Church In Zoning Dispute Wants City Held In Contempt of 2006 Order

Friday's Miami Herald reports on a new religious zoning dispute in Hollywood, Florida. In a 2006 settlement of federal court litigation with Chabad Lubavitch, the city was ordered to enact a new Special Exception ordinance for places of worship, with narrow, objective and definite zoning standards to guide city officials. (See prior posting.) It has not yet done so. Now a motion to intervene in that case and to hold the city in contempt has been filed on behalf of St. Gregorio's Orthodox Church of India, which wants to renovate a building in an area zoned for single family homes and use it for church services. The city says St. Gregorio's needs a special permit under the old zoning rules still in effect.

Indian Court Says It Can Decide What Are Basic Tenets of a Religion

In India, the High Court of Punjab and Haryana in Kaur v. State of Punjab, (High Ct. P&H, May 30, 2009), upheld the decision of a Medical College to refuse to admit petitioners under the quota set aside for members of the Sikh minority community because the applicants did not observe a major tenet of the Sikh religion-- keeping their hair unshorn. The school admitted only Sikhs who maintained "Sikhi swarup" (Sikh appearance). The court concluded that it could "enter the religious thicket" to determine how a religion defines its basic tenets. It said in part:

For an issue of religion, an action cannot be bestowed with legitimacy, merely because the action is forward-looking and non-fundamentalist Religion is a package of beliefs or doctrines which all those who adopt the particular religion, are expected to follow. The issue is not of logic, but of faith.... If the tenet concerned is of fundamental importance, it is legitimate for the followers of the faith, to treat the same as unpardonable.... Religion must be perceived as it is, and not as another would like it to be.... Once a Court arrives at the conclusion that a particular aspect of a religion, is fundamental and integral, as per the followers of the faith, it must be given effect to, irrespective of the views expressed on the said issue, based either on science or logic.

The Chandigarh (India) Tribune yesterday reported on the decision.

County Backs Off Controversial Zoning Citation Against Bible-Study Group Meetings

A land use citation issued by the San Diego County Department of Planning and Land Use has generated a swirl of protest. As reported last week by the Christian Examiner and the San Diego Union-Tribune, Pastor David Jones and his wife hold weekly Bible study sessions at their home. Around 20 people attend. After complaints about parking congestion, the county told the Jones' that regulations required a permit to use premises for "religious assemblies." An international furor was generated when a report disseminated widely online said that when a county code enforcement officer visited the home on Good Friday, he asked-- apparently to determine if it was a "religious assembly"-- questions about whether the group prays or uses the words "amen" and "praise the Lord." The Western Center for Law & Policy sent a letter (full text) to the county arguing that the Bible study is not a "religious assembly" within the meaning of the zoning regulations, and that the administrative citation violates RLUIPA, the free exercise clause and the Jones' right to peaceably assemble. The county has now backed off, deciding that the meetings are not religious assemblies, which are defined in county regulations as: "religious services involving public assembly such as customarily occurs in synagogues, temples, and churches." It continues to investigate whether the questions asked by the investigating officer were proper.

Two Employment Discrimination Cases-- One Settled, One Filed

Two cases involving religious discrimination in employment are in the news. On May 28, the EEOC announced the entry of a consent decree in a lawsuit it filed in New Jersey federal district court against the oil company, ConocoPhillips. The company had required Clarence Taylor, a pipe fitter at its refinery, to work a schedule that would cause him to miss his Sunday church services for two months. Taylor is a deacon and lay leader in his church. Under the settlement, ConocoPhillips will revise its equal employment policies and provide training to managers and employees. Taylor will get 5 additional leave days and ConocoPhillips will pay damages and make a contribution to charity that total $20,000.

In Phoenix, Arizona, the ACLU announced Friday that it has filed an employment discrimination lawsuit against the Maricopa County Sheriff's Office on behalf of Sinan Fazlovic, a Bosnian Muslim who moved to the United States in 1999. (Full text of complaint.) When Fazlovic accepted a job as a detention officer, he was assured he could continue to wear his beard. However subsequently he was told he would have to shave his beard in order to keep his job, and was denied a religious accommodation. He shaved his beard temporarily, but then regrew it. He was reassigned to a lower paying position and he ultimately resigned. The Phoenix New Times reports on the case. In a statement (full text from Phoenix New Times), the sheriff's office says that its actions were the result of federal OSHA regulations governing the type of face masks authorized for use in jail emergency situations.

Wikipedia Arbitrators Ban Scientology Edits

The online encyclopedia Wikipedia, which normally invites the public to edit encyclopedia entries, has imposed a ban on editorial input from all IP addresses owned or operated by the Church of Scientology or its affiliates. The Register and OS News report on the decision (full text) handed down by Wikipedia's Arbitration Committee on May 28. This is the fourth Scientology related arbitration in four years. Previously anti-Scientology editors have also been banned. The arbitration opinion, handed down May 28, reads in part:

This longstanding dispute is a struggle between two rival factions: admirers of Scientology and critics of Scientology.... Editors from each side have gamed policy to obtain advantage.... Aggravating factors have been (i) the presence of editors openly editing from Church of Scientology equipment and apparently coordinating their activities; and (ii) the apparent presence of notable critics of Scientology, from several Internet organisations, apparently editing under their own names and citing either their own or each other's self-published material.... Each side wishes the articles within this topic to reflect their point of view and have resorted to battlefield editing tactics, with edits being abruptly reverted without any attempt to incorporate what is good, to maintain their preferred status quo.

This is apparently the first time that Wikipedia has imposed such a broad organizational ban on editorial contributors.

