How Churches Can Stumble Into Political Contributions That Violate the Tax Code

On July 19, Americans United for Separation of Church and State wrote to IRS officials asking them to investigate the Calvary Temple Church in Kerrville, Texas. (AU Release). Texas Ethics Commission reports disclosed that the congregation donated $1,000 to the Kerr County Republican Party on May 12, 2005, and $250 in 2003 and 2004. Last Friday, BNA's Daily Report For Executives [subscription required] interviewed the church's pastor, Del Way, who said that he had not intended to support a Republican Party candidate when he paid for an advertisement for "Golf Classics", a golf tournament sponsored by the local Republican Party. He said that the church also sponsors other community events, and several parishioners asked him to sponsor the golf tournament. Church officials saw it as a way of giving the church visibility. The problem was not caught by the church's outside auditor because the check was made out to the tournament, not to the Republican party. Americans United Executive Director Barry Lynn told BNA: "If you know it's a Republican entity and the purpose of the tournament is to raise money to elect Republicans, how can you not know what the money is going for?" Pastor Wey has asked the Kerr County Republican Party to return the funds.

British Court Awards Damages to Permit Religious Observance

A British court has awarded damages to the family of a Muslim woman in a persistent vegetative state for home care instead of nursing home care so that she can be provided with the religious regimen that she would have wanted. Today's Telegraph reports that even though it costs 70% more, this award by the London High Court will permit her devout family to share daily prayers and reciting of the Koran with her without having to travel extensive distances to visit her.

Texas City Says It Has Too Many Churches

Stafford, Texas has 51 tax exempt churches and religious institutions in its seven square mile boundaries. With no property tax, the city depends on business fees and sale taxes for revenues that churches do not produce. Today's Los Angeles Times reports that the city is looking for ways to keep more churches out of its remaining 300 undeveloped acres. Most who attend churches in Stafford live in Houston and elsewhere outside the city. Until an ordinance was passed in 2003, there was virtually no review of applications to build churches. City Councilman Cecil Willis said that when he asked the last 15 churches that located in Stafford why they chose the location, they replied that they had prayed about it and God told them to located there.

Recent Law Review Articles

From SSRN:

• William A. Wildhack III, Navy Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection , 51 Naval Law Review 217 (2005).
  
• Jamie Darin Prenkert & Julie Manning Magid, A Hobson's Choice Model for Religious Accommodation , 43 American Business Law Journal, No. 3 (2006).

From SmartCILP:

• William B. Ewald, The Protestant Revolutions and Western Law (Reviewing Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition), 22 Constitutional Commentary 181-196 (2005).
  
• Christopher B. Harwood, Evaluating the Supreme Court's Establishment Clause Jurisprudence In the Wake of Van Orden v. Perry and McCreary County v. ACLU, 71 Missouri Law Review 317-366 (2006).
  
• Paul Heaton, Does Religion Really Reduce Crime?, 49 Journal of Law & Economics 147-172 (2006).
  
• Thomas M. Messner, Can Parachurch Organizations Hire and Fire On the Basis of Religion Without Violating Title VII?, 17 University of Florida Journal of Law & Public Policy 63-106 (2006).
  
• Elijah L. Milne, Blaine Amendments and Polygamy Laws: The Constitutionality of Anti-Polygamy Laws Targeting Religion, 28 Western New England Law Review 257-292 (2006).
  
• Daniel F. Piar, Majority Rights, Minority Freedoms: Protestant Culture, Personal Autonomy, and Civil Liberties In Nineteenth Century America. 14 William & Mary Bill of Rights Journal 987-1022 (2006).

The Spring 2006 issue of the Journal of Church and State has recently been published.

Prisoner Free Exercise Decisions

In Scible v. Miller, 2006 U.S. Dist. LEXIS 51002 (ND WV, July 25, 2006), a West Virginia federal court rejected a Rastafarian prisoner's complaint that prison grooming policies requiring hem to cut his hair violated his rights to free exercise of religion.

In Davis v. Basting, 2006 U.S. Dist. LEXIS 50787 (WD KY, July 19, 2006), a Kentucky federal district court permitted a prisoner to move ahead with his claims that he should be permitted to receive a Halal diet and attend religious services and his claims of retaliation against him because of his religion.

Debate In Evangelical Movement Over Political Ties

A front-page New York Times article today profiles Rev. Gregory A. Boyd who leads a 4000-member megachurch in suburban St. Paul, Minnesota. Boyd has created a stir among his members and others by urging the church to get out of politics, stop moralizing on sexual issues, stop claiming he United States is a "Christian nation" and stop glorifying U.S. military actions. The Times says that this is "an example of the internal debates now going on in some evangelical colleges, magazines and churches. A common concern is that the Christian message is being compromised by the tendency to tie evangelical Christianity to the Republican Party and American nationalism, especially through the war in Iraq."

Chicago Area Church Challenges Zoning Exclusions

Waukegan, Illinois officials, apparently as part of an urban revitalization effort, have begun to enforce city zoning laws that prohibit places of worship and religious organizations in areas zoned for business. Last Monday, God's Hand Extended Mercy Mission filed suit against the city in federal court seeking a declaration that this exclusion of religious groups violates the Constitution's free exercise and equal protection clauses. Suburban Chicago News reports that on Wednesday attorneys for both sides agreed to discuss other possible sites for the Mission that has operated in its current location for at least 18 years. The court is expected to issue an order suspending penalties against the Mission for 30 days while negotiations are going on, even though the city has already issued a formal order requiring the Mission to relocate by July 21.

UPDATE: Here is a copy of the court's order prohibiting enforcement of the zoning ordinance for 30 days, from Alliance Defense Fund.

Religious Liberty In Asia, Europe Surveyed; Turkey Revises Teachers' Training

Zenit continues to publish excerpts from the report by Aid to the Church In Need on religious freedom around the world. The latest installments cover Asia (1, 2, 3) and Europe (1, 2). (Also see prior postings 1, 2).

The complexities in parts of Europe are illustrated by a story out of Turkey earlier this week reported by AKI. Turkey's secular Higher Board of Education (YOK), which previously moved the training of public school religious teachers from the theology to education departments of universities, has now announced plans for curriculum revision. University programs training teachers to offer courses in religion in Turkey's primary schools will focus less on Islam. A number of courses on Islam have been removed and the time spent on Arabic language instruction has been reduced. In their place, required courses in philosophy, sociology, music, computers, Christianity and missionary activities have been added. Turkey's union of teachers has strongly criticized the changes.

Anti-Conversion Laws In India

Anti-conversion laws are not new in various states in India. (See prior posting.) But recently they have again captured the attention particularly of Christians around the world. For a while, Indian states seemed to be moving to reject or repeal these laws (see prior postings 1, 2 ). But last week, the Madhya Pradesh Legislative Assembly amended its Freedom of Religion Act of 1968 that prevents religious conversions by force or inducement. The new law requires all parties involved in a proposed conversion to inform a magistrate one month in advance. The conversion will be permitted only if the magistrate, after investigation, is satisfied that the conversion is not under duress or by deceit.(AsiaNews.it; India News). London's Sunday Times today personalizes the impact of the new law, focusing on Christian missionaries who have been working with Dalits (untouchables) who feel that their traditional Hindu religion has treated them unfairly. It suggests that at most the problem is some missionaries who tell Indians that God will heal their illnesses. The archbishop of Bhopal seems to be one of the few Christian authorities who is not upset by the new law. (Inida eNews.) [REVISED]

Members of the U.S. Congress have also begun to take notice. On July 21, the Congressional Human Rights Caucus held a briefing on Anti-Conversion Legislation in India. One of the presenters (full text) was the The Becket Fund's Angela Wu.

Free Exercise Challenge Planned In Ban On Feeding Homeless In Parks

According to Reuters yesterday, the ACLU of Florida may challenge on behalf of religious organizations a new Orlando ordinance that prohibits the regular feeding of homeless people in downtown parks. Passed earlier this week, the new law is attempting to protect an area of downtown that is undergoing renewal with the construction of condos, office buildings and university campus buildings. The city, however, has set aside other nearby space for food programs. Howard Simon, director of the Florida ACLU said that the new law interferes with religious groups' fulfilling their mission of feeding the homeless. Before filing suit, the ACLU is organizing a coalition of churches to attempt to negotiate a settlement with the city.

