Recent Scholarly Articles of Interest

From Bepress:
Adam E. Lyons, Here Is the Church, Now Who Owns the Steeple? A Revised Approach to Church Property Disputes (March 20, 2006).

From SSRN:

• Thomas Berg, The Permissible Scope of Limitations on the Freedom of Religion and Belief in the United States, 19 Emory Journal of International Law 1277 (2005).
• Marc O. Degirolami, Recoiling From Religion, forthcoming in San Diego Law Review.
  

From SmartCILP:

• Jason Daniel Medinger, The Holy See, Historicity, and Humanitarian Intervention: Using Integrative Jurisprudence To Inform Contemporary Practice, 41 Texas International Law Jour. 39-66 (2006).
• Jeremy Patrick-Justice, Strict Scrutiny for Denominational Preferences: Larson In Retrospect, 8 New York City Law Review 53-121 (2005).
  

President Speaks At National Catholic Prayer Breakfast

Last Friday, President George W. Bush spoke (text of remarks) at the 3rd Annual National Catholic Prayer Breakfast in Washington, D.C. The breakfast, promoted as an "annual event ... created in 2004 in response to beloved Pope John Paul II's appeal for a 'New Evangelization' ... to spread the Word of the Gospel", the event attracted numerous federal officials. In his remarks, the President acknowledged the presence of Chief Justice John Roberts, Secretary of Veterans Affairs Jim Nicholson (a former ambassador to the Vatican), and Pennsylvania Senator Rick Santorum. The President used the occasion to promote immigration reform, just hours before an announced Senate compromise on the immigration bill fell apart. Bush also spoke of freedom around the world, remarks lauded in a post by Rick Garnett at Mirror of Justice.

Courts Decide More Prisoner Religion Cases As Media Look At Prison Religion Issues

In People v. Farrell (NY S.Ct., App. Div., April 6, 2006), a New York appellate court held that at his criminal trial, the court did not violate Dennis Farrell's right to free exercise of religion by denying his request for an adjournment on a Friday afternoon so he could return to Rikers Island before sundown to observe the Jewish Sabbath. The court had a compelling interest in completing his trial without a weekend adjournment. At any rate, when Farrell made his request for adjournment, it was already too late to get him back to Rikers Island before the Sabbath began.

In Raines v. Siegelman, 2006 U.S. Dist. LEXIS 15542 (MD Ala., March 1, 2006), an Alabama federal Magistrate Judge recommended dismissal of a prisoner's complaint that his free exercise rights were infringed, finding that the prisoner's refusal to participate in a religious-based substance abuse program was not the cause of his being denied a reduction in custody or favorable consideration for parole. The court also found that an alternative substance abuse program was available for the prisoner at least for part of his time in prison.

In Eberle v. Wilkinson, 2006 U.S. Dist. LEXIS 15053 (SD Ohio, March 31, 2006), an Ohio federal Magistrate Judge denied summary judgment to prison officials, holding that a genuine issue of material fact existed as to whether a prisoner held asserted religious beliefs, even when those beliefs were not part of the Asatru faith to which he claimed to belong. The court also held that as to another plaintiff, there remained a genuine issue as to whether he was required to participate in a religiously-based substance abuse program.

In Caldwell v. Ewing, 2006 U.S. Dist. LEXIS 17047 (CD Ill., March 24, 2006), an Illinois federal district court rejected a prisoner's claim that her free exercise rights were infringed when prison officials confiscated pre-paid, self addressed envelopes furnished by a church for the prisoner to return her work on Bible lessons. The prison had declared the envelopes to be contraband because they were being used by inmates as money.

Meanwhile, newspapers today focus on religious concerns of inmates. The Wilmington, North Carolina, Star News today chronicles the numerous religious services offered in the New Hanover County jail. And the San Antonio, Texas, Express-News covers the efforts growing out of pending litigation, to obtain kosher food for Jewish prison inmates in Texas. Bill Pierce, director of chaplaincy for Texas Department of Criminal Justice, says that some prisoners make insincere religious claims in order to obtain special treatment.

Santeria Sacrifices Pose Problems In Florida

Rafael Martinez, a professor of anthropology at Barry University, has created a course for law enforcement officials in Miami-Dade County, Florida, to educate them about ritualistic religions, originating in West Africa and brought to the Americas by enslaved blacks who combined them with elements of Christianity. These religions include Santeria of Cuba, Congo's Palo Mayombe and Haitian Vodou. Knight-Ritter News, in a story from Kendall, Florida, outlines the problems created particularly by animal sacrifices placed by practitioners of Santeria near CSX railroad lines. Animals, as well as cloth-wrapped coins, are left there as sacrifices to Ogun, the god of war and iron. The mystical powers attributed to the iron in the spikes and rails are an important part of Santero symbolism.

Canadian University Charged With Favoring Jewish Students

David Noble, a Jewish professor at York University in Toronto, has filed a complaint with the Ontario Human Rights Commission charging that the university discriminates against non-Jewish students because it cancels classes for the Jewish holidays, Rosh Hashanah and Yom Kippur. This week’s Forward, reporting on the controversy, says that 10% of York's 50,000 students are Jewish. York is the only university in Canada to cancel classes on any religious holiday other than statutory holidays such as Christmas. However, at York, students of other faiths can be excused from class on their holidays if they speak with their professors in advance. Prof. Noble claims that York’s policy violates the York University Act of 1965, which forbids the school from imposing religious observances on any of its members. Noble is already involved in another claim against the University in which he is seeking $8 million in damages. In that suit, now being arbitrated, Noble claims the University wrongfully accused him of "bigotry and racism" after he distributed a flier attacking the "pro-Israel lobby" at the York University Foundation, the university's fund-raising arm. [Thanks to Dick Schectman for the lead.]

New Center That Receives Faith-Based Funding Highlighted

In Bethlehem, Pennsylvania, U.S. Senator Rick Santorum last night spoke at the opening of the El Shaddai Ministries' Bethlehem Christian Training Center that has received more than $300,000 in federal aid through President Bush's Faith and Community Based Initiative. The Allentown, Pennsylvania Morning Call reported Friday on the programs offered by the Center that are funded by federal dollars. One helps former prisoners find jobs; another teaches budgeting and financial literacy to people planning to buy their own homes; and a third provides marriage counseling. Rob Boston, a spokesman for Americans United for Separation of Church and State, complained that Faith Based funds are being used to further political goals where there are tight electoral races. Rev. Marilyn Hartman, executive pastor of El Shaddai, is married to the Rev. Gerry Hartman who was one of the plaintiffs in a 2002 lawsuit that unsuccessfully challenged the extension of Allentown's anti-discrimination laws to protect gays, lesbians and transsexuals.

California Water Engineer Charges Religious Discrimination

In Napa, California, the Napa Valley Register yesterday reported on a federal lawsuit filed by Turan Ramadan, a public works engineer in the city's water department. Ramadan claims that Napa officials have harassed him and discriminated against him because of his Turkish ethnicity and Muslim religion. The harassment intensified after an Oct. 15, 2003, incident in which his supervisor ordered potentially injurious amounts of chemicals to be added to the city's drinking water. Napa City Attorney Michael Barrett says that Ramadan's charges are without merit.

Second Circuit Voids Noise Ordinance As Applied To Preacher

On Thursday, in Deegan v. City of Ithaca, (2d Cir., April 6, 2006), the U.S. Second Circuit Court of Appeals upheld free speech and due process claims raised by Kevin Deegan, a Christian preacher, who challenged Ithaca, New York's application of its noise ordinance to prevent him from preaching in a raised voice in the downtown Ithaca Commons. The city interprets its noise ordinance to cover any noise, including speech, that can be heard 25 feet away. Finding that Ithaca Commons is a public forum, the court held that the city, by setting sound levels as low as it does, violated the First Amendment because it has not narrowly tailored its regulation to serve its interest in maintaining a reasonable level of sound. The court also concluded that Deegan did not have fair notice of the city's 25-foot rule in enforcement of its regulation, but denied his claim of selective enforcement.