Connecticut Diocese Sues To Avoid Registration As Lobbyist

The Catholic Diocese of Bridgeport on Friday filed a federal lawsuit against Connecticut's Office of State Ethics seeking to enjoin the Office from taking action to force the Diocese to register with the state as a lobbyist. Catholic Online reports that the state ethics office wrote the Diocese raising questions after the Diocese took part in a rally in March opposing Raised Bill 1098 that would have forced reorganization of financial oversight in Catholic parishes (see prior posting). The state also questioned a posting on the Diocese's website urging its members to oppose another bill relating to same-sex marriage. The complaint (full text) in Bridgeport Roman Catholic Diocesan Corporation v. Jones, (D CT, filed 5/29/2009), contends that the state's action violates the Diocese's constitutional rights of speech and assembly, its free exercise and equal protection rights, and violates the establishment clause. The Diocese also filed a Memorandum of Law in support of its motion for a preliminary injunction.

Israeli Court Orders American Husband To Grant Wife A Religious Divorce

In Israel, a Tel Aviv Rabbinical Court has for the first time imposed sanctions on a man who is not a citizen of Israel to force him to grant his wife a religious divorce (a "get"). Thursday's Jerusalem Post reported on the case-- a divorce proceeding of an American couple that had been dragging on for six years. The court held that the husband had sufficient contacts with Israel for the court to assert jurisdiction because he had been traveling back and forth between Israel and the U.S. for the past two years. Israeli law was changed three years ago to give Rabbinical Courts jurisdiction over Jews residing in Israel even if they are not citizens. Upon petition of the wife, the court ultimately arrested the husband and banned his leaving the country until he granted his wife the get. The husband relented and agreed to do so after three nights in jail.

10th Circuit Rejects Valedictorian's Challenge To Limits On Her Religious Remarks

In Corder v. Lewis Palmer School District No. 38, (10th Cir., May 29, 2009), the U.S. 10th Circuit Court of Appeals rejected constitutional claims brought by a high school valedictorian who delivered remarks at a high school's graduation ceremony encouraging students to accept Jesus Christ. Her short remarks were part of brief speeches by 15 co-valedictorians. Erica Corder had presented a different version of the speech in advance to the principal. She was forced to publicly apologize a few days later in order to receive her diploma. Finding that her remarks were school-sponsored and bore the imprimatur of the school, the court rejected Corder's free speech, free exercise, equal protection, and state statutory challenges. It held that the school was entitled to exercise editorial control over the speech. The decision affirms the district court's dismissal of the case. (See prior posting.) AP yesterday reported on the decision.

Texas Senate Rejects Creationist As Chairman of State Board of Education

The Texas state Senate on Thursday rejected the governor's nomination of Republican Don McLeroy to be chairman of the State Board of Education, according to yesterday's Dallas Morning News. McLeroy is currently serving as chairman under an interim appointment. A two-thirds majority was required to approve the nomination, and the vote was one short--19-11 to confirm. McLeroy-- who believes in creationism and who does not believe global warming is taking place-- has been criticized for trying to promote his religious views on curricular issues. McLeroy denies that he has pressed his views in the consideration of education policy. McLeroy supporter Sen. Steve Ogden accused Democrats of applying a religious test in rejecting the nomination. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Court Says City Unconstitutionally Applied Law To Restrict Street Preacher

In Netherland v. City of Zachary, Louisiana, (MD LA, May 27, 2009), in a case on remand from the 5th Circuit (see prior posting), a Louisiana federal district court held that a city's disturbing the peace ordinance was unconstitutional as applied to defendant's religious speech. John Netherland was threatened with arrest for his loud preaching, standing on a public easement near the parking lot of the Sidelines Grill yelling at customers. The court held that the city's enforcement against Netherland was content-based and did not reflect a compelling interest. The court also held that the suppression of Netherland's ability to evangelize in a public forum infringed his free exercise rights.

Challenge To National Day of Prayer Survives Dismissal Motion

In Freedom From Religion Foundation, Inc. v. Obama, (WD WI, May 26, 2009), a Wisconsin federal district court refused to dismiss on the pleadings a challenge to the constitutionality of the National Day of Prayer. The court said that defendants' arguments are better raised in a summary judgment motion once the record is developed further. Plaintiffs have sufficiently pleaded standing by alleging they were exposed to unwelcome religious speech, and sufficiently pleaded an Establishment Clause violation by alleging that defendants' conduct has the purpose and effect of advancing religion. FFRF yesterday issued a press release on the decision, which includes links to all the pleadings in the case.

6th Circuit Upholds Inclusion of Churches In Detroit's Renovation Funding

In American Atheists, Inc. v. City of Detroit Downtown Development Authority, (6th Cir., May 28, 2009), the U.S. 6th Circuit Court of Appeals held that the Establishment Clause (as well as the parallel provision in the Michigan Constitution) was not violated by including churches in a program that used city funds to pay part of the cost of refurbishing downtown buildings and parking lots. The redevelopment program was designed to enhance the visual appearance of the downtown Detroit in preparation for hosting the 2005 Major League Baseball All-Star Game and the 2006 NFL Superbowl. As the court put it: "Detroit sought to fix up its downtown, not to establish a religion."

The trial court had upheld most of the grants, but invalidated those used for signs and for covering stained-glass windows. (See prior posting.) The 6th Circuit found all the grants valid. The Court of Appeals began its 32-page opinion by finding that plaintiffs had taxpayer standing to bring the lawsuit, distinguishing standing of municipal taxpayers from that of state and federal taxpayers. Moving to the merits, the court held that the Detroit program was neutral and did not have the primary effect of advancing religion. Including churches along with dozens of secular entities would not be seen as an endorsement of their religious views. [Thanks to Brian D. Wassom for the lead.]

