Establishment Challenge To Highway Patrol Memorial Crosses Dismissed

In an interesting opinion, a Utah federal district court has granted summary judgment to defendants and dismissed an Establishment Clause challenge brought by American Atheists to crosses placed on public property to memorialize state Highway Patrol officers who died in the line of duty. The case is American Atheists, Inc. v. Duncan, (D UT, Nov 20, 2007) [full text at this link, scroll down to pg. 78]. In dismissing the case and permitting the Utah Highway Patrol Association to continue erecting memorials, the court said:

Just as the Christmas tree evolved into a secular symbol of celebration, the cross has evolved into a symbol capable of communicating a secular message of death and burial. While the cross retains its religious meaning when placed in religious contexts, it has transformed into a representation of death and burial when placed in pop culture settings and when used as a memorial. Like the Christmas tree, which took on secular symbolism as Americans used the tree without subscribing to a particular religious belief, the cross has attained a secular status as Americans have used it to honor the place where fallen soldiers and citizens lay buried, or had fatal accidents, regardless of their religious belief. And the progression of the cross from a religious to a secular symbol continues as crosses are increasingly used to symbolize death in advertising campaigns, films, television, and seasonal holiday decorations--frequently having nothing to do with religion or a particular religious belief. Consequently, the court finds a reasonable observer, aware of the history and context of the community would not view the memorial crosses as a government endorsement of religion.

Yesterday's Deseret Morning News reports on the decision. (See prior related posting.)

UPDATE: Fox News reported on Wednesday that American Atheists plans to appeal the ruling.

Cert Petition Filed In Summum "Seven Aphorisms" Case

A petition for certiorari (full text) has been filed by the American Center for Law and Justice with the U.S. Supreme Court in Pleasant Grove City v. Summum. In the case, the 10th Circuit Court of Appeals held that Summum was entitled to erect a Seven Aphorisms monument in a city park that already features a number of other displays relating , including a 10 Commandments monument donated by the Fraternal Order of Eagles. (See prior posting.) En banc review was denied by a 6-6 vote. (See prior posting.) In announcing the filing, ACLJ said: "The lower court’s decision misses the crucial distinction between government speech and private speech. The government has to be neutral toward private speech, but it does not have to be neutral in its own speech."

Vermont Will Expand Inmates' Religious Rights

Yesterday's Burlington Free Press reports that the Vermont Department of Corrections is finalizing new guidelines that will expand the religious rights of inmates in Vermont prisons. After receiving extensive comments on an earlier proposal, the Department made significant revisions. The new rules will permit inmates to participate in religious services by signing up just as they sign up for other activities. The Department eliminated the proposed requirement for a religious designation and a one-year waiting period for inmates who wish to change their religious preference. The new rules will also permit inmates to wear religious head coverings throughout the prison. They will permit demonstrative prayer beyond an inmate's cell and designated religious areas. This means that inmates can offer non-disruptive grace at meals. Lori Windham, legal counsel for Becket Fund for Religious Liberty, said that her group is generally pleased with the revised guidelines, but still is concerned over a requirement that religious services to be run by outside volunteers, barring inmate-run religious services.

British Court Hears Arguments In Christian Activist's Blasphemy Case

In Britain on Monday, a High Court hearing began in an appeal of a blasphemy case brought by a Christian activist who objects to the 2005 showing by BBC of "Jerry Springer-The Opera". Reuters reports that Stephen Green of Christian Voice sued BBC director-general Mark Thompson and the musical's producer Jon Thoday. The show depicts Jesus as being gay and Adam as being a member of the Ku Klux Klan. A district judge had dismissed the lawsuit. A submission to the High Court by Liberty (a civil liberties group) argued that Britain's blasphemy laws violate the European Convention on Human Rights. British artists have been advocating repeal of the blasphemy laws. (See prior posting). Canadian Press has additional background on the case.

Indiana Voter ID Case Poses A Hidden Religious Liberty Issue

At first blush, Crawford v. Marion County Election Board, the pending U.S. Supreme Court case challenging to Indiana's voter identification requirements, does not appear to involve religious liberty issues. However as Blog from the Capitol points out, an amicus brief filed by the League of Women Voters suggests that religious freedom is at stake. Indiana permits photo-exempt drivers' licenses and identification cards for those who have religious objections to being photographed. However, a person presenting such a card at the polls would be required to vote provisionally and then go to the election board to complete an affidavit attesting to his or her religious objections. This places an additional burden on hundreds of Amish and Mennonites in the state, who have already provided proof of their religious beliefs in getting their photo-exempt card initially. It requires individuals who often lack mechanized transportation for religious reasons, to go before the election board every time they vote. Some Old Order Amish and Mennonites also have religious reservations to such appearances to defend their rights. The Brennan Center has links to all the filings in the Crawford case.

