Montana High Court OK's Valedictorian's Religious References

In a 6-1 decision last week, the Montana Supreme Court held that school officials violated the free speech rights of a graduating senior when it censored on the basis of viewpoint her proposed valedictory remarks.  In Griffith v. Butte School District No. 1, (MT Sup. Ct., Nov. 19, 2010), school officials objected to the religious references in following passage in the prepared remarks of one of the co-valedictorians:

I learned to persevere these past four years, even through failure orndiscouragement, when I had to stand for my convictions. I can say that my regrets are few and far between. I didn’t let fear keep me from sharing Christ and His joy with those around me. I learned to impart hope, to encourage people to treat each day as a gift. I learned not to be known for my grades or for what I did during school, but for being committed to my faith and morals and being someone who lived with a purpose from God with a passionate love for Him.

The majority rejected any Establishment Clause conerns about the propoed seech, saying:

We find it unreasonable for the School District to conclude that Griffith’s cursory references to her personal religious beliefs could be viewed by those in attendance at the BHS graduation ceremony as a religious endorsement by the School District.

Justice Leaphart dissenting argued that the student's proposed remarks created Establishmnet Clause concerns:

Attendance at high school graduation is compulsory. The speakers chosen by the school clearly have a “captive” audience. The student body of a public school is presumably very diverse with a mix of Christians, Jews, Muslims, atheists, and agnostics, many of whom would resent being required to attend a ceremony in which Christ and His Joy was being shared with those present in the captive audience.

The Missolian reports on the decision.

New Center Will Study Marriage, Religion and Public Policy

According to today's Catholic Culture, Ave Maria law school has announced the creation of a new Center for Research on Marriage, Religion and Public Policy. Yesterday's National Catholic Register carried an interview with the Center's director, Maggie Gallagher. Emphasizing the importance of  "fighting for marriage and family in the political and legal arenas," Gallagher said:

Truth is truth. If marriage is the union of a husband and wife, because children need a mother and father, we can’t abandon non-Catholic children. We have an obligation in justice, as well as love, to fight against an unjust civil order that redefines marriage and its purposes.

The new Center's first conference was on "Children, Kinship, Psychological Health, and Identity Formation: The Cases of Divorce and Donor Insemination."

FBI Releases 2009 Hate Crimes Data

The FBI yesterday released its latest data on hate crimes.  Hate Crimes Statistics 2009 reports that there were 6,604 criminal incidents involving 7,789 bias-motivated offenses.  This is a drop of 15% from the year before and the lowest number reported in at least a decade.  However there are signifcant variances in the number of agencies participating and reporting from year to year. (Huffington Post.)  Of the 6,598 single-bias incidents in the latest report, 19.7% were motivated by religious bias.  Of these 1303 incidents motivated by religious bias, 931 were anti-Jewish, 107 were anti-Islamic, 51 were anti-Catholic, 38 were anti-Protestant and 10 were anti-Atheist/ Agnostic. (Table 1.) In 2008, there were 1606 hate crimes motivated by religious bias reported. (See prior posting.)

An ADL release welcoming the drop in hate crimes expressed disappointment that more than 60 cities with over 100,000 population did not submit data.

Egyptian Animal Rights Activists Wants Reform of Eid al-Adha Slaughter

A New York Times article Monday chronicles the efforts of Egyptian animal-rights proponent Amina Abaza to encourage more humane slaughtering methods on Eid al-Adha. The Muslim holiday, celebrated last week, commemorates the story of Abraham who was permitted to sacrifice a ram instead of his son. Traditionally Muslims slaughter a sheep, cow or camel, and divide the meat between themselves, relatives and the poor. In working class neighborhoods in Egypt, crowds watch butchers wrestle animals to the ground and slit their throats. Little boys play with the blood and teenagers help remove the entrails.  Activists say the butchers fail to abide by Islam's own requirements that the animal should not be mistreated and should not hear or see other animals being killed.

