President Signs Red Cross Treaty Protocol Creating Emblem Usable By Israel

Last Friday, President Bush signed the instrument of ratification for the Third Additional Protocol to the 1949 Geneva Conventions, and also signed into law H.R.6338, the "Geneva Distinctive Emblem Protection Act of 2006" (signing statement). The Protocol's ratification will lead to the admission of Israel's Magen David Adom as a member of the International Red Cross and Red Crescent Movement. For decades, Muslim countries refused to permit Israel's emergency service to membership because MDA used the Star of David as its emblem. The Protocol creates a new "Red Crystal" as an emblem-- and permits Israel to place the Star of David inside the diamond shaped crystal. (See prior posting.) The Protocol was finally adopted by 29th International Conference of the Red Cross and Red Crescent last June. The accompanying legislation signed last week by President Bush punishes improper use of the new emblem in the United States.

RLUIPA Suit Filed In Illinois; Another Settled In New Jersey

Today's Courier News reports that in Elgin, Illinois, HELPS Ministry, the operator of a downtown homeless shelter, has filed suit in federal court claiming that the city has violated HELPS' free exercise rights and its rights under RLUIPA. The suit alleges that the city has indefinitely delayed a vote on granting it a conditional use permit to reopen its shelter at Family Life Church after the facility had been closed down for code violations that made it unsafe for overnight occupancy. The city's zoning board voted unanimously to recommend the permit, but before the Nov. 29, 2006 City Council meeting at which the recommendation was to be approved, the item was removed from the agenda "and sent to the city's legal department indefinitely." Since it was forced out of Family Life, HELPS has provided sleeping space for the homeless on its school bus, at various churches and at a Christian camp.

In Bedminster Township, New Jersey, Church of the Hills and the township have reached an agreement that will permit the church to expand the size of its facility. (Bridgewater, NJ Courier News.) The church had sued under RLUIPA after the township denied it a crucial zoning variance. (See prior posting.) Under the terms of the settlement, the church agrees to various limits that will deal with concerns about excessive noise levels and other disruptions. In the settlement, which still must be approved by the court, the township has agreed to pay the church $150,000. Of that amount, $100,000 is covered by the township's insurance.

Congress Imposes Sanctions On Belarus For Denying Religious Freedom

President Bush, last Friday, signed H.R. 5948, the Belarus Democracy Reauthorization Act of 2006. Part of the new law imposes various sanctions on Belarus until it makes significant progress in meeting a long list of desired democratic reforms. Among the conditions imposed are the release of individuals in Belarus who have been jailed based on their religious beliefs and the cessation of all forms of harassment and repression against religious organizations. The initial Findings in H.R. 5948, conclude in part: "The Lukashenka regime has increasingly subjected leaders and members of minority and unregistered religious communities to harassment, including the imposition of heavy fines, denying permission to meet for religious services, prosecutions, and jail terms for activities in the practice of their faith."

Malaysia Will Not Force Non-Muslims To Testify In Sharia Courts

In Malaysia, the Chief Judge of the country's Syariah Judiciary Department, Datuk Sheikh Ghazali Abdul Rahman, announced at an international conference on family law that non-Muslims would no longer be forced to attend Syariah courts to testify in cases involving differences between Muslims and non-Muslims. (Bernama.) The issue has been raised in the wake of high-profile cases involving the question of whether an individual had changed religious affiliations. (Sun2Surf).

German Court Upholds Ban On Teachers Wearing Head Scarves

The Associated Press reports today on a decision issued by the Constitutional Court of the German state of Bavaria that upholds a ban on German teachers who are Muslim wearing head scarfs while teaching. A 2004 Bavarian law prohibits teachers in class from wearing clothing or other items that express views "incompatible with the basic values of the constitution and its educational goals, including western Christian educational and cultural values." Bavarian educational authorities have interpreted the law to ban head scarves, while permitting Roman Catholic nuns to wear head-covering habits in schools. The court ruled that the Bavarian law did not infringe freedom of religion and did not discriminate against non-Christians. Albin Dannhaeuser, head of the Bavarian teachers association, said there are only two Muslim female teachers in Bavaria. Both of them wear hats in order to get around the ban on head scarves. The Islamic Religious Community is considering whether to appeal the case to Germany's Federal Constitutional Court.

