InnerChange: Latest Developments

On July 1, 2007, this blog reported (here) that Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause.

Yesterday's Des Moines Register (IA) has an editorial calling that decision into question, writing "If the state desires to institute 'values based' programs aimed at reforming convicted criminals, it must be sure they are not disguised as government-sponsored avenues for evangelization."

Defendants have also filed two F.R.A.P. 28(j) letters providing supplemental authorities to the court. One relates to rates of recidivism for inmates in the program. The second discusses the Supreme Court's decisions in Hein v Freedom from Religion Foundation, 551 U.S. ____ (2007) (June 25, 2007) and University of Notre Dame v Laskowski, No. 06-582 (US June 29, 2007) (cert. granted, judgment vacated and remanded in light of Hein). Both of these cases are discussed here.

Defendants argue that the district court relied heavily on Laskowski, and "[t]hus the anomalous legal basis for allowing private, taxpayer plaintiffs to compel restitution to the government is gone, and the decision below granting that remedy should be reversed." Plaintiffs argue in reply that unlike the case in Hein, "InnerChange was funded for the last four years with appropriations by the Iowa Legislature specifically for the program." Plaintiffs also argue that "The restitution question is an issue of remedy, not standing. Hein does not impact the logic of prior cases that treated restitution as an available remedy...."

Asylum Seeker Has Right to Profess Faith in Public

According to the Middle East Times (Egypt), a German court ruled that an asylum seeker from Iran who had converted to Christianity may not be deported. Germany had originally denied the asylum seeker's request on the grounds that she had been able to secretly practice her religion in Iran. The asylum seeker claimed that her faith required public professions and attendance at worship services.

The administrative law judges reviewing the decision accepted her argument that a 2004 European Union directive requires the granting of asylum to those who face persecution for practicing their religion in public. Moreover, the court doubted that she could return to the secret practice of her religion after living openly in Germany.

Article 10 of that directive holds that:

1. Member States shall take the following elements into account when assessing the reasons for persecution: (a) . . . . (b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief . . .

$1 Damages to Cobb County Prayer Plaintiffs

In September, 2006, a Georgia federal district judge upheld the practice of the Cobb County (GA) Board of Commissioners and its Planning Commission to open their sessions with prayer, but determined that the Planning Commission's selection procedure for identifying clergy to deliver that prayer was defective. That case, Pelphrey v. Cobb County, 448 F. Supp. 2d 1357, 1374 (N.D. Ga. 2006), was reported on here and here.

The court has issued its decision on relief owed the plaintiffs. As said, the Court had previously upheld the Board of Commissioners' process for selecting speakers which involved inviting clergy from a master list compiled using the Yellow Pages. The Planning Commission also used the Yellow Pages, but its set of Yellow Pages "contained cross-out markings through the contact information of Islamic, Jehovah’s Witness, Jewish, and Latter Day Saint churches. Leaders of those faiths were categorically excluded from the pool of invitees in 2003 and 2004." Pelphrey v. Cobb County, No. 1:05-cv-2075, slip op. at 4 (ND Ga. July 7, 2007).

The court concluded that the Plaintiffs were entitled to a declaration that the 2003-2004 practice was unconstitutional, that they are entitled to compensatory damages of $1, and that they are not entitled to injunctive relief. Id. at 21-22. The court concluded that no injunctive relief was appropriate because, given that the practice had stopped in 2005, "an injunction would not operate to redress the unconstitutional conduct." Id. at 21. It concluded that nominal damages were appropriate where, as here, a plaintiff established the violation of an “absolute”constitutional right—such as the right to be free from a state establishment of religion—but cannot prove actual injury. Id at 17 - 18.

A story detailing this award can be found here in the Daily Report (Fulton County, GA).

Preacher's Failure to Follow Campus Rules Not Sufficient for Trespass

A Schenectady (NY) City Court has acquitted Greg Davis of criminal trespass after Davis was arrested and tried for entering Schenectady County Community College's campus to preach. The court concluded that Davis' failure to follow the campus' rules for speaking on campus and defiance of an administrator's order to leave were not sufficient to support the trespass charge. The Decision and Order can be found here.