No RLUIPA Violations In Processing Use Permit Applications By Mosque

In Islamic Cultural Center of Monticello, Inc. v. Village of Monticello, (NY Sup. Ct., Nov. 17, 2010), a New York trial court found no RLUIPA violations in a village's handling of applications for a special use permit and a certificate of occupancy for a mosque and related parking lot. The court noted: "the mosque has been allowed to operate in the building for years without a special use permit or approved parking while the required municipal approval was being processed; and the parking lot across the street has also been used and continues to be used illegally..... [T]here certainly in not evidence of religious discrimination; rather, the record speaks to a community and local government endeavoring to accommodate the need for a house of worship for the local Islamic community."

Many Charter Schools In Texas Have Religious Connections

Today's Dallas (TX) Morning News reports on the blurring of church-state lines as over 20% of the state's publicly-funded charter schools have religious ties. Religious groups can set up separate non-profits to run charter schools. According to the paper:

Dozens of Texas charter school leaders or board members hold prominent positions in the church, where the schooling sometimes takes place. Parochial schools reinvent themselves as charters, often with little guidance on running a public school. And the mission of the school itself typically stems from the values of the religious group.

While most of the religiously affiliated charter schools are connected to Christian groups, in Houston one is operated by a Turkish Muslim group.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill, An Overview of Tax Issues for Religious Congregations, (The Practical Tax Lawyer, Vol. 55, Fall 2010).
• Jeremy J. Patrick, Jeremy J., The Curious Persistence of Blasphemy, (November 17, 2010).
• Perry Dane, The Natural Law Challenge to Choice of Law, (The Role of Ethics In International Law, Donald Earl Childress III, ed., Cambridge University Press, 2010).
• Patrick McKinley Brennan , Lawmaking, Administration, and Traces of Civic Republicanism: Thought’s on Jean Porter’s Ministers of the Law, (Villanova Law/Public Policy Research Paper No. 2010-22, Nov. 18, 2010).
• Barbara P. Billauer, Message from Mt. Moriah: The Non-Permutable Law of War and Conflict, (October 18, 2010).
• Joan MacLeod Heminway, Martha Stewart and the Forbidden Fruit: A New Story of Eve, (Michigan State Law Review, Vol. 2009, p. 1017, Winter 2009).
• Tobias Lock, Religious Symbols in Germany, (November 15, 2010).
• Rahul Shrivastava, Protective Discrimination and Tribal Welfare in India, (November 19, 2010).

From SmartCILP:

• John Alan Cohan, Honor Killings and the Cultural Defense, 40 California Western International Law Journal 177-252 (2010).
• Liaquat Ali Khan, Protection of Languages and Self Expression under Islamic Law, 19 Journal of Transnational Law & Policy 61-122 (2009).
• Bruce Ledewitz, The New New Secularism and the End of the Law of Separation of Church and State, 28 Buffalo Public Interest Law Journal 1-30 (2009-2010).
• Article, Reply & Response. In Celebration of Steven Shiffrin's The Religious Left and Church-State Relations. Article by Kent Greenawalt; reply by Bernadette Mayler; response by Steven H. Shiffrin. 19 Cornell Journal of Law & Public Policy 741-772 (2010).
• Symposium. Twenty Year Anniversary of Employment Division v. Smith: Reassessing the Free Exercise Clause and the Intersection Between Religion and the Law. Introduction by Marci A. Hamilton; articles by Richard F. Duncan, Mark S. Kende, Zackeree S. Kelin, Kimberly Younce Schooley, David S. Day, Matthew L.M. Fletcher and student Jessica L. Fjerstad. 55 South Dakota Law Review 385-562 (2010).

