Cert. Denied In Washburn Art Show Case

Yesterday, the U.S. Supreme Court denied certiorari in O'Connor v. Washburn University, (Docket No. 05-837) a 10th Circuit case in which the lower court rejected an Establishment Clause challenge to Washburn University's display of an allegedly anti-Catholic statue (titled "Holier than Thou") in its annual outdoor sculpture display. (See prior posting.) The Associated Press reported on the denial of cert.

Jail Canteen Funds To Churches Is Challenged

Last week, the Virginian Pilot reported that Virginia sheriffs have paid public monies to Christian groups that provide Christian Bible study and counseling in local jails. The sheriffs are donating proceeds from their jail canteens to the religious organizations. The largest payment was $45,650 contributed by the former Hampton County sheriff to Southeastern Correctional Ministry Inc. These revelations led the ACLU of Virginia last week to file a Freedom of Information Act request for records from 3 jails. (ACLU Release.) "Jails may accommodate the religious needs of inmates by funding chaplains’ services that offer assistance to all prisoners regardless of their faith," said ACLU of Virginia executive director Kent Willis, "but they cannot pay a Christian ministry to bring only the Christian message into their jails." Saturday's Hampton Roads Daily Press also reports on these developments. [Thanks to Alliance Alert for the information.]

Does Today's FAIR Decision Implicate Christian Student Group Cases?

Today in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the U.S. Supreme Court unanimously upheld the Solomon Amendment (10 USC 983 (b)). That law denies federal funding to universities whose law schools exclude military recruiters because the military discriminates on the basis of sexual orientation. While not the main thrust of the case, the Court's opinion (by Chief Justice Roberts) does seem to have implications for the long-running dispute between a number of Christian student groups and universities over formal recognition of student groups that limit membership on the basis of religion or on the basis of sexual activities that violate "Biblical" norms. At issue is whether requiring law schools or universities to recognize groups that discriminate on the basis of religion infringes the school's right to take a stand against discrimination. The argument is based largely on a 2000 Supreme Court case, Boy Scouts v. Dale, that held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law which required the Scouts to accept homosexual scoutmasters.

In today's decision, the Court rejected this argument in the context of the Solomon Amendment. It said:

According to FAIR, law schools' ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools' obligation to assist them....

The Solomon Amendment, however, does not similarly affect a law school's associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students-- not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school "'to accept members it does not desire'".

This language might be read to suggest that placing a school's imprimatur on a student group by formally recognizing it does make it one of the "members of the school's expressive association", and forcing the school to recognize it would therefore unconstitutionally impair the school's associational rights.

Religious Freedom Issues In Bush's Pakistan Visit

In anticipation of President Bush's visit to Pakistan this past week end, Michael Cromartie , Chair of the U.S. Commission on International Religious Freedom ("USCIRF"), and Elizabeth H. Prodromou, a member of the Commission, on Friday published a call for the President to push Pakistan on issues of religious freedom. In their op ed piece in the Philadelphia Enquirer, also posted on USCIRF's website, they said that Bush should urge Pakistan President Pervez Musharraf to repeal unused laws that provide for punishments such as amputation and stoning in conformity with Islamic law; rescind laws that criminalize the public practice of the Ahmadi faith; decriminalize blasphemy; and act to prevent religious violence and punish its perpetrators.

At the leaders' joint news conference on Saturday, President Musharraf answered a question about his efforts to promote democracy in Pakistan. He spoke of promoting freedom of speech and press, and empowerment of women, but not of freedom of religion. Bush's news conference statement said that he had discussed the Muhammad cartoon controversy with Musharraf. Finally, in their Joint Statement issued on Saturday, the Presidents mentioned religious toleration, but not in a manner that directly addressed the concerns of USCIRF. The Statement said: "The two leaders recognize the need to promote tolerance, respect and mutual understanding, and inter-faith harmony to strengthen appreciation of the values and norms common to the world's religions and cultures. The two leaders acknowledge with appreciation the various international initiatives in this regard including President Musharraf's concept of Enlightened Moderation. The two leaders agreed that acts that disturb inter-faith harmony should be avoided."

Israeli Justice Jockeying To Write Opinion On "Who Is A Jew?"

The Israeli Supreme Court has pending before it a case raising the question of whether the government must recognize as Jews under the Law of Return individuals who have been converted in Israel by Reform and Conservative rabbis. (See prior posting.) Haaretz today reports that in an unusual move, Supreme Court President Aharon Barak is encouraging the parties to agree to consolidate the cases with other related cases that are further along so that Barak will be the one who can write the high court's ruling on the delicate "who is a Jew" issue before he retires in December. However, the Justice Ministry says that it cannot formulate its response until after the elections are held and a new government is formed.

RLUIPA Land Use Developments

Here are some recent developments in the application of RLUIPA in land use cases:

In City and County of Honolulu v. Sherman (Feb. 28, 2006), the Hawaii Supreme Court held that a Hawaii statute (R.O.H. Ch. 38) that permits the city and county to file eminent domain proceedings to convert properties from leaseholds to fee simple ownership is not subject to RLUIPA because the law is neither a zoning nor a landmarking law. Therefore it does not constitute a "land use regulation" as RLUIPA defines the term.

The Associated Press reports that on Friday, a federal district judge released an opinion holding that RLUIPA prevents the Village of Mamaroneck in New York from using its zoning laws to block construction of a new 44,000 square-foot building by the Westchester Jewish Day School. The zoning board had raised issues of traffic, parking, esthetics and property values in denying the application to build the school in Mamaroneck's upscale Orienta Point neighborhood. Judge William Conner said that the board's denial, in 2001, "was so contrary to the evidence and to the equities as to be arbitrary and capricious." However, the judge stayed his order pending an appeal to the U.S. Second Circuit Court of Appeals. The long history of the case is traced by this coverage of Friday's decision by the Westchester Journal News. UPDATE: The lengthy opinion is now available on LEXIS, Westchester Day School v. Village of Mamaroneck, 2006 U.S. Dist. LEXIS 9058 (SDNY, March 2, 2006).


A recently published article reviews RLUIPA land use developments: Edwin P. Voss, Jr. & Meredith A. Ladd, Recent Developments Under the Religious Land Use and Institutionalized Persons Act, 37 Urban Lawyer 449-466 (2005). [Thanks to SmartCILP]

American Legion Begins Campaign For Public Expression of Religion Act

WorldNetDaily reported yesterday that the American Legion has begun a campaign to get grass roots support for the proposed Public Expression of Religion Act ("PERA"), H.R. 2679. The bill would amend 42 USC Sec. 1983, the basic federal statute that authorizes suits for violation of civil rights by limiting relief for Establishment Clause violations to injunctions. Damages would no longer be available. It would also amend the Civil Rights Attorney Fees Act to preclude the award of attorneys' fees to plaintiffs bringing Establishment Clause claims. The bill, introduced by Rep, John Hostettler, R-Ind, currently has 40 co-sponsors.

Last week, the Legion released a booklet titled In The Footsteps Of The Founders – A Guide To Defending American Values, which gives background on PERA. The Legion is particularly focusing on suits against the BoyScoutss, and and attorneys' fees that have been awarded to ACLU lawyers. The booklet says: "There simply is no reasonable basis to support the profiteering in attorney fee awards ordered by judges in these cases. The very threat of such fees has made elected bodies, large and small, surrender to the ACLU's demands to secularly cleanse the public square."

Australia Keeps Church-State Status Quo

Last week the Australian Senate, by a vote of 50-7 rejected a bill that would have changed church-state relations in the country. The proposal by Democrat leader Lyn Allison would have ended parliamentary prayer, ended preferential tax treatment for religious groups and removed religious references from oaths required of public officials. Catholic World News, reporting on the development, quotes Prime Minister John Howard who agreed with the Senate's rejection of the bill, as saying: "What the separation of church and state means in this country is that there is no established church as the official state religion. It doesn't mean that we abandon our Judeo-Christian heritage."

Muslim Prisoner Has Initial RLUIPA Win

In Hammons v. Jones, 2006 U.S. Dist. LEXIS 7720 (ND Okl., Feb. 14, 2006), an Oklahoma federal district court held that under RLUIPA, a "substantial burden" on religious exercise occurs "when an individual is forced to significantly modify his or her religious behavior and violate his or her religious beliefs". It found that a change in a state prison’s policy that prevented Muslim inmates from receiving religious oils for use during prayers constituted a substantial burden on plaintiff prisoner’s free exercise rights, and ordered the state to introduce any evidence it had that the restriction was in furtherance of a compelling interest and was the least restrictive means available to vindicate that interest.