The Court determined that under NY Law, the People were required to demonstrate that the particular order to exclude Davis had a legitimate basis and that, considering the nature and use of the subject property, its enforcement did not unlawfully inhibit or circumscribe the defendant from engaging in constitutionally or statutorily protected conduct. After establishing that that the campus was "open to the public," the Court ruled the People had not met their burden:

[t]he Court finds that the People offered insufficient evidence to demonstrate that the . . . order to the defendant to leave the SCCC campus had a legitimate purpose, rationally related to the power to maintain order on the campus, or that its enforcement did not violate an independent right of the defendant.

Therefore, the Court finds this defendant not guilty of the charge of Trespass . . .

The case is People of the State of New York v. Davis, # 06-77707 (Schenectady City Ct. 6/27/07) .

Thanks to ADF for the lead.

Slidell: Complaint and Motion for Preliminary Injunction

Copies of the complaint and motion for a preliminary injunction in Doe v Parish of St. Tammany are now available online. This is a case in which plaintiffs object to an icon which contains a portrait of Jesus that is posted in the lobby of a Slidell, Louisiana courthouse. The complaint alleges, in part:

11. The lobby contains two paintings. One is a painting of the founding judge of the City Court of Slidell and is accompanied by wording to that effect. The other, placed on a separate wall, is a religious icon of the Eastern Orthodox sect of Christianity. It shows an image of Jesus Christ presenting the New Testament. The icon is positioned above the large gold wording, "TO KNOW PEACE, OBEY THESE LAWS." The display in question is the Eastern Orthodox religious icon combined with the wording below it.

12. The display is prominently displayed in the center of the wall directly above the teller window of the City Court of Slidell.

14. Prior to June of2007, in order to participate fully as citizens, to conduct business, or to fulfill certain legal obligations, Plaintiffs, John Doe and members of the American Civil Liberties Union of Louisiana, separately entered the City Court of Slidell, saw the display, and were offended by it as a whole and in its several parts. In order to participate fully as citizens, conduct business, or fulfill certain legal obligations, Plaintiffs will be obligated to return to the courthouse in the future.

17. On information and belief, Defendants installed the display, which had never
before been displayed on public property, before the courthouse opened in 1997 and have maintained it at taxpayer expense since that time.

See prior postings on this case 1, 2, 3.

Thanks to the First Amendment Center for the lead to the online documents.

The Legacy of Zelman v Harris-Simmons

Five years ago (6/27/2002), the U.S. Supreme Court handed down Zelman v Harris-Simmons which held that Ohio's Cleveland-based voucher program was constitutional. Sunday's Plain Dealer (Cleveland, OH) has this assessment of the program:

From Cleveland Heights to Akron, the population shift from older neighborhoods could lead to the closing, merger or consolidation of about one-sixth of the schools in the eight-county Cleveland Catholic Diocese. But Catholic schools in Cleveland proper have a guardian angel: Ohio taxpayers, who provided more than $16 million in tuition vouchers for more than 5,500 city children to attend parochial schools this past school year.

The paper also notes that the program enjoys bi-partisan support. Voucher opponents claims that the program drains resources from other public school activities.

The Legacy of Rosenberger v. University of Virginia

A Chronicle of Higher Education story discusses the confusion that remains after the 1995 Supreme Court decision in Rosenberger v. Rector and Visitors of the University of Virginia.

More than a decade later, some public universities still have policies that appear to run counter to the spirit and letter of [Rosenberger]. In fact, a review of more than a dozen student handbooks across the country reveals a confusing and contradictory mishmash. Some policies explicitly welcome religious groups to apply for student-activity funds and inveigh against any "viewpoint discrimination." Others prohibit religious groups from receiving any money. Still others are so vague that it's unclear who is and is not eligible for support.

As a consequence, there is litigation involving schools that are allegedly engaging in viewpoint discrimination. See for example a prior posting (here) discussing a case in which the University of Wisconsin settled a lawsuit filed against it by UW Roman Catholic Foundation challenging UW's refusal to recognize the Foundation as a student organization.