Russian Authorities Allow Rescheduling of Matriculation Exams By Jewish Students

The Jewish holiday of Shavuot begins this evening. In Russia, after intervention by President Dmitry Medvedev, the Minister of Education has ruled that Jewish students may postpone their taking of the national matriculation exams which were scheduled for tomorrow in conflict with the holiday. Chabad.org News yesterday reported that in a letter to Russian Chief Rabbi Berel Lazar, Educational Minister Andrei Aleksandrovitch Forsenko, citing the Russian Constitution, said that students in the Ohr Avner Chabad network of Jewish day schools and Jewish children in public schools can take their exams up to June 17.

Court Refuses To Dismiss Establishment Clause Challenge To AIG Bailout

In Murray v. Geithner, (ED MI, May 26, 2009), a Michigan federal district court refused to dismiss a taxpayer's Establishment Clause challenge to the federal government's expenditure of $40 billion under the Emergency Economic Stabilization Act to rescue the giant insurance company, AIG. AIG is the market leader in Sharia-compliant financing. The lawsuit argues that use of federal bailout funds to finance "Sharia-based Islamic religious activities" is unconstitutional. Initially the court held that plaintiff has standing to bring the Establishment Clause challenge, relying in large part on the Supreme Court's 1988 decision in Bowen v. Kendrick. On the merits of the claim, the court held:

[T]he fact that AIG is largely a secular entity is not dispositive. "The question in an as-applied challenge is not whether the entity is of a religious character, but how it spends its grant."... In this case, the United States government has a majority interest in AIG. AIG utilizes consolidated financing whereby all funds flow through a single port to support all of its activities, including Sharia-compliant financing. Pursuant to the ESSA, the government has injected AIG with tens of billions of dollars without restricting or tracking how this considerable sum of money is spent.... [A]fter the government acquired a majority interest in AIG... [it] co-sponsored a forum entitled "Islamic Financing 101." These facts, taken together, raise a question of whether the Government's involvement with AIG has created the effect of promoting religion and sufficiently raise Plaintiff's claim beyond the speculative level, warranting dismissal inappropriate at this stage in the proceedings.

The Thomas More Law Center which filed the lawsuit issued a press release summarizing the decision. (See prior related posting.)

Alberta Assembly Set To Pass Parental Rights Provisions

According to yesterday's Edmonton (AB) Journal, after debate extending into the early hours of Wednesday morning, Alberta's Legislative Assembly approved on its second reading Bill 44, the Human Rights, Citizenship and Multiculturalism Amendment Act, 2009. The bill, which adds sexual orientation to the province's anti-discrimination law and makes certain other changes, has attracted much attention because of the parental rights provisions that were also added to it. Under these provisions, a school must provide notice to parents whenever a class or program will be dealing primarily and explicitly with religion, sexuality or sexual orientation, so the parent can request his or her child be excused from class or not participate. The provision does not apply to merely incidental or indirect references to religion, religious themes, human sexuality or sexual orientation in a course. The bill is expected to pass its third and final reading in the Legislative Assembly today.

Theology Professor Named As US Ambassador To Vatican

Yesterday, the White House announced the names of 12 individuals that President Obama intends to nominate as ambassadors. (Boston Globe.) Included is Miguel H. Díaz as Ambassador to the Holy See. Dr. Díaz is a Professor of Theology at St. John's University and the College of Saint Benedict in Minnesota. He previously taught at Barry University, the University of Dayton and the University of Notre Dame, and served as Academic Dean at St. Vincent de Paul Regional Seminary in Boynton Beach, Florida. AP reports that Diaz, a Cuban-American, was a member of the Obama campaign's Catholic advisory board. He was also one of 26 Catholics who signed a statement supporting the nomination of Kathleen Sebelius as Health and Human Services Secretary. Conservative Catholics had criticized Sebelius' support for abortion rights. Yesterday's London Guardian has more on the appointment, on Diaz' reaction to it, and on the reaction of others to his choice. The question of who would be appointed ambassador to the Vatican has been the subject of some contention, as reportedly the Vatican previously rejected three other possibilities. (See prior posting.)

Holy Land Foundation Defendants Sentenced

A Justice Department press release yesterday announced that a Dallas federal district judge has sentenced the Holy Land Foundation for Relief and Development and five of the Muslim charity's leaders who had been found guilty by a federal jury last November on charges of providing material support to Hamas. Hamas is a designated foreign terrorist organization. Two of the convicted defendants were each sentenced to 65 years in prison. The others were sentenced to 15 and 20 years. The court also reaffirmed the jury's prior verdict that the Foundation and the 5 guilty defendants were liable to forfeit the $12.4 million they had funneled to Hamas. (Background via OMB Watch.) (See prior related posting.)

Federal Lawsuit Challenges Prop 8; Some Gay-rights Activists Question Strategy

The New York Times reports that at a news conference yesterday, David Boies and Theodore Olson-- attorneys best known as opponents in the Bush v. Gore litigation in 2000-- announced that they are jointly representing two couples who have filed a lawsuit in federal district court in San Francisco challenging California's Proposition 8 on federal constitutional grounds. The complaint (full text) in Perry v. Schwarzenegger, (ND CA, filed 5/22/2009), asks the court to enter a declaratory judgment and to enjoin enforcement or application of Proposition 8, arguing that it violates the due process and equal protection clauses of the U.S. Constitution. The complaint alleges that "California relegates same-sex unions to the separate-but-unequal institution of domestic partnership."

A number of gay rights activists criticized the filing of the lawsuit, arguing that it could backfire strategically. Yesterday's Examiner says these critics fear that the current Supreme Court would rule against the challenge, and that this would then undermine attempts to get state courts to protect gay marriage under state constitutions. These critics point to another case moving through the federal courts challenging the federal Defense of Marriage Act, which they say is a better first step toward getting federal courts to protect same-sex marriage.