New York Attempts To Close Bars Too Near To Unknown Mosque

In 1982, in Larkin v. Grendel's Den, Inc., the U.S. Supreme Court struck down a Massachusetts liquor licensing law that gave churches (as well as schools) a veto power over the granting of liquor licenses to establishments located within 500 feet of church (or school) premises. The Massachusetts legislature had been concerned with "protecting schools and churches from the commotion associated with liquor outlets." While delegation of decison making to churches was a problem, the Court said that the "valid secular objectives [of the law] can be readily accomplished by other means - either through an absolute legislative ban on liquor outlets within reasonable prescribed distances from churches, schools, hospitals, and like institutions, or by ensuring a hearing for the views of affected institutions at licensing proceedings where, without question, such views would be entitled to substantial weight." Now, a controversy in New York City may test the limits of these holdings.

The Tribeca Trib this week reported that the New York State Liquor Authority has denied a license to one bar, and is threatening to close three others, because they are within 200 feet of Masjid al-Farah, a Sufi mosque. The problem, however, is that none of the bar owners knew that the mosque was there. Indeed some of the bars had been operating over 10 years without realizing the problem. The mosque's nondescript building has no signage on it indicating that it is a mosque. Moreover, mosque officials have no objection to the bars. The Liquor Authority asserted the violations of law after other neighbors objected to the noise and over-concentration of bars in the neighborhood. One bar owner has suggested a legal loophole-- he argues that Sufism is "more a philosophy" than a religion. The state's liquor law (Alcoholic Beverage Contol Law, Sec. 64) applies to establishments on the same street and within 200 feet of a building "occupied exclusively as a school, church, synagogue or other place of worship..."

Proposed Missouri Resolution Stirs Up Blogosphere

In the Missouri legislature, the House Rules Committee has recommended approval of House Concurrent Resolution 13 that declares:

we stand with the majority of our constituents and exercise the common sense that voluntary prayer in public schools and religious displays on public property are not a coalition of church and state, but rather the justified recognition of the positive role that Christianity has played in this great nation of ours, the United States of America.

One of the introductory "Whereas" clauses in the resolution declares, "our forefathers of this great nation of the United States recognized a Christian God and used the principles afforded to us by Him as the founding principles of our nation." The Resolution has been commented upon by more blogs than usual, in part because the first web posting about the resolution, by KMOV-TV, was headlined (inaccurately) "State Bill Proposes Christianity Be Missouri’s Official Religion".

Parliament May Remove Ban On Women As Bishops In Church of England

In Britain, the think-tank Ekklesia says that a bill will be introduced into Parliament later this month that would permit the Church of England to consecrate women as bishops. Labour MP Chris Bryant, who was formerly a curate in the Church of England, will introduce the amendment to the Priests (Ordination of Women) Measure 1993. That Act currently permits the ordination of women as priests, but not as bishops. Parliament cannot force the Church to consecrate women, but eliminating the current legal prohibition on such ordinations would show House of Commons approval of the idea. A month ago, the General Synod of the Church of England overwhelmingly backed consideration of a compromise plan that could see the ordination of women bishops by 2012.

County To Place "In God We Trust" On Court House

In Yadkin County, North Carolina last Thursday, the Board of Commissioners voted unanimously to put the National motto, "In God We Trust", on the north and west sides of the county courthouse. According to the Winston-Salem Journal, two people spoke against the move, but to no avail. After the vote, may of the 100 people present clapped and said "Amen". The U.S. Motto Action Committee will pay the $1500 cost of the display. David C. Gibbs Jr., founder of the Christian Law Association ("CLA"), has agreed to defend Yadkin County, without charge, against any lawsuits filed over the display of the motto. CLA's purpose is "to provide legal assistance to Bible-believing churches and Christians who are experiencing legal difficulty in practicing their religious faith because of governmental regulation, intrusion, or prohibition of one form or another," according to its Web site.

Plaintiff Claims Capital Punishment Tradition Parallels Biblical Episode

The Fayetteville Observer reports that a Raleigh, North Carolina judge has given the parties until Monday to file additional information in an unusual suit challenging North Carolina's death penalty. The suit, challenging capital punishment on various grounds, includes claims that the death penalty's administration violates Constitutional protections relating to religion. One of the more intriguing claims in the lawsuit focuses on the apparent tradition in the state of carrying out executions on Friday at 2 a.m., after giving the condemned prisoner a last meal on Thursday evening. Plaintiff Jim French says that custom is similar to the Biblical story of the death of Jesus, who held a Passover meal with his disciples on what Christians commemorate as Holy Thursday.

Furor Over Appointment To Illinois Anti-Discrimination Commission

In Illinois last August, Gov. Rod Blagojevich attempted to revive his Governor's Commission on Discrimination and Hate Crimes, originally created in 1999 to fight discrimination based on ethnicity, religion, skin color, gender, disability or sexual orientation. He appointed a new set of 26 commissioners. One of them was Sister Claudette Marie Muhammad, a member of the Nation of Islam. The Associated Press today reports on the problem that has created.

Even the Governor did not realize who Sister Muhammad was until last month, when she invited members of the Commission to attend a speech by Nation of Islam leader Louis Farrakhan who has often virulently attacked whites, Jews and gays. The invitation led two Jewish leaders on the Commission to resign in protest. Lonnie Nasatir, regional ADL director and Richard Hirschhaut, executive director of the Illinois Holocaust Museum and Education Center, resigned, saying that the Commission has been compromised by Muhammad's appointment. Now there are calls for Muhammad to disavow Farrakhan's remarks, but many black lawmakers say this is unfair when other members are not held responsible for everything their religious leaders say. Muhammad issued a statement Wednesday supporting "fairness to all people regardless of race, creed, color, national origin or religious beliefs."

Anti-Evolution Litigation Hits Russia

Islam Online yesterday reported that a 15-year old Russian student, Masha Shraiber, and her father are suing to require Russian state schools to teach Creationism along with Darwin's theory of evolution. The suit, seeking a rewrite of textbooks, argues that teaching only evolution violates the freedoms of religion and conscience protected by the Russian Constitution. Plaintiffs in the case are being supported by three lawyers representing the Russian Orthodox, Muslim and Jewish communities, all of which support the teaching of Creationism.

Judge's Order To Remove Bible Does Not Invalidate Conviction

In State v. Albertson (Feb. 28, 2006), a Minnesota state court of appeals rejected a religious freedom claim brought by Mark Albertson in a challenge to his conviction for having sexual relations with his 13-year old niece. At trial, the judge had asked why a Bible was on the corner of counsel table. Defense counsel said that the Bible belonged to Albertson, and that counsel did not plan to use it for purposes of the trial. The judge then told Albertson to put the Bible on his lap or under his chair. The court of appeals held that the trial court had "a compelling interest of conducting a trial in a secular, impartial, orderly manner," and that justified the order to hide the Bible from view.

Canada Supreme Court Strikes Down Ban On Kirpans In Schools

The Canadian Press reports that yesterday the Supreme Court of Canada held that a Montreal school board violated the Canadian Charter of Rights and Freedoms, Sec. 2.a., when it imposed a blanket ban on students' wearing of Sikh ceremonial daggers (kirpans). However, the court appears to have left open the possibility of reasonable safety restrictions, such as limits on the size of the kirpan or a requirement that it be kept sheathed. The case is Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (March 2, 2006). While all 8 justices agreed that the ban was improper, 3 justices preferred to use an administrative law, rather than a constitutional, approach to the issue. Justice Charron's constitutional law opinion for 5 justices said: "A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others."The Montreal Gazette reported additional background. [Thanks to Derek L. Gaubatz for information.]

Greece Approves Cremation For Non-Orthodox

BBC News reported yesterday that, after a 10-year battle, the Parliament of Greece has finally enacted limited legislation permitting bodies to be cremated. The bill has been opposed by the Greek Orthodox Church, which considers cremation to be a violation of the human body. In deference to this, the legislation, as enacted, only applies to individuals whose religion permits cremation. Thus only the small number of people in Greece who are not Orthodox Christians will be able to take advantage of the new option.

Paper Chronicles Neighborhood Battle Centered On Orthodox Jews

Today's Jewish Journal of Greater Los Angeles carries a long report on the Hancock Park neighborhood of Los Angeles, and its contentious battle over elections to the Midwilshire Neighborhood Council. The tension between Orthodox Jews and other residents of the area is an object lesson in the problem of creating political divisions along religious lines, and in the passions that are raised by religious land use disputes. The long and convoluted history of the area's intergroup tensions are difficult to summarize briefly. However, the article ends with cautious optimism that the competing factions may be beginning to cooperate.