More interesting may be the article's effort to describe what lies ahead. The article quotes Steven K. Green, a professor of law at Willamette Universiy (and former Americans United policy director) as saying that the next wave of post-Rosenberger litigation relates to schools citing their anti-discrimination policies and refusing to fund religious groups that deny gays and lesbians the right to join or be officers. The article mentions Christian Legal Society v Southern Illinois University at Carbondale as one example of this kind of litigation (see prior postings here and here). In that case, CLS sued after the University revoked CLS’s status as a recognized student group because it violated the University’s non-discrimination policy by not allowing non-Christians, gays and lesbians to be voting members. The University settled with CLS and, among other things, reinstated CLS. Another similar case, not mentioned in the article, is Christian Legal Society of University of California, Hastings College of the Law v. Kane, which is still pending (see prior postings here and here).

Howard Friedman, your regular host on this site, provided this detailed Analysis of The Christian Legal Society Cases back in May, 2005.

Thanks to ADF for the lead.

European Court of Human Rights: No to Norway's Mandatory Religious Ed

The European Court of Human Rights has ruled against Norway's mandatory elementary school religion classes. The case was Folgerø and Others v. Norway (Application no. 15472/02) (June 29, 2007). The judgment of the Court in can be found here.

The facts, as set out by the Court:

The present case concerns complaints lodged by non-Christian parents. It relates, firstly, to a complaint under Article 9 of the Convention and Article 2 of Protocol No. 1, about refusals by the domestic authorities to grant their children full exemption from a compulsory subject in Christianity, Religion and Philosophy (the “KRL-subject” – see paragraph 16 below) taught during the ten-year compulsory schooling in Norway. Secondly, it concerns their complaint about discrimination contrary to Article 14 of the Convention taken in conjunction with the aforementioned provisions and Article 8 of the Convention. (Para 3 of the opinion).

Article 2 of Protocol 1 can be found here. The Court concluded:

[N]otwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1. Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2 of Protocol No. 1. (Para 102 of the opinion).

Having disposed of the Article 2 claim, the Court did not reach the Article 14 claim (Para 105).

There was a dissent, which argued:

In our opinion, a review of the case requires a twofold approach, namely, in the light of the requirements of modern Norwegian society and with its history as an important background. On the one hand, the increasing number of Norwegian citizens with different ethnicities and religious beliefs calls for inclusive measures, with a common education in religions and ethics in schools. On the other hand, when devising the curriculum, one cannot overlook the many centuries of Norwegian history. Christianity has a very long tradition in Norway, both as a religion and a school subject (see paragraphs 9 and 10 of the judgment). This aspect must be reflected in the curriculum, which must at the same time be inclusive and broad.

An article on the case can be found at the Norway Post.

[Thanks to Christianity Today for the lead.]

Malaysia: Muslim to Hindu Conversion Blocked by Islamic Court; Woman Detained

According to AP and Reuters, a Malay woman was released on July 6 from a 180-day detention in a "religious counselling center." Massosai Revathi had been detained by the Malacca Islamic Religion Council because she sought to convert from Islam to Hindu after marrying a Hindu man. In Malaysia, Islamic courts determine whether a Muslim may convert out of Islam and these courts routinely do not allow such conversion. Without permission, a person cannot marry a non-Muslim or emigrate.

Revathi claims she was subject to "intimidation and mental torture" while in the center. She claims she was placed in solitary confinement, forced to wear a headscarf, pray as a Muslim, and was served beef (which Hindus may not eat). AP reports that Islamic officials also seized the couple's 18-month-old daughter in March and placed her in Revathi's Muslim mother's care. According to the BBC, a lawyer representing the Malacca Islamic Religion Council rejected her allegations and said officials believe that she can still be persuaded to embrace Islam.

In a widely publicized case, in May a woman, Lina Joy, lost a battle in Malaysia's highest court to have the word "Islam" removed from her identity card. She had sought to convert from Islam to Christianity.

Previous posts relating to Lina Joy and Malaysia's treatment of converts can be found here.

Members of Congress Call on Bishops to Work to End War in Iraq

Earlier this week, fourteen Democratic Members of Congress sent a letter to the U.S. Conference of Catholic Bishops last Thursday, calling on the Bishops to increase their involvement in efforts to end the war in Iraq. A press release and a copy of the letter can be found here.

Guest editor's note: I couldn't find a Republican (or other) response or critique of the letter to the USCCB. If any reader knows of one, please post a link in the comments section.