Canadian Court Will Hear Challenge To Polygamy Law Today

Today the Supreme Court of the Canadian province of British Columbia will begin to hear arguments on the validity Criminal Code Sec. 293, Canada's laws banning polygamy.  The Toronto Globe & Mail reports that over 30 witnesses are expected to testify, including members of the polygamous FLDS community of Bountiful. A number of organizations, on both sides of the issue, have been granted "interested person" status to make submissions to the court. The province's attorney general decided to bring the reference case to ask the court to clarify the validity of the polygamy ban under Canada's Charter of Rights and Freedoms after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

Does New Atlanta Public School Official Have Too Religious An Agenda?

Atlanta (GA) Journal Constitution reporter Maureen Downey yesterday questioned the focus the newly selected chief of staff for the Georgia Department of Education will bring to his job.  Her concerns are based on blog postings by the new pick, Joel Thorton.  Among the views Thorton has posted online on his blog: "We cannot offer any type of spiritual help to struggling youth because we have no place for God in our schools." In a long blog post on home schooling, Thorton lamented hostility to Christianity found in many public school systems.

Religious Leaders Express Doubt About New Governor's Call For Faith-Based Social Services To Fill Budget Gaps

Today's Greenville (SC) News reports that a number of South Carolina religious leaders question whether Gov.-elect Nikki Haley's call for a coalition of faith-based organizations to fill the gaps in social services and educational programs that have been created by state budget shortfalls. Many congregations are also financially stretched, some worry about church-state questions, and others say that it is unfair to ask the portion of the population that are church members to pay for services that should be borne by all the taxpayers.

Company Settles With EEOC In Case Charging Religious Harassment of Jewish Employees

The EEOC announced last week that One Communications Corp. has settled a lawsuit filed against it by the EEOC charging religious harassment of three Jewish employees, one of whom resigned as a result.  The EEOC's lawsuit filed in a Pennsylvania federal district court charged that the company's vice president of sales regularly subjected the three account executives to harassment, including anti-Semitic remarks, and that the company failed to take effective remedial action. In the settlement, the company agreed to pay $66,000 in damages and agreed to a 5-year consent decree banning religious harassment or retaliation. The company will also provide training to all managers and employees at the Conshohocken, Pennsylvania facility where the violations occurred, and will post a remedial notice.

Lawsuit Filed Against San Antonio Archdiocese Alleging Cover-Up of Priest Abuse

The San Antonio (TX) Express News reports that on Thursday a lawsuit was filed against the Catholic Archdiocese of San Antonio accusing it of covering up the repeated sexual abuse of a 12-year old boy by a priest. The abuse of the victim, an altar boy in the Floresville Parish school, is alleged to have occurred in 1976-77 by priest Louis White who was associate pastor of Sacred Heart Church. White was removed from the priesthood in 1989. The suit also alleges that sometime during the past 18 months, a priest at Mass in the Floresville parish chastised anyone who planned to come forward ab out being abused. He suggested that instead they make penance for themselves and the abusing priest.

Recent Prisoner Free Exercise Cases

In Riggins v. Clarke, (9th Cir., Nov. 18, 2010), the 9th Circuit upheld a prison policy that required an inmate's committed name be used first on incoming and outgoing mail before any other official or religious name. It also rejected plaintiff's claim that his rights were violated by the refusal to allow him to buy prayer oils.

In Bonner v. Randle, 2010 U.S. Dist. Lexis 120717 (CD IL, Nov. 15, 2010), an Illinois federal district court  held that a Muslim inmate had adequately alleged a violation of the Establishment Clause.  Plaintiff claimed that his regularly scheduled Narcotics Anonymous class was combined with Christian religious services and he was required to attend and submit a written summary of what he learned from the Christian speaker.

In Taylor v. Grannis, 2010 U.S. Dist. LEXIS 121103 (ND CA, Oct. 28, 2010), a California federal district court dismissed on res judicata grounds an inmate's complaint that he was not permitted to use tobacco for his "Wheel of Love" religious ceremony.

In Ashby v. Sherman, 2010 U.S. Dist. LEXIS 120735 (WD WA, Nov. 12, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist LEXIS 120742, Oct. 1, 2010) and dismissed an inmate's complaint that he was not allowed to attend the Eid ul-Fitr feast and that an exclusive Nation of Islam Eid feast was not held.

