City-Backed Financing For St. Louis U. Arena OK Under State Constitution

City-backed financing for St. Louis University's new basketball arena survived a state constitutional challenge yesterday as the Missouri Supreme Court held that the Jesuit-backed University is not "controlled by a religious creed" as that term is used in Art. IX, Sec. 8 of Missouri's constitution. In St. Louis University v. The Masonic Temple Association of St. Louis, (MO Sup. Ct., April 17, 2007), the court held that the constitutional ban on appropriating funds to support any educational institution controlled by any religious creed was not violated by the "tax increment financing" provided by the city of St. Louis. A mere historical link to a particular religion does not amount to control. Here, while the SLU's president is a Jesuit, "he is bound by the decisions of an independent, lay board of trustees". The religious component does not dictate the institution's oversight and administration. The court also rejected federal establishment clause challenges to the financing.

Judge Teitelman, dissenting, argued that a determination of religious control should be made only after the facts are developed at trial, rather than at the summary judgement stage as the majority does here. He also argued that, contrary to the majority's holding, an institution could be controlled by a religious creed even if proselytism is not one of its primary purposes. The Associated Press reported on the decision yesterday. (See prior related posting.)

10th Circuit Rules Largely In Favor of Summum "7 Aphorisms" Monuments

In decisions yesterday, the U.S. 10th Circuit Court of Appeals dealt with requests by members of the Summum faith that they be permitted to put up a display of their Seven Aphorisms in parks in two separate Utah cities. In each case, the city park already had a Ten Commandments display in it. Today's Salt Lake Tribune reports on the decisions.

In Summum v. Pleasant Grove City, (10th Cir., April 17, 2007), the court of appeals held that Summum was entitled to a preliminary injunction permitting it to erect its monument in a city park that already featured a number of displays relating to the city's pioneer history as well as a 10 Commandments monument donated by the Fraternal Order of Eagles. Holding that a park is a traditional public forum, the court rejected the city's attempt to restrict park monuments on the basis of their historical relevance to the city, saying that the city offered no reason why this was a "compelling" interest that would permit content based restrictions on monuments. While the city might create content-neutral restrictions on aesthetic grounds, it has not done so here.

The second case, Summum v. Duchesne City, (10th Cir., April 17, 2007), was more complicated. Here, apparently the only display already in the city's park was a 10 Commandments monument, and the city attempted to avoid Summum's request by transferring the land under the Ten Commandments display to a private party. Initially the land was transferred to the Lion's Club, and-- after questions were raised about the propriety of that transfer-- the land was re-transferred to private individuals. Also a fence was put up around the Ten Commandments with a sign saying that the land did not belong to the city. Summum requested transfer to it of a similar size piece of land in the park.

The court held that the issue here is not whether the city is endorsing the Ten Commandments in violation of the Establishment Clause, but rather whether the Ten Commandments monument remains a part of the park as a "public forum". Finding that the initial land transfer to the Lion's Club was invalid under state law because of lack of consideration and conflict of interest (the mayor was president of the Lion's Club), the court held that the land remained part of the public forum after that purported transfer. That being the case, the city needed a compelling interest to reject Summum's request to build its monument in the same public forum. It failed to demonstrate that interest.

The court then remanded the case to the trial court to determine if the second transfer of the property under the Ten Commandments to private parties was valid. After deciding that, the district court is to decide the "forum status" of the park and decide whether Summum is entitled to an injunction. (See prior related posting.)

Custody Decision May Not Consider Parent's Religious Beliefs On High Schooling

In Gove v. Petty, (WI Ct. App., April 17, 2007), a Wisconsin state appellate court reversed a trial court's decision that had removed a high school age child, Basyl, from custody of her Amish mother. The trial court had transferred custody on health and education issues to Basyl's father, with the mother retaining limited joint custody rights. The father wanted the child to receive a traditional high school education, while the mother, based on her Amish beliefs, had agreed only to home school the child. The court of appeals held that the trial court should not have considered the parents' different views on schooling Basyl in making its custody decision. The appellate court said: "we do not believe Basyl’s placement or custody could be changed on the singular basis that her sole legal custodian practices a religion that rejects higher education." The court remanded the case to the trial court for a determination using only permissible factors. Yesterday's Appleton (WI) Post-Crescent covers the decision. [Thanks Ann Althouse to via Religionlaw listserv for the lead.]