Louisiana Considers Ingenious Solution To School Board Prayer

In Louisiana’s House of Representatives on Thursday, the House and Governmental Affairs Committee approved House Bill 182, a response to a federal judge’s decision last year that prohibited the Tangipahoa Parish School Board from opening its meetings with prayer. 2theadvocate.com reported yesterday that, in a rather ingenious approach, the bill would permit public bodies, such as school boards, go into executive sessions at the beginning of their otherwise public meetings to say prayers. Representatives’ comments on the proposal covered the waterfront. Rep. Juan LaFonta, the bill’s sponsor, said he would be upset if someone used a closed prayer session to lobby board members. Rather succinctly, Rep. Billy Montgomery said, "We do a lot of worse things than pray." [Thanks to Christianity Today for the lead.]

Mass. High Court Gives Prisoners Broad State Free Exercise Protection

In two decisions handed down on Thursday, the Massachusetts Supreme Judicial Court clarified the tests it would apply under the state constitution to claims by prisoners that their rights to the free exercise of religion have been infringed. The Court also found that the standard required by the Massachusetts Constitution was at least as protective as those imposed by the federal Religious Land Use and Institutionalized Persons Act. Both cases involved claims by Muslim inmates.

In Rasheed v. Commissioner of Correction (Mass. Sup. Jud. Ct., April 7, 2006), the court held :

that the Massachusetts Constitution is more protective of the religious freedoms of prisoners than the United States Constitution, and that the proper standard of review to be applied to the infringement of such freedoms is consequently more demanding. In determining the constitutionality of department regulations and policies that burden the free exercise of religion by those in its custody, we will look to whether those regulations and policies advance compelling State interests, and, if so, are "tailored narrowly in pursuit of those interests."…. [The Massachusetts Constitution], art. 46, sec. 4, affirms that inmates of publicly controlled penal institutions are not to be deprived of the "opportunity of religious exercises therein of [their] own faith."

Applying this standard the court upheld Rasheed’s claims regarding denial of religious meals, but rejected the remainder of his claims. The Boston Globe today reported on the case, emphasizing the Court’s finding that the state had not justified its practice of providing Muslim inmates inappropriate food for the celebration of two holidays, Eid al-Fitr and Eid al-Adha.

In Ahmad v. Department of Corrections (Mass. Sup. Jud. Ct., April 7, 2006), the Supreme Judicial Court upheld the dismissal of claims brought by a Muslim prisoner who argued that restrictions on his possession of various religious items, and giving him vegetarian meals rather than ones containing halal meat, unlawfully prevented him from practicing his Islamic faith. Applying the standard it had just announced in Rasheed, the court rejected Ahmad’s claims. It also said that if the prison regulations and policies challenged by Ahmad are permissible under the Massachusetts Constitution, they will meet the requirements of RLUIPA.

Malaysia Considering Required Disclosure of Planned Conversion To Islam

In Malaysia, The Star yesterday reported that the Prime Minister's office is considering proposing legislation to require non-Muslims who plan to convert to Islam to inform their families. Since conversion subjects the individual to the jurisdiction of Sharia courts rather than civil courts in the country, there is a need to settle issues of maintenance, custody and division of assets, as well as deciding the religion in which children will be raised, before converting. This will also resolve problems over custody of the convert's body when he dies. Minister in the Prime Minister’s Department Datuk Seri Mohd Nazri Aziz said that conversion to Islam should not be used to escape civil law responsibilities.

U.S. Will Not Seek Seat On New U.N. Human Rights Council

Yesterday’s New York Times reported that the United States will not be a candidate for one of the 47 seats on the new United Nations Human Rights Council. The HRC was approved last month by the General Assembly, with the United States being almost alone in opposing it because of insufficient safeguards against countries with human rights violations becoming members. (See prior posting.) John R. Bolton, the United States envoy, said that U.S. leverage would be greater by not running. Others, however, speculated that the U.S. feared it could not obtain the 96 votes in the U.N. General Assembly needed to be elected in light of revelations of abuses of detainees in Iraq and of clandestine prisons abroad. Felice Gaer, director of the Jacob Blaustein Institute for the Advancement of Human Rights criticized the U.S. decision not to seek a place on the Commission, saying "All key decision about serious reform issues, from the curtailment of inappropriate bodies to whether and how countries are scrutinized, will be made in the first year."

Israel's High Court Dramatically Limits Jurisdiction Of Rabbinic Tribunals

In a surprising decision yesterday, a panel of Israel's High Court of Justice significantly limited the jurisdiction of the country's Rabbinic Courts, taking away their power to act as arbitrators on matters not otherwise within their statutory jurisdiction. Haaretz today reports on the decision. The High Court held that Religious Tribunals, which are part of Israel's official judicial system, cannot obtain jurisdiction in financial or other disputes not involving personal status merely by parties agreeing to submit a matter to them. The issue was decided in a case brought by Sima Amir, a Jerusalem divorcee, who was trying to get her former husband to comply with their divorce agreement that he would make mortgage payments on Sima's Jerusalem apartment. The divorce agreement contained a provision that the parties would submit any future disputes to the Rabbinic Court. The High Court decision will not only affect future cases, but may nullify many past arbitration rulings.

New Zealand Police Want Ban On Drivers Wearing Burqa

In New Zealand, a police union has called for a total ban on women driving while wearing a burqa. CNS News reported yesterday that the proposal came after officials instituted a new policy of only permitting female officers to check the identity of women drivers who are covered by a burqa. The Police Association said its proposal was motivated by safety concerns and concern that criminals could use a burqa to conceal their identity. This is not the first time New Zealand authorities have struggled with the issue of Muslim dress. Last year a court required Muslim women testifying in a fraud case to remove their veils-- screened from public view-- so the court could assess their demeanor during their testimony.

Egyptian Court Vindicates Rights of Bahais

In Egypt, according to Reuters, a landmark ruling this week by the Administrative Court has recognized the right of Bahais to have their religion acknowledged on official documents. In 1983, a similar ruling was issued. However in 2004, the Interior Ministry's Civil Status Department reinstated an earlier policy of forcing Bahais to identify as Muslim or Christian. This week's suit was filed by a married couple whose official documentation had been confiscated because it listed their religion as Bahai.

Claims Against NSF In Berkeley Evolution Website Suit Dismissed

After dismissing for lack of standing a suit against the University of California, Berkeley, claiming that its website "Understanding Evolution" promoted religion (see prior posting), a San Francisco federal district court has, in a second opinion, similarly dismissed claims against the other defendant in the case, the National Science Foundation. The NSF dismissal is Caldwell v. Caldwell, 2006 U.S. Dist. LEXIS 16251 (ND Cal., March 20, 2006).

Austrian Imams' Conference Begins Today

Islam Online reported earlier this week that the Austrian government is sponsoring a conference beginning today that will bring together 150 Muslim leaders, imams and female preachers from 40 European countries. Austrian Chancellor Wolfgang Schuessel and Foreign Minister Ursula Plassnik will attend the opening session. British and German Muslim parliamentarians have been also invited to the conference. A similar conference a year ago focused on ending stereotyping and demonizing of Muslims. The Associated Press yesterday reported on this year's conference, saying that the key issue will now be how to create a distinct identity for European Muslims. A similar emphasis is found in a Radio Free Europe interview with Dr. Abduljalil Sajid, the chairman of Britain's Muslim Council for Religious and Racial Harmony, published yesterday.

Boy Scout Jamboree Case Argued In 7th Circuit

The Chicago Tribune reports on arguments yesterday in the U.S. 7th Circuit Court of Appeals in Winkler v. Rumsfeld, a case brought by the ACLU challenging government funding of the Boy Scouts annual jamboree. (See prior posting.) The trial court had held that the funding violates the First Amendment because the funding favors religion. The Boy Scouts oath require members to affirm a "duty to God". The government argued yesterday that: "Any group can approach the military ... and request similar aid to what the Boy Scouts are getting. The plaintiffs haven't shown, on the record, that anybody has ever requested it and been denied." Background on the case is reported by the AP and the Washington Post. The ACLU's brief in the appeal and recordings of yesterday's oral arguments are available online.

UPDATE: Here is a link to all the briefs in the case. [Thanks to How Appealing.]

New Mexico Court Refuses Jurisdiction Over Rabbi's Suit

In Celnik v. Congregation B'nai Israel, a New Mexico Court of Appeals in an opinion originally released Feb. 6 and issued in corrected form April 4, 2006, applied the church autonomy doctrine to dismiss a suit by a long-tenured rabbi against his synagogue after his employment was terminated. Describing the case as raising an issue of first impression in New Mexico, the court held that the church autonomy doctrine protects religious institutions from governmental interference. Rabbi Celnik claimed that defendants had disseminated one-sided information about him to sway the congregation to compel him to resign. He claimed his dismissal was actually motivated by his Parkinson's disease, his age, his wife's medical condition and his complaints about the congregation's failure to compensate him in accordance with his contract.