Times Tells Of Incidents Behind Delaware School District Lawsuit

Earlier this month, Religion Clause reported on the continuing controversy in the Indian River, Delaware School District over school prayer and the promotion of Christianity in the school system. (See prior posting.) Today’s New York Times carries an excellent article on the exact events that led the Dobrich family—which has now moved out of the district—to file suit in 2004. At Samantha Dobrich’s high school graduation, a minister's prayer proclaimed Jesus as the only way to truth. Samantha's mother, Mona Dobrich, then asked the school board to consider more inclusive prayers for graduation. That led to letters to the editors and school board meetings attended by hundreds carrying signs praising Jesus. A radio talk show host said that people were asking the Dobrich's to "Stop interfering with our traditions, stop interfering with our faith and leave our country the way we knew it to be." Dobrich’s son, Alex, was ridiculed for wearing a yarmulke in school. A classmate drew a picture of a pathway to heaven for everyone except "Alex the Jew". At a school board meeting, one speaker from the community said, "If you want people to stop calling [Alex] 'Jew boy', you tell him to give his heart to Jesus."

Ohio Issues New, Less Onerous, Draft Of Charity Reporting Rules

After input from many charitable organizations, Ohio’s Attorney General Jim Petro announced the filing of a second draft of proposed rules for charitable organizations that back off of many of the provisions that would have pressed larger charities to adopt specific "best practices" provisions that were in the Attorney General’s earlier proposal. (See prior posting.) The new draft would create a 9-member Charitable Advisory Council to recommend to the Attorney General model policies, training and education programs related to the fiduciary responsibilities of Ohio’s charities. As to fiduciary standards, the new draft merely calls for the collection of additional information in charities’ annual reports to the Attorney General. That additional information relates to compensation, conflicts of interest and loans to executives. Also additional data on billing and debt collection policies by charitable hospitals and nursing homes would be called for. Finally, charities would be permitted to file their IRS Form 990 instead of the new report called for the Ohio’s rules. However, the Attorney General suggested that charities filing Ohio’s form instead of their 990 "will find that they improve public and donor confidence." [Thanks to Ohio Jewish Communities Friday Report for the information.]

$36M Charitable Trust Not Available To Diocese Creditors In Bankruptcy

In In re Roman Catholic Archbishop of Portland in Oregon, (Bkrptcy. Ct. D. OR, July 20, 2006), an Oregon Bankruptcy judge held that the Diocese’ Perpetual Endowment Fund is a valid charitable trust and is not part of the assets that can be reached by Diocese creditors in its bankruptcy proceeding. The $36 million fund religious, educational and charitable programs, as well as operating expenses of the Diocese Chancery Office. Yesterday’s Portland Catholic Sentinel carried an article about the court decision.

Courts Rule On Employment Claims Against Churches

Two decisions involving the appropriateness of courts adjudicating employment claims against churches have been handed down this week.

In Redhead v. Conference of Seventh Day Adventists, 2006 U.S. Dist. LEXIS 51135 (ED NY, July 26, 2006), a New York federal district court held that the "ministerial exception" to Title VII employment discrimination claims does not apply to a teacher in a Seventh Day Adventist elementary school whose duties were primarily secular. The teacher's only religious functions were one hour of Bible instruction per day and attending religious services with students once per year.

A Texas state court of appeals has granted a motion for a rehearing and issued a new opinion in Patton v. Jones, (Tex. 3d Dist. Ct. App., July 28, 2006). In its earlier decision, the court held that the Free Exercise clause prohibited it from proceeding in connection with alleged defamatory communications made by a Church as part of its decision to end the employment of its Director of Youth Ministries. However, the court permitted the Director to proceed with defamation claims that arose out of statements made about him after the Church's decision on his dismissal was final. The revised opinion issued this week also dismisses the claims growing out of the post-termination statements.

China Denies Falun Gong Persecution Stories

Earlier this week, according to Thursday's Shanghai Daily, the Chinese embassy in Canada issued a statement denying allegations that China was killing and harvesting organs for transplant from Falun Gong practitioners. (See prior posting). The Chinese said that an independent investigation by journalists and diplomats, including U.S. embassy personnel, had proven the allegations to be false.

The embassy’s statement said: "Falun Gong is an anti-science, anti-humanity and anti-society evil cult which has been banned in China in accordance with law. It uses religion … as camouflage to brainwash and control the practitioners. It preaches that human can, through psychological meditation, from invisible magic wheels inside their bodies, cure their illness without medical treatment. It spreads Dooms Day theory, [and] boasts that Li Hongzhi, founder of Falun Gong, is the most powerful God …."

Orthodox Church Opposes Liberalization Of Ukraine's Religion Law

The Union of Councils For Jews in the Former Soviet Union posted a news story today reporting that the usually feuding Kiev and Moscow Patriarchates of the Russian Orthodox Church in the Ukraine are at least temporarily united to oppose liberalization of Ukraine's law on religious registration. Currently a religious organization needs at least 10 members to obtain registration. A proposal would reduce this to 3 members. both branches of the Orthodox church also want their faith classified as "traditional" and therefore entitled to special governmental treatment.

Igumen Evstraty of the Kiev Patriarchate said that the country's current law is so liberal that: "[I]t's enough to gather ten people and announce whatever you want-even that they want to worship Winnie the Pooh-and they can't be denied registration." A spokesman for the Moscow Patriarchate even called for "non-traditional" faiths to be investigated to determine "whether they cut the throats of babies or exert pressure on the psyches of people." However, a government Department of Religious Affairs official said that every religion has the right to exist and that registration requirements should be the same for all groups.

9th Circuit Hears Arguments In High School Christian Bible Club Case

There have been a number of cases around the country involving attempts by Christian groups on college campuses to be recognized even though they exclude non-Christians from formal membership. Yesterday, according to the Seattle Post-Intelligencer, the U.S. Ninth Circuit Court of Appeals in Seattle heard arguments in a similar case involving a high school Bible group. At Kentridge High School near Seattle, for official membership and voting rights in the "Truth and Bible" club, students are required to sign a statement affirming "the Bible to be the inspired, the only infallible, authoritative Word of God." Kentridge's Associated Student Body, applying the school's non-discrimination policy, refused to recognize the group, which means that, while it can meet on campus, it cannot engage in fundraising there, be featured in the yearbook or advertise as broadly as recognized groups. Represented by the Alliance Defense Fund, the student group argued that its rights to free speech, free association and equal access are being violated.

Belarus Dispute Over Taking Church For Economic Development

It is not only in the United States that courts are dealing with issue of municipalities using eminent domain to take private property, including church property, for economic development. Forum18 reports on a similar issue in Belarus. On July 21, the Minsk City Economic Court ruled that New Life Church must sell - at a low price - a cow shed that it remodeled to use as a house of worship. Officials say that the city of Minsk's Development Plan requires that the building be demolished. New Life has been unable to obtain official registration of its building under the country's Religion Law because itneverr got formal approval to convert the cow shed into a church.

When Do Online Security Precautions Violate First Amendment?

A column in yesterday's St. Petersburg (FL) Times discusses a pending federal lawsuit against the Hillsborough County School Board that raises interesting First Amendment questions about e-mail campaigns by religious, and other, organizations. During a dispute last year over religious holidays in the public schools, the Florida Family Association set up a Web site for users to e-mail the School Board in favor of keeping Christmas in the schools. When numerous e-mails started arriving from the same Internet address, the School Board set its computers to reject them, fearing a possible automated e-mail attack on its server. It took a day and a half to determine the e-mails were legitimate and to remove the block. However, FFA's attorney, Don Conwell, argues that the number of e-mails being received were too small to cause a legitimate fear of a denial-of-use attack. He says that blocking communication from one particular group of citizens, based on who they are or on the content of their message, violates the rights of free speech, assembly and petition. Once the government accepts e-mail from some citizens, he says, then it cannot pick and choose. It cannot say, "You can e-mail us only if you don't belong to Group X."

Nun Loses In Seeking Canadian Refuge Under Legal Technicality

In Canada, a Nigerian nun who claims that she will suffer religious persecution if she is returned home has come up with an interesting legal maneuver to obtain refugee status. Yesterday's Canadian Press reports that Sister Nkemhurunaya Juliana Eligwe has been helping people of the Sandy Bay Ojibway First Nation, on the shore of Lake Manitoba, for more than two years. After immigration officials rejected her asylum request, the Ojibways made her an honorary member of their band. Then she claimed that she is protected under Canada's Immigration and Refugee Protection Act that provides that "every person registered as an Indian under the Indian Act has the right to enter into and remain in Canada." However, on July 19, Federal Court Judge Sean Harrington refused to block her deportation. While his decision rested on various procedural issues, he wrote: "The proposition put forward, if brought to its extreme, is that each and every band . . . has the power to usurp the discretion of the minister of citizenship and immigration by accepting non-residents as band members and thereby granting them permanent resident status." The case is Sandy Bay Ojibway First Nation v. Minister of Citizenship and Immigration, 2006 FC 903 (Fed. Ct., July 19, 2006). The decision may be appealed.

