9th Circuit: DADT Challenge Is Now Moot

Now that Congress' repeal of the military's "Don't Ask, Don't Tell" policy has been fully implemented (see prior posting), the U.S. 9th Circuit Court of Appeals has dismissed as moot the challenge to the constitutionality of DADT.  Log Cabin Republicans v. United States, (9th Cir., Sept. 29, 2011), vacated the district court judgment that had enjoined enforcement of DADT, and remanded the case for dismissal so that the now-unappealable district court decision will have no precedential effect.  Judge O'Scannlain concurred, discussing the merits of the claim at length even though he agreed that the case was now moot. He concluded that DADT was constitutional because Congress had a rational basis for enacting it, and policies regarding military personnel decisions are not subject to a higher level of scrutiny.

"See You At the Pole" Generates Minimal Controversy This Year

This past Wednesday was the annual "See You At the Pole" event-- during which students around the country (and even in some other countries) join around the school flag pole prior to school  for a short prayer service.  This year the event generated little controversy.  Apparently the most heated issues were raised at an elementary school in Lebanon County, Pennsylvania where, according to the Harrisburg (PA) Patriot-News, the event was held at 8:40, ten minutes before school started. However the flyers that were sent out indicated an 8:50 starting time-- coinciding with the beginning of school. The flyer also contained an "opt-out" form for students who were not going to participate. But apparently the letter went out without the superintendent's approval. Also pickets from the American Atheists carried protest signs at the event, including one which read: "Don's pray in my school! I won't think in your church." In some years, publicity surrounding the event has led to litigation. (See prior posting.)

Reported Apostasy Sentence For Iranian Pastor Draws International Protests

The International Business Times yesterday compiles statements from government leaders around the world, including the White House, protesting the death sentence that was reportedly imposed by Iran on Christian pastor Youcef Nadarkhani for apostasy-- converting from Islam to Christianity.  Nadarkhani who is pastor in a house church that is part of the Church of Iran network, has refused to recant his conversion. Worthy News earlier this week, recounted the history of  the case:

His arrest is believed to have been due to his questioning of the Muslim monopoly on the religious instruction of children in Iran, rights activists say.... He was initially charged with protesting, but charges against him were later changed to "apostasy" and "evangelizing Muslims" which carry the death sentence. Nadarkhani was tried and found guilty of "apostasy", or abandoning Islam, in September 2010 and sentenced to death by the court in the city of Rasht. In June this year the Supreme Court of Iran upheld Pastor Youcef Nadarkhani’s death sentence, but asked the lower court in Rasht, which issued the initial sentence, to "re-examine" whether or not he had been a practicing Muslim adult prior to converting to Christianity. The written verdict of the Supreme Court’s decision included provision for annulment of the death sentence if Pastor Nadarkhani recanted his faith, trial observers said.

CNN reported yesterday however that Nadarkhani's lawyer, Mohammadali Dadkhah, says the case is still in progress and there is a 95% chance that the pastor will not receive the death sentence. But to confuse the situation even more, the Fars News Agency apparently reported yesterday that Nadarkhani is being charged not with apostasy, but with rape and extortion. (See prior related posting.)

President Sends Rosh Hashanah Greetings

Yesterday, President Obama videotaped holiday greetings (full text) to those celebrating the Jewish holiday of Rosh Hashanah. The New Year holiday, beginning the ten day period culminating in Yom Kippur, commences tonight.  In addition to greetings for "a sweet year full of health, happiness, and peace," the President used his statement as an occasion to reaffirm U.S. commitment to the state of Israel.

En Banc 5th Circuit: Student-to-Student Religious Speech In School Protected By 1st Amendment

Yesterday, in a complicated series of eight opinions from 16 judges spanning 100 pages, a majority of the U.S. 5th Circuit Court of Appeals, sitting en banc, held that Plano, Texas school principals had qualified immunity in a lawsuit charging them with restricting elementary school students' distribution of religious literature because the law was not clearly established.  A separate majority of the court held that the principals' actions were unconstitutional.  In Morgan v. Swanson, (5th Cir., Sept. 27, 2011), Judge Elrod wrote for the majority on the issue of constitutionality.  She said:

In short, whatever latitude school officials may have with respect to school-sponsored speech under Hazelwood, or with government-endorsed speech under the Establishment Clause—that is, speech that could be erroneously attributed to the school—outside of that narrow context, viewpoint discrimination against private, student-to-student, non-disruptive speech is forbidden by the First Amendment.....

[W]hat one child says to another child is within the protection of the First Amendment unless one of the narrow exceptions discussed above applies, and none does in this case. Accordingly, we hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech.

Education Week reports on the decision.