Alito Thank-You To Dobson Raises Criticism

Just a month into his tenure on the U.S. Spreme Court, Justice Samuel Alito yesterday found himself embroiled in a controversy over a thank-you note he recently wrote.Alito responded to a letter of congratulations from Christian conservative Dr. James C. Dobson, with a note described by law professor Stephen Gillers as "inartful" and "clumsy". (New York Times article.) The full text of the letter is carried by the Colorado Springs Gazette. It reads in part:

This is just a short note to express my heartfelt thanks to you and the entire staff of Focus on the Family for your help and support during the past few challenging months.... As I said when I spoke at my formal investiture at the White House last week, the prayers of so many people from around the country were a palpable and powerful force. As long as I serve on the Supreme Court I will keep in mind the trust that has been placed in me. I hope that we’ll have the opportunity to meet personally at some point in the future.

Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State strongly criticized Alito's note, saying, "Justice Alito should follow the commands of the Constitution, not the orders of Dobson and the Religious Right." Reviewing the tempest on the blog Politcal Cortex, James Clarkson comments "what is missed in all the commentary so far is that Alito expressed a desire to meet with Dobson. Even if it is true that he sent out a number of thank you letters and that it was routine, does he also want to meet with these supporters?"

Democratic Catholic House Members Issue Statement of Principles

Religious News Service reports that 55 of the 72 Democratic members of the U.S. House of Representatives on Tuesday issued a "Statement of Principles" (full text). The statement emphasizes the broad social agenda of the Representatives and the primacy of conscience in their views on social issues:

We are committed to making real the basic principles that are at the heart of Catholic social teaching: helping the poor and disadvantaged, protecting the most vulnerable among us, and ensuring that all Americans of every faith are given meaningful opportunities to share in the blessings of this great country. That commitment is fulfilled in different ways by legislators but includes: reducing the rising rates of poverty; increasing access to education for all; pressing for increased access to health care; and taking seriously the decision to go to war. Each of these issues challenges our obligations as Catholics to community and helping those in need....

In all these issues, we seek the Church's guidance and assistance but believe also in the primacy of conscience. In recognizing the Church's role in providing moral leadership, we acknowledge and accept the tension that comes with being in disagreement with the Church in some areas. Yet we believe we can speak to the fundamental issues that unite us as Catholics and lend our voices to changing the political debate -- a debate that often fails to reflect and encompass the depth and complexity of these issues.

Connecticut Rep. Rosa DeLauro said Catholic Democrats did not want to see Catholic faith defined solely by a "one-issue, very narrow right-wing agenda." Cardinal Theodore McCarrick of Washington, who is heading a bishops' task force on how to respond to dissenting politicians, said he had not yet seen the statement, but said he was willing to continue informal discussions with Catholics in both parties. [Thanks to Mirror of Justice for the lead.]

California School Will Not Excuse Absence For Ash Wednesday Service

In Bakersfield, California, parent Nona Darling is complaining to school authorities about policies that make it difficult for children to miss school for religious holidays. Darling wanted to take her children out of school at noon on Ash Wednesday to attend services. However, the school said that if she did, the children would be given an "unexcused" absence. The Bakersfield Californian yesterday said it is not clear to what extent the school's policy, that gives excused absences for doctor's appointments, sickness, and funerals, but only in limited situations for religious observances, reflects the state's education code.

No Federal Court Jurisdiction In Priest Abuse Case

Earlier this month, a Colorado federal district court issued a potentially important jurisdictional decision in another of the long-running clergy sexual abuse cases. It refused to permit the Archdiocese of Denver to remove to federal court a claim originally filed against it in state court. In Doe v. Archdiocese of Denver, (D Colo., Feb. 9, 2006), the court held that there is no federal court "federal question" jurisdiction over a claim that the Archdiocese of Denver was negligent in employing and supervising two offending priests. The court held that the case does not pose First Amendment issues. The court said "the defendants' duty, if any, arises not out of their special status as religious authorities but rather out of their decision to join the host of employers in all fields who must exercise reasonable care in their hiring and supervisory decisions."

More Prisoner Free Exercise Cases

The U.S. 11th Circuit Court of Appeals upheld the grant of summary judgment to Georgia Department of Correction employees in Boxer X v. Donald, (11th Cir., Feb. 28 2006). The court held that providing prisoners with a generic religious service for a given religion and not a separate service for each denomination or sect is reasonably related to the legitimate penological interest in not overburdening state resources. The court rejected both plaintiff's free exercise claim and his claim that other religions received preferential treatment.

In Shaw v. Frank, 2006 U.S. Dist. LEXIS 7231 (ED Wis., Feb. 15, 2006), a Wisconsin federal trial court held that allegations by a prisoner sufficiently stated free exercise and RLUIPA claims to permit his case to proceed. Terrence J. Shaw alleged that Wisconsin prison authorities terminated him from participation in sex offender treatment because of his religious beliefs, belittled and forced him to engage in exercises contrary to his religious beliefs during sex offender treatment, and refused to allow him to use his religious name.

In Shabazz v. Martin, 2006 U.S. Dist. LEXIS 7207 (ED Mich., Feb. 9, 2006), a federal district judge accepted earlier findings by a magistrate judge that a prisoner's free exercise claims are not moot and that he adequately asserted equal protection claims. Plaintiff alleged that the use of prayer rugs and pendants by Nation of Islam religious members was prohibited, while members of other Islamic faiths were permitted to possess these items. He also alleged that he was denied transfer to another prison consistent with his security classification because of his membership in the Nation of Islam. The magistrate's recommendations are reported at 2005 U.S. Dist. LEXIS 40657 (ED Mich., Oct. 11, 2005).

7th Circuit Denies Stay Of Order Against Sectarian Prayer In Indiana House

In a 2-1 decision, the U.S. 7th Circuit Court of Appeals has refused to stay the judgment of the district court that enjoined the Speaker of the Indiana House of Representatives from permitting further sectarian prayer at the beginning of House sessions. The majority in the 7th Circuit concluded: "In assessing the Speaker's chance of success on the merits of his appeal and in balancing the slight and temporary injury he faces absent a stay, we must conclude that the Speaker has not met his burden of establishing that a stay ought to be granted." The full text of the 18-page majority opinion and 3-page dissent in Hinrichs v. Bosma (7th Cir., March 1, 2006) is available online. Yesterday's Chicago Tribune reports on reactions to the refusal.

US Muslim Group Says Closing Charities Interferes With Religious Duties

A Muslim coalition group yesterday sent a letter to Treasury Secretary John Snow complaining that actions against Muslim charities have interfered with the religious obligation of American Muslims to help the needy. In the wake of federal action last week to freeze assets of the Toledo, Ohio-based charity KindHearts, the Muslim Taskforce on Civil Rights and Elections has requested a meeting with Secretary Snow. Federal authorities claimed that KindHearts was supporting Hamas terrorism in the Middle East. Reporting on these developments, the Toledo Blade says that Islamic law requires Muslims to donate to charity and places restrictions on how donated funds can be distributed. Secular American charities usually do not meet the requirements of Islamic law.

Private Town Planned Around Christian Teachings

Domino's Pizza founder Thomas S. Monaghan is setting the stage to test the limits of old Supreme Court precedent, like Marsh v. Alabama, that held privately owned towns may nevertheless be subject to restrictions of the First Amendment. To be build around Ave Maria University, east of Naples, Florida, the new town will be developed through a partnership with the Barron Collier Co., an agricultural and real estate firm, according to the Associated Press. It will be set on 5,000 acres with a European-inspired town center, and will encircle a massive church and a 65-foot tall crucifix. The most controversial part of Monaghan's plans, however, is his notion that various kinds of goods and services that are inconsistent with strict Catholic principles will not be available in the town. He envisions that local stores will not sell pornographic magazines, pharmacies will not carry condoms or birth control pills, and cable television will carry no X-rated channels.

UPDATE: In an interview on Friday with the Associated Press, Thomas Monaghan qualified many of his earlier statements. He said that mandatory restrictions will be limited to Ave Maria University. The town will be open to anyone, but it will be suggested to businesses that they not sell adult magazines or contraceptives. The town will not restrict cable television programming, and, according to the town's developer, it will not discriminate on the basis of religion, race, ethnicity or sexual orientation.

TRO Denied In Challenge To Navy's Chaplain Selection System

In Adair v. England, 2006 U.S. Dist. LEXIS 7367 (D DC, Feb. 28, 2006), the DC federal district court refused to issue a temporary restraining order to prevent the Navy from discharging plaintiff Michael Belt and other naval chaplains from active duty, finding that they were unlikely to succeed on the merits and had not show irreparable injury. A group of evangelical chaplains who are plaintiffs in the long-running litigation charged that the Navy maintains an unconstitutional religious quota system that favors hiring, promoting and retaining chaplains from liturgical Christian denominations at a rate greater than the liturgical Christians' representation among all Navy personnel. They also challenge the Navy's chaplain-promotion system, including placing more than one Catholic chaplain on promotion boards, the use of chaplains to rate other chaplains, the application of "faith group identifier" codes, and the general domination of the boards by liturgical Protestant and Catholic chaplains.