Negotiators On FLDS Land Trust Still Have Not Reached Agreement

Negotiations which have been ongoing for some time on reshaping the $114 million trust holding land of the FLDS Church still have not resolved many of the outstanding issues. (See prior posting.) In 2005, after allegations of mismanagement against FLDS leader Warren Jeffs, a Utah state court appointed a special trustee to take control of the United Effort Plan Trust and reform it to provide for secular management of the property owned by the polygamous FLDS sect. Originally the trust was set up to hold the land and homes of Fundamentalist LDS Church members in Colorado City, AZ and Hildale, UT in accordance with its Holy United Order tenets that call for the sharing of assets by all church members. Yesterday the parties met with Judge Denise Lindberg to report on the progress of their negotiations which are supposed to be concluded by June 15.

According to yesterday's Houston Chronicle, current negotiations are focusing on proposals to create a neutral housing board to deal with claims, and to set aside undeveloped lots for former members who were either excommunicated or left the church voluntarily. Apparently the parties are close to agreement on access to parks, use of a cemetery and payment of outstanding bills. However, Arizona Assistant Attorney General Bill Richards said current proposals raise constitutional and trust law problems and do not meet the court's standards for secular management of the trust. Utah Attorney General Mark Shurtleff is more concerned about reaching an agreement. He says otherwise there will be year of litigation.

AU Asks IRS To Review 501(c)(3) Status of Liberty University

Americans United announced yesterday that it has written the Internal Revenue Service (full text of letter) asking it to review the tax-exempt status of Liberty University. The request pointed to the University's recent denial of recognition to a Democratic Party club formed by a group of students, while recognizing a Republican organization on campus. AU argued that recognized political clubs, funded from student fees, often work on behalf of candidates. Permitting only a Republican club effectively gives Republican candidates an in-kind contribution not made available to Democrats. (See prior related posting.)

Hate Crimes Bill Opponents Invoke "Pedophile Protection" In New Campaign

Now that the U.S. House of Representatives has passed the Local Law Enforcement Hate Crimes Prevention Act (see prior posting), some conservative religious groups are using new scare tactics to oppose passage in the Senate. World Net Daily reported yesterday on a letter-writing campaign organized by Janet Porter, head of the Faith2Action Christian ministry, that argues the bill would protect pedophiles. This notion was stoked by rather outlandish statements made recently on a radio broadcast by Texas Rep. Louis Gohmert. Relying on a statement made during the House debate by Rep. Alcee Hastings, opponents of the legislation say that the term "sexual orientation" in the bill includes "547 forms of sexual deviancies listed by the American Psychiatric Association."

Organizers online offer, for $10.95, to FedEx a letter to every Senator over the name of an individual urging a filibuster of S.909, the Senate version of the bill. The form letter reads in part: "This bill would more appropriately be called 'The Pedophile Protection Act.' The evidence for this extraordinary statement comes directly from debate in the House, when a simple amendment to exempt pedophiles from the protections offered by the bill were rejected."

Wrongful Death Case Against Jehovah's Witnesses In Canada Dismissed In Part

Hughes v. Brady, (Alb. Ct. App., May 25, 2009), is a wrongful death action by the father of Bethany Hughes. Bethany died at age 17 of leukemia. In the case, the Alberta [Canada] Court of Appeals held that Bethany's father may not introduce new evidence against the Watchtower Society or its lawyers in his suit for damages. Following her Jehovah's Witness beliefs, Bethany refused blood transfusions until she was made a ward of the state. The court affirmed the decision of the court below to dismiss claims that defendants had deceived Bethany and that Watchtower lawyers who advised her had a conflict of interest. In part the court found no causal connection between their actions and Bethany's death had been shown. However the appellate court agreed with the lower court that the case could proceed on certain other claims relating to informed consent, trespass and negligence. Yesterday's Calgary Herald reports on the decision.

Religious Protesters of Gun Store Acquitted

In Philadelphia (PA), a municipal court judge has acquitted 12 religious activists on trespass and disorderly conduct charges. AP reported yesterday that the protesters were arrested after they refused to leave Colosimo's Gun Center and blocked the store entrance sidewalk outside. The judge said prosecutors had failed to prove the charges beyond a reasonable doubt.

UPDATE: The Centre Daily Times has a more extensive report on yesterday's acquittals. Defendants, including several ministers, were part of a group called Heeding God's Call, which is attempting to involve faith groups in the gun-control movement. It chose Colosimo's for its protest because of its record for selling guns later used in crimes.

UPDATE2: A Philadelphia Inquirer columnist on Wednesday published a lengthy account of the activities of the anti-gun violence group, the record of the gun store chosen and the arguments made by the defense at trial.

AU Asks County To Assure Homeless Shelter Does Not Pressure Residents Into Prayer

Yesterday's LaCrosse (WI) Tribune reports that Americans United has written LaCrosse County, Wisconsin, complaining that residents of the Salvation Army homeless shelter, funded by the county, are being pressured into attending religious services. Salvation Army gets $50,000 per year in public funds to offer the emergency housing. A Salvation Army official says residents are merely invited to join in services, and are not required to attend. AU wants the county to set up a monitoring system to make sure that coercion is not being used. County and Salvation Army officials will meet next month on the matter. Apparently county officials are willing to monitor activities to meet AU's objections.

California High Court Upholds Proposition 8, But Validates Pre-Prop 8 Marriages

The California Supreme Court today in Strauss v. Horton, (CA Sup. Ct., May 26, 2009), rejected a challenge to voters' approval of Proposition 8, thereby upholding the California constitutional amendment barring same-sex marriage. In a 6-1 decision, the court held that Proposition 8 was an "amendment" and not a "revision" of the state constitution, and therefore properly approved in an initiative process. However same-sex marriages entered into before the effective date of Proposition 8 will remain valid.

The majority opinion by Chief Justice George held that: Proposition 8 merely "carves out a narrow and limited exception" to privacy, due process and equal protection provision in the state constitution, "reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."