American Baptist Churches and Cooperative Baptist Fellowship Hold Historic Worship Service

The Washington Post carried a story today about an historic joint worship service held by American Baptist Churches USA and the Cooperative Baptist Fellowship. American Baptist Chruches Secretary Roy Medley said "[t]his is, in and of itself, an awesome God moment . . . American Baptists, Cooperative Baptists, Progressive Baptists coming together. . . . It gladdens our hearts." The Washington Post also carried this story about the American Baptist Churches' multicultural membership.

The American Baptist Churches' also presented its first Religious Freedom Award to the Baptist Joint Committee for Religious Liberty.



Lead from Blog From the Capital.

ADF Sues City of Zachary, LA Over Prohibited Preaching

The Alliance Defense Fund said in a press release that it has filed a lawsuit and a motion for preliminary injunction on behalf of a man whom a policeman prohibited from sharing a religious message on a public street outside of a bar in the city of Zachary, Louisiana. The officer cited a city ordinance prohibiting speech that is “annoying” or “offensive” to another person. The case is Netherland v. City of Zachary, No. 3:2007-cv-00409.

According to ADF, on the evening of Nov. 18, John Todd Netherland stood outside on public property to speak about his Christian faith about 75-100 feet from the entrance of a local bar. Even though he was allegedly standing on public property, a police officer told Netherland he could not preach there and instructed him to move closer to the street. The officer then allegedly warned Netherland that if he stepped back to the place he’d been standing, he’d be arrested and sent to jail. Despite agreeing to comply, the Plaintiff claims that the officer told him that if he continued to preach, even in the new location, he would arrest him for “disturbing the peace.” Netherland claims that he then ceased speaking because of the threat of arrest.

New Faith-Based Initiative in Granite State

The Nashua Telegraph (NH) reports that "New Hampshire – long known for a libertarian streak that eschews government overreach – has become the 33rd state to officially connect state and church for the purpose of helping those in need." The paper says that the effort will follow the model of the White House Office of Faith-Based and Community Initiatives. Additionally, according to the AP, "State officials and representatives of various churches or church organizations signed an agreement [July 2] formalizing faith-based cooperation."

Developments in Odessa, TX Bible Case

On Wednesday, the Houston Chronicle reported some developments in the Odessa, Texas Bible-in-curriculum case, Moreno v. Ector County Independent School District. (See previous post here.) Defendants filed a Fed. R. Civ. P. 68 offer of judgment to plaintiffs, asking them to settle the suit for $500. A Rule 68 offer can change the financial stakes of the litigation: "[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." At the same time, the Defendants also filed a motion for referral to mediation. Notably, Kelly Shackelford, chief counsel for the Liberty Legal Institute, is one of the attorneys representing the defendants.

Times (UK) Attacks Regent University Law School/Justice Department Relationship

The TimesOnline (UK) has published an essay that is highly critical the Justice Department's hiring of Regent University School of Law graduates. The essayist believes that the hiring of 150 graduates of this faith-based law school raises questions about the influence of faith on the American political process. Another, less critical article on the relationship between the Justice Department and Regent was published in April by Slate. Religion Clause reported on another article, here.

Defendant's Religious Beliefs Fair Game in Employment Case

The New York Daily News reports that the New York Supreme Court (a trial court) has determined that an employer can be required to answer interrogatories about his religious beliefs when those beliefs are "relied upon to form a basis of discrimination against a person who is a member of a protected class." The opinion can be found here.

Defendant argued that his individual associational privacy rights under the First and Fourteenth Amendments and his individual beliefs and freedom of exercise of religion under the religion clauses of the US and NY Constitutions are absolute, and that no compelling state interest exists so as to compel him to divulge those beliefs. Disagreeing, the judge concluded:

It is the duty of every Court to guard jealously the great right and privilege of free exercise and enjoyment of religious profession and worship without discrimination or preference, with all the power that the Court possesses, but no person should be permitted to use that right as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination proscribed in New York State law.

Without ruling whether any answer given would be admissible at trial, the judge has required the defendant to answer the following questions:

“State whether defendant [] believes that ‘homosexuality is a sin against God.'"
“State whether defendant [] believes that ‘gays and lesbians are doomed to eternal damnation."
“State whether defendant [] regards homosexuals as ‘repulsive.'”