Georgia Supreme Court OKs Judicial Determination Of Church Membership List

In Bolden v. Barton, (Ga. Sup. Ct., July 6,2006), the Georgia Supreme Court held that in a property dispute among members of a church that governed itself congregationally, the trial court acted properly in ordering an election to decide which of two factions should control church property. The fact that the court had to determine which individuals were members eligible to vote in order to decide which faction represented a majority of the church's membership did not involve the court in deciding matters of religious doctrine.

In Malaysia: A Step Forward For Women and Backward For Free Speech

In Malaysia, a coalition of several non-governmental organizations called "Article 11", has been actively organizing forums to discuss freedom of religion. The discussions have created such tensions that the government has asked the group to end the forums and has told the media to stop printing articles and broadcasting about religious issues. The New Straits Times yesterday reported that Prime Minister Datuk Seri Abdullah Ahmad Badawi said that the sensationalization of religious issues would bring about "unwanted situations".

Meanwhile, Malaysia's National Fatwa Council has ruled that women may be appointed by State religious authorities as Syariah judges . However, according to the New Straits Times, the women judges will not be allowed to preside over hudud and qisas cases, i.e. those that deal with offences and punishments that are interpreted by Muslim juristic scholars to be derived from the Quran and the Sunnah. In Malaysia these offenses are found in the Syariah Criminal Code Enactment.

Prisoner Free Exercise Cases Abound

In Hill v. Snyder, 2006 U.S. Dist. LEXIS 50717 (SD IL, July 25, 2006), a state prisoner who adheres to the Hebrew Israelite faith, claimed various infringements of his free exercise rights. An Illinois federal trial court permitted him to proceed with claims relating to the provision of vegan meals, the contents of the food he is given, the discontinuance of his vegan meals, and the requirement that he provide written verification of his religious affiliation from an outside clergy member. However, the court found he had no right to variety in his meals, to trade food items with other inmates, nor to extra time to eat.

Greene v. Solano County Jail, 2006 U.S. Dist. LEXIS 50380 (ED CA, July 24, 2006), involved a challenge to the policy at Solano's Claybank facility that precluded maximum security inmates from attending group religious services. A California federal district court agreed with prison authorities that security concerns adequately justified the policy and rejected plaintiff's claims based on the First Amendment, RLUIPA, the Equal Protection Clause and the Eighth Amendment.

In Ha'min v. Montgomery County Sheriffs, 2006 U.S. Dist. LEXIS 50448 (MD TN, July 21, 2006), a Tennessee federal district court judge dismissed the First Amendment claims of a Muslim prisoner who challenged a Tennessee jail's failure to provide regular Friday Muslim religious services and its failure to have copies of the Quran in the jail library while the library did have donated copies of the Bible.
UPDATE: Here is the earlier magistrate's recommendation in the case, 2006 U.S. Dist. LEXIS 73223.

Johnson v. Rees, 2006 U.S. Dist. LEXIS 50556 (ED KY, July 20, 2006) involved rejection by a Kentucky federal district court of a somewhat unusual prisoner Free Exercise and RLUIPA claim. Inmate Johnny Johnson alleged that he is a Jehovah's Witness whose religious faith requires him to "witness" and to distribute religious literature to others. Prison rules permit outside organizations, including the Jehovah's Witnesses, to donate religious literature to the prison's chapel where other inmates are free to take extra copies. But Johnson is not allowed to take that literature and distribute it elsewhere directly to other inmates. The court said that since Johnson can distribute the literature inside the chapel library, he is not totally prevented from engaging in the conduct his faith requires. Only time and place are circumscribed.

Dissent In Washington DOMA Case Argues Establishment Clause

Yesterday, in Andersen v. King County (WA. Sup. Ct., July 26, 2006), the Washington state Supreme Court in a 5-4 decision with six different opinions upheld its Defense of Marriage Act against challenges under various provisions of the state constitution. (New York Times coverage.) The dissenting opinion of Justice Bobb J. Bridge contains an interesting anti-establishment argument. Justice Bridge argues that DOMA is "clearly an unconstitutional foray into state-sanctioned religious belief":

What we ought not to address is marriage as the sacrament or religious rite--an area into which the State is not entitled to intrude at all and which is governed by articles of faith.... As succinctly put by amici ...: "To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment."... After all, we permit civil divorce though many religions prohibit it--why such fierce protection of marriage at its beginning but not its end?...

To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA....

[R]eligious restrictions on the institution of marriage have never governed civil marriage in this country, nor would it be constitutionally permissible for them to do so. For example, historically many religions have strictly forbidden marriage outside of the denomination, but these churches could not prevent interdenominational civil marriages because "marriage was [ultimately] a state matter, not subject to . . . religious restrictions."... This court cannot endorse the use of state law to impose religious sensibilities or religiously-based moral codes on others' most intimate life decisions.... The DOMA reflects a religious viewpoint; religious doctrine should not govern state regulation of civil marriage.

House Members With Opposing Views Have Dinner Over Church-State Issues

The Forward earlier this week reported on an unlikely group of House of Representatives members who have formed a discussion group to focus on church-state issues. The members are Democrats Steve Israel (NY), Susan Davis (CA) and Henry Waxman (CA). The Republicans in the dinner group are Todd Aiken (MO), John Hostettler (IN), and Walter Jones (NC). The diversity of the members is illustrated by the ratings they received in 2005 from the Family Research Council on whether their voting records reflect "the Judeo-Christian worldview". Waxman and Davis got a rating of 0 and Israel had a 8. Aiken, Hostettler and Jones each had a rating of 100.

Rehearing Denied; Supplemental Opinion Issued In Notre Dame Funding Case

Yesterday, the U.S. 7th Circuit Court of Appeals denied an en banc rehearing in Laskowski v. Spellings, (7th Cir., July 26, 2006), a case challenging on Establishment Clause grounds the receipt of federal funds by Notre Dame University for use by it to fund a Catholic teacher training program. In April, a 3-judge panel held that it was possible that the lower court could order Notre Dame to repay the $500,000 grant to the federal Treasury. Along with yesterday's denial of a rehearing, the original panel wrote a supplementary opinion clarifying that whether Notre Dame had to make restitution of the funds depended on whether or not it had reason to know that the grant it was receiving was illegal. The opinion pointed out that Congress cannot make grants to religious institutions without imposing conditions to assure that the funds will be used only for secular purposes. It continued: "Whether appropriate conditions were imposed by the Secretary of Education and were properly observed or implemented by Notre Dame are the issues on the merits that the district court will be resolving in the first instance on remand." The Fort Wayne News-Sentinel reports on the decision.

Greek Government To Build Athens' First Mosque

After 30 years of negotiations and failed attempts, the government of Greece is poised to approve building of Athens' first mosque, and government funds will be used for its construction. Kathimerini reports that while 200,000 Muslims live in Athens, there is still no official place of worship for them. The Inner Cabinet on Tuesday approved plans by Public Works and Environment Minister Giorgos Souflias to do something about this. In April, 10,000 people had petitioned the Education and Religion Ministry asking for the project to move forward.

Report On Religious Liberty In The Americas

Zenit continues to reprint portions of the report by Aid to the Church In Need on religious freedom around the world. Here are the sections of the report dealing with religious freedom in the Americas- 1, 2. Here is what the report has to say about conditions in the United States:

In the United States, the debate involving the conflict between two different ideas of the separation or distinction between religion and the state institutions is played out at the level of civil and individual rights.

The conflict between American society and the Islamic communities is no exception. The latter complain of attacks against their places of meeting and prayer. They pursue legal paths in their attempts to introduce Koranic law into the legal system as has happened in Canada.

Other parts of the report were the subject of a prior posting.

Newdow Appeals "In God We Trust" Loss To 9th Circuit

The Pacific Justice Institute has recently announced that an appeal to the 9th Circuit is being filed in Newdow v. Congress of the United States. In the case, a California federal district court upheld the constitutionality of "In God We Trust" on U.S. coins. (See prior posting.) [Thanks to How Appealing for the information.]