Court Allows Religious Leaflets At Salmon Days Festival

In Ascherl v. City of Issaqua, (WD WA, Sept. 21, 2011), a Washington federal district court granted a preliminary injunction permitting plaintiff to distribute religious literature at the Salmon Days Festival held in Issaqua, Washington to celebrate the return of the salmon and promote the city to visitors. The court decclared unconstitutional a city ordinance that limited leafleting and protests to designated "expression areas" in the part of the city where the Festival was held. The court concluded that the city ordinance is not "narrowly tailored", pointing out that: "the City allows for much more congestive activities than leafleting during the Salmon Days Festival, which undermines the credibility of its professed interest in minimizing congestion and ensuring public safety." Courthouse News Service reports on the decision.

Vanderbilt At Odds With 5 Student Religious Groups Over Nondiscrimination Policy

Vanderbilt University is the latest school to face clashes between its nondiscrimination policy for recognized student groups and the membership criteria of student religious organizations. The Tennessean reported yesterday that the university has placed a dozen or so student groups, including 5 religious groups, on provisional status, asking them to come into compliance with the university's policy that bars discrimination based on sexual orientation, gender identity or gender expression. The Christian Legal Society says that the University also wants it to rewrite its policy that requires the group's president to lead Bible studies, because that would require officers to hold certain beliefs. Vanderbilt, a private school, has more leeway that public universities in regulating student groups.  The controversy has gotten contentious.  Stephen Siao, president of the Vanderbilt's Republican group says the school has launched an attack on religious groups to distance itself from its past reputation as a "Southern, white, rich and religious" enclave.

Meanwhile yesterday the University posted a statement on its website saying that only 8 student groups-- 5 of which are religious-- are not in compliance with the university's nondiscrimination policy.  It says that it iscommitted to finding a solution, but added: "Student groups that wish to practice their faith are welcome at Vanderbilt; however, it is incumbent upon them to decide whether they wish to become registered student organizations at the university."

Cantor-Synagogue Settle Dispute Over Non-Compete Clause In Time For High Holidays

The Palm Beach Post reported yesterday that Jupiter, Florida's Temple Beth Am and its former cantor, the Grammy-nominated Bruce Benson, have settled a lawsuit in which the Temple claimed that Benson was violating a non-compete clause in his contract. The Palm Beach Sun Sentinel reported Monday on a lawsuit.  Benson is planning to conduct high holiday services beginning tonight in a rented high school auditorium on behalf of his recently-formed Institute for Jewish Living. The Institute is aimed at attracting some of the many Jews in the area who are not affiliated with a synagogue.  Tickets for Benson's services are $136, while Temple Beth Am charges non-members $225 to attend high holiday services. A spokesman for Beth Am says that the High Holidays are an important way for the synagogue to raise funds and attract new members, and that Benson's services will siphon people away from Beth Am.

Benson's non-compete clause bars him from working at another synagogue in Palm Beach or Martin counties for 18 months after leaving Beth Am, and prohibits his attempting to attract members or employees from Beth Am. Benson says his Institute for Jewish Living is not a synagogue, and so he is not in violation. Benson's lawyer argues that civil courts cannot define what is or is not a synagogue.  Under the terms of the settlement agreement, Benson will not promote his services in northern Palm Beach County, from which Beth Am attracts most of its members. He is free to promote them in West Palm Beach or Boca Raton.

Supreme Court Review Sought In Two Cases

Petitions seeking Supreme Court review were filed yesterday in two cases of interest. A petition for certioarari (full text) was filed in Bronx Household of Faith v. Board of Education of the City of New York. (ADF press release.) In the case, the 2nd Circuit, in a 2-1 decision, upheld the New York Board of Education's policy that bars use of school facilities by outside groups after school hours for "religious worship services," even though facilities are available for many other kinds of activities. (See prior posting.)

A petition for certiorari (full text) was also filed in Victory Through Jesus Sports Ministry Foundation v.  Lee's Summit R-7 School District. (Liberty Counsel press release.) In the decision below, 8th Cir., May 20, 2011, (full text), the 8th Circuit held that a Missouri elementary school's limitation on the groups that could send home flyers with students was reasonable and viewpoint neutral. Only specified groups that directly benefit the school district could do so, except that any community youth organization had a one-time opportunity at the beginning of the school year to send home literature.  In this case, a group that was dedicated to using "sports as evangelism" complained about being limited to the once-per-year distribution, even though the school district did include its flyer for its summer soccer camp on the school website.

Release of Tapes of Prop 8 Trial Again On Hold

In the latest skirmish over California's Proposition 8-- the ballot measure that barred same-sex marriage-- a panel of the U.S. 9th Circuit Court of Appeals yesterday issued a stay pending appeal of a district court order that authorized release of digital recordings of the original trial on Prop 8's constitutionality. (See prior posting.) Here full text of the 9th Circuit's order in Perry v. Brown. AP reported on court's action.