French Court Finds Favorable Lease To Mosque Violates Church-State Limits

In France, the Marseille administrative court on Tuesday ordered renegotiation of a lease of city land, finding that its mere 300 Euros per year rent amounted to a disguised subsidy of religion that violates French law on separation of church and state. The order came in a suit brought by the right wing National Front (FN), the Movement for France (MPF) and the National Republican Movement (MNR), challenging the lease for land on which a Great Mosque will be built in Marseille. France 24 reported yesterday that city officials promised a revised lease would be submitted to city council in June. Meanwhile, funds to actually build the mosque must be raised from private sources, with foreign funding limited to 20% to 30% of the total.

British Muslim Teacher Loses Appeal On Wearing Veil [Corrected]

As previously reported, on March 30 Britain's Employment Appeal Tribunal handed down its decision in Azmi v Kirklees Metropolitan Borough Council, an appeal by a Muslim school teacher who had been suspended for refusing to remove her veil when working directly with children. The full opinion is now available online. The Tribunal found that the teaching assistant had not been discriminated against directly on the ground of religion or belief under Britain's Employment Equality (Religion or Belief) Regulations or Council of Europe Directive 2000/78/EC. While she had been discriminated against indirectly, the discrimination was not unlawful because it was proportionate in support of a legitimate aim. (See prior postings 1, 2.) Today's London Times published a summary of the decision.

Religion Clause Is 2 Years Old Today !

Today is the second birthday of Religion Clause blog. As I blow out the candles, I want to thank all of you, my readers, for your interest and for the leads many of you have furnished. I am particularly pleased with the broad spectrum of professionals in the fields of church-state relations, religious freedom and civil rights that have become regular readers. One of my goals was to create a resource for individuals on all parts of the religious and political spectrum. From the e-mails I receive, I think that I have had some success in this regard.

I am pleased to announce that in addition to its availability directly through the Internet and in RSS feeds, Religion Clause is now also featured as a part of Newstex.

A birthday is always a time to reassess. I invite you to let me know about the features of Religion Clause that you like and dislike and any changes you would suggest. There are several issues I have considered, and I particularly invite your comments on these. Should the mix between U.S. and foreign coverage be changed? Should there be changes in the typical length or number of postings? Is the weekly summary of prisoner cases useful; would a listing of the cases without summaries be just as useful?

Religion Clause was created because there was no central news source for legal and political developments on church-state and religious freedom issues. Should Religion Clause keep its news focus, or should it move more toward analysis and opinion? Should I bring in guest bloggers to do some of that? I invite your comments either as a Comment to this posting or by e-mail.

Thanks again especially to those of you who read this blog regularly. Please continue to recommend it to others who you think may be interested in its coverage.

Russia Lessens Reporting Burdens for Churches

Forum 18 reported today that "following sustained lobbying by religious representatives, the [Russian] government has markedly simplified the financial accounting procedure for religious organisations demanded by the so-called NGO Law." Churches had complained about the burdens that the new law created. (See prior postings 1, 2.)

Detailing the changes, Forum 18 in a separate report said that the new rules merely ask religious groups about the sources of their income-- including whether funds are received from Russian or foreign organizations or foreign governments; but not about funds from Russian individuals or the Russian government. Groups now do not need to list their meetings and conferences, or number of participants, nor must they describe their advertising of their activities. Religious organizations still must supply information about members belonging to their governing body.