House Bill Proposes Prison Goods and Services For Non-Profits, Including Churches

Congress is proposing a new kind of governmental support to non-profit organizations, including religious organizations. The scope of the program became clear when, on Monday, the Congressional Budget Office issued a Report on H.R. 2965, the Federal Prison Industries Competition in Contracting Act of 2005. As described by the Report:

The legislation would authorize the Attorney General to establish a new FPI [Federal Prison Industries] program in federal prisons that, subject to appropriation of the necessary amounts, would produce goods to be donated to nonprofit organizations instead of being offered for purchase to the federal government. In addition, FPI would be authorized to contract with nonprofit organizations and certain public entities for the use of inmate labor to provide charitable services. The bill would authorize the appropriation of $12 million for fiscal year 2008 and $48 million over the 2008-2011 period for these programs.

Section 10 of the bill permits programs to be created to furnish prison-made goods to non-profit or religious organizations that "provide goods or services to low-income individuals who would likely otherwise have difficulty purchasing such products or services in the commercial market." Eligible organizations can suggest programs to FPI.

Section 10 more generally permits any religious (or other non-profit) organization that qualifies under Sections 501(c)(3) or 501(d) of the Internal Revenue Code to contract with the Inmate Work Training Administrator to employ inmates at below minimum wage rates. While there are various restrictions insuring that inmates will only provide non-profit services, and that inmates will not be discriminated against on the basis of religion (or on the basis of race, sex, national origin, disability or political belief), nothing in the bill appears to preclude using inmates to perform services that have religious content.

The bill has been approved by the House Judiciary Committee and will move to the full House for a vote.

Cert. Filed In Maine School Voucher Case

A petition for certiorari has been filed in the U.S. Supreme Court seeking review of the Maine Supreme Court's decision in Anderson v. Town of Durham, according to today's New York Sun. The decision upheld a state school voucher program for students from small towns with no high schools. Towns may pay for those students to attend a non-sectarian public or a private school, but they may not pay for attendance at religious parochial schools. (See prior posting.)

Required DNA Sample Does Not Violate Free Exercise Clause

A New York federal district court has rejected a free exercise challenge to the federal DNA Analysis Backlog Elimination Act. Kurt Kavoukian, on probation after serving a sentence for firearms violations, argued that requiring him to provide a DNA sample is an intrusion into his body prohibited by his religion. In United States v. Kavoukian, 2006 U.S. Dist. LEXIS 50014 (ND NY, July 20, 2006), the court found that the statute, designed to establish a federal DNA database to assist in the identification, arrest, and prosecution of criminals, is a permissible neutral law of general application.

White House Faith-Based Conference In Austin

Yesterday the White House hosted a Conference on Faith Based and Community Initiatives in Austin, Texas. Today's San Antonio Express-News reports on the conference. The article's lead is: "At the intersection of government and religion, Gov. Rick Perry sounded something like a preacher Tuesday as he touted public funds for faith-based and community groups helping the poor, the addicted and refugees."

Liberia Reassures Muslims On Wearing Of Veil

Liberia's Justice Minister Cllr. Frances Johnson-Morris reaffirmed the government's commitment to religious liberty, countering a controversial statement by Police Director Beatrice Munah Sieh who said that people of that faith would not be permitted to cover their faces while walking on the streets. AllAfrica.com reported yesterday that the Justice Minister assured Muslims that the government will protect the Islamic Community like any other religious group. She said Muslims will be allowed to dress in accordance with their religious beliefs. The Police Director's statement was made few days after masked robbers were arrested, and without an understanding of its legal implications.

More New Prisoner Cases

In Hardeman v. Stewart, (10th Cir., July 21, 2006), an inmate raised equal protection and free exercise claims, arguing that prison authorities had refused to recognize the Hebrew Israelites as a separate religion, and had denied him access to various requested religious items. The district court dismissed the claims because the Prison Litigation Reform Act precludes damages for non-physical harm, and any request for injunctive relief was moot because the inmate was transferred to a different facility. The Court of Appeals affirmed.

In Williams v. Bitner, (3d Cir., July 25, 2006), the Third Circuit Court of Appeals held that prison officials did not have qualified immunity in a claim for damages by a Muslim inmate who alleged that his First Amendment free exercise rights had been violated. Pennsylvania prison authorities had assigned Henry Williams to work as a cook in the prison kitchen. He was disciplined after he refused, on religious grounds, to help prepare a meal that contained pork.

In Scott v. Mecklenburg Correctional Center, 2006 U.S. Dist. LEXIS 49905 (WD Va., July 21, 2006), a Virginia state inmate challenged the prison's refusal to approve his participation in a Bible correspondence course in which he had previously enrolled. He also complained that he was not permitted to take his Bible into the recreation yard. A federal district court found that prison officials had a legitimate interest in restricting transient inmates' participation in long term correspondence courses. They also did not discriminate against plaintiff because no materials, secular or religious, are permitted in the recreation yard.

Native American Religious Concerns Cost Washington State $58M

In December 2004, the Washington State Department of Transportation stopped construction of a massive dry dock in Port Angeles, Washington, even though the state had already spent $58 million on it. At the time, the reason for the cancellation was said to be archeological concerns. The dock was located on the site of Tse-whit-zen, an important Klallam Indian village containing at least several hundred intact burials. (Background from History Link.org.) Now it appears that the real reason for ending construction was religious objections raised by the Lower Elwha Klallam tribe.

Washington's Peninsula Daily News yesterday reported that a letter to the auditor investigating the closing down of the project from Allyson Brooks, head of the state Department of Archaeology & Historic Preservation, revealed the true motivation of state officials. She wrote: "the underlying issue . . . is how we incorporate cultural values and religious beliefs into our decision-making processes in a manner that is fair, sensitive, constitutional and still results in a complete project.''

Over 350 bodies of tribal members were reburied after construction began, but the Klallam tribe wanted the remains returned to the Tse-whit-zen site. They believe their ancestors are angry that their remains were removed. Tribal members put red ochre below their eyes when they visit the site to ward off ancestors' anger, and they ceremonially wash with water containing snowberries when they leave so they will not take their ancestor's anger home.

High School Coach Wins Right To Join His Team's Prayers

In Newark, New Jersey today, East Brunswick High School football coach Marcus Borden won his federal civil rights suit in which he claimed the right to pray along with his team's players. The court rejected the high school's contention that the Establishment Clause was violated when coach Borden would silently bow his head and "take a knee'' while his players engaged in student-initiated, student-led, nonsectarian pre-game prayer. The Central Jersey Home News Tribune, reporting on the decision, quoted Borden's attorney, Ronald J. Riccio, who said that the decision "reaffirms that government can't be hostile to religion." The lawsuit was filed last November. (See prior posting.)

Promoters Of Baptist Affinity Fraud Convicted

Both today's Washington Post and today's Arizona Republic report that two former executives of the Baptist Foundation of Arizona were found guilty Monday on 3 counts of fraud and one count of knowingly conducting an illegal enterprise in what has been called the largest "affinity fraud" ever. More than 11,000 investors lost more than $550 million in total. The investors, many of them elderly, were encouraged to invest their money at promised high rates and at the same time "do the Lord's work," building Baptist churches and retirement homes. Defendants William Crotts and Thomas Grabinski, however, were acquitted of 23 counts of theft. The jury found that they did not personally profit from the Ponzi scheme. Instead they got in over their heads and then tried to cover it up. Defense attorneys had argued that the foundation could have been able to pay off investors if state regulators had not forced it to stop selling securities in 1999.

Loud Speakers On Bulgarian Mosque Challenged

In Sofia, Bulgaria, both mayor Boiko Borissov and the ultra-nationalist group Ataka have called for removal of the loudspeakers on the Banya Bashi mosque that are used to call the faithful to prayer. The mayor said that the volume of the loudspeakers has been turned down. He urged Christian and Muslim leaders to continue the Bulgarian tradition of peaceful co-existence. The Sofia Echo reports on this as well as on a pending case before Bulgaria’s Commission for Protection Against Discrimination involving two Muslim girls who were banned from wearing traditional Islamic headscarves in school.

Jerusalem Gay Pride Parade Cancelled Because Of Security Concerns

As reported previously, Orthodox Jewish, Muslim and conservative Christian leaders in Jerusalem have called for cancellation of the planned Aug. 10 GLBT World Pride Parade. To Be Publications reported yesterday that the fighting between Israel and Lebanon's Hezbollah has led to the fulfillment of those religious leaders' demands. Orthodox Jews threatened to stage massive counter-demonstrations to the GLBT parade. Jerusalem police had planned to bring in reinforcements from other cities to protect the marchers. Because of the new war with Hezbollah, not only are those reinforcements not available, but some members of Jerusalem's police force have been deployed outside of the city, closer to the war zones. World Pride organizers say they will hold an alternative event.