Justices Kennard and Werdegar each wrote a concurring opinion. Justice Kennard also joined the majority opinion while Justice Werdegar only agreed with the result, but rejected much of the majority's analysis. Justice Moreno dissented arguing that Proposition 8 is a "revision" of the Constitution because it "strikes at the core of the promise of equality that underlies our California Constitution" by requiring discrimination on the basis of a suspect classification. The Court has also issued a press release describing the opinions. The New York Times reports on the decision.

Sotomayor Is High Court Pick; Here Are Her Religion Decisions

President Obama has nominated Second Circuit Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court. (New York Times). If confirmed by the Senate, Sotomayor will be the first Hispanic to serve on the high court. Sotomayor has served on the Second Circuit since 1998. She served as a federal district court judge in the Southern District of New York from 1992 to 1998. Here is an overview of her judicial views on free exercise, establishment clause and other religion issues. She wrote more on the issue as a district court judge than she has on the 2nd Circuit.

On the Second Circuit, Sotomayor wrote an important dissent in one case

• Hankins v. Lyght, (2006): In an age discrimination challenge by a Methodist clergyman, Judge Winter writing for the majority held that RFRA is properly applied to an Age Discrimination in Employment Act claim. Judge Sotomayor dissented contending that RFRA does not apply to disputes between private parties and that the ADEA does not govern disputes between religious entities and their spiritual leaders.

Judge Sotomayor wrote the court's opinion in 3 other religion-related cases on the 2nd Circuit:

• United States v. Reimer, (2004)(citizenship revocation of Nazi collaborator);
• Ford v. McGinnis, (2003) (prisoner free exercise);
• Salahuddin v. Mead, (1999) (prisoner free exercise).

Sotomayor was on the 2nd Circuit panel that decided a number of other religion-related cases, many of which were either prisoner or immigration cases. Three that involved other types of religion issues in which Sotomayor joined the court's opinion were:

• Friedman v. Clarkstown Central School District, 75 Fed. Appx. 815 (2003) [LEXIS link] (religious objection to required immunization);
• Fifth Ave. Presbyterian Church v. City of New York, (2002) (use of church grounds as homeless shelter);
• Rosario v. Does 1 to 10, 36 Fed. Appx. 25 (2002) [LEXIS link] (teacher dismissed for introducing religious material in classroom).
• [UPDATE] Related opinions in Okwedy v. Molinari (1, 2) (Staten Island Borough president complains to billboard company about display of Biblical verses condmning homosexual behavior.) (Discussed at Volokh Conspiracy.)

Sotomayor wrote more extensively on religion clause matters as a federal district judge. Here is a survey of her religion opinions while on the Southern District of New York:

• Mehdi v. United States Postal Service, 988 F. Supp. 721 (1997) [LEXIS link] (rejecting claim by Muslim plaintiffs that post offices must include crescent and star along with Christmas and Hanukkah decorations);
• Moore v. Kennedy, 1996 U.S. Dist. LEXIS 11474 (1996) (prisoner free exercise);
• Miller v. New York State Department of Labor, 1996 U.S. Dist. LEXIS 11067 (1996) (employment discrimination);
• Utkor v. McElroy, 930 F. Supp. 881 (1996) [LEXIS link] (immigration asylum);
• DiNapoli v. DiNapoli, 1995 U.S. Dist. LEXIS 13778 (1995) (accusations against sibling, member of religious order, growing out of estate administration).
• Rodriguez v. Coughlin, 1994 U.S. Dist. LEXIS 5832 (1994) and Campos v. Coughlin, 854 F. Supp. 194 (1994) [LEXIS link] (preliminary injunction allowing Santeria prisoners to wear religious beads).
• Flamer v. City of White Plains, 841 F. Supp. 1365 (1993) [LEXIS link] (enjoining city from preventing rabbi's placing of menorah in city park during Hanukkah).
  

UPDATE: Here is the White House press release and blog posting on the nomination. Here is the full text of the President's remarks on his choice. Orin Kerr on Volokh Conspiracy points out that if Sotomayor is confirmed, six of the nine Justices will be Catholic. Two are Jewish and Justice John Paul Stevens will be the only Protestant remaining on the Court. (Background data.)

UPDATE 2: The Wall Street Journal on Wednesday posted an interesting interview with Prof. Douglas Kmiec on how Judge Sotomayor's Catholic upbringing may have affected her judicial performance and decisions.

Minnesota Boy's Mother Returns Him For Cancer Treatment

AP reports that 13-year old Daniel Hauser with his mother Colleen returned to Minnesota yesterday, after Daniel's father Anthony urged them to come home. Daniel Hauser, who has Hodgkin's lymphoma, had objected to treatment on religious grounds, and his mother fled with him after a Minnesota court overruled the objections and ordered her and her husband to obtain a new X-ray and select an oncologist for Daniel. The X-ray revealed that a tumor in Daniel's chest had grown. (See prior posting.) The arrest warrant that had been issued for Daniel's mother was lifted after their voluntary return. The FBI believe that Daniel and his mother may have been heading for one of the many alternative cancer clinics in northern Mexico. Daniel is now being evaluated at a hospital in the Twin Cities, according to the Hausers' attorney. CNN reports that while Daniel's mother intends to urge the court to permit alternative cancer treatment, she will allow her son to undergo chemotherapy if that is ordered.

UPDATE: The St. Paul Pioneer Press reports that at a May 26 hearing, a Brwon County judge retruned custody of Daniel Hauser to his parents after the parents agreed to drop their objections to his receiving chemotherapy.