Church-State Tensions In Spain

Today's Washington Post carries an article about the growing tensions in Spain between the government of Socialist Prime Minister Jose Luis Rodriguez Zapatero and the Catholic Church. Zapatero blocked mandatory religious classes in public schools, and announced that his government would relax abortion laws, ease restrictions on divorce, legalize gay marriage and permit gay couples to adopt children. In response, the archbishop of Madrid called the Spanish capital "a hotbed of sin."

Government spokesman Fernando Moraleda said, "This is a government that is deeply secular and reform-oriented," and it must adapt Spain to its position as a modern member of the European Union. Church supporters say Zapatero's government is anti-clerical and out of touch with Spanish society, which is more than 80 percent Catholic. Government moves aim at changing the constitutional balance between church and state that was created under Spain's 1978 Constitution, adopted after the death of the longtime dictator Gen. Francisco Franco. Clashes between the Spanish left and the church helped propel Franco to power during the 1936-39 Spanish Civil War.

Anti-Evolution Proposals In the West-- One Dies While Another Is Born

In the western part of the United States, one skirmish against evolution has died while another is being born. In Utah on Monday, according to the Salt Lake Tribune, the House of Representatives rejected by a vote of 46-28 a bill that would have required teachers to tell students that evolution is not a fact and that the state does not endorse evolution. SB 96 had been passed by the state Senate after some conservative senators criticized what they called the "religion of atheism." The House, led by Rep. Stephen Urquhart, redrafted the bill to try to eliminate any religious references. By the time it was finally voted on, the bill merely provided "The State Board of Education shall establish curriculum requirements relating to scientific instruction." Then the House defeated even that as a way of stopping the Senate from reviving the issue.

Meanwhile, the Las Vegas Sun reports that in Nevada on Tuesday, masonry contractor Steve Brown filed an initiative petition with the secretary of state's office. His proposal would require that students, by the end of the 10th grade, be informed that "although most scientists agree that Darwin's theory of evolution is well supported, a small minority of scientists do not agree." Several "areas of disagreement" would have to be covered in class, including the view by some scientists that "it is mathematically impossible for the first cell to have evolved by itself." Students also would have to be told some scientists argue "that nowhere in the fossil record is there an indisputable skeleton of a transitional species, or a 'missing link'", and "be informed that the origin of sex, or sex drive, is one of biology's mysteries" and that some scientists contend that sexual reproduction "would require an unbelievable series of chance events".

Brown will need to collect 83,184 signatures by June 20 to get his plan on the November ballot, and will have to get voter approval both this year and in the 2008 elections for the amendment to be finally adopted.

School Can Remove Religious Postings From Teacher's Classroom

In Lee v. York County School Division, 2006 U.S. Dist. LEXIS 7114 (ED Va., Feb. 23, 2006), a Virginia federal district court rejected free speech and equal protection claims by William Lee, a Spanish teacher at York County's Tabb High School whose principal removed religiously oriented material that Lee had posted on his classroom bulletin board. The decision focused on precedent holding that the content of curricular speech by a teacher is subject to control by the school. The court also found that the school had not made its bulletin boards limited public forums; thus the school could regulate their content. (See prior posting.)

The Associated Press report on the case indicates that Lee's postings included news articles about President Bush's religious faith and former Attorney General John Ashcroft's prayer meetings with his staffers; a flier publicizing the National Day of Prayer; and a depiction of George Washington praying at Valley Forge.

UPDATE: Steve Taylor, attorney for teacher William Lee, says he will appeal the decision to the 4th Circuit Court of Appeals.

Board Committee Meeting On Textbook Depiction of Hindus Is Contentious

The battle between competing groups in the Hindu community over how their religion should be portrayed in school textbooks in California culminated in an emotional 4-hour hearing in Sacramento yesterday, according to the San Francisco Chronicle. (See prior posting.) The hearing ended with a few members of the overflow audience shouting at a subcommittee of the state Board of Education after it rejected changes they wanted in six new middle-school social studies textbooks . The Vedic Foundation and Hindu Education Foundation are seeking to remove or soften references to the untouchable caste and the subordinate status of women in India. Knight Ridder News in reporting on the meeting says that the special commission did accept a few proposed changes, like changing language that referred to a "caste system" to "class system. The committee will report its conclusions to the full Board on March 8.

Free Exercise Claim To Use of Hemp Rejected

In Kiczenski v. Ashcroft, 2006 U.S. Dist. LEXIS 7007 (ED Cal., Feb. 24, 2006), a California federal district court rejected plaintiff's claim that his religious beliefs were being infringed by the federal government's refusal to permit him to cultivate, possess and use hemp. The court rejected plaintiff's claims under RFRA and the First Amendment because it found that the beliefs that impel him to grow and use hemp are secular, economic, social, and philosophical, not religious. The court said: "Although plaintiff does link 'tending his garden' with feeling close to God, he does not specifically link or require growing hemp to commune with God." In a footnote, the court added that "even if a 'commune with God through nature' philosophy could be considered a religion, plaintiff's religion would not be substantially burdened by not permitting him to grow hemp [because]... it is growing anything, not specifically hemp, which spiritually fulfills plaintiff. "

More Questions Raised On Boston's Sale Of Land To Mosque

In Boston, there has been ongoing controversy about a sale of land by the Boston Redevelopment Authority to the Islamic Society of Boston for the building of a mosque. ISB paid the BRA $175,000 cash and various in-kind public benefits for a parcel of land they publicly agreed was worth $401,000. A suit is pending challenging the constitutionality of the sale. Boston's Weekly Dig now says that it has documents indicating that the transferred land was really worth $2 million, thereby creating new questions about the transaction.

Jewish Group Endorses Principles Supporting Pluralistic Democracy

On Monday evening, the Jewish Council for Public Affairs (JCPA) at its 2006 Plenum adopted a resolution on "Protecting Pluralistic Democracy In America". In part it reads:

The pairing of the Free Exercise Clause alongside the Establishment Clause secures for Americans freedom of religion and freedom from governmental imposition of religion. These freedoms have enabled America to thrive as perhaps the most religiously diverse society in history. There are those, however, who seek not just a place for religion in the public square, but to co-opt the institutions of the government itself to advance their own religious agenda, while denying freedoms to others.

It is the right of individuals, including political and religious leaders to express their beliefs in public settings, but it is not their right to imbue governmental actions, meetings, buildings and other segments of the 'public square' with sectarian religious messages. It is the rights of individuals to adopt religious or scientific explanations for the origins of life, but religious theories should never be taught as science or an alternative to science in public schools. It is the right of members of the military to express religious viewpoints to fellow soldiers, but not to proselytize within the chain of command, or implicitly or explicitly pressure those of differing religious beliefs. It is the right of individuals to seek personal freedoms that may run contrary to religious convictions, but the laws of this nation and the pluralistic spirit which they foster demand no single religious belief or view be championed or codified above other sincerely held beliefs.

The resolution went on to deal with a number of specific issues in more detail It said that science and medicine-- including funding, research, availability of medicines and services, and appointments to governmental advisory boards-- need to remain independent from religious, political and ideological interferences.

The JCPA is the umbrella group for 13 national Jewish groups and local community relations councils from around the country.

How Various Religions Fare In Court Challenges

At The Volokh Conspiracy, Prof. Greg Sisk (who is a regular at Mirror of Justice) is blogging all this week about his empirical research on how various religious denominations fare in free exercise challenges in the courts. Here is some of what he said in his first posting yesterday (which also contains links to the full studies):

First, those religious groupings that both today and historically have been regarded as outsiders or minorities, such as Jews, Muslims, Native Americans, and various others (including Jehovah’s Witnesses and Christian Scientists), did not succeed or fail in making religious liberty claims at a rate (controlling for all other variables) that was significantly different than for other religious classifications. In sum, with the potential exception of Muslim claimants in certain claim subcategories, religious minorities did not experience disproportionately unfavorable treatments in the federal courts of the 1980s and 1990s.

Second, two categories of religious affiliation by claimants emerged as consistently and significantly associated with a negative outcome—Catholic (at the 99% probability level) and Baptist (at the 95% probability level).

The question remains why those whose religious views are within the mainstream of American society would be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices. I’ll examine several possible answers to that question, beginning tomorrow.