New York's High Court Holds Satmar Rivalry Nonjusticiable

Yesterday, the New York Court of Appeals-- the state's highest court-- issued two decisions in the long-running, high-stakes dispute between two factions of New York's Orthodox-Jewish Satmar Hasidic community. (See prior posting.) The underlying dispute involves a contest for leadership of the community between the two sons of the now-deceased former leader, Rabbi Moses Teitelbaum, and control of some $100 million in communal assets.

The main decision, Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana, (NY Ct. App., Nov. 20, 2007), involved a disputed election for directors and officers of the Satmar's Brooklyn congregation. The majority held that the dispute cannot be resolved without judicial intrusion into matters of religious doctrine, and that the First Amendment forbids civil courts from interfering in or determining religious disputes. Justice Smith dissented, saying: "I believe that courts should hold disputes between religious factions to be non-justiciable only as a last resort, where it is absolutely clear that no neutral principle can decide the case.... [T]he prospect of the parties resolving their differences in court may be unattractive, but the thought of their resolving them elsewhere may be less attractive still."

In a companion case, Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. v Congregation Yetev Lev D'Satmar, Inc., (NY Ct. App., Nov. 20, 2007), the court invalidated the transfer of a half-interest in the cemetery in which the Satmar's founder is buried from one faction to the other. The court affirmed a decision of the Appellate Division that refussed to grant judicial approval to the transfer under a provision of New York's Religious Corporations Law that required such approval when a transfer was made for nominal consideration. The court held that a transfer to further the interests on one side in a factional dispute does not satisfy the standard required for approval. Yesterday's Newsday reports on the two decisions.

Mormon Percentages In Utah Fall

Today's Salt Lake Tribune reports that the percentage of Utah residents who are members of the Church of Jesus Christ of Latter Day Saints has fallen to a new low of 60.7% according to data furnished by the LDS Church to the state of Utah for demographic purposes. Apparently much of this change is due to the influx of new people into the state. If the trend continues, Mormons will make up less than 50% of the state's population by 2030. Brigham Young University Professor Kelly Patterson says the political impact of the shift will be lessened by the fact that Mormons traditionally have voted in higher percentages than non-Mormons.

Pope Appoints New Head of Military Services Archdiocese In U.S.

Yesterday's Washington Post reports that Pope Benedict XVI has named Bishop Timothy Broglio of Cleveland as head of the Archdiocese for Military Services. The Archdiocese serves all Catholics in the U.S. military and their families. In the past, Broglio served in the Vatican's diplomatic corps.

FBI Releases 2006 Hate Crime Statistics

The FBI yesterday released its Hate Crime Statistics for 2006. Total hate crimes in the U.S. went up from 7,163 in 2005 to 7,722 in 2006. One expert suggested that the increase may be due to a larger number of police agencies reporting this year. (Los Angeles Times). The largest number of incidents took place in California, followed by New Jersey and Michigan and New York, though California showed a drop in incidents from last year.

Data indicates that crimes against 1,750 victims (18.1% of all hate crimes) were motivated by religious bias. In the largest portion of these (65.4% or 144 victims), the offender was motivated by anti-Jewish bias, while in 11.9% (208 victims), the offender was motivated by anti-Islamic bias. Of the others, 4.9% were victims of anti-Catholic bias; 3.7% were victims of anti-Protestant bias; 0.5% were victims of anti-Atheist/Agnostic bias; 8.4% were victims of a bias against other religions; and 5.3% were victims of a bias against groups of individuals of varying religions. Since some incidents involved multiple victims, the percentages for hate crimes by incident is slightly different. Among property crimes, such as vandalism, 7.4% of all hate crimes were against religious institutions.

Russian Religious Leader Wants Government Control of Morality In Media

In a meeting yesterday with Russia's President Vladimir Putin, the head of the Russian Orthodox Church, Patriarch Alexy II, called on the government to create a regulatory council to deal with issues of morality in the mass media. The Associated Press reports that some analysts say the meeting between the two leaders was intended encourage religious Russians to vote in the Dec. 2 parliamentary election.