Missouri House Passes Proposed Constitutional Amendment On School Prayer

Today the Missouri House of Representatives passed and sent on to the Senate HJR 39, that would ask the voters to amend the Missouri Constitution's bill of rights to protect school prayer. If passed by the Senate, the proposed amendment will then go to a vote of the people. The new Art. I, Sec. 5 would read [new language in italics]:

That all men and women have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his or her religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his or her person or estate; that to secure a citizen's right to acknowledge Almighty God according to the dictates of personal convictions, neither the state nor any of its political subdivisions shall establish any official religion, but a citizen's right to pray or to express his or her religious beliefs shall not be infringed; that the state shall not compose prayers nor coerce any person to participate in any prayer or other religious activity, but shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive nor in violation of other policies, rules, or standards, and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances; and, to emphasize the right to free exercise of religious expression, that all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the First Amendment of the Constitution of the United States; but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others.

The vote in the House was 134 yes, 17 no, and 3 present. The St. Louis Post Dispatch reported yesterday that proponents of the constitutional amendment say it will prevent litigation and will make clear to students what their rights are. Opponents say it is unnecessary and could create confusion. Democrats failed in an attempt to add a provision that would set a popular vote on the proposed amendment in August. They believe that placing the amendment on the November ballot might draw more Republicans to the polls than otherwise.

Jewish Leaders Debate Abramoff Sentencing Letters

The Washington Jewish Week yesterday carried a long article discussing the ambivalence in the Jewish community about the fact that six rabbis and the president of the Greater Washington Jewish Federation were among the 260 people writing letters to Florida federal district Judge Paul Huck urging leniency in sentencing of lobbyist Jack Abramoff. Many of the letters were quoted in a memorandum in aid of sentencing filed with the court by Abramoff's lawyers. Their memo pointed out that Abramoff "often gave more than 80 percent of his income to charitable and community projects and to individuals outside his family." Another article on the topic is in this week's Forward. Abramoff received the minimum sentence permissible under the Federal Sentencing Guidelines, --five years and 10 months-- after prosecutors told the judge that Abramoff was cooperating in their ongoing investigation and had expressed remorse for his actions. (Washington Post).

DC Voucher Plan Is Succeeding With Parents and Students

Today's New York Times carries a front-page article reporting that the federal school voucher program in the District of Columbia is attracting more participation and is winning the support of minority parents. More than half the students in the program attend religious schools, mostly Roman Catholic.

Nepalese Court Sentences Woman For Slaughtering Cow

BBC News reported this week that a court in the Sankhuasabha district of Nepal has sentenced a woman to 12 years in prison for slaughtering a cow. Cows are considered sacred in the Hindu kingdom, and killing them (but not eating beef) is illegal. The woman who was sentenced is not Hindu.

8th Circuit Upholds Contempt Finding For Conducting Religious Baccalaureate Ceremony

This week, in Warnock v. Archer (8th Cir., April 4, 2006), the U.S. 8th Circuit court of Appeals upheld the trial court's civil contempt order against the DeValls Bluff Arkansas School District and its employees for violating an injunction that prohibited them from orchestrating or supervising prayers at school graduation or baccalaureate ceremonies. A 2004 baccalaureate ceremony included an invocation and benediction by local ministers. While school officials claimed that the baccalaureate service was a student-organized event, the court found that school employees were involved with almost every aspect of the service's preparation. The Associated Press reports that the successful plaintiff in this litigation, Paul Warnock, was eventually fired as a teacher, but lost his suit claiming that his dismissal was because of his complaints about religious discrimination and Christian prayer in the school.

US Senate Resolution Backs Religious Freedom In Afghanistan

On Tuesday, the United States Senate passed a resolution, S. Res. 421, calling on the government of Afghanistan to uphold freedom of religion and urging the government of the United States to promote religious freedom in Afghanistan. The House of Representatives passed a similar resolution last week.

Schools Around The Country Consider New Policies On Religious Issues

Schools around the country seem to be busy adopting new policies on religious issues. Here are three interesting examples.

Temecula, California school officials have updated their policy, which Tuesday's North County Times said was about to be presented for board approval. The new policy is intended to permit religious songs, such as Silent Night, to be performed as part of holiday musical programs. The draft policy provides that "programs having religious themes are permitted as part of the curriculum for school-sponsored activities and programs if presented in an objective manner and as a traditional part of the cultural and religious heritage." It goes on to state that religious symbols also are permitted as teaching aids as long as they are displayed as examples of the cultural and religious heritage of the holiday and are temporary.

Agape Press last week reported that the Lancaster, California school district has adopted new guidelines for the teaching of evolution. They provide that "discussions that question the theory of evolution may be appropriate as long as they do not stray from current criteria of scientific fact, hypothesis, and theory."

In Brunswick County, North Carolina, by a vote of 3-2 the Board of Education this week approved the first reading of policy permitting non-school-related "books and periodicals" including religious literature to be made available to high school students. The Brunswick Beacon reported yesterday that the ACLU and other groups had opposed the policy, arguing that religious materials in schools violates the separation of church and state doctrine.

Grand Jury Testimony of FLDS Victim Recounted

Today's Salt Lake Tribune carries a gripping account of grand jury testimony by a woman forced into plural marriage by her father. The marriage ceremony was performed by Warren Steed Jeffs, president of the Fundamentalist Church of Jesus Christ of Latter Day Saints. The marriage took place in Arizona that has a constitutional prohibition against polygamy; but the state has no criminal statute implementing the prohibition. So authorities are relegated to relying on state laws that prohibit sexual activities with minors. FLDS, with adherents in bordering Utah and Arizona towns, has been the focus of a wide array of lawsuits and enforcement activities. Jeffs is wanted by Arizona authorities on charges related to the marriage described to the grand jury.

UPDATE: On April 6, new charges were filed against FLDS leader Warren Jeffs. He is charged with being an accomplice to felony-rape by arranging the marriage of a minor. (Deseret Morning News, Apr. 7).

Florida Legislative Committees Pass Opposing Voucher Proposals

Yesterday's Gainsville Sun reported that Florida House and Senate committees disagree over the scope of a proposed constitutional amendment to authorize school vouchers. The proposals are an attempt to reverse court decisions that have struck down some current Florida programs on state constitutional grounds. A House committee voted 5-2 in favor of a broad resolution, HJR 1573, that would authorize the Legislature to create voucher programs for children of any parents who "request alternatives to traditional public education programs." (See prior posting.) Meanwhile, yesterday a state Senate committee voted 6-1 in favor of a narrower proposal (SJR 2170) that would merely validate school voucher programs that have already been enacted, but would not authorize new ones. It appears that as of now there are not enough votes in the full Senate to pass even this narrower proposal.

Catholic Group Sues San Francisco Over Criticism of Vatican

Last week, San Francisco Board of Supervisors strongly criticizing the Vatican for suggesting that Catholic social service agencies in California should refuse to place children for adoption with gay or lesbian couples. (See prior position.) Yesterday the Thomas More Law Center announced that it had filed suit on behalf of the Catholic League for Religious and Civil Rights and two San Francisco Catholic citizens challenging the resolution as a "startling attack by government officials on the Catholic Church, Catholic moral teaching and beliefs, and those who adhere to the tenets of the Catholic faith." Bill Donohue, president of the Catholic League, said "This is a matter so serious that no apology can ever suffice to undo the injurious effects that the resolution triggered. A legal remedy is needed."

The complaint in the lawsuit alleges that the First Amendment "forbids an official purpose to disapprove of a particular religion, religious beliefs, or of religion in general." It goes on to argue that the "anti-Catholic resolution sends a clear message to [Catholics] ... that they are outsiders, not full members of the political community and an accompanying message that those who oppose Catholic religious beliefs, particularly with regard to homosexual unions and adoptions by homosexual partners, are insiders, favored members of the political community." Yesterday's 365gay.com reports further on the lawsuit.

UPDATE: Here is the full text of the San Francisco Board of Supervisors resolution. [Thanks to Volokh Conspiracy.]