U.S. Commission on Civil Rights Releases Report On Bullying In Schools

The U.S. Commission on Civil Rights today announced the release of a report titled Peer-to-Peer Violence and Bullying: Examining the Federal Response. The report develops recommendations to further address the problem of bullying and harassment based on sex, race, national origin, disability, sexual orientation, and religion in public K-12 schools. One of the issues addressed is the extent to which Title VI of the 1964 Civil Rights Act reaches bullying based on religion. The report says:

Although Title VI does not prohibit discrimination on the basis of religion, it does forbid discrimination on the basis of race, color, or national origin. Both ED [U.S. Department of Education] and DOJ [Department of Justice] have taken the position that Title VI prohibits discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics, regardless of whether those groups share a common faith.... 

Although ED enforces Title VI with respect to harassment of members of religious groups based on their shared ancestry or ethnic characteristics, Title VI itself leaves a hole in ED‘s enforcement. That is, Title VI does not protect against harassment of students based solely on their religious faith, nor does it protect against harassment of students who belong to religious groups that do not have shared ancestry or ethnic characteristics. As a result, ED cannot protect students from the ―peculiar harms created by religious bigotry. Furthermore, under current law, religious groups with shared ancestry or ethnic characteristics receive certain protections that religious groups without shared ancestry or ethnic characteristics do not receive; and would-be discriminators can evade Title VI liability by claiming that students harass based solely on religious bigotry.

Advocates urge Congress to close this ―loophole by passing legislation that protects against harassment of students based on their religion.

Extensive testimony and background materials are also available on the Civil Rights Commission's website.

New White House Petition Website Attracts Many Church-State Issues

At the beginning of this month, the White House announced its new We the People website. As reported by Politico, the site allows anyone to post a petition to the Administration to take action on an issue of concern.  If a petition garners 5000 signatures in 30 days, a working group of policy officials in the White House will respond to it.  So far, a number of the most popular petitions raise church-state issues.  A report in yesterday's Christian Post calls some of the petitions "anti-God." A petition to remove the phrase "under God" from the Pledge of Allegiance has now attracted over 13,000 signatures, and one to remove "In God We Trust" from currency has 9100.  A petition to repeal the Defense of Marriage Act has attracted 8900 signatures. A petition to "repeal the tax exemption for churches and allow them to apply like a non-profit organization" has 7300 signatures.  The petition that appears to have attracted the most signatures-- over 19,000-- calls for an investigation into allegations of prosecutorial and judicial misconduct in the case of Sholom Rubashkin. A number of other petitions on religion and church-state issues have not yet reached the 5000 signature mark. All petitions are available here.

Britain Sees Rise In Polygamy Among Young Muslims

The Australian (carrying a story from The Times) today reports that Britain is experiencing an unexpected rise in polygamy among young Muslims.  Even though polygamy is illegal in Britain, it is permitted under Shariah law and accepted in many Muslim communities.  Britain's Islamic Shariah Council says that for the first time, polygamy is among the top ten reasons that wives seek divorces. In 2010, 43 out of 700 divorce applications cited polygamy as the reason. Men take second-- or even third and fourth-- wives in three kinds of situations: (1) young men who wish to practice a more conservative form of Islam; (2) the most common situation-- failed marriages where the wife does not want a divorce and the father wants to continue seeing and supporting the children; and (3) the rarer situation in which a man's parents remain in their home country and he marries a woman there who is essentially the caregiver for his parents.

Court Refuses To Adjudicate Pastor's Claim The He Was Wrongfully Transferred

In Washington v. African Methodist Episcopal Church, Inc., (WD NY, Sept. 16, 2011), a New York federal district court dismissed on First Amendment grounds a lawsuit by a minister against his church and one of its bishops for transferring him to a new assignment without giving him the 90 days notice that The Doctrine and Discipline of the AME Church called for.  However, the Book of Discipline also provided that: "The bishop shall not have anything in this section applied which will prevent the bishop from using godly judgment in making changes in the appointments, that are deemed necessary for the good of the church." The court concluded that to adjudicate plaintiff's claim, "the Court would necessarily have to interpret the AME Church’s spiritual guidance, thus entangling itself in Defendant’s Free Exercise rights under the First Amendment." Reporting on the decision yesterday, the Rochester (NY) Democrat and Chronicle says that plaintiff, Marlowe Washington, stayed in Rochester and opened his own church rather than accepting the transfer to Queens.

ACLU Sues Virginia County Over Sectarian Prayers

The ACLU of Virginia announced yesterday that it had filed a federal court lawsuit against the Pittsylvania (VA) County Board of Supervisors over the opening of county board meetings with Christian prayer. The complaint (full text) in Jane Doe v. Pittsylvania County, Virginia, (WD VA, filed 9/26/2011), alleges that the invocation at nearly every Board of Supervisors meeting invokes the name of Jesus, and that at the meeting immediately after receiving a complaint from the ACLU, each individual commissioner delivered a prayer, all but two of which were explicitly Christian. However the Board also moved the prayer to a non-agenda item before the roll call. The ACLU has also filed a Memorandum in Support of Motion for Preliminary Injunction.