9th Circuit Issues New Opinions Denying Asylum To Chinese Christian

In Gu v. Gonzales, (9th Cir., July 21, 2006), the U.S. 9th Circuit Court of Appeals last week, by a 2-1 vote, upheld the findings of an Immigration Judge denying asylum to a Chinese citizen who claimed past persecution, and fear of future persecution, because of his distribution of Christian religious literature and his attending an unofficial "house church". In doing so, the court withdrew opinions issued in December 2005 reaching the same result (429 F.3d 1209), and substituted new opinions. [CORRECTED-- thanks to several readers.]

Italian Case Challenging Existence of Jesus Reportedly To Be Heard By European Court of Human Rights

Religion Clause reported last February that an Italian judge dismissed a suit against a priest in Viterbo, Italy. The suit charged that the priest's assertion that Jesus had lived violated Italian laws against deceit and impersonation. In March, an appeal in the case was filed with the European Court of Human Rights. (Text of Application to Court.) Today, the website of Luigi Cascioli, the plaintiff who brought the charges against the priest, reports that the European Court of Human Rights has agreed to hear the appeal. The case is Cascioli v. Italy, Case No.14910/06.

Public Schools Try To Accommodate Various Religious Holidays

Public schools and colleges around the country are increasingly being asked to accommodate the holiday observances of students from a wide variety of religious faiths. Some have not been responsive to the requests, but others have. From a school-wide holiday, to a ban on scheduling exams on particular days, to merely permitting a student to have an excused absence, at least some schools are seeking the correct balance, according to an Associated Press article last Friday. Earlier this month the New York state Legislature passed SB 7461 a bill that requires the state Department of Education to make a bona fide effort to schedule state mandated exams on days other than religious holidays. The bill was introduced after the decision by the Department of Education last January to begin statewide tests for third, fourth and fifth-graders on the Islamic holiday of Eid-ul-Adha.

Asatru In Prisons Poses Concerns

An AP story yesterday discusses the growing problems within American prisons posed by prisoners' practice of Asatru-- a pagan religion with roots in Viking mythology. Attention has been focused on the religion as Michael Lenz is scheduled to be executed in Virginia later this week. During an Asatru worship ceremony, Lenz thought that another inmate, Brent Parker, had committed blasphemy, and so he killed him to protect the honor of the gods. The religion is sometimes associated with beliefs in White supremacy, though that connection is disputed by most of its leaders. Britt Minshall, a Baltimore pastor who ministers to inmates, says that some white inmates who felt threatened by black prison gangs formed their own gangs and then found Asatru as a belief system to provide additional security.

New Yorker Article Features Role Of Christian Right In Ohio's '06 Elections

This week's New Yorker Magazine profiles the central role of the Christian religious right in this year's Ohio gubernatorial election. Republican candidate J. Kenneth Blackwell, whose political history is chronicled in the New Yorker piece, has strong appeal to conservative Christians. The article titled Holy Toledo: Ohio’s Gubernatorial Race Tests the Power of the Christian Right, also focuses on Pastor Rod Parsley's Reformation Ohio and Rev. Russell Johnson's Ohio Restoration Project.

Recent Law Review Articles

From SmartCILP:

Babek Rod Khadem,The Doctrine of Separation in Classical Islamic Jurisprudence, 4 UCLA Journal of Islamic & Near Eastern Law 95-142 (2004-2005).

Jed Kroncke, Jed, Substantive Irrationalities and Irrational Substantivities: The Flexible Orientalism of Islamic Law, 4 UCLA Journal of Islamic & Near Eastern Law 41-73 (2004-2005).

Caleb E. Mason, Faith, Harm, and Neutrality: Some Complexities of Free Exercise Law, 44 Duquesne University Law Review 225-273 (2006).

Symposium: Law and Religion, 8 University of Pennsylvania Journal of Constitutional Law 335-513 (2006):

Howard Lesnick, The Consciousness of Religion and the Consciousness of Law, With Some Implications for Dialogue;

Imad-ad-Dean Adman, American and Muslim Perspectives on Freedom of Religion;

Marie A. Failinger, Against Idols: The Court As a Symbol-Making or Rhetorical Institution;

Stephen M. Feldman, The Theory and Politics of First Amendment Protections: Why Does the Supreme Court Favor Free Expression Over Religious Freedom?

Kent Greenawalt, Common Sense About Original and Subsequent Understanding of the Religion Clauses.

Civil Rights Division Hiring Has Been Changing

An interesting article in this morning's Boston Globe reports that the Bush administration has quietly been changing hiring practices at the Justice Department's Civil Rights Division. Political appointees at the Justice Department have been given more authority in decisions on hiring of lawyers for the Division. Hiring committees made up of veteran career lawyers have been disbanded. Since this began in 2003, only 42% of new hires have civil rights organization experience. In the 2 years before that, 77% had such experience. Since 2003, new hires were more likely to have been members of the Federalist Society or members of the Republican National Lawyers Association. This has also led to a change in the kind of cases being brought by the Civil Rights Division. Fewer traditional voting rights and employment discrimination cases are being brought, while more reverse discrimination and religious discrimination cases alleging discrimination against Christians are being filed.

The Globe found that the law schools from which new hires graduated has also changed. More Southern and Midwestern law schools are now represented. Previously new hires tended to be from "elite" eastern law schools. The average US News & World Report ranking for the law school attended by successful applicants hired in 2001 and 2002 was 34, while the average law school rank dropped to 44 for those hired after 2003.

Defenders of the new policy say first that it tends to balance the liberal bias of former hires. Second, they say that while many hires now do not have a background with civil rights organizations, they often clerked for federal judges where they obtained substantial constitutional law experience.

Indonesian Editor To Face Trial On Muhammad Cartoons

In Indonesia, the editor of the online newspaper Rakyat Merdeka has been released from prison, but he will still be required to stand trial for posting cartoons of the Prophet Muhammad on his newspaper website earlier this year. Friday's Sydney Morning Herald reported that the Indonesian editor, who posted the cartoons while reporting on the controversy over the cartoons' first appearance in Denmark, was charged with two counts of "inciting animosity and hatred" towards Islam. He faces a possible maximum sentence of 5 years in prison. [Thanks to Jurist for the information.]

Washington Pharmacy Board Rethinking Proposed Rule

The Washington State Board of Pharmacy has postponed until August 31 a vote on controversial new proposed rules that would permit pharmacists to refuse to fill prescriptions for personally held moral reasons. Saturday’s Seattle Times says that the Board may be considering changes in its proposal. Gov. Christine Gregoire and women's advocates have criticized the proposal because it could hinder patient access to emergency contraceptives.

Officials' Motives Found Relevant To RLUIPA Claim

In Denver First Church of the Nazarene v. Cherry Hills Village, 2006 U.S. Dist. LEXIS 49483 (D. Colo., July 19, 2006), a Colorado federal district court denied a motion filed by the city of Cherry Hills to prevent plaintiff, a church, from taking the deposition of various members of City Council, the Planning and Zoning Commission and the Board of Adjustment. Denver First Church of the Nazarene brought suit under RLUIPA challenging the city’s refusal to grant its applications to expand its current church building, and to rezone certain lots so the church could add parking. The court, rejecting various claims of privilege, found that depositions were appropriate because the motives of city officials are relevant to plaintiff’s claims under RLUIPA.

Arizona City Debates New Church Zoning Rules

In Scottsdale, Arizona, the leaders of 50 churches have mobilized to oppose proposals from the Scottsdale Planning Commission to require a conditional use permit for the building of new churches, or major expansion of current ones, in single family residential areas. Yesterday's East Valley Tribune reports the Commission’s proposal, that will be discussed at an August 23 public meeting, would apply not just to houses of worship but also to private schools, colleges, universities, community buildings and private recreational uses. Scottsdale residents are concerned about increasing noise, traffic and parking problems especially from the proliferation of large church campuses. Howard Myers, president of the Desert Foothills Property Owners Association complained that operations of some large churches have extended to longer hours and go on every day of the week as they rent or give use of church premises for many programs and permit installation of cell phone towers on their property.

Funeral Protesters Challenge Missouri Ban

Rev. Fred Phelps and his followers from Kansas City’s Westboro Baptist Church have outraged many by picketing the funerals of Iraq and Afghanistan war veterans claiming that U.S. tolerance of homosexuality and other sinful activity is causing the deaths of Americans in those wars. (See prior related posting.) In response, Missouri, a number of other states, and the federal government have all enacted laws prohibiting picketing a location where a funeral is being held. Now, on behalf of Phelps, the ACLU of Kansas and Western Missouri has filed suit claiming that the anti-picketing law violates the First Amendment free speech and free exercise rights of Phelps and his religious followers. Today’s Washington Post reports on the lawsuit that was filed yesterday in federal court in Jefferson City, Missouri. The plaintiffs argue that Missouri’s statute unconstitutionally regulates speech on the basis of its content.