School Must Re-Display Bricks With Religious Messages

A federal district court has ordered an upstate New York public high school to return nine bricks inscribed with evangelical Christian messages to a high school walkway from which they had been removed. In Mexico, a village 30 miles north of Syracuse, as a fund raiser a high school class sold bricks that could be inscribed with personal messages. The school received complaints about some of the bricks they sold--ones with messages like "Jesus Saves" and "Jesus Christ The Only Way!". Concern over separation of church and state led school district officials to remove these particular bricks, even though they did not remove others referring to God or commemorating particular churches. The Associated Press yesterday reported that the court found the walkway to be "a limited public forum" open to public expression. The school could not exclude religious viewpoints while permitting others in such a forum. The court also held that the brick sale was clearly a secular project and that the nine bricks did not violate the Establishment Clause of the Constitution.

UPDATE: Here is the full opinion in Kiesinger v. Mexico Academy and Central School, (ND NY, March 31, 2006). [Thanks to How Appealing via Blog From the Capital.]

7th Circuit Dismisses Church Music Director's ADEA Claim

The U.S. Seventh Circuit Court of Appeals yesterday dismissed an age discrimination suit brought by the 50-year old music director and organist employed by a Roman Catholic Church in Peoria, Illinois and by the Peoria Diocese. In an interesting decision by Judge Richard Posner, the court in Tomic v. Catholic Diocese of Peoria (7th Cir., April 4, 2006) invoked the principle that courts will not exercise jurisdiction over the internal affairs of religious organizations when it would involve courts in deciding ecclesiastical matters. Rejecting the argument that Tomic did not have religious duties, the court said that moving ahead with the case would involve the court in deciding whether Tomic was dismissed because of church needs rooted in church doctrine, or whether that was a pretext for age discrimination. The court also rejected the Second Circuit's recent holding that the Religious Freedom Restoration Act intended to substitute its standard of review for the traditional ministerial exception in ADEA cases. He said that RFRA applies only to cases in which the government is a party.

Civil Rights Commission Urges Moves By Colleges Against Anti-Semitism

At a meeting on Monday, the U.S. Civil Rights Commission voted 4-1 to recommend a number of steps to counter anti-Semitism on American university campuses. The move, reported by yesterday's New York Sun, follows reports that the U.S. Department of Education was questioning whether Title VI of the 1964 Civil Rights Act protected Jews from discrimination. (See prior posting.) The Commission urged federal grant-making institutions to exercise appropriate oversight so that academic departments of Middle East Studies do not use federal funds to support discriminatory conduct. It also encouraged the Department of Education's Office of Civil Rights to inform college students about their rights under federal civil rights laws. It said Congress should direct the Office of Post Secondary Education to collect more information on anti-Semitic and other hate crimes, and should amend Title VI to clearly ban discrimination against Jewish individuals as part of the law's prohibition against national origin discrimination.

Dissenting from the Commission's recommendations was its chairman, Gerald Reynolds, who insisted that it was inappropriate to collapse the concepts of religion and national origin in order to protect Jews under Title VI.

Excluded Religious Groups Sue Wisconsin's Employee Charitable Campaign

In Wisconsin, charities approved by the state's Department of Administration are eligible to receive a share of the contributions made by state employees to the Wisconsin State Employees Charitable Campaign. In order to be approved, a charity must sign a non-discrimination statement that applies to membership in the organization, employment, volunteer opportunities and receipt of services. The required statement includes non-discrimination on the basis of creed or sexual orientation. Yesterday, the Alliance Defense Fund and Christian Legal Society filed suit (ADF press release, AP story) on behalf of the Association of Faith-Based Organizations challenging the constitutionality of the policy insofar as it requires religious organizations to abandon their policy of requiring members, board members, volunteers and employees to share the organization's religious views. The lawsuit alleges (full text of complaint) that these requirements deprive plaintiff groups of their First Amendment rights of speech, association and free exercise of religion, and denies the groups equal protection of the laws. The suit seeks declaratory and injunctive relief and an award of attorneys' fees.

UPDATE: On Thursday, Gov. Jim Doyle called for a review of standards used to determine which charities can participate in WSECC. (Associated Press).

Harvard Prof Says Intelligent Design Proponents Must Change Focus

Harvard Law Professor William Stuntz, who is an evangelical Christian, has written an interesting article in the Spring 2006 Harvard Law Bulletin explaining why proponents of intelligent design are destined to lose their debate with evolutionary scientists unless ID proponents radically change their mode of argument. He says:

[T]he proponents [of intelligent design] are too invested in the bottom line. You don't win scientific debates by arguing like lawyers; you win them by arguing like scientists. But my friends in the evangelical Christian community tend to argue like lawyers: They start with the bottom line and look for reasons to support it, just as a lawyer starts with the conclusion that most benefits her client and looks for arguments to support that conclusion. The only way to win a scientific debate is to play by the scientists' rules--start with premises and reason forward to conclusions. And the only way to do that credibly is to make clear at the outset that you're not committed to any conclusion, that you haven't already embraced a bottom line. Religious believers have already failed that test, which is why this debate will end up looking to most people like the debate over evolution in the 1920s. Nonbelievers think that believers are strategic, that we will embrace any argument that works to our benefit. To a large degree, they're right. Unless and until that changes, religious believers won't have any credibility with the secular academic world. We don't deserve to have credibility if we're not honestly engaged in truth-seeking.

Report On "War On Christians" Conference

People for the American Way has posted an extensive summary of the proceedings at last week's conference in Washington, D.C. sponsored by Vision America, titled "The War on Christians and Values Voters in 2006". PFAW reports that the conference speakers focused on claims that people of faith, especially Christians, are under constant attack by radical secularists, homosexual activists, federal judges, non-believers and pagans. Speakers argued that the Right was losing the culture war because it has been too passive and unwilling to fight to defend its beliefs. The main panels at the conference were: (1) Christian Persecution: Reports From The Frontlines; (2) Jews Confront The War On Christians; (3) The Gay Agenda: America Won’t Be Happy; and (4) The ACLU And Radical Secularism: Driving God From Our Public Life.

EEOC Sues On Behalf Of Rastafarian Employees

For the second time in a week, the U.S. Equal Employment Opportunity Commission has filed suit against a business charging it with discrimination against a Rastafarian employee. Last week it filed suit against United Parcel Service for refusing to hire a Rastafarian as a driver helper because of his beard. The most recent suit was against Atlanta-based RaceTrac Petroleum Inc. for firing a Rastafarian from her position as staffing coordinator because she wore dreadlocks and a head wrap for religious reasons. The Atlanta Business Chronicle reports on both the UPS and RaceTrac cases.

Two More Prisoner Cases

In Hudson v. Merline, 2006 U.S. Dist. LEXIS 14463 (DNJ March 8, 2006), a New Jersey federal court permitted a Muslim pre-trial detainee to proceed with his claim that New Jersey prison authorities infringed his free exercise rights by refusing to permit him to attend Friday Jumah prayer services.

In Adamson v. McDonough, 2006 U.S. Dist. LEXIS 13715 (ND Fla., March 29, 2006), a Florida federal district judge accepted the Magistrate Judge's recommendation and held that prohibiting a Florida prisoner from sending out mail to solicit pen pals does not infringe his right to free exercise of religion.

FLDS Not Welcome In Saskatchewan

A Canadian Press report yesterday says that Saskatchewan's attorney general and Minister of Justice, Frank Quennell, does not welcome the news that the Fundamentalist Church of Jesus Christ of Latter Day Saints may be planning to create a colony in Saskatchewan. The fundamentalist Mormon splinter group practices polygamy and has been embroiled in legal battles in the United States. (See prior posting.) Quennell said, "Polygamy is against the law in Canada and perhaps more importantly, there are laws against the sexual exploitation of children and minors. Those laws will be enforced in Saskatchewan and we certainly don't have the welcome mat out for anybody who would break them."

Religious Groups Active In Immigration Law Reform Debate

Today's Knight-Ridder News Service profiles the growing role of religious groups, particularly the Catholic Church, in the debate over reform of U.S. immigration laws. These groups have added a moral voice to the debate, joining with business to press for more protection for undocumented aliens. On the other hand, the Christian Coalition has taken a strong stand against liberalization of immigration laws, saying that it would reward those who break the law.