U.S. To Oppose Current Version of UN Human Rights Council

The U.S. ambassador to the United Nations, John Bolton, announced on Monday that the U.S. would vote against the latest version of the resolution to create a new U.N. Human Rights Council unless negotiations are reopened to address serious deficiencies, especially the chance that countries abusing human rights can become Council members. (See prior related posting.) The U.S. wants to require a two-thirds vote of the General Assembly for a member to be elected to the new Council. The AP today reported on developments. The U.S. position puts it at odds with key human rights groups and many other U.N. members who believe that, while the current proposal does not go as far as they would like, it is still a significant improvement over the current discredited UN Human Rights Commission. They argue that reopening negotiations is likely to weaken, not strengthen, the new Council.

International Court Hearing Begins On Genocide Charges Against Serbia

The International Court of Justice heard arguments Monday by Bosnia accusing Serbia of genocide. This is the first time that a state, rather than individuals, has faced trial for humanity's worst crime. The Canadian Press reports that the hearings come 13 years after Bosnia filed the lawsuit against Serbia and Montenegro - the successor to Yugoslavia - charging it with a premeditated attempt to destroy Bosnia's Muslim population.

US Agency Says Iran Is Increasing Repression of Religious Minorities

Last Friday, the U.S. Commission on International Religious Freedom issued a release expressing concern over the worsening situation for religious minorities in Iran. Jews, Baha'i, Christians and Shi'a and Sufi Muslims have all experienced increasing repression. Since 1999, the State Department, at the urging of the Commission, has designated Iran as a "country of particular concern" under the International Religious Freedom Act. (See prior posting).

Crosses Along Highways Are Proliferating, Professor Says

Today's Salt Lake (Utah) Tribune chronicles the research of Southwestern University communications professor Bob Bednar who is looking at the growing number of crosses that have been placed by roadsides across the country to memorialize individuals who have been killed in traffic accidents. A lawsuit is currently pending in Utah, brought by the American Atheists, challenging the placement of crosses on public rights of way. Bednar has found similar crosses in numerous states. Bednar argues that the crosses are an unconstitutional use of a religious symbol by public agencies. Recently, the Utah legislature approved a resolution supporting crosses erected to memorialize fallen members of the highway patrol (HCR 4), saying they are not religious symbols. Bednar agrees that crosses are becoming secularized symbols of memorialization, but he would like to see the cross returned to its Christian roots.

9th Circuit Permits Sikh Prisoner's Claim To Go Forward

In Murray v. Arizona Department of Corrections, 2006 U.S. App. LEXIS 4577 (9th Cir., Feb. 13, 2006), the U.S. 9th Circuit Court of Appeals reversed the district court and permitted a Sikh prisoner to proceed with his claim that he was not allowed to engage in his religious practices and was discriminated against because of his religion.

2006 Christmas In Schools Controversies Begin

In Durango, Colorado, a high school student has created a controversy by formally asking the Bayfield School District Board to change the name of Winter Break to Christmas Break. Today's Durango Herald reports on the request which was made at last Tuesday's board meeting. Two ministers are among the board members. Janice McClain, a junior at Bayfield High, argued that the United States is an essentially Christian nation founded on Christian precepts and doctrine, and that the school district "is a Christian community". The board took no action, but board member Bill Faust promised not to ignore the issue. School superintendent Don Magill said, "I certainly understand her concern from a Christian perspective, but as a public institution, we need to be respectful of all faiths and those who profess no faith."

Utah Judge Removed By State Supreme Court For Polygamy

Yesterday, the Utah Supreme Court in the case of In re Inquiry of a Judge, The Honorable Walter K. Steed, (Feb. 24, 2006), upheld the recommendation of the state's Judicial Conduct Commission that Judge Walter Steed be removed from office because of his illegal practice of polygamy. The Associated Press reports that Steed has served for 25 years on the Justice Court in the polygamist community of Hildale in southern Utah. He has 3 wives and 32 children. Steed legally married his first wife in 1965. The second and third wives were married through religious ceremonies in the Fundamentalist Church of Jesus Christ of Latter Day Saints's in 1975 and 1985. The three women are sisters. Reacting to the Supreme Court's decision, Steed said: "I had hoped that the court would see my case as an opportunity to correct the injustices that are caused by the criminalization of my religious beliefs and lifestyle. I am disappointed the court did not reach those issues in my case."

IRS Report On Improper Non-Profit Political Activity

The Internal Revenue Service on Friday released a report on its Political Activity Compliance Initiative. The AP says IRS exams of 110 organizations referred to the IRS for potential violations found nearly three out of four churches, charities and other civic groups actually violated tax rules in the 2004 election. Most involved only a single, isolated episode; but in 3 cases, the IRS found violations egregious enough to recommend revoking tax-exempt status. "It's disturbing not because it's pervasive, but because it has the potential to really grow and have a very bad impact on the integrity of charities and churches," IRS Commissioner Mark Everson said in an interview.

Today's New York Times also covers the report and Commr. Everson's speech about it yesterday in Cleveland. The full text of the report and materials released along with it are online. Here is a summary of the alleged and determined violations from the Executive Summary:

• Charities, including churches, distributing diverse printed materials that encouraged their members to vote for a preferred candidate (24 alleged; 9 determined)
• Religious leaders using the pulpit to endorse or oppose a particular candidate (19 alleged; 12 determined)
• Charities, including churches, criticizing or supporting a candidate on their website or through links to another website (15 alleged; 7 determined)
• Charities, including churches, disseminating improper voter guides or candidate ratings (14 alleged; 4 determined)
• Charities, including churches, placing signs on their property that show they support a particular candidate (12 alleged; 9 determined)
• Charities, including churches, giving improperly preferential treatment to certain candidates by permitting them to speak at functions (11 alleged; 9 determined), and
• Charities, including churches, making cash contributions to a candidateÂ’s political campaign (7 alleged; 5 determined).

[Thanks to Blog From the Capital for the lead.]

Recent Publications On Church-State Issues

From SmartCILP:
Robert W. Gurry, The Jury Is Out: The Urgent Need For A New Approach In Deciding When Religion-Based Peremptory Strikes Violate the First and Fourteenth Amendments, 18 Regent Univ. Law Review 91-128 (2005-2006).

Symposium: Bankruptcy in the Religious Non-Profit Context, 29 Seton Hall Legislative Journal 341-557 (2005):

• Boozang, Kathleen M., Introduction - Bankruptcy In the Religious Non-Profit Context.
• Skeel, David A., Jr., "Sovereignty" Issues and the Church Bankruptcy Cases.
• Cafardi, Nicholas P., The Availability of Parish Assets for Diocesan Debts: A Canonical Analysis.
• Wells, Catharine Pierce, Who Owns the Local Church? A Pressing Issue For Dioceses In Bankruptcy.
• DiPietro, Melanie, The Relevance of Canon Law In a Bankruptcy Proceeding.
• Sargent, Mark A., The Diocese After Chapter 11.
• Carmella, Angela C., Constitutional Arguments In Church Bankruptcies: Why Judicial Discourse About Religion Matters.
• Brody, Evelyn, The Charity In Bankruptcy and Ghosts of Donors Past, Present, and Future.
• Davitt, Christina M., Student Article: Whose Steeple Is It? Defining the Limits of the Debtor's Estate In the Religious Bankruptcy Context.

Mirror of Justice has a review of Jay Sekulow's recent book, Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions (Rowman & Littlefield, Nov. 2005).

Jury Award For Denying Religious Burial To Stillborn Fetus Upheld

Today's New York Daily News reports that a Brooklyn judge has upheld a $2 million jury award against Brooklyn Hospital Center in a case brought by a Nigerian couple whose 21-1/2-week stillborn infant's remains were disposed of by the hospital's pathology department instead of being turned over to the couple for a religious burial. The father is chief of the Ibo tribe in his homeland. The couple suffered severe emotional distress because they believe a soul wanders forever if a loved one is not interred in a tribal burial ground. The full opinion in Emeagwali v. Brooklyn Hospital Center (Sup. Ct. Kings County, Feb. 22, 2006) is available online.

Prisoner Free Exercise Decisions Newly Released

The Oregon federal district court has recently released its opinion in Alvarez v. Hill, 2005 U.S. Dist. LEXIS 40494 (D. Ore., Dec. 14, 2005). It granted summary judgment to defendants, finding that restrictions placed on a Native American prisoner at Oregon's Snake River Correctional Institution did not substantially burden his exercise of religion. Plaintiff had challenged prison regulations relating to religious volunteers, the frequency with which inmates were allowed to attend the sweat lodge, drum ceremonies, and the restrictions on wearing headbands.