Rastafarian Prison Employee's Religion Claims Move Ahead

In Booth v. Maryland Department of Public Safety & Correctional Services, 2006 U.S. Dist. LEXIS 49313 (D. Md., July 7, 2006), a Maryland federal court refused to dismiss state breach of contract and state constitutional claims by a Rastafarian employee of the Maryland prison system who was first demoted and then fired for refusing to remove his dreadlocks. However plaintiff’s federal claim against a prison warden was dismissed on the ground that the warden enjoyed qualified immunity.

NJ Homeowner Seeks Religious Tenants-- May Violate Law

In New Jersey, a homeowner’s religious freedom claim could fail because it falls between the cracks of the state law’s exclusion for renting out part of an owner-occupied home. Yesterday’s Morris County Daily Record reports that homeowner Joe Fabrics requires the four tenants in his New Brunswick, NJ property to sign a lease that informs them that "This is a Christian household" and "If you hate God, don’t move in". The director of New Jersey’s Division of Human Rights says that this could be illegal religious discrimination. Fabrics owns a two-family home. He occupies it as a residence and also rents to four other tenants. New Jersey’s Law Against Discrimination, Sec. 10:5-5(n) excludes from coverage "the rental (1) of a single apartment … in a two-family dwelling, the other occupancy unit of which is occupied by the owner as a residence; or (2) of a room or rooms to another person or persons by the owner … of a one-family dwelling occupied by the owner … as a residence at the time of such rental."

Fabrics, who says that his home contains two religious statues that weep holy tears, says that if after he makes his feelings clear, someone who does not believe in God insists on moving in, he will let them do so.

Opinion In Hollywood, FL. Synagogue Case Finding Zoning Regs Vague

Religion Clause has included numerous postings on the litigation involving alleged discrimination against a Hollywood, Florida synagogue stemming from the city’s removal of a special zoning exception that it had previously granted the Orthodox Jewish Chabad group. Negotiations toward a settlement in the case were encouraged by an announcement in June by Judge Joan A. Lenard that she planned to rule that the city’s zoning ordinance was unconstitutionally vague. Her formal decision finding that to be the case has now become available. In Hollywood Community Synagogue, Inc. v. City of Hollywood, Florida, 2006 U.S. Dist. LEXIS 49491 (SD Fla., June 24, 2006), the court held that the directions given to the Development Review Board by the zoning statute are not sufficiently "precise and objective" and could lend themselves to covert discrimination against houses of worship under the guise of "compatibility" or other intangible considerations.

The court ordered that Hollywood Community Synagogue be granted the special exception that it formerly had, conditioned only on certain specific conditions regarding soundproofing and trash. It ordered that the city promptly enact a new Special Exception ordinance for places of worship with narrow, objective and definite standards to guide city officials. Finally it ordered that the issue of damages be placed before a jury.

This Week's Prisoner Free Exercise Decisions

In Kretchmar v. Beard, 2006 U.S. Dist. LEXIS 49530 (ED Pa., July 18, 2006), a Pennsylvania federal court rejected the Free Exercise and RLUIPA claims filed by a Reform Jewish prisoner who argued that he should have been provided with a Kosher diet consisting of a rotating menu and two hot meals per day instead of the repetitive and cold Kosher diet that was given to him.

In Buchanan v. Burbury, 2006 U.S. Dist. LEXIS 48244 (ND Ohio, July 17, 2006), an Ohio federal district court granted a preliminary injunction in a RLUIPA case brought by an inmate who was an adherent of the Yahweh's New Covenant Assembly, a Sacred Name Sabbatarian faith group. The court ordered that plaintiff be provided with a kosher diet, he be excused from work on the Sabbath and his religion’s seven holy days, and that the group be given the opportunity to worship under the same requirements as other groups, which might require that it be removed from the prison’s Protestant catchment and placed into its own separate catchment.

Survey Of Religious Freedom In Africa

The international Catholic charity Aid To The Church In Need has published a report on the state of religious freedom in African countries. Zenit has published the report in three parts— here are the links 1, 2, 3.

Hate Crimes Still In The News

Hate crimes continue to make the news. In California, new data shows that hate crimes were at a new low in 2005, down 4.5% from the year before. (San Francisco Chronicle.) However in Lewiston, Maine, state prosecutors have filed charges of desecrating of a place of worship, a misdemeanor, against Brent Matthews. He is charged with rolling a frozen pig's head into a mosque in Lewiston on July 3 while 26 men prayed. Yesterday, state Attorney General Steven Rowe filed a civil lawsuit against Matthews alleging that he was motivated by bias based on race, color, ancestry, national origin and religion. The suit asks the court to bar Matthews from having contact with the mosque or its members and to order him to comply with the state's anti-discrimination law. Mosque leaders hope that federal hate crime charges will also be brought. (Boston Globe.)

Vodou Practitioner Gets Light Sentence

The Miami, Florida Herald reports that Myrlene Severe was sentenced in federal court today to two years probation and a $1000 fine for illegally storing human remains. The woman, a practitioner of Vodou, brought a skull, with strands of black curly hair, in her luggage on a flight back from Haiti. It was nestled in a cotton rice bag along with a banana leaf, dirt, small stones and a rusty iron nail. Severe believed that the skull would protect her. She did not know she was violating the law when she brought the skull in as a part of her religious beliefs. Originally more serious charges were filed against her, but they were subsequently reduced to a misdemeanor charge. (See prior posting).

New Scholarly Articles Posted Online

From Bepress:
Kathleen A. Brady, Religious Group Autonomy: Further Reflections About What Is At Stake (July 1, 2006).

From SSRN:
Richard W. Garnett IV, The Freedom of the Church , forthcoming in Journal of Catholic Social Thought, Vol. 4 (2007) .

Joel A. Nichols, Dual Lenses: Using Theology and Human Rights to Evaluate China's 2005 Regulations on Religion, forthcoming in Pepperdine Law Review, Vol 34 (2006). [Thanks to Legal Theory blog.]

Apparent New Mexican President May Bring Changes In Church-State Policy

An article from McClatchy Newspapers today reports that unless Mexico's Federal Electoral Tribunal overturns the disputed July 2 presidential election, Filepe Calderon will be the first Mexican president out of a tradition of conservative Catholicism that gave rise to the Cristero guerrilla movement. That movement, to which Calderon's father belonged, opposed Mexico's anti-clerical policies 80 years ago. The article traces the apparent president's deeply religious background and the uncertainties that this poses for a country that has had a strong tradition of church-state separation.

Some Kosher Food Laws Problematic For Conservative Rabbis

Ten states, including California (Cal Pen Code § 383b) and Massachusetts (ALM GL ch. 94, § 156), have statutes that make it fraudulent to sell meat as "kosher" unless the product complies with Orthodox Jewish religious requirements. Today's Forward reports that this language is creating problems as Conservative Jewish rabbis are pressing for stores to sell kosher meat that does not meet the higher "glatt Kosher" standard, in order to reduce costs to consumers.

Preliminary Injunction Denied In City Incentives For Baptist Convention

As previously reported on Religion Clause, in June Americans United for Separation of Church and State sued the city of Baltimore in federal court over economic development incentives it granted to the National Baptist Convention to attract its annual convention to Baltimore. The full opinion denying a preliminary injunction has now become available. The case is Cheryl Person v. Mayor and City Council of Baltimore, 2006 U.S. Dist. LEXIS 48899 (D. Md., June 20, 2006).

The city agreed to discount the price of its arena by $ 195,000, provide up to $100,000 for transportation costs, and provide $5,000 to feed hungry people in Baltimore at a pre-convention event involving representatives of the national convention. The court previously ordered that participants in the Feed the Hungry Event could not engage in religious solicitation or distribute religious materials as part of that city-funded event. With that safeguard in place, the court held that the incentives granted by Baltimore did not violate the Establishment Clause.

Interview With China's Religious Affairs Head

Ye Xiaowen, director of China's State Administration of Religious Affairs, has given his first press interview since he took office ten years ago. Xinhua today reports on the interview. Ye emphasized that the country will channel religious groups to play an active role in the country's social and economic construction. The government will guide religions to explain their tenets in ways that are in line with the requirements of the development of the society. He said: ""There are a great deal of useful concepts, like peace, non-violence, harmony and balanced development, in Chinese religions, especially traditional ones, which can help advocate environmental protection and promote peace."

