

Russian Authorities Hinder Return Of Moscow Chief Rabbi

FSU Monitor this week outlines a complex dispute between Russian authorities and one of Moscow's two competing Chief Rabbis, Pinchas Goldschmidt. In September, an immigration officer refused to readmit Goldschmidt to the country after he returned from a trip to Israel. No one is quite sure who pressed for this to happened. One theory focuses on Vladimir Slutsker, a banker and engineering tycoon who had been president of the Russian Jewish Congress. Slutsker is in a real estate dispute with Rabbi Goldschmidt.

Another theory is that Rabbi Berl Lazar who represents the Lubavitch-Chabad movement in Russia, and who is the competing Chief Rabbi, was involved. The U.S. State Department and the foreign ministries of both Israel and Switzerland have become involved in lobbying Russia on Goldschmidt's behalf. In early November, the Internal Affairs Ministry informed Goldschmidt that he had been deemed a threat to national security. However by the end of November, he was invited to re-apply for a visa. On December 2, Goldschmidt received word that a new one-month visa had been approved.

California Lutheran School Sued Over Policy on Lesbians

A suit filed last week in state court in Riverside, California raises the issue of whether a religious school can avoid the anti-discrimination provisions of California's Unruh Civil Rights Act by invoking the school's right to freedom of religion and association. The North County Times reported Tuesday on the suit against the California Lutheran High School Association that oversees Wildomar's Cal Lutheran High. The school expelled two female students who were suspected of having a lesbian relationship with each other. In a letter to the students' parents, the school said that the "bond of intimacy" that exists between the two girls is "unchristian". The students' attorney, Christopher Hayes, argues that the school is a "business establishment" under the anti-discrimination law.

9th Circuit Rejects Prisoner's Religious Diet Claim

In Stewart v. Stewart, (Dec. 16, 2005), the U.S. 9th Circuit Court of Appeals upheld the dismissal of a former prisoner's free exercise claim, finding that Arizona prison officials had a clear penological interest in requiring inmates on the prison's religious diet to sign for each meal. It also rejected plaintiff's claim that serving him regular meals, rather than the religious diet, for six months amounted to cruel and unusual punishment.

U.S. House Resolution Criticizes Saudi Religious Education

On Monday, the U.S. House of Representatives passed H. Con Res. 275 urging the government of Saudi Arabia to speed up educational reform in that country. Of particular interest are the findings in the "Whereas" clauses of the Resolution that focus on the nature of religious education in the Saudi Kingdom. The introductory clauses point out that "Islamic religious education is compulsory in public and private schools at all levels in Saudi Arabia" and that "the religious curriculum is written, monitored, and taught by followers of the Wahhabi interpretation of Islam, the only religion the Government of Saudi Arabia allows to be taught".

The preamble go on to say that "rote memorization of religious texts continues to be a central feature of much of the educational system of Saudi Arabia, leaving thousands of students unprepared to function in the global economy of the 21st century." It continues: "some textbooks in Saudi Arabian schools foster intolerance, ignorance, and anti-Semitic, anti-American, and anti-Western views", and "these intolerant views instilled in students make them prime recruiting targets of terrorists and other extremist groups".

The vote on the Resolution was 351 Yes; 1 No; 2 voting Present. Here is the floor debate on the measure. The lone No vote was Republican Texas Congressman Ron Paul.

6th Circuit: Surprising Ten Commandments Ruling

A surprising 10 Commandments decision was handed down by the U.S. 6th Circuit Court of Appeals yesterday. ACLU of Kentucky v. Mercer County (Dec. 20, 2005), involved a display of historical documents, including the 10 Commandments, in the Mercer County courthouse. The display, titled "Foundations of American Law and Government", is identical to the one found unconstitutional by the U.S. Supreme Court last June in the McCreary County case. However, according to the 6th Circuit, a very different history of of the county's purpose was present here. The 6th Circuit upheld this display, saying:

Here, unlike McCreary County, Mercer County’s stated purpose was more than a mere "litigating position." Instead, it is supported by context, including the explanatory document and the eight other objectively historical and secular documents. A reasonable observer would not view this display as an attempt by Mercer County to establish religion. Instead, he would view it for what it is: an acknowledgment of history.

The court continued:

The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to "the separation of church and state." This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.... Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address.... Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow.

While the court found a secular purpose in the display, Carroll Rousey, a retired dry-wall contractor who paid for and put up the 2001 Mercer County display, was quoted in an article in today's Columbus, Georgia Ledger-Enquirer as saying, "I feel that this is what the Lord wanted me to do."