MLK Day and Church-State Issues

Today is Martin Luther King Day-- celebrating the birthday of the nation's pre-eminent modern civil rights leader. The relationship of the King federal holiday to church-state issues is intriguing. Even though King was a minister, and his movement was suffused with religious overtones, the President's Proclamation (full text) declaring today as the Martin Luther King, Jr., Federal Holiday makes no mention of religion, prayer or Dr. King's religious connections. Exactly what constitutes appropriate celebration of the holiday has never been clear. President Bush merely says: "I encourage all Americans to observe this special day with appropriate civic, community, and service programs and activities in honor of Dr. King's life and legacy."

One of Dr. King's most complete expressions of his views on church-state issues took place in an interview which few in either religious or political affairs would grant today-- an interview with Playboy Magazine (Jan. 1965) (full text). The interviewer was Alex Haley. When asked about mistakes he had made, King said:

the most pervasive mistake I have made was in believing that because our cause was just, we could be sure that the white ministers of the South, once their Christian consciences were challenged, would rise to our aid.... The projection of a social gospel, in my opinion, is the true witness of a Christian life.... The church once changed society. It was then a thermostat of society. But today I feel that too much of the church is merely a thermometer, which measures rather than molds popular opinion.

However, when asked his view of the U.S. Supreme Court's decision striking down school prayer, King said:

I endorse it. I think it was correct. Contrary to what many have said, it sought to outlaw neither prayer nor belief in God. In a pluralistic society such as ours, who is to determine what prayer shall be spoken, and by whom? Legally, constitutionally or otherwise, the state certainly has no such right. I am strongly opposed to the efforts that have been made to nullify the decision. They have been motivated, I think, by little more than the wish to embarrass the Supreme Court.

Recent Scholarly Articles On Law and Religion

From SSRN:
> Ira C. Lupu & Robert W. Tuttle, The Limits of Equal Liberty as a Theory of Religious Freedom, (Texas Law Review, April 2007), review of Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution, (Harvard University Press, 2007).

> Kay E. Goodall, Incitement to Religious Hatred: All Talk and No Substance?, (Modern Law Review, Jan. 2007).

From Theoretical Inquiries In Law:
> Peter Fitzpatrick, "What Are the Gods to Us Now?": Secular Theology and the Modernity of Law, (Vol. 8, No. 1, 2007).

From SmartCILP:
> Richard Albert, Religion in the New Republic, 67 Louisiana Law Review 1-54 (2006).

> Shubba Ghosh, Belief: An Essay in Understanding, 54 Buffalo Law Review 807-831 (2006).

> Steven K. Green, Religion Clause Federalism: State Flexibility Over Religious Matters and the "One-Way Ratchet", 56 Emory Law Journal 107-124 (2006).

> Martin H. Pritikin, Punishment, Prisons, and the Bible: Does "Old Testament Justice" Justify Our Retributive Culture?, 28 Cardozo Law Review 715-778 (2006).

> Christian Faith and Political Life: A Dialogue. Introduction by Randy Beck; articles by Jason Carter; response by Randy Beck; reply by Jason Carter. 41 Georgia Law Review 65-168 (2006).