Afghanistan To Re-Establish "Vice and Virtue" Department

The Middle East Times reports today that Afghanistan's government has defended its proposal to re-establish a Department for the Promotion of Virtue and Prevention of Vice, despite the abuses of a similar group which acted as religious police when Afghanistan was under Taliban rule. Unlike its predecessor, the new department will have no authority to patrol the streets looking for violators of Islamic law. Instead, it will use mosques and the media to encourage virtues such as prayer, charity, and respect of elders and parents, and to discourage "sins" such as adultery, murder, theft, and using alcohol. The proposal has been approved by the cabinet and will go to Parliament later this month. The government says the move is necessary to counter extremist opposition to the government that argues the country has been invaded by "infidels"-- pointing to the lack of a vice and virtue department as evidence.

Property Dispute Between New York Episcopal Parish and Diocese

In another of the growing number of disputes over ownership of church property, today's Syracuse (NY) Post-Standard reports that the Episcopal Diocese of Central New York filed a lawsuit Wednesday against St. Andrew's Church in Syracuse, asking a state trial court to grant the diocese a restraining order to prevent the parish from selling church real estate. In February, the parish which objects to positions of the diocese such as Bishop Gladstone "Skip" Adams' support of the ordination of a gay bishop, filed an amendment to its certificate of incorporation requesting that ecclesiastic oversight move from Adams to Archbishop Emmanuel Kolini, head of Anglican Church in Rwanda and of Anglican Mission in America. The diocese claims that it, and not the parish, owns the church's real estate.

Cert. Filed In California Sea Scouts Case

The Pacific Legal Foundation has announced that on July 11 it filed a petition for certiorari (full text) to the U.S. Supreme Court in Evans v. City of Berkeley. The appeal is from a March 2006 decision of the California Supreme Court in which it upheld the right of Berkeley to suspend the Sea Scouts' (an affiliate of the Boy Scouts) free use of a berth in the city's marina after the scout group refused to confirm that it would not discriminate against gays or atheists. (See prior posting.)

Article On Court-Stripping Legislation

Beginning with a reference to yesterday's passage by the House of Representatives of a bill to remove federal court jurisdiction over constitutional challenges to the Pledge of Allegiance (see prior posting), today's Indianapolis Star carries an interesting article on the history of "court-stripping" legislation.

Atheists Demand Apology For Army General's Remarks

American Atheists yesterday issued a press release demanding an apology from officials for remarks made by Lt. Army Gen. H. Steven Blum during a speech at the NAACPs Annual Armed Services and Veterans Affairs Awards Dinner on July 18. Blum, who is Chief of the National Guard Bureau, lumped atheists and agnostics together with bigots in one line of his speech in which he otherwise praised diversity in the armed forces. Blum said: "Agnostics, atheists and bigots suddenly lose all that when their life is on the line. Something that they lived with their whole life believing gets thrown out the door, and they grasp the comrade next them, and they don't care what color their skin is, and they don't care where they pray...." American Atheists President Ellen Johnson said: "Why is he singling out the millions of Americans who simply have doubts about religion or do not believe in religious teachings, and then comparing this group to 'bigots'?" The American Forces Press Service yesterday quoted extensive excerpts from Blum's speech.

Attorney Protests IRS Church Audit Procedures

BNA's Daily Report for Executives [subscription required] this week reported on a July 17 letter to Internal Revenue Service Commissioner Mark Everson from attorney Marcus Owens who says that the IRS is acting illegally in promulgating a new policy on who should determine when a tax audit of a church should be instituted. A May 9 IRS issued Chief Counsel Advice Memoranda 200623061[LEXIS link] without an opportunity for public comment. It formalized delegation for determining when a church should be audited to the Director of Exempt Organization Examinations. Owens said that in a recently released memorandum dated March 31, 2005, the Director of EO Examinations made an explicit delegation of the "reasonable belief" decision even lower within the IRS as part of the procedures for the IRS's Political Intervention Project. Owens said this is a "clear violation" of Internal Revenue Code Section 7611, which provides that an appropriate "high-level Treasury Department official must reasonably believe (on the basis of facts and circumstances) that a church may not be tax-exempt." BNA makes the full text of the letter available to subscribers.

Saudis Granted Waiver On Sanctions-- Progress On Religious Freedom Cited

The Washington Post reported yesterday that the United States has found that Saudi Arabia has made enough progress in improving religious tolerance that the U.S. is extending a waiver of sanctions that would otherwise have been called for under the International Religious Freedom Act. The waiver was originally granted in 2004 after the State Department first classified Saudi Arabia as a "country of particular concern", a designation that was continued in 2006. (See prior posting.) The State Department's release on the briefing to Congress by Ambassador John Hanford said that the Saudis are pursuing a number of policies to promote greater religious freedom and tolerance:

These include policies designed to halt the dissemination of intolerant literature and extremist ideology, both within Saudi Arabia and around the world, to protect the right to private worship, and to curb harassment of religious practice. For example, the Saudi Government is conducting a comprehensive revision of textbooks and educational curricula to weed out disparaging remarks toward religious groups, a process that will be completed in one to two years. The Saudi Government is also retraining teachers and the religious police to ensure that the rights of Muslims and non-Muslims are protected and to promote tolerance and combat extremism. The Saudi Government has also created a Human Rights Commission to address the full range of human rights complaints.

First Amendment Does Not Require Accommodation Of Job Applicant's Beliefs

In Filinovich v. Claar, 2006 U.S. Dist. LEXIS 48341 (ND Ill., July 14, 2006), an Illinois federal district court applied the June 2006 holding by the 10th Circuit in Shrum v. Coweta (see prior posting) to dismiss a Free Exercise claim by Alice Filinovich who was applying for the position of Finance Director with the Village of Bolinbrook, IL. Plaintiff, a Seventh Day Adventist, claimed that, even though she was the top candidate, she was not hired by the village because her religious beliefs would not permit her to attend required quarterly budget workshops held on Saturdays. The court held that so long as the village had a legitimate reason for the neutral, generally applicable requirement of attendance at Saturday meetings, for purposes of the First Amendment-- as opposed to Title VII-- there was no requirement that the village attempt to accommodate Filinovich's religious practices. The court said that the 7th Circuit, whose decisions control it, had reached the same conclusion as Shrum in its 1991 decision in Ryan v. U.S. Department of Justice, 950 F.2d 458 [LEXIS link].

New Jersey Chief Justice Nixes Fugitive Safe Surrender Program

Federal officials have been blocked from instituting a program known as Fugitive Safe Surrender in Camden, New Jersey by church-state objections from New Jersey Chief Justice Deborah T. Poritz . The Philadelphia Inquirer reported yesterday that the program, which originated in Cleveland, grants funds to cities to get low-level fugitives into the criminal justice system without police having to confront them on the streets. Instead, the wanted criminals surrender at a church, where fugitives feel safe. Also the church community helps to spread the word about the program. The plans were to use Camden's Antioch Baptist Church.

In Cleveland, fugitives were greeted by volunteers who handed out water and pretzels, while sheriff's deputies ran their names through computerized databases. Then they met with a judge and a public defender in the church's library, and generally released on bond. The New Jersey Supreme Court, however, is concerned about court procedures taking place in a religious facility. It is also concerned that it would appear that the court was working on behalf of the prosecutor and was not neutral. The court offered to have a judge available at the courthouse to process the fugitives, but U.S. Marshall James Plousis said that is inconsistent with the underlying concept of the program.

GAO Report Reviews Faith-Based Initiative

The New York Times today carries an article about a Government Accountability Office Report issued last month on the Bush administration's faith-based initiative. The GAO did not find evidence of a widespread diversion of government money to religious activities, but in looking at 10 government programs, the GAO found that only four federal program offices gave an explicit statement to religious organizations about protecting the religious liberties of the people they serve.

Titled Faith-Based and Community Initiative: Improvements in Monitoring Grantees and Measuring Performance Could Enhance Accountability, the full report has just been posted on the GAO's website. Here is part of the Report Abstract:

Since 2001, federal agencies have awarded over $500 million through new grant programs to provide training and technical assistance to faith-based and community organizations and to increase the participation of these organizations in providing federally funded social services.... Most of the agencies provided grantees with an explicit statement on the safeguard prohibiting the use of direct federal funds for inherently religious activities. If these activities are offered, they must be offered separately in time or location from services provided with direct federal funds and must be voluntary for the beneficiary. However, we found that Justice's regulation and guidance related to these activities is unclear for its correctional programs. We also found that only four programs provided a statement on the rights of program beneficiaries and only three provided information on permissible hiring by FBOs.