National Groups Question Obama Policy On Faith-Based Hiring

Last week, 56 major religious, educational, health and civil rights organizations sent a letter (full text) to President Obama, again asking him to clarify the Administration's position on religion-based hiring in federally funded faith-based programs. The groups oppose religious discrimination in hiring and firing for positions funded by federal dollars.  The letter follows a somewhat ambiguous response last month to similar concerns in a statement posted on the White House website by Joshua Dubois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships. (See prior posting.) [Thanks to Michael Lieberman for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Meir Katz, When is Medical Care 'Futile'? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care, (Nebraska Law Review, Vol. 90, p. 1, 2011).
• Elizabeth Rieser-Murphy and Kathryn DeMarco, No Good Deed Goes Unpunished? Alabama’s New Immigration Law – A Threat to Conservative Values (September 13, 2011).

Recent and Forthcoming Books:

• Halyna Hryn (ed.), Churches and States: Studies on the History of Christianity in Ukraine, (Harvard Univ. Press, (Oct. 2011).
• Richard Landes and Steven T. Katz (eds.), The Paranoid Apocalypse-- A Hundred-Year Retrospective on The Protocols of the Elders of Zion, (New York Univ. Press., Dec. 2011).
• Winnifred Sullivan, Robert Yelle, and Mateo Taussig-Rubbo (eds), After Secular Law, (Stanford Univ. Press, 2011).
• Christian S. Davis, Colonialism, Antisemitism, and Germans of Jewish Descent in Imperial Germany, (Univ. of Michigan Press, Forthcoming).
• Uriel I. Simonsohn, A Common Justice-- The Legal Allegiances of Christians and Jews under Early Islam, (Penn Press, Sept. 2011).
• James Howard Smith and Rosalind I. J. Hackett (eds.), Displacing the State: Religion and Conflict in Neoliberal Africa, (Notre Dame Press, Dec. 2011).

Scalia Speaks At Duquesne About Morality, Capital Punishment

Justice Antonin Scalia on Saturday spoke at the event marking the centennial of Duquesne University School of Law.  The Pittsburgh Post-Gazette reports on his remarks that called on the law school to maintain its moral judgment, saying: "Our educational establishment these days, while so tolerant of and even insistent on diversity in all other aspects of life, seems bent on eliminating the diversity of moral judgment, particularly moral judgment based on religious views." Responding to concerns raised by protesters who oppose capital punishment, Scalia said: "If I thought that Catholic doctrine held the death penalty to be immoral, I would resign. I could not be a part of a system that imposes it."

Top Bishop Says Obama's Position ON DOMA Threatens Enormous Church-State Conflict

Last week, Archbishop Timothy Dolan, president of the United States Conference of Catholic Bishops, sent a strongly worded letter (full text) to President Obama objecting to the Administration's decision earlier this year to no longer defend the constitutionality of the Defense of Marriage Act. (See prior posting.) Dolan said in part:

[I]t is particularly upsetting, Mr. President, when your Administration, through the various court documents, pronouncements and policies identified in the attached analysis, attributes to those who support DOMA a motivation rooted in prejudice and bias. It is especially wrong and unfair to equate opposition to redefining marriage with either intentional or willfully ignorant racial discrimination, as your Administration insists on doing....

Our federal government should not be presuming ill intent or moral blindness on the part of the overwhelming majority of its citizens, millions of whom have gone to the polls to directly support DOMAs in their states and have thereby endorsed marriage as the union of man and woman. Nor should a policy disagreement over the meaning of marriage be treated by federal officials as a federal offense— but this will happen if the Justice Department's latest constitutional theory prevails in court. The Administration's failure to change course on this matter will, as the attached analysis indicates, precipitate a national conflict between Church and State of enormous proportions and to the detriment of both institutions.

The Bishops Conference also issued a press release announcing the letter.

Sukkah In Park Raises Church-State Question

The New York Times reported yesterday that the issue of religious displays on public property is arising now in connection with plans by a Jewish group to erect a sukkah-- a temporary hut-- in a small park in TriBeCa.  Chabad of TriBeCa has asked for a permit to put up the temporary Sukkot holiday structure which is a symbol of the fragile shelters the ancient Israelites used while wandering in the desert. Community Board 1 is scheduled to vote Tuesday on whether or not to allow the sukkah.  Some object on church-state grounds.  Chabad says that Jews in the area want the sukkah so they have a convenient place to carry out the custom of sitting and eating in the sukkah during the Sukkot holiday period.