Ohio's Governor Pinch-Hits On Invocation; Officials Choose Various Books For Oath

In an unusual twist on invocations at public ceremonies, yesterday at the formal inauguration of Ohio's new governor, Ted Strickland, the minister who was scheduled to deliver the invocation failed to show up. Governor Strickland, an ordained Methodist minister, filled the gap. He probably became the first public official anywhere to deliver-- unrehearsed-- an invocation at his own inaugural. No explanation appears to have been published for the failure of Portsmouth, Ohio's Rev. Evan Fisher-- a Strickland family friend-- to show up. (Akron Beacon Journal, Cincinnati Enquirer.) After that, Strickland was sworn in on a Bible printed in 1763 and used by Ohio's second governor in 1807 for his inaugural. Strickland's Lieutenant Governor, Lee Fisher, who is Jewish, was sworn in on a Bible owned by his wife, Peggy, and three copies of the Torah owned by other family members. (Columbus Dispatch).

Meanwhile other Ohio office holders mostly used a Bible to take their oaths of office. However, Jewish state Sen. David Goodman used a prayer book that belonged to his grandfather. Hindu state Rep. Jay Goyal followed the lead of all the other state House of Representatives members being sworn in and carried no book at all during the formal ceremony on the House floor. (Columbus Dispatch).

School Bathroom Is No Place For Biblical Verses

In Kentucky, the bathroom in Christian County Middle School had become filled with graffiti. So-- according to the Associated Press yesterday-- the school's principal, Larry Cavanah, granted permission to teachers and students to beautify the bathroom by painting over the graffiti. When he returned after winter break, he discovered that graffiti had been covered with upbeat art and inspirational messages. However some of the new artwork was religious in nature-- including a quotation from Psalms 45 reading: "So the King will greatly desire your beauty; because He is your Lord, worship Him." After complaints from a parent, Superintendent Bob Lovingood consulted with the school's attorneys and ordered that the Biblical verses be covered up. (By the way, the names of the county, the superintendent, and the quote from Psalms, are for real.)

Environmental Agency and Church Argue Over Whether A Building Is Necessary

In Phillipsburg, New Jersey, the Alliance Church has sued the state's Department of Environmental Protection over whether the church is exempt from environmental restrictions on building in the Highlands Protected Area. The Easton (PA) Express-Times reported yesterday on the filing of the federal lawsuit. The 2004 New Jersey Highlands Water Protection and Planning Act grandfathered in exemptions for building by churches that existed in March 2004. New Jersey's DEP says that means they must have had a building on site before that date. Alliance Church says it should be enough that they held worship services outside on the land in question before March 2004. Phillipsburg Alliance Church has already paid more than $250,000 toward the $1 million purchase price for the 30-acre site on which it hopes to build.

Religious Abortion Parade Protesters Win Speech, But Not Free Exercise, Claim

In Grove v. City of York, 2007 U.S. Dist. LEXIS 1837 (MD PA, January 10, 2007), a Pennsylvania federal district court held that relegating religious abortion-protesters in a Halloween parade to the least obtrusive rear of the march violated their free expression and free assembly rights. However it did not violate their right to the free exercise of religion since the group would have been placed at the rear of the parade even if their anti-abortion views were solely secular. The city had attempted to justify its action on the ground that the pictures of aborted fetuses carried by the protesters would be offensive to many onlookers.

County Commissioner Now Privately Pushes 10 Commandments

The Murfreesboro (TN) Daily News Journal reported yesterday that after reluctantly voting with others in favor settling the ACLU's lawsuit against Rutherford County that successfully challenged county display of the Ten Commandments, County Commissioner Mike Sparks has found an alternative. The Tennessee county commissioner has spent $125 of his own money to print up 400 copies of the Ten Commandments. He is distributing them local businesses for them to hand out the copies to customers. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Parks-El v. Fleming, (4th Cir., Jan. 10, 2007), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of an inmate's equal protection claim, but vacated the dismissal of his RLUIPA and free exercise claims. The inmate had been suspended from attending chapel services because he was involved in posting unauthorized flyers in inmate housing units.

In Justus v. Southwest Virginia Regional Jail Authority, 2007 U.S. Dist. LEXIS 1161 (WD VA, Jan. 5, 2007), a Virginia federal district court rejected an inmate's challenge to a lock down that kept him in his cell when he said that he did not wish to attend religious services being held in his pod.