NY Restaurant Sues Kosher Supervisor Over Charges Published On Blog

A well-known kosher steak house in Manhattan has filed a $10 million lawsuit against its former masgiach (kosher standards supervisor) for accusing the restaurant of failing to meet kashrut (kosher) standards. Yesterday's New York Post reports that the restaurant, Le Marais, has sued its former employee Jacky Bitton, who was famous in his own right previously. Bitton was a well-known drummer in a French rock band who later became religiously observant. More recently, Bitton and one of his sons was attacked in the 1991 Crown Height riots. After Bitton quit his job last month, he posted entires on his blog accusing the restaurant of permitting non-kosher food in its kitchen and accused its chef of being a "Jew hater". The restaurant says Bitton was too strict in applying rules of kashrut. Bitton is under a gag order from the Brooklyn trial court where a hearing is scheduled next week. Here is a copy of the court's order, courtesy of The Canonist blog.

Firing Over Threatening Letters Is Not Relgious Discrimination

In Carmack v. National Railroad Passenger Corp., (D Mass, March 22, 2007) a Massachusetts federal judge, adopting a Magistrate's recommendation, dismissed an unusual religious discrimination claim filed by a former Amtrak employee. In a conflict with his union representative, Joseph Carmack had written a series of documents described as "Letters from Hell". The rambling letters, referring to "Lucifer", included a paraphrase of parts of Shakespeare's Hamlet. The letters were viewed as a threat under Amtrak's violence policy. Carmack was dismissed after he refused to submit to psychiatric examination.

Among Carmack's many claims challenging his firing were claims alleging religious discrimination under Title VII and violations of his First Amendment rights. He claimed that his letters, which were the underlying basis for his dismissal, expressed his belief in spiritual forces and used "standard cultural and religious expressions of God and ... Satan or Lucifer ... to refer to ... spiritual forces in which Plaintiff believes."

The court dismissed Carmack's Title VII and state employment discrimination claims for failing to exhaust his administrative remedies. It went on to hold that on the merits of both his statutory and First Amendment claims, Carmack had not shown that his letters involved any religious practice or that he was dismissed because of his religion.

Canadian Street Preacher Ignoring Ban On Loudspeakers

In Calgary, Alberta, street preacher Art Pawlowski is battling city officials who have issued him a permit to preach in a city park only if he does not use loud speakers. CBC News yesterday reported that the Court of Queens Bench earlier this month ruled the permit restrictions valid. Pawlowski, however, is ignoring them, using amplification equipment when he preaches three times a week at a small green space across from a homeless shelter. Police have given Pawlowski more than $400 in tickets so far for various violations.

Hindu Nationalists Protest New Indian Coin Design

Asia News reported earlier this week that Hindu nationalists are demanding that the Reserve Bank of India withdraw a new 2 rupee coin that pictures men from four different religions coming together and raising their hands in unity. Fundamentalists in the state of Uttar Pradesh say that authorities replaced the map of India that was previously on the coin with the new design that looks like a Christian cross. [Thanks to International Christian Concern for the lead.]

25th Anniversary of Canada's Charter of Rights and Freedoms Marked

Today is the 25th anniversary of Canada's adoption of its Charter of Rights and Freedoms that protects many individual rights, including freedom of conscience religion. Marking the anniversary, former prime minister Jean Chretien spoke last night at the University of Ottawa, according to a report by CanWest News Service. Chretien was justice minister in the Trudeau cabinet when the Charter was adopted. While Canada had earlier adopted a Bill of Rights, it was the Charter that gave courts the power to strike down legislation that violated protected rights.

President Attends Catholic Prayer Breakfast; Supports School Vouchers

On Friday, President Bush spoke at the annual National Catholic Prayer Breakfast held in Washington. (Full text). He talked about Charles Carroll, the only Catholic to sign the Declaration of Independence, saying: "In 1776, Carroll was one of the wealthiest men in America. But because he was a Catholic, he could not vote or hold public office in his native Maryland." Bush's remarks urged continued respect for a "culture of life"; support of faith-based institutions; support for school choice; and support for comprehensive immigration reform.

Friday afternoon, President Bush further promoted school choice by meeting at the White House with leaders of parochial schools and parents whose children attend Catholic schools. In his remarks after the meeting, he urged expansion to the rest of the nation of the D.C. Opportunity Scholarship program, as well as reauthorization of the No Child Left Behind Act.