In Young v. Medden, (ED Pa., Feb. 23, 2006), a wide-ranging lawsuit against prison officials, a Pennsylvania federal district court permitted a prisoner to proceed with various claims alleging violation of his free exercise rights and of RLUIPA. Willie Young, a believer in African Traditional Spirituality claimed that officials at two different prisons interfered with his ability to practice his religion.

In McElyea v. Schriro, 2006 U.S. Dist. LEXIS 6765 (D. Ariz., Feb. 13, 2006), an Arizona federal district court judge dismissed a Jewish prisoner's religious exercise claims, finding that the prisoner's "multiple frivolous motions and filings are malicious and vexatious and based on complaints which are designed to harass and antagonize the Defendants". His complaints centered primarily on his ability to observe certain rules regarding the Sabbath and kosher food, and on his objection to the prison's permitting persons to attend Jewish services who are not Jewish according to Orthodox Jewish religious law.

Conservative Ohio Board Member Defends Removing Intelligent Design

Conservative Republican Martha Wise was the leader in getting Ohio's Board of Education last week to remove references to Intelligent Design from Ohio's science curriculum standards. (See prior posting.) On Wednesday, she wrote a fascinating op-ed in the Cincinnati Enquirer:

I believe in God the creator. I believe in freedom. I believe in America, and the state of Ohio, and the Republican Party, fiscal conservatism, fairness and honesty. These values guided me last week to lead the Ohio Board of Education to remove creationism from our state's Science Standards and Model Curriculum.

You may ask: Why would being a creationist make me want to remove "critical analysis"/"intelligent design" creationism from the standards? It's simple, really: It is deeply unfair to the children of this state to mislead them about the nature of science. The future of Ohio's prosperity depends on a well-educated workforce that understands science. The future of religious freedom in this country depends on the electorate understanding that modern science is not a threat to faith....

Our board had to decide whether to waste millions of taxpayer dollars to hear a federal judge tell them the same thing Judge Jones told the Dover, Pa., board. We chose to stand up for kids, for the state of Ohio, for freedom of religion, and for the integrity of science. The public trusts us to uphold first-class standards and to protect democracy and religious freedom. So, we set aside our differences and did the right thing for Ohio and Ohio's children.

Israel Supreme Court Appoints Mediator In Dispute Over Museum Construction

Israel's Supreme Court has appointed retired Justice Meir Shamgar as a mediator to resolve a dispute over the building of a museum on the site of a ancient Muslim cemetery in Jerusalem. Rather ironically, the museum is being built by the U.S.-based Simon Wiesenthal Center to promote interfaith tolerance. The Wiesenthal Center says that the cemetery was deemed abandoned under a ruling of a Muslim judge. BBC News yesterday reported that the court ordered a suspension of construction work for 30 days while the mediator tries to fashion an acceptable compromise.

Convicted Sex Offender Raises Religious Objections To Electronic Monitoring

In Davis City, Iowa, a state trial judge faces an unusual problem of religious accommodation. According to today's Des Moines Register, Scott Smith was ordered, under Iowa's sex offender registry law, to wear an electronic monitor as a condition of his probation after he served 210 days on work release. But Smith says this will infringe on his religious beliefs. Smith was a leader in the Brotherhood of Christ when he was charged in 2003 with sexual abuse and indecent contact with two teenage girls. Brotherhood of Christ members, including Smith's wife and children, live in a largely self-sufficient Iowa community that prohibits the use of electricity, claiming that using electricity in daily life can cause people to disobey God. Smith lives in a home without electricity, telephone or running water on land adjacent to church property. His family visits him there. Brotherhood of Christ leader, Ron Livingston, said the court-ordered electronic monitor in the home could adversely influence Smith's children and take away from the teachings of the community. Livingston testified that Smith has been told he might be allowed back into the fold if he follows its religious requirements.

Hindu Board Calls For Murder Of Controversial Artist

WebIndia123 today has a rather astounding report from the Indian state of Uttar Pradesh. It says that after the state's Haj Minister, Haji Yaqub Qureshi, offered a reward of 510 million Rupees (approx. $11.5 million) to anyone who killed the Danish cartoonist who drew the now-infamous caricatures of Muhammad, the state's Hindu Personal Law Board decided to follow suit. It announced a similar reward for anyone beheading prominent artist M.F.Hussain. Hussain is charged with portraying Hindu deities and Bharat Mata in the nude. His painting was displayed on a website, and in an exhibition in New Delhi. Ashok Pandey, president of the Hindu Personal Law Board was quoted as saying:

Those who are endangering religion and nation, should be eliminated for everyone's good. Anyone who kills Hussain for making obscene paintings of goddess Sarswati and Bharat Mata, the Danish cartoonist, those in the German company printing pictures of Ram and Krishna on tissue paper and the French filmmaker desecrating Lord Shiva will be given Rs 51 crore in cash.

Hussain has apologized and withdrawn the picture from auction.

HHS Settles With ACLU In Challenge To Funding Of Abstinence Program

Yesterday it was announced that the U.S. Department of Health and Human Services has entered a settlement with the American Civil Liberties Union in a case challenging the constitutionality of federal funding of an abstinence-only sex education program know as "The Silver Ring Thing". (ACLU release.) The ACLU charged that the program was using taxpayer funds to promote religious doctrines. HHS already suspended funding of SRT in August 2005, saying that the program "may not have included adequate safeguards to clearly separate in time or location inherently religious activities from federally-funded activities." In yesterday's settlement (full text), HHS agreed that it will not fund SRT's program as currently structured. In any future applications for federal funding, SRT must comply with prohibition on using federal funds to support inherently religious activities. In addition, HHS agreed to closely monitor any grant applications by SRT for the next two years. The Alliance Defense Fund, which had intervened in the case to support SRT, said that it was pleased that SRT would be permitted to apply for funding in future years. (Report from The Reality Check.)

Non-Buddhists Object To New Broadcast Services In Bhutan

In the Himalayan Kingdom of Bhutan, the government, with the aid of the International Telecommunications Union, has begun to offer nationwide satellite television services. Yesterday's Asia News reports that while Bhutanese authorities see this as a landmark, minority religious groups are protesting that it is a tool to entrench Buddhist cultural hegemony over the country and keep control over other groups. Kamali Chetri, a nurse, complained that with programming that is largely Buddhist in content, "the gap between the Buddhist majority and immigrant Hindus, Christians and Nepalese animists is bound to grow. It doesn't really foster co-existence."

O Centro Impacts Peyote Charges In Utah

Today's Deseret News reports that the U.S. Attorney's Office for Utah has announced it is dropping felony peyote distribution charges against the founders of a Utah County-based Native American Church. While the announcement came one day after the U.S. Supreme Court held that the Religious Freedom Restoration Act protected a Brazilian church's use of hoasca, the decision to drop the peyote charges stemmed from an agreement with prosecutors signed two weeks ago by James "Flaming Eagle" Mooney and his wife, Linda Mooney. The agreement provided that charges would be dropped in exchange for the Mooneys agreeing to refrain from possessing, buying, using or distributing peyote "until they become members of a federally recognized tribe or there is a definitive clarification of the law regarding the use of peyote by court ruling or legislative action." Under the agreement, the Mooneys can be re-indicted on the same charges if they violate its terms. The statute of limitations were also waived on the charges.

In light of the U.S. Supreme Court's decision in the O Centro case, Mooney now says he will seek to have the court throw out his agreement with prosecutors and confirm his right to use peyote in religious ceremonies. Mooney says that while he fights his agreement, members of his church should be free to resume their ceremonies without his participation. However U.S. District Attorney Criminal Division Chief Richard Lambert took the position that federal law still requires anyone who uses peyote for religious purposes to be a member of a federally recognized Indian tribe. "Congress has spoken on this," Lambert said, pointing out that unlike hoasca, which is unregulated, Congress has specifically regulated peyote. He said that anyone using peyote who is not a member of a federally recognized tribe, including members of Mooney's church, is still breaking the law.

Dispute Over Muslim Census In Indian Armed Forces

India's Supreme Court has set March 6 as the date to hear a challenge to a proposed census of Muslims serving the the armed forces of India. Yesterday's edition of The Hindu reported that the Court refused a plea to speed up its hearing on the case brought by Lt. Gen R. S. Kadyan, a former Deputy Chief of the Army Staff, who contends that the census would be divisive and would undermine the secularism of the armed forces. However the case may be moot. Yesterday the UPI reported that India's Defense Minister, Pranab Mukherjee, told the upper House of Indian Parliament that the armed forces would be excluded from the survey. The controversy began after Indian Prime Minister Manmohan Singh set up a committee, headed by former Chief Justice of the Delhi High Court, Rajinder Sachar, to study the status of the country's Muslim minority and suggest ways to improve their social mobility. (Background).