In Banks v. Fraiser, 2007 U.S. Dist. LEXIS 235 (D NJ, Jan. 3, 2007), a New Jersey federal district court dismissed a prisoner's claim that he was denied a religious "no meat" diet.

Another case, decided several months ago, has recently become available on LEXIS. In Boyd v. Lehman, 2006 U.S. Dist. LEXIS 94223 (WD WA, May 19, 2006), adopting Magistrate Judge's report and recommendation (2006 U.S. Dist. LEXIS 94222), a Washington federal district court dismissed claims by a prisoner that he was only given a vegetarian diet, and not one that included halal meat. It also rejected his claim regarding temporary problems with the time of Ramadan meals.

10th Circuit Says BYU Police Force Does Not Create Establishment Clause Problems

In Raiser v. Church of Jesus Christ of Latter Day Saints, (10th Cir., Jan. 10, 2007), the U.S. 10th Circuit Court of Appeals rejected a novel Establishment Clause claim. Aaron Raiser, an applicant to Brigham Young University's graduate school, sued claiming the University disclosed information about his prior psychiatric history. Part of his claim related to the University's sharing information about him with its police force. In particular, Raiser alleged that the "[state] statute . . . which allows [BYU] to maintain a state empowered police force . . . fosters an excessive governmental entanglement with religion," and that "[t]he state/church entanglement has injured Plaintiff." The court said that there was no religious component to the actions of the police force in dealing with Raiser, so that the district court was correct in holding that Raiser lacked standing to pursue an Establishment Clause claim.

Utah Files Brief Opposing Cert. In Polygamy Case

In October, convicted bigamist Rodney Holm filed a petition for certiorari [Westlaw link] with the U.S. Supreme Court seeking review of the Utah Supreme Court's determination that the state's polygamy laws were constitutional. Today's Salt Lake Tribune reports that the Utah Attorney General originally waived a response to Holm's petition, citing costs involved and the unlikelihood that cert. would be granted. However, the Supreme Court's clerk notified the state in November that the justices wanted Utah's views before they decided whether to grant certiorari. So on Friday the state filed a brief in opposition to the granting of cert., arguing that the case does not pose an issue of widespread national importance and that Holm's case, which involved a minor, is not the appropriate case to use for testing the constitutionality of the law.

European Court Finds Russia Violated Religious Rights of Jehovah's Witnesses

On Thursday, the European Court of Human Rights handed down a decision in Kuznetsov and Others v. Russia, (Application No. 184/02, Jan. 11, 2007), finding that various actions by the Russian government that disrupted religious services being held by Jehovah's Witnesses and which led to the termination of their lease for an auditorium in which to hold services violated their religious freedom as protected in Article 9 of the European Convention on Human Rights. The Institute On Religion and Public Policy issued a release detailing more information about the decision.

School Board Requires Opposing Views On Climate Change After Religious Objection To Gore's Film

In Federal Way, Washington, the School Board last week required that teachers showing Al Gore's film on climate change, An Inconvenient Truth, must also present their classes "a credible, legitimate opposing view" to Gore's views on global warming. In addition, teachers must obtain consent of the principal and superintendent to show the film. The Seattle Post-Intelligencer on Thursday reported that the school board action followed a complaint by parent Frosty Hardison-- who also believes in teaching creationism and opposes sex education in schools. Hardison said: "Condoms don't belong in school, and neither does Al Gore. He's not a schoolteacher. The information that's being presented is a very cockeyed view of what the truth is. ... The Bible says that in the end times everything will burn up, but that perspective isn't in the DVD." Meanwhile, Hardison's wife Gayla, said: "If you're going to come in and just say America is creating the rotten ruin of the world, I don't think the video should be shown." School board President Ed Barney said that the district has a policy of presenting both sides of controversial issues. [Thanks to Ronald L. Chichester for the lead.]