Visiting Sikh Preachers In Austria Shot Over Disagreement With Sermon

In Vienna, Austria on Sunday, a Sikh Temple attended mainly by lower-caste Sikhs who are folowers of the Dera Sach Khand sect was the scene of attacks on two clergymen visiting from India. Sant Niranjan Dass, the Dera head, survived the attack after surgery, but his second in command, Sant Ramanand, died from gunshot wounds. Apparently a sermon being delivered by one of the visiting preachers set off the attacks by higher-caste Sikhs, armed with knives and a handgun, who said the preachers were insulting the Guru Granth Sahib, Sikhism's holy book. Sikhs attending worship services attempted to fight back, even using microphone stands and a frying pan. 16 people were injured. AP reports that 6 suspects are in custody, including four who are asylum seekers who have lived in Austria for some time. In response to the shootings, violence broke out in the Indian town Jalandhar where many followers of the Dera Sach Khand sect of Sikhs-- mainly "untouchables," or Dalits-- live. Yesterday's Times of India reports on the violence in India.

New York's Hate Crime Provisions Upheld In Recently Released Opinion

In People v. Ivanov, (NY Sup. Ct., Sept. 12, 2008)-- decided several months ago but posted online for the first time last Friday-- a New York trial court upheld New York's hate crime statute. The statute enhances applicable penalties when a crime is motivated by bias. Defendant was charged with spray painting and etching swastikas and other anti-Semitic graffiti on buildings (including two synagogues), on automobiles and on sidewalks in an area of Brooklyn Heights near his home. He also placed anti-Semitic flyers on the windshield of parked cars in the area. The court rejected defendant's claim that in order to violate the hate crime law, New York Penal Code. Sec. 485.05, and the related Aggravated Harassment law, New York Penal Law Sec. 240.31, the victims needed to have been selected because of their religion. The court held that as long as a religious, racial, gender, etc. group is targeted, the victim need not necessarily be a member of that class. The court also rejected defendant's constitutional challenges, concluding that the provisions are not vague as applied to this defendant, nor did they violate his free speech rights.

Scientology and Its Leaders In France Go On Trial For Fraud

In France yesterday, the Church of Scientology and six of its leaders went on trial on charges of organized fraud and of illegally prescribing drugs. The Guardian and the Telegraph yesterday both had accounts of the proceedings that target the Church's AGES-Celebrity Centre, and its Freedom Space bookshop in Paris. The case began with a complaint filed over ten years ago by a French woman, Aude-Claire Malton, who claims that at a time she was "psychologically fragile," she was pressured into spending her life savings of 21,000 Euros on life healing lessons, books, an "electrometer" and other products including "purification packs" and vitamins. Three other individuals had also filed complaints against Scientology, but they have withdrawn them after settling out of court.

The indictment by the investigating magistrate charges Scientology is a commercial business that runs a deliberately manipulative system which exploits vulnerable people. Scientology's lawyer says: "It's a trial for heresy: this could only happen in France..." If convicted, the individual defendants each face a possible 1 million Euro fine 10 years in prison. The Celebrity Centre and bookshop could be fined $5 million Euros and closed down in France.

Memorial Day Proclaimed As Day of Prayer For Veterans and Peace

Today is Memorial Day. 36 USC 116 also calls on the President to issue an annual proclamation:

(1) calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace;
(2) designating a period of time on Memorial Day during which the people may unite in prayer for a permanent peace;
(3) calling on the people of the United States to unite in prayer at that time; and
(4) calling on the media to join in observing Memorial Day and the period of prayer.

On Friday, President Obama issued a Proclamation, "Prayer for Peace, Memorial Day, 2009" (full text), providing in part:

As we remember the selfless service of our fallen heroes, we pray for God's grace upon them. We also pray for all of our military personnel and veterans, their families, and all those who have lost loved ones in the defense of our freedom and safety....

I ... do hereby proclaim Memorial Day, May 25, 2009, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer.

Episcopal Church and Break-Away Diocese Litigate Over Retainer Paid To Counsel

As previously reported, the break-away San Joaquin, California Diocese of the Episcopal Church appears poised to lose in its attempt to keep Diocesan property after its affiliation with the more conservative Province of the Southern Cone. A collateral aspect of the property lawsuit filed against the Diocese in 2008 by the Episcopal Church USA is a dispute over use of Diocese funds to pay attorneys' fees in the litigation. Virtue Online on Saturday reported in detail on a state trial court's resolution of the dispute.

Back in 2007, the Diocesan Council paid $500,000 as an advance on legal fees to its law firm, Wild, Carter & Tipton of Fresno, California, in anticipation of litigation that might be filed over property ownership. After the break-off, ECUSA appointed new officials to continue as the Episcopal diocese. They sued the law firm for declaratory relief and to recover the advanced attorneys' fees, invoking several theories of wrongful transfer. The court dismissed most of them, invoking the rule that an agent cannot conspire with its own principal. The court concluded, however, that the claim the transfer was a fraudulent conveyance could succeed, but only if ECUSA is able to prove its allegation that the transfer of funds was undertaken with the intent to injure ECUSA and that the Diocese did not receive reasonably equivalent value in exchange for the fund transfer.

Recent Articles of Interest

From SSRN:

• Zachary R. Calo, The Internationalization of Church-State Issues, (Church and State Issues in America Today, 3 Volumes, Ann W. Duncan & Steven L. Jones, eds., Praeger Publishers, 2008).
• Eric Segall, Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, (Forthcoming, University of Miami Law Review, 2009).
• Zachary R. Calo, 'The New Internationals': Human Rights and American Evangelicalism, (Is the Good Book Enough?, David K. Ryden, ed, Forthcoming).
• Jeffrey R. Baker, Whom Would Jesus Cover? A Biblical, Ethical Lens for the Contemporary American Health Care Debate, (Journal of Law & Health, Vol. 23, Fall 2009).