Christian Coalition's 2006 Agenda

The Christian Coalition has set its legislative agenda for 2006, according to a report carried on Tuesday by the Christian Wire Service. Its top 10 goals are (1) support of multicast/ must-carry legislation to protect Christian broadcasters; (2) confirmation of Pres. Bush's judicial nominees; (3) making existing federal tax cuts permanent; (4) passing the Unborn Child Pain Awareness Act; (5) passing the Broadcasting Decency Enforcement Act; (6) supporting legislation to stop discrimination against Christians in the military; (7) passing the Child Interstate Abortion Notification Act; (8) passing the Houses of Worship Free Speech Restoration Act; (9) passing legislation to protect display of the 10 Commandments; and (10) passing Holly’s Law which would suspend sales and investigate the abortion pill, RU 486.

Editorials Support Judge's Intelligent Design Decision

From around the nation, newspaper editorial comment this morning strongly supports yesterday's decision by Pennsylvania federal district court judge John E. Jones' banning Intelligent Design from science classrooms. Here are links to a sampling of editorials: Detroit Free Press, Provo Utah Daily Herald, Harrisburg Pennsylvania Patriot-News, Wichita Kansas Eagle, Dayton Ohio Daily News, Philadelphia Daily News, Baltimore Sun, Pittsburg Kansas Morning Sun.

San Bernadino Student Group Challenges Nondiscrimination Policies

The Associated Press yesterday reported on a battle over university anti-discrimination policies taking place at California State University, San Bernadino. There the Christian Student Association is seeking university recognition that will entitle it to funding and use of university facilities. However the university has refused to approve the group's charter. California law prohibits student groups at public universities from excluding students because of their religion or sexual orientation. The CSA's proposed constitution includes a statement on sexual morality and requires members and officers to be Christian. Here, as at other universities where similar disputes are taking place, CSA argues that the non-discrimination requirements violate the group's religious freedom. The organizer of the CSA chapter at San Bernadino is Ryan Sorba, who is also president of the campus Young Republicans and is a controversial figure on campus. Similar anti-discrimination policies at California State University campuses in Long Beach and San Diego are the subject of a lawsuit filed last month by the Alliance Defense Fund. (See prior posting.)

No Appeal Likely In Intelligent Design Case

It is unlikely that today's Intelligent Design decision from Dover, Pennsylvania will be appealed. (See prior posting.) In November, Dover voters ousted almost all of the school board members who had initiated the policy and replaced them with individuals who oppose the teaching of intelligent design in science classes. (See prior posting.) The Associated Press reports today that the new school board president, Bernadette Reinking, said the board intends to remove intelligent design from the science curriculum and place it in an elective social studies class. As to today's court decision, she said, "As far as I can tell you, there is no intent to appeal."

Dover School District Loses Intelligent Design Case

Pennsylvania U.S. District Judge John E. Jones III today ruled unconstitutional a required disclaimer calling Dover, Pennsylvania high school students' attention to the theory of intelligent design. (See prior posting.) Reports on today's court decision are available from both CNN and BBC News. The contested statement was required by the Dover Area school board to be read in all 9th-grade biology classes. In its opinion, the court found that "the classroom presentation of the disclaimer, including school administrators making a special appearance in the science classrooms to deliver the statement, the complete prohibition on discussion or questioning ID, and the 'opt out' feature all convey a strong message of religious endorsement" by government.

The 139-page opinion in Kitzmiller v. Dover Area School District is a strong endorsement of arguments by the plaintiffs that the school board's action violated the First Amendment's Establishment Clause. The full opinion is available online here. [Thanks to Ed Brayton for posting it].

In finding that the Dover school board violated the Establishment Clause of the U.S. Constitution and Article 1, Sec. 3 of the Pennsylvania constitution , the court applied both the “endorsement” test and the Lemon test.

It held that an objective student would view the disclaimer read in class as a strong endorsement of religion; and that an objective adult member of the Dover community, aware of the social context in which the ID policy arose, would view school board policy and the conduct of board members as a strong endorsement of a religious view.

Applying Lemon, the court found that the language, legislative history and historical context in which ID policy arose "inevitably lead to the conclusion that Defendants consciously chose to change Dover’s biology curriculum to advance religion". The court made extensive findings that Intelligent Design "is not science". It found that ID violates the ground rules of science by invoking supernatural causation; it employs "the same flawed and illogical contrived dualism that doomed creation science"; and ID has failed to gain acceptance in the scientific community. The court then concluded that since ID is not science, its only real effect is the advancement of religion.