In Burnight v. Sisto, 2010 U.S. Dist. LEXIS 120975 (ED CA, Nov. 15, 2010), a California federal magistrate judge concluded that nothing in the record of petitioner's parole hearing indicated that he was required to attend the religiously-based Alcoholics Anonymous program even though the parole board discussed his participation in it. Nor did petitioner ever indicate to prison officials that his Wicca religion conflicted with AA.

In Searles v. Werholtz, 2010 U.S. Dist. LEXIS 121339 (D KS, Nov. 15, 2010), a Kansas federal district court dismissed an inmate's complaint that he was denied a kosher diet because defendants who were employees of Aramark food service were never served with process.

Pope Quoted In New Book Suggesting Use of Condoms To Prevent HIV Is Permissible In Some Cases

Associated Press and the Guardian today reports on excerpts from a long interview with Pope Benedict XVI taken from a new book to be released Tuesday.  The excerpts published  yesterday by the Vatican newspaper L'Osservatore Romano are from the book Light of the World: The Pope, the Church, and the Signs of the Times by German journalist Peter Seewald.  The remarks suggest a modification of the Church's stance on the use of condoms to prevent AIDS.  Previously some Church officials had said that abstinence and fidelity are the only way to stop the spread of HIV, while the Pope had merely said that condom use exacerbates the AIDS crisis. Now the Pope is quoted as saying that in some cases, such as for male prostitutes, the use of condoms "in the intention of reducing the risk of infection" could represent "a first step in the direction of moralisation, a first assumption or responsibility, on the way toward recovering an awareness that not everything is allowed and that one cannot do whatever one wants." Theologians suggest that the Pope may be applying the notion that an evil act can be tolerated where it is performed for an intended good, or that where the intended purpose is to protect from disease rather than trying to block pregnancy use is permissible.

Appeals Court Reverses Decision On Validity of Replacing Episcopal Bishop

In Schofield v. Superior Court of Fresno County, (CA App., Nov. 18, 2010), a California appellate court held that in a lawsuit brought by the Episcopal Church to establish its title to property of the break-away San Joaquin Diocese, the trial court must apply neutral principles of law to determine ownership of the property.  It held that the trial court had erred in preliminarily deciding who is the rightful bishop of the Diocese of San Joaquin. The trial court had approached the issue by deciding that the Diocese's attempt to withdraw from the national church was ineffective and that therefore the national church's replacement of the incumbent bishop John-David Schofield by Jerry A. Lamb as provisional bishop was valid.  The Court of Appeals held instead that the validity of the removal and appointment of a bishop is a matter of ecclesiastical law as to which the determination of the Episcopal Church controls. So the issue remaining for the trial court is the validity of property transfers allegedly made by Schofield before he was replaced. That is to be decided by reference to "general California statutory and common law principles governing transfer of title by the legal title holder, the law of trusts, including the establishment of trusts and transfers by a trustee in contravention of a trust upon the property (if a trust is established by the evidence), and corporations law...." (See prior related posting.) Anglican Curmudgeon discusses the decision and the controversy over its implications at length.

Maryland County Concedes, Settling RLUIPA Land Use Lawsuit In Mid-Trial

Both The Capital and the Maryland Daily Record report that on Thursday in the midst of a RLUIPA trial, Anne Arundel County, Maryland signed a settlement in the lawsuit brought against it by Riverdale Baptist Church which sought to build a school on 57 acres of land it owns.  Initially, in 2004, county planners approved the plans, but after objections by neighbors the County Council passed two new zoning restrictions that effectively prevented building of the school. The county attorney admitted in court that the county had targeted the church with its new legislation and had timed the legislation so it would not affect two other private schools.  The settlement-- agreed to on the 12th day of trial just before the county's last witness took the stand-- will allow the Riverdale Baptist to build its school and also awards $3.25 million in damages to the church. The complaint asked for $8.7 million.  In 2008 the parties negotiated a settlement that would have cost the county only $300,000, but at that time the County Council refused to approve its terms. [Thanks to Roman P. Storzer for the lead.]