While officials in all 26 FBOs [Faith Based Organizations] that we visited said that they understood that federal funds cannot be used for inherently religious activities, a few FBOs described activities that appeared to violate this safeguard. Four of the 13 FBOs that provided voluntary religious activities did not separate in time or location some religious activities from federally funded program services....

[I]t is unclear whether the data reported on grants awarded to FBOs provide policymakers with a sound basis to assess the progress of agencies in meeting the initiative's long-term goal of greater participation of faith-based and community organizations. Moreover, little information is available to assess progress toward another long-term goal of improving participant outcomes because outcome-based evaluations for many pilot programs have not begun.

Americans United Criticizes Upcoming House Vote On 2 Bills

Today a vote is scheduled in the House of Representatives on the Pledge Protection Act of 2005 (H.R. 2389) that would prevent federal courts from hearing challenges to the constitutionality of the Pledge of Allegiance. A vote is also scheduled on H.R. 5683 that would transfer ownership of the Mt. Soledad Cross in California to the federal government. Yesterday, Americans United for Separation of Church and State issued a statement criticizing these bills. AU executive directory Barry W. Lynn said: "The leaders of the House are shamelessly pandering to their Religious Right base. The forthcoming votes on these measures hit a new low for election-year posturing."

UPDATE: On Wednesday afternoon, the House of Representatives passed the Pledge Protection Act by a vote of 260-167. Here is the roll call vote. It now goes to the Senate where the Associated Press reports that its fate is uncertain. On Wednesday afternoon, the House also passed the bill authorizing the federal government to take title to the Soledad Veterans Memorial. The roll call vote was 349 yes; 74 no; 3 present. (10news.com report.)

Church Homeless Shelter Housing Code Trial Will Begin In Florida

The South Florida Sun-Sentinel this morning reports that a jury trial is scheduled to begin July 31 in Palm Beach County, Florida's efforts to collect $30,000 in code enforcement fines from Westgate Tabernacle Church. However the Church has filed its own counter-suit claiming infringement of its free exercise rights. Westgate runs a homeless shelter that, unlike other county agencies, takes almost anyone as a resident, subject to only a few rules-- no drugs, look for work and attend services. Because of this, police bring people to the shelter every day, at the same time that the county is attempting to get it to relocate outside a residential neighborhood.

Recent Prisoner Decisions On Claims By Muslim and Atheist

In Hamdan v. Copes, 2006 U.S. Dist. LEXIS 46765 (WD La., May 19, 2006), the court rejected a prisoner's claim that Muslim prisoniers at South Louisiana Correctional Center were denied the right to attend Friday Ju'mah services on a regular basis.

In Kaufman v. Frank, 2006 U.S. Dist. LEXIS 47840 (WD Wis., July 13, 2006), a state prison inmate who was an atheist claimed that his rights under the First Amendment and RLUIPA were violated by: (1) references to God in the Wisconsin Constitution; (2) a state statute granting inmates access to Bibles; (3) prohibitions on sex offenders changing their names; (4) the prison's refusal to allow him to possess a silver circle emblem representing Atheist beliefs; (5) its refusal to authorize study groups for atheist and agnostic inmates; and (6) its refusal to make donated atheist literature available in the prison library. The court permitted plaintiff to proceed only as to claims that the Establishment Clause was violated by the prison's making Christian literature, but not literature about atheism available, and its excluding free non-religious items and publications while permitting other inmates to receive free religious items and publications.

Retired Professor Wants Anti-Evolution Issue On Oshkosh Wisconsin Ballot

The Oshkosh,Wisconsin Northwestern reports today on a retired University of Wisconsin-Oshkosh physics professor's petition drive to get an advisory referendum on the November ballot on the teaching of evolution in the public schools. Sandra Gade says that "the way evolution is being taught is antagonistic to students' religious beliefs. Students are told that it is a scientifically established fact that evolution, a purely natural process made all living things." She wants to require teaching of facts that discredit as well as those that support evolution. Despite Glade's efforts, state law has no provision for school boards to place an advisory referendum on the ballot.

Evangelist Argues Lack of Jurisdiction After Indictment For Tax Fraud

In Pensacola, Florida on Monday, evangelist Kent Hovind pled not guilty to a 58-count federal indictment charging him with tax fraud, avoiding financial reporting requirements and impeding an IRS investigation. Today's Pensacola News Journal reports on the rather outlandish claims of immunity made by Hovind who owns Dinosaur Adventure Land, a creationist theme park. Hovind claims that the federal government has no jurisdiction over him, and when pressed in court to enter a plea Hovind said he wished to enter a plea of "subornation of false muster."

Hovind is accused of paying employees of his Creation Science Ministry in cash and calling them missionaries to avoid withholding payroll and FICA taxes. His wife is also charged. For years Hovind has claimed that he is employed by God and has no income or property because everything he owns belongs to God. Hovind believes that man and dinosaurs inhabited the earth at the same time and has offered a $250,000 reward to anyone who can furnish satisfactory proof of evolution.

Muslim Group Claims Zoning Discrimination

In Wayne, New Jersey, according to today's Star-Ledger the Albanian Associated Fund, a Muslim organization, has sued the township claiming it has been discriminated against in its application to build a mosque on an 11-acre site it owns. The federal court suit filed yesterday attempts to stop the township from condemning the land for open space use, claiming violations of constitutional rights and of RLUIPA. The suit claims that Wayne's planning board has given in to anti-Muslim sentiment and for 3 1/2 years has forced the group to take application steps not required of others.

Arkansas Supreme Court Dismisses Claims Against Parochial School As Involving Religious Doctrine

In Calvary Christian School Inc. v. Huffstutler, (Ark. Sup. Ct., June 29, 2006). the Arkansas Supreme Court held that it lacked jurisdiction over most of the claims brought by the parents of a parochial school student who was "disenrolled" from the school after he and his parents complained about a video camera that they discovered was hidden in the vetilation system of a school classroom that was also used as a dressing room for school events. In order to keep their son enrolled in school, his parents signed an agreement to support the policies and administration of the school and not to make any negative comments that could possibly destroy the ministry and unity of the school. However subsequently the parents made comments that violated the agreement, and the student was dismissed. The majority agreed with Calvary Christian School that the dismissal was based on failure to comply with school policies that are based in Matthew 18 principles. This made it a theological dispute over which the court could not exercise jurisdiction under First Amendment principles. The majority also dismissed one of the claims because there was no evidence that the camera had ever been used to film anything. Three justices dissented, each as to different aspects of the majority's opinion.

Religious Objections Impede Prosecution Of US Soldiers In Iraq Murder Case

U.S. authorities are preparing their case against five soldiers from the 101st Airborne Division who are accused of raping and murdering 14-year old Abeer al-Janabi near the town of Mahmoudiya in Iraq on March 12. A sixth soldier is accused of failing to report the crime. Those still on active duty face an Article 32 hearing, a proceeding similar to a grand jury. However the prosecution is being impeded by objections from the girl's family to the exhumation of her body. The Associated Press today reports that al-Janabi's relatives have refused to allow her body to be exhumed after objections from a Muslim cleric. Islamic law views exhumations as desecration of the dead. Iraqi Prime Minister Nouri al-Maliki argues that Iraqi courts should try cases of abuse by American soldiers and has called for a review of the agreement giving foreign troops immunity from Iraqi prosecution.

Colorado City Will Limit Display To Christmas Trees

Fort Collins, Colorado city council last Tuesday voted to continue to display only Christmas trees during the 2006 holiday season, rejecting requests to also include a menorah in the December holiday display. The Coloradoan today quotes Council Member Kurt Kastein: "I'm not afraid to say it's Christmas. And I have no problem defending a Christmas tree in the public display." The city's Human Relations Commission said that limiting displays to Christmas trees would be exclusionary. It recommended that city property be made available year-round for displays by private groups that first obtain a permit, and had offered to create a Holiday Display Community Task Force.

Suits Against Las Cruces For Using Crosses In City Logo Pending

The Las Cruces Sun-News yesterday reported on developments in a federal lawsuit that had been filed last September challenging the presence of three crosses in the official emblem of the city of Las Cruces, New Mexico. (See prior posting.) The question is whether the city is violating the establishment clause in spending public funds to put the crosses on city logos and city buildings. In the latest development, plaintiffs are challenging a report by New Mexico State University history professor Jon Hunner, who was selected to provide the court with a history of the city's symbol. Plaintiff Paul Weinbaum says the report is tainted by a conflict of interest because Hunner was also providing a similar report to the city's Convention and Visitors Bureau. The city has spent $16,000 in legal fees so far. Trial in the case is set for Nov. 27. Another case against the Las Cruces Public Schools for its use of crosses on its vehicles and logos is also pending.