9th Circuit Vacates State Constitutional Challenge To Mt. Soledad Cross As Moot

Yesterday, in Paulson v. City of San Diego, (9th Cir., Jan. 12, 2007), the U.S. 9th Circuit Court of Appeals dismissed an appeal as moot and ordered the lower court to vacate its May 3, 2006 order to enforce a 1991 injunction to remove the Mt. Soledad cross from its prominent display on city land. The federal district court had found that the display of the cross violated provisions in California's constitution on separation of church and state. Last year, federal legislation divested the city of title to the land and transferred the Mt. Soledad Veterans War Memorial to the United States. So the city no longer has any interest in the Memorial and the federal government is not subject to the provisions of the California constitution. Today's San Diego Union-Tribune and North County Times covered the decision.

Clergy Abuse Claims Against Vatican May Proceed In U.S. Court

In O'Bryan v. Holy See, (WD KY, Jan. 10, 2007) [available in PACER], a Kentucky U.S. District Court issued an 18-page opinion interpreting the Foreign Sovereign Immunities Act (FSIA) to permit certain claims relating to clergy sexual abuse in the United States to be brought against the Vatican. It held that while the Vatican is a foreign state covered by the FSIA (see prior posting), the "tort exception" to the Act permits some of plaintiffs' claims to be brought in U.S. courts. It held that to the extent that archbishops, bishops and priests acted in the United States as officials or employees of the Vatican pursuant to Holy See policy, they were acting within the scope of their employment. The Vatican can thus be liable for clergy's failure to warn parishioners that their children would be under the care of known or suspected pedophiles, and for failing to report known or suspected abusers to state and local authorities. However the court left open the possibility that future evidence might show that the Holy See does not exert sufficient control over clergy to make them officials or employees of the Vatican.

Yesterday's Louisville Courier-Journal reporting on the decision quoted plaintiffs' attorney William McMurry who said that the lawsuit could lead to attorneys taking depositions of Vatican officials, obtaining copies of church documents and ultimately determining "what prompted all of the bishops to keep quiet, hide these pedophiles and refuse to report child abusers.".

Commentary: The First Amendment Dilemma In The Battle Against Islamic Terrorism

In the 1943 Flag Salute case that upheld the right of Jehovah's Witness students to refuse to salute the flag, Justice Robert Jackson wrote the following paragraph that has come to be seen as the essence of First Amendment protections: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." Since 9/11, a troubling question has been whether government officials may prescribe what is orthodox Islam in an attempt to distinguish radical jihadists-- who the U.S. is fighting-- from other Muslims whose religious practice the U.S. is dedicated to protect. Two developments this week point up the problem.

President Bush, speaking yesterday to military personnel and families at Ft. Benning, Georgia (full text) arguably attempted to define what is and is not a valid religious belief. He said: "It's important for the American people to understand al Qaeda still is in Iraq.... They don't believe in freedoms, like freedom to worship. I, frankly -- well, speaking about religion, these are murderers. They use murder as a tool to achieve their objective. Religious people don't murder. They may claim they're religious, but when you kill an innocent woman, or a child to create a political end, that's not my view of religion. And yet, there are a lot of peaceful, religious people in the Middle East."

On Tuesday the House of Representatives passed HR 1, a bill implementing recommendations of the 9/11 Commission. Title XIV is titled "Quality Educational Opportunities in Arab and Predominantly Muslim Countries". The bill establishes a fund to encourage educational reform in Arab and predominantly Muslim countries. One of the bill's goal is to "dramatically increase... the availability of modern basic education through public schools in Arab and predominantly Muslim countries, which will reduce the influence of radical madrassas and other institutions that promote religious extremism." (Sec. 1411(b)(1)). Is Congress here attempting to supplant the teaching of Islamic fundamentalism with a version of Islam that it finds more acceptable? If that is a fair characterization of the bill, are there any First Amendment objections to it?