Catholics Lead Drive In Pakistan To Repeal Blasphemy Law

In Pakistan, Archbishop Lawrence Saldanha, president of Pakistan's Catholic Bishops Conference, is leading a movement to repeal a portion of Pakistan's blasphemy law, according to America: The Catholic Weekly Magazine. The drive is aimed at two parts of Penal Code Ordinance 295. Section 295-B mandates life imprisonment for desecration of the Koran. Section 295-C calls for thee death penalty for anyone who defames or insults the Prophet Muhammad. The Bishop's National Commission for Justice and Peace says that in more than 100 recent blasphemy cases in which defendants were acquitted, the accusers were shown by the court to have been motivated by personal grudges or hope of financial gain. Even though Muslims make up 97 per cent of Pakistan's population, they widely see themselves as threatened by India's Hinduism, and Ordinance 295 is a popular reaction to this threat.

Judge Pryor Discusses Religion and Public Life

Judge William H. Pryor, Jr., who sits on the U.S. 11th Circuit Court of Appeals spoke at the University of Alabama Friday as part of a Symposium on the Role of Religion in Public Life. The Crimson White today reports that Pryor said his faith gives him a moral duty to obey the law because he swore an oath to protect the Constitution. He also said he considers his job "a form of prayer" that "honors the Creator's gifts". In the Q&A, Pryor said that if a judge's religious convictions come into conflict with the law, the judge should recuse himself from the case.

Islamic Reformers In U.S. Featured

Today's Boston Globe carries an interesting article on increasing pressure by Muslim scholars, intellectuals and professionals in the United States to liberalize Islam and align its teachings with American democratic values. One of those reformers is scholar Ahmed Mansour, who fled to the United States after a fatwa was issued against him in his native Egypt. Mansour was recently brought in as a defendant in a suit that has been filed by the Islamic Society of Boston. ISB claims that defendants' negative statements interfered with fundraising for the mosque. Mansour has attacked ISB over radical Islamist positions supported by the mosque. The suits and counter-suits surrounding the Islamic Society of Boston's efforts to build a mosque in Roxbury are discussed in an article that appeared last month in the Daily Standard.

House-Passed Education Bill Contains Religious Protections

Last Thursday the House of Representatives passed, and sent on to the Senate, the College Access and Opportunity Act (H.R. 609). (Reuters report.) The House Committee has issued a Summary of the bill's complex provisions.

Sec. 112 of the bill amends the current 20 USC Sec. 1011a to include a provision stating that it is the sense of Congress that students at institutions of higher education "should not be intimidated, harassed, discouraged from speaking out, discriminated against, or subject to official sanction because of their personal political, ideological, or religious beliefs...." It also adds a provision attempting to insure that sanctions imposed on students for disrupting a college sponsored class, performance or speech are imposed "objectively, fairly, and without regard to the student’s personal political, ideological, or religious beliefs".

Also Section 495 of the bill amends the current 20 USC Sec. 1099b to provide that the criteria for federal recognition of higher education accrediting agencies must include as one factor whether the accrediting agency consistently applies and enforces standards "that consider the stated missions of institutions of higher education, including such missions as inculcation of religious values".

New Charges of Chinese Persecution Of Falun Gong

Austrian law professor Manfred Nowak, United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is looking into new charges of persecution of the Falun Gong by the government of China. Reuters reported last week on allegations that up to 6,000 people were being held at a state-run concentration camp in the northern city of Shenyang. It is claimed that some of the prisoners have been killed and their organs or tissues sold.

New Articles and Books

A large number of articles and books of interest have recently been published:

The Winter 2006 issue of the Journal of Church and State containing numerous articles, book reviews and features has just appeared.

From SmartCILP:

• Steven K. Green, A Legacy of Discrimination"? The Rhetoric and Reality of the Faith-Based Initiative: Oregon as a Case Study, 84 Oregon Law Review 725-777 (2005).
• Philip Hamburger, Religious Freedom in Philadelphia, 54 Emory Law Journal 1603-1631 (2005).
• Sue Ann Mota, Competing Judicial Philosophies and Differing Outcomes: The U.S. Supreme Court Allows and Disallows the Posting of the Ten Commandments on Public Property in Van Order v. Perry and McCreary County v. ACLU, 42 Willamette Law Review 99-122 (2006).
• Brian D. Wassom, Unforced Rhythms of Grace: Freeing Houses of Worship from the Specter of Copyright Infringement Liability, 16 Fordham Intellectual Property, Media & Entertainment Law Journal 61-240 (2005).

Books:

From Random House, Jon Meacham, American Gospel : God, the Founding Fathers, and the Making of a Nation (April 2006), reviewed in this week's Newsweek. [Thanks to Joel Sogol via Religionlaw for the lead.]

From HarperCollins, Michael Burleigh, Earthly Powers: The Clash of Religion and Politics in Europe From the French Revolution to the Great War (Feb. 2006), reviewed in today's New York Times .

Feb. and March Prisoner Free Exercise Cases

In Sample v. Lappin, (DDC, March 31, 2006) (Opinion, Order), an Orthodox Jewish prisoner challenged restrictions imposed by the Federal Bureau of Prisons on his use of wine for religious purposes. Regulations allow him access to sacramental wine only if permitted by the warden and if administered by an authorized rabbi during the course of a religious ritual. The DC federal district court found that plaintiff had made a prima facie showing that this policy violates the Religious Freedom Restoration Act. However, neither party had made an adequate showing for the court to determine if the BOP policy was the least restrictive means of furthering the government's compelling interest in controlling alcohol consumption in prisons.

In Figel v. Overton, 2006 U.S. Dist. LEXIS 13892 (WD Mich., Feb. 14, 2006), on remand from the Sixth Circuit, a federal Magistrate Judge in Michigan permitted a prisoner to proceed with a claim for damages growing out of the confiscation of religious books not received directly from the publisher or an authorized vendor. He recommended that defendants' claims of qualified immunity be denied.

In Diaz v. Goord, 2006 U.S. Dist. LEXIS 14309, (WD NY, March 20, 2006), a New York federal district court found that while atheism qualifies as a religion for purposes of a prisoner's free exercise claim, plaintiff had failed to allege how the confiscation of his atheist pendant and chain infringed on his right to practice his religion.

In Scrible v. Miller, a West Virginia federal district court judge adopted a federal Magistrate Judge's recommendations that a Rastafarian prisoner be permitted to proceed with his claims under the Free Exercise clause and the Religious Land Use and Institutionalized Persons Act. Plaintiff alleged that he has taken the vow of the Nazarite, and sought an exemption from the state prison's grooming policy, a religious diet, and assistance in finding a Rastafarian leader and/or literature. The Magistrate Judge's opinion is at 2006 U.S. Dist. LEXIS 14411, (ND WVa, Feb. 2, 2006), and the district judge's opinion is at 2006 U.S. Dist. LEXIS 14394 (ND WVa., March 15, 2006).

Justice Scalia Creates Tempest At Boston Red Mass

Yesterday’s edition of The Pilot, published by the Catholic Archdiocese of Boston, carried a flattering story about Justice Antonin Scalia’s attendance at the Catholic Lawyer’s Guild annual Red Mass, held on March 26 at Boston’s Holy Name Cathedral of the Holy Cross. Traditionally the Red Mass opens the Court’s term, but it was delayed this year because of scheduling issues. While The Pilot’s story reported on Scalia’s talk after the Mass at a luncheon sponsored by the Guild, it was silent about a controversy that was created by Scalia between Church and the lunch.

As Scalia was leaving the Mass, a Boston Herald reporter, Laurel J. Sweet, asked him whether he receives a lot of criticism for publicly proclaiming his conservative Catholic beliefs. "You know what I say to those people?" Scalia replied, flicking his hand under his chin. "That’s Sicilian," he said. He continued: "It’s none of their business. This is my spiritual life. I shall lead it the way I like." The Boston Herald article described the under-the-chin gesture as "obscene". This led Justice Scalia to write a letter to the Herald (full text) complaining that the gesture was not obscene, but merely meant "I couldn’t care less".

It turns out that free-lance photographer Peter A. Smith actually caught Scalia’s gesture on film. Smith is a part-time faculty member in Journalism at Boston University and was covering the event for the Catholic Pilot. As the controversy raged, he released the photo and gave his account of what happened: "The judge paused for a second, then looked directly into my lens and said, 'To my critics, I say, Vaffanculo, punctuating the comment by flicking his right hand out from under his chin.'" The Italian phrase means "f--- you." The Boston Herald reporter who had asked Scalia the original question agreed with Smith’s story, but said he did not hear Scalia say "Vaffanculo".