Court Analyzes Elements of RLUIPA vs. Free Exercise Claim

A recent decision by Wisconsin federal district judge Barbara Crabb contained an interesting discussion of an issue that presents itself in many religious rights cases brought by prisoners-- the difference between the elements of a free exercise claim and a claim under the Religious Land Use and Institutionalized Persons Act. The case is Perez v. Frank, (WD WI, April 11, 2007), granting a Muslim prisoner summary judgment on claims that various correctional officials violated his rights when they prevented him from attending learning sessions, Friday prayer and group prayer during festivals; prevented him from eating dates during Ramadan and having Halal foods during festivals; and deprived him of a digital Qur'an player. Summary judgment was denied on various other claims. Here is Judge Crabb's analysis:

Although both the free exercise clause and RLUIPA protect religious "exercise," each defines religious exercise in a slightly different way. Under RLUIPA, a "religious exercise" is "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."... In other words, RLUIPA protects individual acts of piety, regardless of their centrality. By contrast, the free exercise clause is concerned with the macrocosm of belief: so long as a believer's ability to freely practice his faith (rather than engage in all possible expressions of his faith) is not substantially burdened, the free exercise clause is not violated (hence the requirement that a belief be "central" before it can fall within the ambit of the free exercise clause....

Despite the technical differences between the types of religious exercise protected by each law, courts frequently fail to differentiate between the central practices protected by the free exercise clause and the wider variety of practices protected by statutes such as RLUIPA. The reason for this is fairly apparent. Courts are poorly positioned to decide which religious practices are "central" to any given faith tradition or any given believer; therefore, increasingly free exercise jurisprudence has emphasized deference to individuals' professed beliefs, so long as there is no reason to doubt their sincerity.....

So what, then, is the practical difference between a free exercise claim and a claim arising under RLUIPA? It appears that the answer is "not much," at least insofar as the "substantial burden" requirement is concerned.

(See prior related posting.)

Recent Publications On Law & Religion, Church-State

From SSRN:
David H. Schraub, When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles, (Dartmouth Law Journal, Vol. 5, Spring 2007).

Robert Fisher McCarthy, The Incompatibility of Free Speech and Funerals: Proposing a Grayned-Based Justification for Funeral Protest Statutes, (Ohio State Law Journal, Vol. 69, Forthcoming).

From SmartCILP:
Judith D. Fischer & Chloe J. Wallace, God and Caesar in the Twenty-First Century: What Recent Cases Say About Church-State Relations in England and the United States, 18 Florida Journal of International Law 485-515 (2006).

Symposium: Islamic Business and Commercial Law. Articles by Theodore Karasik, Frederic Wehrey, Steven Strom, Shaykh Yusuf Talal DeLorenzo, Ayman H. Abdel-Khaleq, Christopher F. Richardson, Michael J.T. McMillen, Umar F. Moghul, Rushdi Siddiqui, Nazih Hammad, Andreas Junius, Kilian Balz, Robert R. Bianchi, Walid S. Hegazy and Haider Ala Hamoudi. 7 Chicago Journal of International Law 379-622 (2007).

Symposium: Can God and Caesar Coexist? Balancing Religious Freedom and International Law by Robert F. Drinan, S.J., 45 Journal of Catholic Legal Studies 1-114 (2006).

Patrick McKinley Brennan, Harmonizing Plural Societies: The Case of Lasallians, Families, Schools--and the Poor, 45 Journal of Catholic Legal Studies 131-175 (2006).

Thomas J. Paprocki, Presumption As a Matter of Law and Eternal Salvation, 45 Journal of Catholic Legal Studies 177-182 (2006).

Recent Book:
James Serritella, Thomas Berg, Cole Durham, Edward Gaffney, Craig Mousin, eds., Religious Organizations in the United States: A Study of Identity, Liberty and Law, (Carolina Academic Press, 2006).