In concluding his opinion, Judge Jones wrote:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

House of Lords Permits Sex Discrimination Claim By Minister

Great Britain's House of Lords has overturned a decision of Scotland's highest court, the Court of Session, and has permitted a minister to assert a claim for sex discrimination in employment, according to Personnel Today. Helen Percy claimed she lost her clergy position with the Church of Scotland after having sexual relations with a church elder, even though the church had "not taken similar action against male ministers who are known to have had/are having extra-marital sexual relationships". In Percy v. Church of Scotland Board of National Mission, (Dec. 15, 2005), the House of Lords in a 4-1 decision held that a minister is an employee protected by the Sex Discrimination Act of 1975. The 1921 Church of Scotland Act gives the church the right to govern its own affairs on "matters spiritual. But the House of Lords held that "a sex discrimination claim would not be regarded as a spiritual matter even though it is based on the way the church authorities are alleged to have exercised their disciplinary jurisdiction".

RLUIPA Does Not Apply To Eminent Domain

Section 8 of the Religious Land Use and Institutionalized Persons Act limits its application to any "zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land... ." In Faith Temple Church v. Town of Brighton, 2005 U.S. Dist. LEXIS 33389 (WD NY, Dec. 19, 2005), a New York federal district court held that RLUIPA does not apply to a city's use of eminent domain to take land to expand a park. Faith Temple Church had contracted to purchase the 66-acre site for a new church campus. The court said, "Eminent domain is hardly an arcane or little-known concept, and the Court will not assume that Congress simply overlooked it when drafting RLUIPA." Today's Rochester Democrat and Chronicle reports on the decision.

Dover "Intelligent Design" Decision To Be Released Later Today

MSNBC reports that yesterday the Harrisburg, Pennsylvania federal district court sent out an advisory e-mail saying, "Judge [John E.] Jones is expected to file his opinion in the Kitzmiller v. Dover case at some point" on Tuesday. The 6-week long trial challenging the Dover, Pennsylvania school board's decision to teach students about the theory of intelligent design has captured extensive national attention. (See prior posting.) The pleadings, briefs, and parties' proposed findings can all be accessed from a special page on the district court's website. Religion Clause will post information on the decision later today as soon as it becomes available.

Op Eds On Church-State

Emotions on issues of church and state run high this time of year. I have tried not to fill Religion Clause with endless links to op-ed pieces, even though ones on-topic appear in newspapers daily. However, occassionally it is worth pointing to examples that are particularly well-written. Here are two from this past weekend's papers. One is from Cynthia Tucker, editorial page editor for the Atlanta Journal-Constitution, titled Campaign For Religious State Is No Blessing. The second from Saturday's Toledo, Ohio Blade by Rabbi Barry Leff is titled Yes, Virginia, It Really Is A Christmas Tree.

Magistrate Defers To Prison Security Concerns In RLUIPA Case

An extreme example of deference to prison authorities' claims in RLUIPA cases is reflected in a recently available Magistrate's decision, Spratt v. Wall, 2005 U.S. Dist. LEXIS 33266 (D RI, Nov. 21, 2005). A convicted murderer, Wesley Spratt, was a gifted preacher who for seven years had preached on a weekly basis at Christian religious services in his Rhode Island prison's maximum security unit, always under the supervision of prison clergy. Spratt saw this as his calling from God. When the prison administration changed, however, Spratt was prohibited from continuing, and Spratt sued claiming an infringement of his free exercise of religion. Authorities argued that security is threatened whenever inmates are given positions of authority or perceived authority, citing unrest and violence at the prison during the 1970's. Accepting this claim, a federal Magistrate Judge found that there are no less restrictive means available to accomplish the prison system's compelling security interest and recommended that summary judgment be granted to defendants.

French Government Issues Brochure For Hajj Pilgrims

January 8, 2006 marks the beginning of this year's Hajj, the pilgrimage to Saudi holy sites required at least once in a lifetime from faithful Muslims. Islam Online reported last week that despite its emphasis on secularism, the French government has published a 5-page guide for French Muslims heading to Saudi Arabia. The French Foreign Ministry has issued thousands of the brochures in French and Arabic to provide key advice, like avoiding deadly stampedes. The brochure also contains basic information on legal rights against travel agents who default on their promises. Last year, 3,000 French pilgrims were left stranded at Saudi airports due to disorganization and unconfirmed flight reservations by some tour operators. Meanwhile Saudi Arabia has enacted a new law to regulate Hajj tour operators. However it does not take effect until after this year's Hajj.