The case is Fairchild v. Riva Jewelry Mfg., Inc., No. 101169/2006, 2007 NY Slip Op 31857 (June 28, 2007).

Leonard Link also has an analysis of this case.

Elections at U.S. Commission on International Religious Freedom

The U.S. Commission on International Religious Freedom has announced that it elected Michael Cromartie to serve as its chairman for a one-year term, starting July 1. Michael Cromartie is Vice President at the Ethics and Public Policy Center, and he directs both the Evangelicals in Civic Life and Religion & the Media programs.

The Reverend Richard Land, who heads the Southern Baptist Convention's Ethics and Religious Liberty Commission, and Preeta Bansal , a partner at Skadden, Arps, Slate, Meagher & Flom LLP, were elected to serve as vice-chairs.

According to the Commission, the U.S. Commission on International Religious Freedom was created by the International Religious Freedom Act of 1998 to monitor the status of freedom of thought, conscience, and religion or belief abroad, as defined in the Universal Declaration of Human Rights and related international instruments, and to give independent policy recommendations to the President, Secretary of State, and Congress.

Student Dress Code Falls in Napa

The Nappa Valley Register reports that the ACLU has won a preliminary injunction prohibiting enforcement of a dress code at a Nappa Valley middle school. The policy (which is attached to the judge's order) permits students to wear only solid-color clothes in certain specified colors, with no pictures, logos, words, or patterns of any kind. The case is Scott et al v Napa Valley Unified School District, et al., Case No. 26-37082 (July 3, 2007).

The suit was brought by six students who were punished for violating the attire policy, including one who wore a t-shirt that said "Jesus Freak," another who wore a D.A.R.E. pin, and a third who wore a breast cancer awareness ribbon. The district also punished a student wearing a pair of socks bearing the image of the Winnie the Pooh character Tigger. The district defended the policy, saying that it furthers the important governmental interests of providing a safe school environment and of preventing gang activity on campus.

This case is an early post-Morse v. Frederick (551 U.S. __ (June 25, 2007)) decision. In its reaching his decision, Napa Superior Court Judge Raymond Guadagni cited Morse as upholding the well-settled principle from Tinker v. Des Moines Independent Community School Dist that student expression is protected as long as it does not “materially and substantially disrupt the work and discipline of the school.” 393 U.S. 503, 513 (1969).

Maryland State Bd. of Ed. Approves Sex-Ed Curriculum Over Religious Objections

According to the Washington Post, here, the Maryland State Board of Education has ruled in favor of a sex-education curriculum adopted last month for use in Montgomery, Maryland middle and high schools. Because of the curriculum's views relating to homosexuality, opponents to it had claimed Free Exercise and Establishment Clause violations. They also claimed that the curriculum violated student free-speech rights by expressing a favorable view of homosexuality and that it restricts religious expression by suppressing the view that homosexuality is a sin. Notably, use of an earlier version of the curriculum (which the Post reports has since been wholly re-written) was stopped by a federal court's preliminary injunction. In that granting injunction, the judge ruled that the earlier version had criticized religious perspectives on homosexuality and thus raised Establishment Clause issues.

In the June 27 ruling, the State Board of Education's opinion, found here, dismissed the opponents' claims, concluding that the Free Exercise challenge does not succeed because "a curriculum need not espouse every viewpoint to pass constitutional muster" and that the curriculum in question does not "preclude the Appellants from espousing their religious beliefs..." The Board rejected the opponents' Establishment Clause claims, saying the the curriculum has a secular purpose, which is fostering tolerance and diversity. In rejecting the Free Speech claim, the Board concluded that the Constitution does not require the district to be viewpoint neutral or include all points of view.

The Post says that the opposition group has not yet determined whether it will seek relief in federal court.

Gordon Brown Gives Up Right to Appoint Senior Ecclesiastical Positions

Today's Times (UK) reports here that new UK Prime Minister Gordon Brown has given up his right to appoint key ecclesiastical officials. In a constitutional Green Paper (found here), the Government has said that the Prime Minister should no longer use the royal prerogative “to exercise choice in recommending appointments of senior ecclesiastical posts, including diocesan bishops, to the Queen." In the absence of the Archbishop of Cantenbury (who is on a "study leave"), the Archbishop of York welcomed the decision.