Competing Opinions On Constitutionality Of Utah's Proposed Voucher System

The Salt Lake Tribune reports that on Wednesday, the Utah School Boards Association released two legal opinions that say H.B. 184, a school voucher bill before the Legislature, is unconstitutional. Former Utah Supreme Court Justice Michael D. Zimmerman said HB184 violates prohibitions in Utah's constitution against using public funds for religious education (Art. I, Sec. 4, Art. X, Sec. 9). A second opinion, by attorney Harold G. Christensen, says that the voucher bill violates Utah's constitutional provisions providing for the creation of a public education system (Art. X, Sec. 1). Parents for Choice in Education disagrees, citing a legal opinion by attorney Maxwell A. Miller taking the position that the Utah constitution supports indirect funding for private education.

Catholicism Making Gains In Vietnam

Yesterday's Christian Science Monitor chronicles the quiet gains that Catholicism is making in Vietnam-- a country that the U.S. Commission on International Religious Freedom has categorized as a "country of particular concern" because of its more general lack of religious freedom. Of the country's six official religions, Catholicism ranks second behind Buddhism, claiming 5 to 7 million followers. It is gaining popularity among young urban Vietnamese who are enjoying the country's rapid economic growth. While Vietnam still does not have diplomatic relations with the Holy See, senior Vatican emissary Cardinal Crescenzio Sepe visited Vietnam in November ordaining 57 new priests at Hanoi's cathedral. Sepe also met with Deputy Prime Minister Vu Khoan. For many, Catholicism is still associated with the French colonizers whose rule ended in 1954.

Dover Schools Pay $1 Million To Plaintiffs For Lawyers' Fees

The Dover (Pennsylvania) Area School District, which in December lost a high profile case challenging its attempts to teach about intelligent design, has now agreed to pay $1 million to cover the plaintiffs' attorneys' fees. Lawyers say the settlement was designed to discourage school boards from considering similar action in the future. Yesterday's Philadelphia Inquirer reported that the school board unanimously approved the agreement at its public meeting yesterday. Board member Bryan Rehm, a plaintiff in the case, abstained.

School's Lease With Church OK Under Georgia Constitution

In Taetle v. Atlanta Independent School System, (Jan. 17, 2006), the Georgia Supreme Court held that the Georgia constitution was not violated by a school district leasing classroom space from a church to create a kindergarten annex. The lease, entered into in order to alleviate overcrowding in the public school, also provided that that the school system would pay for renovations and improvements on the church's property, for which it would receive a credit for rents owed. The court held that Georgia's prohibition on use of public funds to aid any church or sectarian institution did not preclude this sort of arms-length commercial lease.

German Man Prosecuted For Insulting the Quran

In Muenster, Germany, authorities are prosecuting a 61-year-old businessman under Section 166 of the German Criminal Code that prohibits insulting faiths, religious societies or organizations dedicated to a philosophy of life in a manner that is capable of disturbing the public peace. The businessman printed the word "Koran" on toilet paper and sent it to a mosque in Duisburg and to German television stations. Prosecutors say the case was brought to their attention by a complaint the government of Iran sent to the German foreign ministry in Berlin. Yesterday's Expatica reported on the case.

UPDATE: On Feb. 23, the AP reported that the businessman charged in the case was convicted of disturbing the peace and given a one-year suspended jail sentence.

Court Upholds Student's Dismissal For Suggesting Church

The decision has just become available in Watts v. Florida International University, 2005 U.S. Dist. LEXIS 40310 (SD Fla., June 9, 2005). The case, decided by a Florida federal judge some 8 months ago, involved John Watts, a state university student, who was terminated from a Master of Social Work program "for inappropriate behavior related to patients, involving religion". Watts recommended to a patient that she seek a bereavement support group. When the patient inquired where she could find such a group, Mr. Watts provided several options, one of which was "church," because the patient's assessment indicated that she was Catholic. The mention of a religious alternative was apparently the offending behavior. The court held that dismissing the student for giving this advice did not violate either his right to free speech or to the free exercise of religion. Watts did not show how preventing him from providing the information to the patient constituted a substantial burden on the exercise of his central religious beliefs.

Bahrain Defers Ratification of International Covenant on Civil and Political Rights

Bahrain's parliament yesterday refused to ratify the United Nations International Covenant on Civil and Political Rights, which has already been adopted by 146 other nations. Today's Gulf Daily News says that instead, Parliament referred the matter to its Foreign Affairs, Defense and National Security Committee to include reservations stemming from conflicts between the Convention and Islamic Sharia law. Among the concerns expressed by members of Parliament is the Convention's protection of the right to convert to another religion and the right of women to marry without their fathers' consent.

Anti-Harassment Training Does Not Infringe Free Exercise of Religion

Last Friday in Morrison v. Board of Education of Boyd County, (ED Ky., Feb. 17, 2006), a Kentucky federal district court held school training classes aimed at reducing anti-gay harassment did not burden students' free exercise of religion. The classes did not require any student to disavow his or her religious beliefs, or to endorse homosexuality, bisexuality or transgendered persons. The ACLU had joined the school district in defending against a challenge to the anti-harassment training sessions. (ACLU release.) Students challenging the training sessions were represented by the Alliance Defense Fund.

Preliminary Thoughts On Today's O Centro Decision

The Supreme Court's O Centro decision today, upholding a preliminary injunction requiring an exemption from U.S. drug laws for the sacramental use of hallucinogenic tea (see prior posting), is interesting for several reasons.

First, there was some uncertainty as to how broadly the Court would rule. (See prior posting.) In its actual decision, the Court resolved both the narrow issue of the standard for issuing a preliminary injunction under RFRA, and broader substantive issues of the meaning of RFRA. On the issue of the standard for a preliminary injunction, the Court ruled clearly "that the burdens at the preliminary injunction stage track the burdens at trial." It is the government's burden to show a likelihood of success on the merits at trial. It is not up to the challengers to prove that the government would likely fail at trial.

On the broader issue, the Court made it clear that when RFRA requires the government to show a compelling interest in order to substantially burden a person's exercise of religion; generalized interests are insufficient:

RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person' -- the particular claimant whose sincere exercise of religion is being substantially burdened.

This does not mean that there can never be a compelling interest in uniformly applying a law to everyone. The Court says that if religious accommodations would seriously compromise the Government's ability to administer a law, that could be a compelling interest. The Court points to cases holding that exemptions to paying Social Security taxes could undermine the tax system, and exemptions to Sunday blue laws could undermine the need for a uniform day of rest. But the Court thought that O Centro was different:

Here the Government's argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to 'rule[s] of general applicability.'

This reasoning would seem to extend beyond RFRA and apply also to cases under the Religious Land Use and Institutionalized Persons Act.

The Court does not totally preclude the possibility that at trial, the Government will eventually be able to carry its burden of showing a compelling interest and that the Controlled Substances Act was the narrowest means of furthering that interest. It seems to particularly leave open that possibility in connection with the government's argument that it had a compelling interest in complying with the 1971 U.N. Convention on Psychotropic Substances. But so far the government has not, in the Court's view, made a persuasive case.

Finally, the Court did not accept the invitation of at least one amicus brief to focus on the constitutionality of RFRA as applied to the federal government. The opinion's language, however, suggests that while the Court previously struck down the application of RFRA to the states, it has little doubt about the constitutionality of RFRA as applied to federal regulations that impinge upon religious practices.

Supreme Court Upholds Church's Right To Use Hallucinogenic Tea

In a unanimous 8-0 decision today in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (full opinion), the U.S. Supreme Court ruled that the Bush administration cannot block a New Mexico church from using a hallucinogenic tea for religious purposes. Bloomberg News reports:

The U.S. Supreme Court, saying law enforcement goals in some cases must yield to religious rights, ruled that the Bush administration can't block a New Mexico church from using a hallucinogenic tea.

In a unanimous opinion written by Chief Justice John G. Roberts Jr., the court today said the church, a 130-member branch of a Brazilian denomination, is protected by the 1993 Religious Freedom Restoration Act. The justices upheld a preliminary injunction barring federal prosecution of church leaders.

The case put the Bush administration in the unusual position of opposing religious groups, including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals, both of which backed the New Mexico church. The government contended the tea, known as hoasca, is dangerous and illegal.