Broadway Revival Again Focuses Attention on Evolution

The debate over teaching of evolution in American schools is now the focus of Broadway as a revival of "Inherit the Wind" opened last Thursday. The play, a fictional re-enactment of the 1925 Scopes "monkey" trial, was first produced in 1955. It was written as a response to McCarthyism. Reuters says that reviews of the revival were generally positive.

Recently Available Prisoner Free Exercise Decisions

In Buckley v. Alameida, 2007 U.S. Dist. LEXIS 26864 (ED CA, April 11, 2007), a California federal district court screened a number of claims by a Black Orthodox Jewish prisoner. The court determined that plaintiff could move ahead with claims against certain of the defendants for their confiscation of his kosher food package; for severe retaliation because of an argument growing out of confiscation of the package; and for disappearance of his menorahs and candles. He was not permitted to move ahead with other claims, including one growing out of threats and anti-Semitic slurs.

In Mayweathers v. Hickman, 2006 U.S. Dist. LEXIS 95882 (SD CA, Dec. 26, 2006), a California federal Magistrate Judge held that a prisoner's allegation that he was denied his religious diet tray for one week did not allege a substantial burden on his free exercise of religion under RLUIPA.

In Williams v. Dankert, 2007 U.S. Dist. LEXIS 26975 (ED WI, April 11, 2007), a Wisconsin federal Magistrate Judge rejected a prisoner's RLUIPA claim. Plaintiff alleged only that deprivation of his religious material denied him access to the courts. Thus there was no support for the claim that this was done to prevent him from exercising his religion.

In Ruiz v. Early, 2007 U.S. Dist. LEXIS 27206 (ED CA, March 28, 2007), a California federal Magistrate Judge found that plaintiff prisoner's general complaints about prison grooming standards did not support a cognizable free exercise claim.

In Moynihan v. Arpaio, 2007 U.S. Dist. LEXIS 27331 (D AZ, April 11, 2007), an Arizona federal district court dismissed an inmate's claim for failure to exhaust his administrative remedies. One of the claims was that his free exercise rights were vioalted when officials refused to provide him a vegetarian diet.

In Harrison v. Laffin, 2007 U.S. Dist. LEXIS 27399 (ED LA, March 22, 2007), a Louisiana federal Magistrate Judge recommended dismissal of a prisoner's claim that his free exercise rights were violated when he was unable to attend church because he was in 23-hour lockdown.

Washington State Mandates Pharmacies Fill All Prescriptions

The Washington state Board of Pharmacy on Thursday voted unanimously to adopt a rule requiring drug stores to fill all lawful prescriptions. The AP says the rule means that pharmacists with moral, religious or other personal objections to filling a prescription can opt out only if a co-worker can fill the prescription at the time it is presented. Pharmacists are also prohibited from destroying prescriptions or harassing patients, and must order new supplies of a drug if it is out of stock. The Washington State Catholic Conference, among others, opposes the new rule. It may require pharmacists to violate their conscience in dispensing drugs such as the Plan B "morning after" birth control pills. (See prior related posting.)

British Teachers Oppose Expansion Of Faith Schools

In Britain, NASUWT, the largest union representing teachers and head teachers in the UK, adopted a resolution at its recent convention opposing government plans to create a new generation of faith schools funded by the government. The resolution warns of "social fragmentation" that might result from more faith schools. One delegate, Brian Williams from Cardiff, said that parents often pretend to be religious merely to get their children into good Church of England or Roman Catholic schools. This Is London, reporting on NASUWT's annual conference, says that delegates stopped short of calling for the closing of existing faith schools.

IL Proposal On Limitations In Abuse Cases Opposed by Catholic Conference

A column in Saturday’s Peoria (IL) Journal Star discusses Illinois SB 1733, a bill introduced in February in the Illinois legislature to create a one-time two-year window in which childhood sexual abuse cases could be filed even though pre-existing statutes of limitation have run. At March hearings on the bill [bill status], the only organization to testify against it was the Catholic Conference of Illinois. CCI executive director, Robert Gilligan said that the bill gives false hope to victims because the Illinois constitution bans the revival of retroactive claims.