County Takes Control of Holiday Displays

The Chester County Daily Local reports that yesterday the Chester County, Pennsylvania commissioners voted 2-1 to have the county place its own holiday displays at the Historic Courthouse, eliminating the rivalry of past years between those erecting Christian and Jewish displays and a secular group that has put up a Tree of Knowledge. Tension between the Pastors Network and the Freethought Society were particularly intense last year as the Tree of Knowledge displayed book titles as ornaments and included titles such as "The God Delusion." The new resolution calls for the county to put up displays to celebrate the traditions of the holidays, to support the troops, celebrate peace and promote commerce. The resolution says the displays will comply with constitutional limitations. A member of the Freethought Society which opposed the new arrangement told commissioners: "This is about you deciding whether atheists are people, too...."

9th Circuit Will Permit Live C-SPAN Broadcast of Arguments In Prop 8 Appeal

According to today's San Francisco Chronicle, the U.S. 9th Circuit Court of Appeals has decided that C-SPAN  will be permitted to broadcast live the appeals court arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of California's Proposition 8 that bars same-sex marriage. The two-hour arguments scheduled for 10:00 a.m. on December 6 will be split between arguments on standing and arguments on the constitutionality of Proposition 8. (9th Circuit order on oral arguments.) Attempts to allow limited televising of the federal district court trial in the case were ultimately prevented by a U.S. Supreme Court decision finding that the district court followed improper procedures in adopting its rule permitting broadcasting. (See prior posting.)

South Dakota High Court Rejects Jurisdiction Over Hutterite Colony Dispute; Lower Court Dissolves Colony

In Hutterville Hutterian Brethren, Inc. v. Waldner, (SD Sup. Ct., Nov. 17, 2010), the South Dakota Supreme Court held that it lacks jurisdiction over a dispute between two factions of the Hutterian Church, both claiming control of the non-profit corporation that controls the Hutterville Colony.  The dispute grew out of a 1992 schism in the church, after which each faction tried to obtain control of the corporate governance of Hutterville. The court held that the governance question depends on resolving a dispute over membership in and expulsion from the "true" Hutterite by the "true" church elders.  The First Amendment shields such issues from scrutiny by civil courts. Religious issues pervade the dispute, and corporate governance cannot be decided without extensive inquiry into religious doctrines and beliefs.

Meanwhile the state circuit court judge whose opinion was affirmed by the Supreme Court has now held that the Hutterville colony dispute should be dealt with by dissolving the colony, selling off its assets and distributing the proceeds to its members. That decision was handed down one day before release of the Supreme Court's opinion. Reporting on the decision, KELO Land Television quotes one of the attorneys involved as saying that the dissolution decision will probably not be affected by the Supreme Court's holding. Colony members still have the option of  reconciling and continuing to live communally.

EU Official Says Church Schools Cannot Refuse To Hire Gays and Lesbians

In a September, Elzbieta Radziszewska, a senior Polish official who deals with anti-discrimination issues, told a Catholic newspaper that church-owned schools and colleges could refuse to hire homosexuals and could fire those already employed where that is consistent with their church's values and principles.  Yesterday's Christian Century reports that European Union Justice Commissioner Viviane Reding disagrees, saying that sexual orientation cannot be a genuine occupational requirement for a teacher. On October 26, in response to parliamentary questions, Redding issued a written statement saying that while under EU's directive on equal treatment in employment religious organizations are allowed to take a person's religion or belief into account where necessary, that exception does not justify discrimination on ground other than religion or belief. Radziszewska responded that the EU directive allows religious organizations to insist that employees be loyal to the organization's ethics, and those who are not need not be employed in institutions where these are essential job qualifications.