Here are excerpts from the Court's Syllabus of its opinion:

The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV's sacramental use of hoasca....
The Government's argument that, although [under RFRA] it would bear the burden of demonstrating a compelling interest at trial on the merits, the UDV should have borne the burden of disproving such interests at the preliminary injunction hearing is foreclosed by Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666....
Also rejected is the Government's central submission that, because it has a compelling interest in the uniform application of the Controlled Substances Act, no exception to the DMT ban can be made to accommodate the UDV.... RFRA and its strict scrutiny test contemplate an inquiry more focused than the Government's categorical approach.... [T]he Government's mere invocation of the general characteristics of Schedule I substances cannot carry the day.... The peyote exception has been in place since the Controlled Substance's Act's outset, and there is no evidence that it has undercut the Government's ability to enforce the ban on peyote use by non-Indians.
The Government argues unpersuasively that it has a compelling interest in complying with the 1971 U.N. Convention [on Psychotropic Substances].... At this stage, it suffices that the Government did not submit any evidence addressing the international consequences of granting the UDV an exemption, but simply relied on ... the general (and undoubted) importance of honoring international obligations and maintaining the United States' leadership in the international war on drugs. Under RFRA, invocation of such general interests, standing alone, is not enough.

Bill Introduced To Strip Federal Courts of Jurisdiction Over Legislative Prayer

Today's Indianapolis Star reports on the latest reaction to an Indiana federal district court decision last year banning sectarian prayer in the state's House of Representatives. That decision is on appeal to the U.S. 7th Circuit court of Appeals. Indiana's U.S. congressman Mike Sodrel however would like to short-circuit the appeal. Last week he introduced federal legislation to remove federal court jurisdiction over the content of prayer in state legislatures. Sodrel will hold a news conference this morning to discuss the bill.

Europeans Urge Changes In Afghanistan's Supreme Court; Islamists Demur

Today's Christian Science Monitor reports that in Afghanistan, a crisis may be brewing over whether the country's Supreme Court will move away from its strict Islamic focus and will be modernized. Presently all 9 justices are mullahs. Earlier this year at the London Conference on Afghanistan, the country agreed to reform its justice system. (Text of 2006 Afghanistan Compact.) On February 11, European diplomats delivered a demarche to Afghan President Hamid Karzai, calling for compliance with the agreement to address existing gender imbalance in the judiciary, and particularly in appointments to the Supreme Court.

This however is likely to meet opposition from Islamic scholar Fazel Hadi Shinwari who presently heads Afghanistan's Supreme Court and whose rulings have reflected strict compliance with Sharia. Responding to the European pressure for professionalization of the Court, Shinwari said: "Anything that is according to the Koran is fine with me, but if you go against the Koran, you Europeans will have to tell Karzai to get rid of this old man who is in charge of the Supreme Court. I'm ready to resign, but then there will be lots of problems, just as the desecration of the image of the prophet Muhammad, peace be unto him, caused 60,000 people to go out into the streets. The same thing will happen here."

As to pressure to address gender imbalance in the judiciary, Shinwari who is both Chief Justice and head of Afghanistan's Council of Islamic Scholars says: "We have many women judges here, but a woman cannot be a judge over the general country, and she cannot sit in this chair. If a woman becomes a top judge, then what would happen when she has a menstruation cycle once a month, and she cannot go to the mosque? Also, a woman judge cannot give an execution order, according to Islamic law."

Court Issues Revised Opinion In Florida Drivers' License Case

A Florida state court of appeals has issued a revised opinion in a case it decided last September upholding requirements of the state's Motor Vehicles Department regarding drivers' license photos. The Department refused to permit a Muslim woman to be photographed in a veil, but permitted her unveiled photo to be taken by a woman photographer. The revised opinion in Freeman v. Department of Highway Safety and Motor Vehicles (Feb. 13, 2006), deletes references in the original opinion to deposition testimony of the license applicant regarding her beliefs about veiling, but reaches the same conclusion as the original opinion. On Religionlaw listserv, a post by Eugene Volokh discusses the modification in the court's opinion.

Editorial Commentary: The Cartoon Controversy and the False Holocaust Analogy

Today in Austria, British revisionist historian David Irving goes on trial for violating Austria’s law against Holocaust denial. In the wake of the Muhammad cartoon affair, some in the Muslim world have attempted to draw parallels between the caricatures of Muhammad and neo-Nazi propaganda. An Iranian newspaper editor thought that an appropriate response to Danish publication of the Muhammad drawings was a contest calling for Holocaust cartoons. Others have urged that laws banning neo-Nazi propaganda, Nazi symbols or Holocaust denial, enacted in several European countries, are precedents for new legislation prohibiting drawings insulting to Islam. However, the attempted analogies are false ones, even though few commentators have noted the asymmetry involved.

The fundamental difference between Neo-Nazi propaganda and the "cartoon affair" is the well-recognized difference in U.S. constitutional law between incitement cases and hostile audience cases. Incitement cases, to which U.S. courts apply the clear-and-present-danger test, involve situations in which we fear that listeners will so strongly agree with the speaker that language will quickly move to conduct. That is the concern with neo-Nazi propaganda and marches. Given the history of mid-20th century Europe, and the resurgence of anti-Semitism in Europe at the end of the 20th and beginning of the 21st centuries, a real fear exists that those who agree with neo-Nazis will quickly be recruited to persecute and resort to violence against Jews.

Hostile audience cases, on the other hand, are cases in which the listeners vociferously disagree with the speaker. The fear is not that listeners will follow the speaker’s urgings, but that listeners will attack the speaker or otherwise exert a hecklers’ veto. In these cases, American constitutional law protects the speaker, except in the most extreme of circumstances. The Muslim cartoons are problematic because of the reaction of a hostile audience, the reaction of Muslims who are offended by them. No one realistically fears that the cartoon of Muhammad with a bomb in his turban will so convince the Danes that Muslims are terrorists that they will begin to violently attack Muslims. Non-Muslims in general recognize the cartoons as exaggerations or over-generalizations. The fear—justified in the reality—is that some Muslims, insulted by the cartoons, will react violently against those who have published them. American law generally protects speakers from this kind of hostile reaction.

Understanding this distinction does not solve the problem of the cartoons. But hopefully it does prevent us from using false analogies in seeking a solution. Balancing the interests of listeners and speakers is difficult. Western democracies have, by and large, come down heavily in favor of the rights of speakers and have told listeners who are offended by the ideas being expressed to walk away, turn the page, switch off the broadcast, stay away from the presentation, or reply with ideas that are more convincing to listeners. Muslim protesters around the world do not agree with that resolution of the conflicting values at stake. But they need to at least recognize that the problem is different from that posed by neo-Nazi attempts to find sympathizers who would like to revive Hitler’s "final solution".
--- HMF

Arizona Bill Would Permit Opt-Out From College Assignments

In Arizona last week, the Senate Committee on Higher Education approved a bill that would require university faculty to offer alternative course work for students who find an assignment offensive to their sexuality, morality or religion. According to the Associated Press, Sen. Thayer Verschoor introduced the bill after a community college student complained to him after he was assigned to read Rick Moody's The Ice Storm, which contains scenes of sexuality and drug use.

Appeals In Ritual Beheading By Indigenous Indonesian Tribe

Today's Jakarta Post discusses pending appeals of murder convictions of members of the indigenous tribal community of Naulu in the interior of Seram Island, Maluku, in Indonesia. The tribe carries on its tradition of ritual decapitation. A segment of the Nauli people are convinced that unless human heads are offered when repairing or replacing a clan house, illness or death will result. The chief of the Nuane community, Sahune Matoke, said his members were motivated by the belief that performing the customary ritual was a sacred mission. "They had no idea of any punishment for such a killing." Samson Tahapary, a lawyer filing an appeal for the Naulu said, "The government knows of the unlawful tradition but no action has been taken to make the Naulu people understand the law. " Samson added, "The judges' decision will not be a means to increase my clients' awareness and provide further guidance. So I'm filing an appeal for proper consideration of nonjudicial matters before passing a verdict."

Recent Articles and Upcoming Conference

Recent law review articles form SmartCILP:

• Ivan E. Bodensteiner, The Demise of the First Amendment As a Guarantor of Religious Freedom, 27 Whittier Law Review 415-434 (2005).
  
• E. Frank Stephenson, An Argument for Tax Reform Based on Judeo-Christian Ethics: A Rejoinder, 36 Cumberland Law Review 103-113 (2005-2006).

Upcoming Conference:

• Fundamentalism and the Rule of Law, Cardozo School of Law, March 14, 2006.
  

No Federal Court Jurisdiction In Priest Abuse Case

In Doe v. Archdiocese of Denver, (Feb. 7, 2006), the Colorado federal district court refused to find a federal question supporting federal court jurisdiction present in a child sexual abuse claim against a priest and the Archdiocese. It held that the claims of negligent supervision and retention, vicarious liability, and fraud against the Archdiocese, and claims against the priest for breach of fiduciary duty and civil conspiracy do not raise free exercise or establishment clause problems.