Proving the old adage that "no good deed goes unpunished", yesterday's Boston Herald reported on photojournalist Peter Smith's fate. His decision to release of the photo of Justice Scalia led The Pilot to fire the professor-photographer who had freelanced for the paper for ten years.

Malaysian Man Fined For Missing Friday Prayers

A rather surprising story, even for Malaysia, appears in today’s edition of the New Straits Times. The Malaysian state of Kelantan has enacted a law known as the Kelantan Islamic Council and Malay Customs Enactment 1986 (Amendment 1994). It makes it an offense, punishable by a fine or up to 6 months in jail, for a Muslim to be absent from prayers in his sub-district for three consecutive Fridays. Mohamad Taib, in a rare prosecution, was charged under the Act. He claimed his absence was due to his being ill with asthma, but Syariah Court judge Mohd Hafiz Daud rejected the excuse, suggesting that straying from God is what caused Taib’s asthma in the first place. Taib paid a fine of RM300 (around $82US).

Afghanistan Convert Case Continues To Have Legal Implications Worldwide

The divide between Western countries and many Muslim nations over the tradition of religious freedom was emphasized in the last few days in the wake of the last minute escape from Afghan courts of Muslim convert to Christianity, Abdul Rahman.

On Thursday, by a vote of 427-0, the U.S. House of Representatives passed H. Res. 736 strongly condemning Afghanistan's attempts to prosecute Rahman for abandoning Islam:

Resolved, That the House of Representatives-- (1) condemns, in the strongest possible terms, the enforcement of laws against apostasy; (2) requests the President to continue to work with the Government of Afghanistan to establish better protections for religious minorities, including converts to minority religions, and to enhance human rights protections in Afghanistan; and (3) calls upon the Government of Afghanistan, and especially President Hamid Karzai, to continue to conform Afghan laws to Afghanistan's international human rights treaty obligations, thereby protecting Afghan citizens who have converted or plan to convert to other religions from prosecution.

The Century Foundation today published an analysis of lessons learned from the Rahman episode about the tensions between Islamic law and Western law still faced by Afghanistan. It reports that President Hamid Karzai has presented the Afghanistan Parliament with a new slate of reformist Supreme Court judges. It is unclear whether Parliament will approve them. In a U.S. News & World Report column posted Thursday, Jay Tolson suggested that it was unfortunate that Afghanistan dismissed the Rahman case. He says: "Kabul has only put off its rendezvous with an inevitable constitutional dilemma.... At the same time, the dismissal robs the larger Muslim world of a golden opportunity for religious moderates to challenge an Islam-wide crisis of authority that allows extreme, literalist interpretations of Islamic law to go unchallenged."

Meanwhile, many other countries continue to impose legal restrictions on proselytizationtion and conversion. The Toronto Star today published an excellent summary of the law in ten Middle Eastern countries on religious conversion. And, according to Bos News Life, on Friday the Algerian Parliament approved a new law aimed at preventing Christian proselytization in the country. It imposes a 2 to 5 year prison sentence and a fine equivalent to $12,000 (US) on anyone who forces, urges or tempts a Muslim to convert to another religion. It also prohibits manufacturing, storing, or circulating publications or audio-visual material aimed at "destabilizing attachment to Islam." Finally the new law permits the practice of religions other than Islam only in buildings that have been licensed by the government.

Assets of Polygamous FLDS Sect Still An Issue

The Associated Press reports that a hearing in a Utah state court yesterday revealed new complexities in the court's attempt to supervise the trust that holds assets belonging to the Fundamentalist Church of Jesus Christ of Latter Day Saints. The FLDS Church has gained notoriety because of the polygamous practices of its members and the activities of its former leader, Warren Jeffs, who may now be founding a new colony in Saskatchewan. An attorney for the court-appointed trustee yesterday told Judge Denise Lindberg that resources from the United Effort Plan trust may have been diverted to new FLDS outposts in Colorado, South Dakota, Texas and Nevada. Judge Lindberg called on law enforcement officers in the sect's communities of Colorado City, Colo., and Hildale, Utah, to end their current obstructionism and cooperate in the investigation of the use of UEP funds.

Developments In Priest Sexual Abuse Claims

Today's National Catholic Reporter carries a story on hearings taking place in state legislatures across the country on proposals to extend the statute of limitations in cases alleging priest sexual abuse of minors. In Maryland, Washington Archdiocese chancellor Jane Belford argued: "By eliminating time limits or vastly extending them, these bills unfairly require a religious organization or other private entity to try to defend a civil lawsuit involving allegations that could be 30 to 40 years old. Memories fade over time, and witnesses and accused individuals may have died, disappeared or become infirm." The bill pending in Colorado that focuses only on suits against religious and private institutions has led the Catholic Church in that state to urge that sexual abuse in public schools and public institutions should be subject to the same rules.

Meanwhile, early last month a Colorado federal district court refused to permit the Archdiocese of Denver remove to federal court claims that had originally been filed against it in state court. In Doe v. Archdiocese of Denver, 413 F. Supp. 2d. 1187 (D. Colo., Feb. 7, 2006) and Nielsen v. Archdiocese of Denver, 413 F. Supp. 2d 1181 (D. Colo, Feb. 7, 2006), the court held that claims that the Church was negligent in hiring, supervising or retaining offending priests do not raise First Amendment issues that justify removal of the cases to federal court.

Navy Policy For Chaplains-- Analysis and Attack

Jews On First yesterday posted an excellent analysis of the U.S. Navy's recently modified instructions for its chaplains (SECNAV Instruction 1730.7C, Feb. 1, 2006). The 20-page document gives extensive guidance to chaplains and their commanders. It says that except in extraordinary circumstances, any religious element in a Navy function that is not a religious service must be non-sectarian. However a chaplain may refuse to participate in any program that is inconsistent with his or her religious beliefs. The instructions call on chaplains to function in a pluralistic environment that respects the free exercise of religion by all military members.

Yesterday, former Alabama Supreme Court Justice Roy Moore joined dissident Navy Chaplain Gordon James Klingenschmitt at a news conference. Klingenschmitt says that the Navy's policy violates his First Amendment rights by prohibiting him from reciting Christian prayer at non-religious events. Today's Birmingham, Alabama News reports that Klingenschmitt disobeyed an order not to wear his Navy uniform at the news conference. Instead, he invited disciplinary action by appearing in uniform, with a stole around his neck, where he specifically invoked Jesus Christ in prayer. Later, he changed into civilian clothing and a clerical collar and explicitly criticized the Navy's policy.

Apparently Klingenschmitt is not the only chaplain who has had a run-in with the Navy. There has just become available on LEXIS a case from last year brought by another chaplain who was forced into early retirement. In Wilkins v. United States, 2005 U.S. Dist. LEXIS 41268 (SD Cal., June 29, 2005), a Navy chaplain claimed that various institutionalized practices of the Navy's Chaplain Corps violated the First Amendment's Establishment and Free Exercise Clauses, as well as the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments. In particular, he allged discrimination against non-liturgical Protestant chaplains. The court rejected all of his claims.

Ohio Autopsy Law Respects Jewish Halacha

The Ohio General Assembly last week passed and sent to the Governor for signature Am. Sub. H.B. 235. The bill, which amends the Coroner's Law, includes provisions to take account of religious concerns about autopsy procedures. Ohio law already has a provision (ORC Sec. 313.131) relating to autopsy when the deceased had religious objections to the procedure. It permits a rapid judicial hearing to determine if the autopsy is a compelling public necessity. The new bill, which more generally deals with disposal of specimens after an autopsy, provides:

If an autopsy is performed ... and pursuant to section 313.131 ... the coroner has reason to believe that the autopsy is contrary to the deceased person's religious beliefs, the coroner shall not remove any specimens ... from the body of the deceased person unless removing those specimens ... is a compelling public necessity. Except [for a DNA specimen retained for diagnostic, evidentiary or confirmatory purposes]] ..., if the coroner removes any specimens from the body of the deceased person, the coroner shall return the specimens, as soon as is practicable, to the person who has the right to the disposition of the body.

These provisions are consistent with Jewish religious law regarding disposal of body tissue and organs. (Background.) Ohio Jewish Communities and Agudath Israel worked with drafters of the law to assure that the final version respected Halacha (Jewish law). (See prior posting.) [Thanks to OJC March 24, 2006 Internal Newsletter for the information.]