From SmartCILP:

• Darshan Brach, Logic for the Magic of Mindful Negotiation, 24 Negotiation Journal 25-44 (2008).
• Samuel J. Levine, Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study in the Role of Jewish Lawyers and Jewish Law in Early Twentieth Century Public Interest Litigation, 33 Journal of the Legal Profession 1-29 (2008).
• Robert Steinbuch, Kidneys, Cash, and Kashrut: A Legal, Economic, and Religious Analysis of Selling Kidneys, 45 Houston Law Review 1529-1607 (2009).
• Adrien Katherine Wing, International Law, Secularism, and the Islamic World, 24 American University International Law Review 407-428 (2009).

Somalia Moves Toward Sufi vs. Shabab Warfare

A New York Times report this morning from Somalia says that the African country is moving from clan warfare to religious warfare. In the central part of the country, moderate Sufi militias are winning against the conservative extremist Shabab movement, even though the Shabab is increasingly taking over the capital of Mogadishu on the country's coast.

Court Upholds Montana Law School's Refusal To Fund Christian Legal Society

In Christian Legal Society v. Eck, 2009 U.S. Dist. LEXIS 42980 (D MT, May 19, 2009), a Montana federal district court accepted a magistrate's recommendations and upheld the University of Montana Law School's non-discrimination and open-membership policies for recognized student groups. The court concluded that Christian Legal Society's requirements for voting membership violate those policies and thus disqualify CLS from receiving Student Bar Association funding. CLS requires that students, in order to be voting members, sign a Statement of Faith. It also treats "unrepentant participation in or advocacy of a sexually immoral lifestyle" as inconsistent with the required Statement. The court held that the law school's policies are viewpoint neutral and were not intended to single out or limit CLS' rights to free expression. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Marsh v. Florida Department of Corrections, (11th Cir., May 18, 2009), the U.S. 11th Circuit Court of Appeals rejected a free exercise challenge to a policy of the Florida Civil Commitment Center that bars plaintiff from practicing Nisei GoJu-Ryu Karate, a form of martial arts practiced by Zen Buddhists for spiritual enlightenment. The court concluded it did not have to decide whether Turner v. Safley applies to civilly committed detainees as well as those committed criminally. It concluded that even were it to apply the constitutional protections granted to non-detained individuals, the institution's martial arts ban would be upheld as a neutral and generally applicable rule.

In Florer v. Johnson, 2009 U.S. Dist. LEXIS 41960 (WD WA, May 4, 2009), a Washington federal magistrate judge granted plaintiff leave to amend his complaint to allege that that the 2004, 2006 and 2008 kosher and mainline dietary menus offered by the Washington Department of Corrections were nutritionally and religiously inadequate. It rejected defendants' claims that the amended complaints were barred by res judicata.

In Trotter v. Schwarzennegger, 2009 U.S. Dist. LEXIS 41554 (ED CA, May 5, 2009), a California federal magistrate judge dismissed a prisoner's complaint alleging a lack of religious programs at his prison.

Objections To Religious References At Trial of Juvenile Not Preserved For Appeal

In In re A.D., (TX App., May 15, 2009), a 14-year old Mennonite boy challenged the 10-year sentence imposed on him for driving while intoxicated, thereby causing the death of a passenger in his SUV. The boy claims that repeated references at trial to the nature of the religious community in which he and his family reside violated his equal protection rights. He claimed that the jury assessed punishment at least in part based on the beliefs and practices of his Mennonite community. However the a Texas state appellate court concluded that failure to object to the statements at trial forfeited the right to raise them on appeal. Nevertheless, the court reversed and remanded the sentence on other grounds, finding that no evidence was presented to show that efforts were made, as required by Texas law, to prevent removing the juvenile from his home.

Wisconsin Jury Convicts Mother Who Relied on Faith Healing of Homicide

The Chicago Tribune and the Wausau Daily Herald report that yesterday in Wausau, Wisconsin, a state court jury found Leilani Neumann guilty of second-degree reckless homicide in the death of her 11-year old daughter, Kara, whose diabetes went untreated. Instead the girl's parents, relatives and friends prayed for her as her health deteriorated and she finally went into a coma. In closing arguments, the prosecutor described Neumann as a religious zealot who let her daughter die as a test of faith. Defense counsel responded that Neumann did not realize her daughter was so ill and did all she could consistent with her family's belief in faith-healing. Neumann faces a possible sentence of 25 years in prison, and her attorney says an appeal is planned based on the trial court's refusal to allow a faith-healing expert to testify at trial. Neumann's husband, Dale, will be tried separately on similar charges in July.

Connecticut High Court Orders Release of Documents In Clergy Abuse Cases

In Rosado v. Bridgeport Roman Catholic Diocesan Corp., (Ct. Sup. Ct., May 22, 2009, official release date June 2), the Connecticut Supreme Court, over the dissent of Justice Sullivan, granted the requests of 4 newspapers and released some 12,600 pages of documents filed in 23 cases alleging sexual abuse by Roman Catholic clergy. According to a report on the case by The Day (New London, CT), the documents have been under seal since 2001 when the Diocese of Bridgeport settled the cases. The court held that all documents filed with the court that it could reasonably rely on in support of its adjudicatory function are presumptively open to the public. (Under this rule, only 15 documents in the cases could be kept sealed.) The court also held that the trial court judge properly refused to recuse himself in the case seeking release of the documents. (See prior related posting.)

Defendant Sentenced To 10 Years For Pot Farm; Religious Defense Found Insincere

Last Monday in a northern California federal courtroom, trial onlookers shouted at federal district judge Marilyn Hall Patel and the federal prosecutor after Patel sentenced defendant Charles "Eddy" Lepp to the mandatory ten years in prison on charges of running a vast marijuana farm known as "Eddie's Medicinal Gardens and Ministry of the Rastafari." According to Law.com, Judge Patel questioned the sincerity of Lepp's attempted religious defense to the charges, saying he did not display much knowledge about Rastafarianism. The judge, who said she thought the mandatory minimum was excessive but had no authority to modify it, said she would entertain a motion to modify Lepp's sentence if Congress changes the law while he is still in prison.