Chavez Brings Christian References To OPEC In Saudi Arabia

As host of the last OPEC summit, the ceremonial duty of opening this year's summit in Riyadh, Saudi Arabia on Saturday went to left-wing Venezuelan President Hugo Chavez. Caribbean Net News reports that Chavez's opening remarks came just after verses from the Qur'an were read to the delegates. Catholic Chavez began his speech by making the sign of the cross. This apparently violates Saudi law that prohibits practicing a religion other than Islam in public. Chavez's remarks also invoked Jesus name. Reuters reports that Chavez told his audience: "The only way to peace, as Christ said, is justice, All of us here have engaged in the Third World's struggles, the people who have been colonised, invaded and oppressed for centuries." He said that OPEC "must stand up and act as a vanguard against poverty in the world." The Saudi media treated his remarks, as well as ones by Iran's President Mahmoud Ahmadinejad, as attempts to appeal to their own publics back home.

LAPD Reverses Course and Drops Plan To Map Muslim Population

Last week, the Los Angeles Police Department reversed itself and dropped controversial plans to map the city's Muslim population. (See prior posting.) Last Thursday's Los Angeles Times reported that the change of heart came after vociferous objections to the plan by Muslim groups and civil libertarians. The LAPD's public information director, Mary Grady, explained: "The whole purpose of this initiative was to bring together the department with the Muslim community. The word 'mapping' gave the impression it was about profiling when it was not."

Recent Articles and Books of Interest

From SSRN:

• Claudia E. Haupt, Free Exercise of Religion and Animal Protection: A Comparative Perspective on Ritual Slaughter, (George Washington International Law Review, Forthcoming ).
  
• Steven Douglas Smith, How Secularists Helped Knock Down the Wall of Separation Between Church and State, (San Diego Legal Studies Paper No. 07-124, Nov. 8, 2007).


• John Q. Barrett, Gregory L. Peterson, E. Barrett Prettyman, Shawn Francis Peters, Gathie Barnett Edmonds, Marie Barnett Snodgrass & Bennett Boskey, Recollections of West Virginia State Board of Education V. Barnette, (St. John's Law Review ,Vol. 81, pp. 755-796, Fall 2007).

From SmartCILP:

• Steven W. Fitschen, Laying Low the High Flying Evangelicals at the United States Air Force Academy? Thanks, but No Thanks, 36 Journal of Law & Education 501-514 (2007).


• Oscar Guardiola-Rivera, Return of the Fetish: A Plea for a New Materialism, 18 Law & Critique 275-307 (2007).


• Ellen Wiles, Headscarves, Human Rights, and Harmonious Multicultural Society: Implications of the French Ban for Interpretations of Equality, 41 Law & Society Review 699-735 (2007).

A revised edition of Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, has been published by PLI in course material for Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings 2007.

Recent Books:

• Irfan Habib (ed.), Religion in Indian History, (Aligarh Historians Society, 2007) reviewed by The Hindu.


• Frank Schaeffer, Crazy for God, (Da Capo Press, Oct. 25, 2007).


• Daniel Walker Howe, What Hath God Wrought-- The Transformation of America, 1815-1848, (Oxford University Press, Sept. 2007).

Settlement Reached In Abuse Claims By Alaskans Against Jesuits

In the largest settlement yet against a Catholic religious order, the Oregon Province of the Society of Jesus has agreed to pay $50 million to dozens of Alaska Natives who have claimed sexual abuse by 13 to 14 Jesuit priests over a 30-year period. The accused include Rev. James Poole who founded Nome's Catholic radio station, KNOM, and who was later transferred to Portland by his order without its disclosing its knowledge of his past sexual misconduct. The AP yesterday reported on the settlement announcement by plaintiffs' lawyer. However counsel for the Jesuit group said the disclosure is premature. Apparently there are still issues to be resolved with the order's insurer. The settlement does not include ten pending lawsuits against the Diocese of Fairbanks.

Recent Prisoner Cases On Religion

In Maddox v. Love, 2007 U.S. Dist. LEXIS 83316 (SD IL, Nov. 9, 2007), an Illinois federal disrcit court permitted an inmate who was a member of the American Hebrew Israelite faith to prceed with claims that he was denied access to religious materials and that AHI inmates were denied group worship services. Claims based on failure to pay AHI leaders and denial of a proportional budget to AHI were dismissed.