Muslim Classes Permitted In Syria's Military

AsiaNews today reports that in Syria, for the first time since 1963 when the Baath Party declared Syria a secular state, imams will be permitted to hold religious classes in the barracks of the Military Academy. The move is seen as an attempt to counter the fundamentalist Islamic teachings of the Muslim Brothers.

New Publications of Interest

From BePress:

• Jamie A. Aycock, Contracting Out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments
  
• Todd Parker, The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR

From SmartCILP: Don Willenburg has recently published a review of Noah Feldman's book, Divided by God: America's Church-State Problem--And What We Should Do About It, 80 Tulane Law Review 713-725 (2005).

Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 New York Univ. Law Review 101- 202 (2006). The article is discussed by Austin Cline in a posting titled Religious Discrimination in Child Custody Settlements.

No Damages Awarded In "Atheism Is A Religion" Case

Last August, the 7th Circuit Court of Appeals found that atheism qualified as a religion for a prisoner who wished to form a study group while incarcerated. The Wisconsin Department of Corrections is currently revising its policies to reflect this holding. Now, on remand of the case, a Wisconsin federal district court has granted prison officials summary judgment and dismissed plaintiff's claim for damages. In Kaufman v. Witch, (WD Wis., March 24, 2006), the court accepted prison officials' defense of qualified immunity because, in light of pre-existing Establishment Clause precedents, the unlawfulness of their original decision refusing to treat atheism as a "religion" was not apparent to them.

As Rahman Gets Asylum In Italy, New Questions Raised In U.S.

Abdul Rahman, the convert from Islam to Christianity who faced a possible death sentence in Afghanistan, was granted political asylum in Italy on Wednesday. The Chicago Tribune reports that even though Afghanistan's Parliament sent a letter to the Interior Ministry demanding that Rahman not be allowed to leave the country, he was secretly flown to Italy Wednesday night. Today's Middle East Times says that Afghanistan's Parliament will conduct an inquiry into the judiciary's decision to free Rahman. Meanwhile the Taliban said that the developments show President Hamid Karzai's government to be a "puppet" to foreign powers, and called for jihad against Karzai's administration.

In the wake of these developments, this week's issue of Forward carries an excellent article analyzing the impact that the Rahman affair has had on evangelical Christians in the United States. The paper says that the controversy left evangelicals questioning the Bush administration's assumption that Muslim countries can become democratic while adhering to Islamic law and Muslim customs.

Largest Chaplains' Group Says No New Executive Order Is Needed

According to today's Washington Post, the National Conference on Ministry to the Armed Forces, a long-standing multi-faith organization representing over 70 per cent of the chaplains in the military, has written the Senate Armed Services Committee opposing a call by conservative members of Congress for the President to issue an order guaranteeing chaplains the right to pray in the name of Jesus. Rev. Herman Keizer Jr., chairman of NCMAF, said: "This has been portrayed as though chaplains are not allowed to pray in Jesus's name, without any distinction between what they do all the time in worship services and what they do occasionally, in ceremonial settings where attendance is mandatory." Calls for an executive order to protect the right to pray in Jesus's name have originated mainly from a two-year old rival association, the International Conference of Evangelical Chaplain Endorsers that represents about 800 chaplains, exclusively from evangelical Christian churches.

Indian Supreme Court Rejects Religious Discrimination Challenge To Election Law

The Times of India reports that on Tuesday, the Supreme Court of India decided Ewanlangki-e-Rymbai v. Jaintia Hills District Council. The decision upheld against constitutional attack a statutory provision that precludes Christians from contesting the results of any election to the post of Dolloi (headman) of the Jaintia Scheduled Tribe. Ewanlangki-e-Rymbai, a Christian, supported by the Elaka Jowai Secular Movement, claimed that the provision discriminated against him on the basis of religion. However, Justice Singh said: "The ground for exclusion of Christians is not solely on the ground of religion, but on account of the admitted fact that a Christian cannot perform the religious functions attached to the office of Dolloi."

Arizona Bill To Require Recognition of Student Religious Organizations Nears Passage

In Arizona, the state Senate has passed and sent on to the House the "Associational Freedom in Higher Learning Act" (SB 1153). The ASU Web Devil reports that on Tuesday, the House Committee on Universities, Community Colleges, and Technology voted 5-2 to approve the bill that would prohibit universities from refusing to recognize or grant benefits to a student organization because the organization limits membership based on the religious, political or philosophical views of the organization. However recognition could be denied to groups that engage in "invidious" discrimination on the basis of race, color, national origin or sex. The bill was proposed after Arizona State University last year denied recognition to the Christian Legal Society because it limited membership on the basis of religion and sexual orientation. The lawsuit was settled after the University permitted the group to keep its requirement that members be Christians. (See prior posting.) ASU opposes the pending bill, arguing that student organizations at state universities should comply with the Arizona Board of Regents Code of Conduct that prohibits a wide variety of discriminatory activities.

Alternative Synod Leaders Prosecuted In Bulgaria

Forum18 yesterday reported on the dispute in Bulgaria between two wings of the Bulgarian Orthodox Church. The "Alternative Synod" was created by members who claimed that Patriarch Maksim was improperly elected to head the Church in 1971. Now two Alternative Synod leaders are being prosecuted for claiming to be Orthodox bishops, despite their lawyer's claim that the charges violate required separation of church and state in the country. Article 274, part 1, of the Criminal Code, punishes by large administrative fines or up to one year in prison anyone who is found to be "unwarrantedly committing an act within the scope of the office of an official which he does not occupy." Forum 18 says the cases were brought at the instigation of the Bulgaria's National Security Service. The Patriarchate remains the wing recognized by the rest of the Orthodox world and favored by government officials. Officials say that Bulgaria's 2002 religion law was specifically aimed at "reuniting" the divided Orthodox Church.

U.S. Agencies Debate Whether Title VI Covers Anti-Semitism

Today's New York Sun reports that the U.S. Department of Education is backing away from an earlier position that permitted it to investigate complaints of anti-Semitic harassment at universities receiving federal funds. Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color or national origin by recipients of federal funding. However, Title VI does not mention religious discrimination.

In 2004, the Department's Office of Civil Rights said that under Title VI it could investigate discrimination against students of Jewish heritage even if they are Caucasian and American born. This is consistent with the U.S. Supreme Court's holding in the 1987 case of Shaare Tefila Congregation v. Cobb that held Jews could make a racial discrimination claim under a 19th century federal law because at the time it was passed Jews were considered a distinct race. Recently, however, Stephanie Monroe, head of the Department of Education's Office of Civil Rights, has apparently taken the position that while harassment driven by a student's perceived Jewish ethnic origin would be subject to an OCR investigation under Title VI of the 1964 Act, harassment because of a student's Jewish religious beliefs, such as the wearing of a kippa, would not be covered by Title VI.

Meanwhile, the U.S. Civil Rights Commission is also bogged down in dispute over how far it should go in addressing anti-Semitic propaganda and harassment on campuses, including anti-Semitic activities disguised as anti-Israel advocacy. The issue will be on the agenda of the Commission's April 3 meeting.

City Council Prayer Dispute In Canada

The debate over legislative prayer has now moved to Canada. Today's Globe and Mail reports that the city of Laval is trying to retain its practice of opening council meetings with a non-denominational prayer. City resident Danielle Payette, an atheist, filed a religious discrimination complaint with the Quebec Human Rights Commission complaining about the practice. Payette is backed by Mouvement Laïque Quebecois which promotes the separation of church and state. The case will be heard by the Human Rights Commission tomorrow.

DC Circuit Holds Damages Not Available From U.S. Under RFRA

Yesterday in Webman v. Federal Bureau of Prisons, (DC Cir., March 28, 2006), the U.S. Court of Appeals for the DC Circuit held that damages are not an available remedy for individuals suing under the Religious Freedom Restoration Act. It held that RFRA's authorization of "appropriate relief against a government" did not waive the federal government's sovereign immunity against damage claims. This is the first circuit court opinion directly dealing with the issue.