In Ellibee v. Hiland Dairy Foods Co., LLC, 2007 Kan. App. Unpub. LEXIS 143 (KN Ct. App., Aug. 31, 2007), a Kansas Court of Appeals rejected on collateral estaoppel grounds a prisoner's consumer protection claim against a prison milk supplier, as well as rejecting his negligence and fraud claims. The prisoner claimed that the milk he was served as part of his kosher diet was not in fact kosher milk.

In Stanton v. Trotter, 2007 U.S. Dist. LEXIS 84763 (ND IN, Nov. 14, 2007), an Indiana federal court permitted a Buddhist inmate to proceed with an Eighth Amendment claim based on the failure of officials to provide him with a non-meat protein substitute as part of his religiously mandated vegetarian diet. It rejected his First Amendment claim merely alleging delay in beginning his vegetarian tray.

Church May Be Marital Asset In NY Divorce Proceeding

In CH v. RH, (NY Sup. Ct., Nassau, Nov. 13, 2007), a New York judge, rejecting Establishment Clause concerns, held that a Church could be a marital asset in a divorce proceeding. At issue is the church building, catering hall and rental business of Grace Christian Church in Brooklyn. According to the court:

plaintiff claims that the Church is a marital asset because it is actually the defendant's "business" which he operates as his "personal piggy bank." Specifically, the plaintiff claims that the defendant provided $50,000.00 of their marital money to the Church as start-up capital; defendant controls all of the finances of the Church and makes all financial decisions, defendant refuses to make any financial disclosures to the Church's Board of Directors and the Church Administrator, hides his finances from the Church elders, determines his own income, refers to the Church as "my Church" and dismisses anyone who challenges his operation and finances of the Church.

The court concluded that if it is shown that the church is the husband's "alter ego", it will be valued as a marital asset for purposes of determining equitable distribution. The issue is one of first impression in New York. Newsday, the AP and the New York Daily News all carried reports on the case earlier this week.

Parishioners of Closed Ohio Churches, Critical of Diocese, Pursue Litigation,

Today's Toledo Blade carries two stories on lawsuits in which rural Catholic Churches are challenging the 2005 decision of the Diocese of Toledo to restructure parish boundaries. In Junction, Ohio, a former member of the now-closed St. Mary’s Catholic Church has sued to prevent the Diocese from removing the windows and other sacred items from the church. The Diocese wants to store the items for future use elsewhere. Meanwhile in Kansas, Ohio, parishioners of the former St. James Catholic Church who filed suit last year to challenge their church's closing have been angered by new discoveries. They have found that over $44,000 of funds they donated to the parish before it closed have been transferred by the Diocese to pay attorneys hired to fight the parishioners' lawsuit.

Hawaiians Want Army To Clear Bomb From Area Used For Ceremony

On the Hawaiian island of Oahu, community groups are holding a vigil outside the Makua Military Reservation, according to a press release today from Earth Justice. At issue is the delay by the Army in removing a 250-pound bomb left over from World War II discovered this month near Makua Beach Park. The Army has created an exclusion zone in the area for safety purposes. However the zone includes the area in which the Makahiki, the traditional Hawaiian celebration of the time of peace, had been scheduled. Protesters say that under a 2001 agreement, the Army should have long ago cleared this area of unexploded ordnance. The Army says it will make plans to remove the bomb once it completes a sweep of the area for other unexploded ordnance.

Reactions to Grassley's Investigation of Tele-Evangelists Continue

An article in today's Des Moines Register reports on the reactions to letters sent out recently by U.S. Senator Charles Grassley to six televangelists asking for information about alleged misuse of donations to their religious organizations. (See prior posting.) The paper says that most of the ministries in question preach the "prosperity gospel". One of Grassley's targets, Bishop Eddie Long of the New Birth Missionary Baptist Church in Lithonia, Ga., calls Grassley's letter an attack on religious freedom and privacy rights.

Indian Supreme Court Upholds Legislative Oaths In Name of Allah

A panel of the Supreme Court of India has rejected a challenge to the seating of eleven members of the Kerala Legislative Assembly who last year took their oaths of office in the name of Allah, according to today's Newstrack India. Petitioner, Madhu Parmula, Vice President of Bhartiya Janata Yuva Morcha, argued the Indian Constitution, Third Schedule, requires that legislators' oaths be taken in the name of God. The court ruled, however, that Allah in Arabic means God, so the requirement was met. The court distinguished an earlier case in which the Kerala High Court ordered a legislator not to take his seat after he took his oath in the name of a religious Guru. The Supreme Court panel said that taking the oath in the name of an individual is unconstitutional.