NY Civil Liberties Union Sues Coast Guard Over Merchant Marine Religious Bias

Just two days after the New York Times reported that the U.S. Coast Guard is considering changing its policy prohibiting wearing of religious head coverings indoors while in uniform, the New York Civil Liberties Union filed a related religious discrimination suit against the Coast Guard on behalf of Muslim ship worker Khalid Hakim. The suit involves Coast Guard requirements for licensing merchant marine crew members who serve on commercial ships. Newsday yesterday reported that the suit accuses the Coast Guard of requiring anyone seeking a merchant marine license to submit photographs showing himself or herself without a head covering. Before September 2001, Hakim regularly received licenses after submitting photographs in which he wore his Kufi (religious skull cap). After 9-11, the Coast Guard said Hakim would have to remove the kufi. However, without explanation, the Coast guard issued Hakim a new license shortly before the NYCLU suit was filed. The full text of the complaint in Hakim v. Chertoff, charging that Hakim's rights under the First Amendment and the Religious Freedom Restoration Act were violated, is available online.

Religious Party Gets 3rd Highest Number of Seats In Israel's Election

While the big news out of yesterday's Israeli election is that the Kadimah Party won the most seats in the Knesset (28), less noted was the fact that the party receiving the third highest number of seats (13) was the Sephardic religious party, Shas. (Results from Arutz Sheva.) Earlier this month Ynet News reported on Shas' platform which includes the following:

• Integrating Jewish tradition into the education system. The doctrine guiding the party's platform is that Israel is the Jewish people's state and Jewish identity must be preserved when it comes to decision making, while curbing moves that would see "a country of all its citizens" emerging. The party does not call for a state based on religious law, but rather, "a state with a Jewish soul" where Jewish character is preserved within state laws.
• Every diplomatic question on the agenda has answers in Jewish law. The party's spiritual leader, Rabbi Ovadia Yosef, determines the party's official position. Yosef and other leading rabbis believe territorial compromise is allowed, but only when life is at stake and something is received in return.

In addition to the 13 seats won by Shas, two other religious party slates did reasonably well. The National Union/National Religious Party got 9 seats, and United Torah Judaism won 6 places in the 120-seat Knesset.

Lutheran School's 1st Amendment Defense Against Discrimination Claim Rejected

In Riverside, California Monday, a judge refused to dismiss a case brought against a Lutheran high school on behalf of two students who were expelled because the school suspected that they were maintaining a lesbian relationship. The San Diego Union-Tribune yesterday reported that by allowing the case to proceed to trial, Superior Court Judge Gloria Connor Trask implicitly rejected defense arguments that their First Amendment free exercise rights precluded application of the Unruh Civil Rights Act to the private religious school. (See prior related posting.) The case is Mother Doe v. California Lutheran High School Association.

San Francisco Reaction To Catholic Adoption Agency Stand

The refusal earlier this month of Boston's Catholic Charities to continue to offer adoption services if required to place children with gay and lesbian parents triggered events leading to a heated exchange last week in San Francisco on the same issue. The San Francisco Chronicle and KTVU TV reported last week on the controversy. In the Vatican, Cardinal-elect William Levada, the former archbishop for San Francisco, was asked by the press to comment on the Boston situation. He said, "it has been, and remains, my position that Catholic agencies should not place children for adoption in homosexual households."

In response to this, first the San Francisco Chronicle wrote a measured editorial criticizing Levada's statement. Then the San Francisco Board of Supervisors unanimously passed a strongly worded non-binding resolution. It said in part: "It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great city's existing and established customs and traditions, such as the right of same-sex couples to adopt and care for children in need." Also, San Francisco Mayor Gavin Newsom, a divorced Catholic, canceled his planned trip to Rome to attend the elevation of Levada at a ceremony held last Friday. Finally, the National Center for Lesbian Rights said last week that it might sue the Roman Catholic Archdiocese of San Francisco if it bans its affiliated social service agency from allowing adoptions by same-sex couples.

Dutch Agency Finds Discrimination Against Muslim Teaching Applicant

In Netherlands, the Dutch Equal Treatment Commission has held that the Regional Education Center in the city of Utrecht illegally "discriminated, indirectly, on the basis of religion," when it rejected Fatima Amghar who had applied for its teacher training program. Today's Khaleej Times reports on the case. Amghar's Muslim religious beliefs preclude her from shaking hands (or otherwise coming into physical contact) with men over 12 years of age. The Education Center argued that shaking hands was a routine part of a teaching assistant's job. However, the Equal Treatment Commission said that "there are other conceivable manners of greeting that can be considered proper and respectful".

Connecticut Captive Audience Bill Killed In Committee

The Stamford, Conn. Advocate reports that on Monday a legislative committee defeated the "captive audience bill". The legislation would have prohibited companies from requiring employees to attend meetings at which management expresses opinions on political or religious matters. Opponents said the legislation was hostile to business, and Connecticut is attempting to attract more employers. An AFL-CIO spokesman said that his group would continue to press for the legislation.

Church Challenges To Building Limits Survive Motion To Dismiss

In The Cathedral Church of the Intercessor v. The Incorporated Village of Malverne, 2006 U.S. Dist. LEXIS 12842 (ED NY, March 6, 2006), a New York federal district court denied the Village of Malverne's motion to dismiss a suit brought against it challenging its refusal to permit the expansion of a church building of a Charismatic Episcopal congregation. The court found that plaintiff's complaint adequately alleged an equal protection claim based on selective enforcement of governmental regulations. It also permitted plaintiffs to move forward on both substantive and procedural due process claims, on claims of retaliation and on RLUIPA claims. Finally the court held that the city officials being sued had not alleged sufficient facts to show that they had qualified immunity.

Senate Committee Approves Immigration Bill with Church Protections

With Republicans divided on the issue, the Senate Judiciary Committee yesterday approved a wide-ranging immigration reform bill. The New York Times reports that the bill was praised by immigrant advocacy organizations and church groups that had been demonstrating in recent days in favor of immigrant rights. The bill includes an amendment authored by Sen. Dick Durbin (D-IL) which protects charitable organizations and churches involved in offering humanitarian assistance. They will be protected from prosecution even if in providing assistance they aid undocumented aliens. A release from Sen. Durbin's office reports that this amendment was adopted by a bipartisan vote of 10-7. (See prior related posting.) If this bill is passed by the full Senate, it will still need to be reconciled with H.R. 4437, a more restrictive bill already passed by the House. [Thanks to Blog From the Capital for the lead.]

Brief Filed For Congress Members Supporting National Motto

An amicus brief (full text) was filed yesterday by the American Center for Law and Justice in federal district court in Sacramento, California on behalf of 47 members of Congress in support of the government's request to dismiss a pending lawsuit filed by Michael Newdow challenging the constitutionality of the national motto, "In God We Trust." (See prior posting.) The release announcing the filing quotes this from the brief: "The Establishment Clause was never intended as a guarantee that a person will not be exposed to religion or religious symbols on public property, and the Supreme Court has rejected previous attempts to eradicate all symbols of this country's religious heritage from the public's view. Although enterprising plaintiffs can find support for just about any proposition in the Court's multifarious Establishment Clause pronouncements, a claim that the national motto violates the First Amendment borders on frivolous."

Supreme Court Hears Arguments On Depriving Prisoners of Protected Material

Yesterday, the U.S. Supreme Court heard arguments in the case of Beard v. Banks (04-1739), raising the question of whether state prisons may deprive inmates of access to newspapers and magazines as part of their punishment for violating prison rules. According to the AP's report on the case, Pennsylvania prison officials permit inmates in the high-security disciplinary unit to have access to religious materials, two paperback books of general interest, their legal documents and letters from family. But newspapers, magazines and personal photographs are banned. The Becket Fund For Religious Liberty had filed an amicus brief (full text) in the case arguing that if the Court permits fundamental rights to be taken away as punishment in order to modify behavior of prisoners, in the future officials might begin to deprive inmates of religious texts as well as secular ones.

In the decision below, the Third Circuit had held the restrictions unjustified. Circuit Judge (now Justice) Samuel Alito dissented, finding the restrictions constitutional.

New Scholarly Publications Of Interest

From SSRN:

• Neal D. Schuett, The Struggle to Define Jihad: A Religious Belief or Secular Philosophy?

From SmartCILP:

• Steven P. Aggergaard, Religion, Speech, and the Minnesota Constitution: State-Based Protections Amid First Amendment Instabilities, 32 Wm. Mitchell Law Review 719-767 (2006).
• Daniel A. Crane, A "Judeo-Christian" Argument For Privatizing Marriage, 27 Cardozo Law Review 1221-1259 (2006).