In Greece, Young Muslims Violently Protest Ripping of Quran By Policeman

In Athens, Greece, some 1,500 young Muslims marched to the Parliament building yesterday to protest charges that a police officer tore up a copy of the Qur'an while checking an Iraqi immigrant's identity papers. Today's Haaretz reports that as the crowd shrunk to about 300, violent clashes with police broke out and 46 protesters were arrested. Police released photos of the torn Qur'an and said they will investigate the charges, but emphasized that the isolated incident did not justify the violent reaction.

Inspector General Reports on 2004 IRS Exams of Non-Profit Political Activities

The Treasury Department has posted online a May 12 audit report by the Treasury Inspector General for Tax Administration titled Statistical Profile of Alleged Political Intervention by Tax-Exempt Organizations in the 2004 Election Season. The audit, undertaken at the request of the Senate Finance Committee, examines the Internal Revenue Service's performance in its 2004 initiative to promote compliance with the prohibition against political campaign intervention by non-profits. The report finds:

For the 2004 Initiative, the IRS opened 110 examinations.... Examinations most often were initiated after referrals were received from sources external to the IRS and were almost evenly distributed between churches and charities. The examinations mainly concerned tax-exempt organizations that had allegedly been involved in a single instance of potentially prohibited political intervention and involved issues/campaigns at the national level slightly more than at the State and local level. In addition, examinations involved a wide array of issues, such as distribution of printed and electronic information, as well as verbal statements and direct political contributions....

As of November 2008, the IRS' inventory system showed that the IRS had substantiated prohibited political activity in 76 (71 percent) of the 107 examinations it had completed. While reviewing case information, we found that this number was overstated. Based on our review of case files, the IRS incorrectly coded 14 cases as involving violations of the political intervention prohibition when no violations occurred. While the data still shows that a majority of examinations resulted in the IRS determining that tax-exempt organizations had violated the prohibition, it is important that this information be accurate because it is reported to external stakeholders. We determined that the incorrect coding was due to confusion over how to classify case results on the inventory system.

Liberty University Revokes Recognition of College Democrats

The Washington Post today reports that Liberty University, the conservative Christian school located in Lynchburg, Virginia, has withdrawn recognition of Liberty University College Democrats as a student organization. The move comes as the University adopts a new policy governing student organizations. An e-mail sent to the group from the University's vice-president for student affairs says: "We are unable to lend support to a club whose parent organization stands against the moral principles held by Liberty University." (Full text of new policy and of e-mail revoking College Democrats' recognition). Maria Childress, the club's adviser, says she is trying to appeal the decision to the school's chancellor, Jerry Falwell Jr. The Lynchburg (VA) News-Advance reports on a statement Falwell made today regarding the suspension:

"That club still has the right to exist," Falwell said, although it cannot use the university’s name in its activities. "They still can meet on campus," in certain rooms, he said. "There is absolutely no animosity at all toward any of these kids. They are good, Christian kids who sit with me at ball games. I just hope they find a pro-life family organization to affiliate with so they can be endorsed by Liberty again."

Virginia Governor Timothy Kaine issued a statement on Democratic national Committee letterhead urging the University to reverse its decision. [Thanks to both Don Byrd and Bob Ritter for the lead.]

Senate Passes Resolution Remembering M.S. St. Louis Anniversary

This week the U.S. Senate passed S. Res. 111, "recognizing June 6, 2009, as the 70th anniversary of the tragic date when the M.S. St. Louis, a ship carrying Jewish refugees from Nazi Germany, returned to Europe after its passengers were refused admittance to the United States." The resolution passed May 19 by Unanimous Consent.

California Law Protects Closed Church From Landmarking

In California-Nevada Annual Conference of the United Methodist Church v. City and County of San Francisco, (CA Dist. 1 App., May 20, 2009), a California state appellate court held that the San Francisco Board of Supervisors exceeded its jurisdiction in adopting a resolution beginning the procedure to designate First St. John‟s United Methodist Church as a landmark. The court held that state law permitting religiously affiliated organizations to exempt their noncommercial property from landmarking regulation applies even though the building is no longer being used as a place of worship. The court concluded that the purpose of the state law exclusion was to allow religious institutions to sell their dilapidated churches for a profit. BCN reported on the decision yesterday.

Court Refuses To Decide RLUIPA Claim On Ripeness Grounds

Congregation Etz Chaim v. City of Los Angeles, 2009 U.S. Dist. LEXIS 42345 (CD CA, May 5, 2009), is the latest decision in a dispute that began in 1996 over whether the city of Los Angeles would issue a conditional use permit to members of a synagogue to allow them to conduct religious services at a house in Los Angeles. A 2001 settlement of a RLUIPA lawsuit filed by the congregation was overturned by the 9th Circuit in 2007 on the ground that the settlement process cannot be used to evade state law requirements for notice and a hearing for the affected community before a conditional use permit is granted. (See prior posting.) In May 2008 the Congregation filed a new conditional use permit application with the city, but also asked the court to move ahead with a decision on its original RLUIPA claim. The court refused to do so on ripeness grounds, holding:

Over ten years have passed since the City denied plaintiff's CUP application, and the Congregation has recently filed a second application, which the City is currently considering. This second CUP application presents the first opportunity for the City to consider the Congregation's request in light of RLUIPA..... [G]ranting of the second CUP application would moot the instant action. Furthermore, it does not appear that the Congregation will be immediately harmed by the Court's decision to dismiss the instant action on ripeness grounds. The City has not taken any action to date to enforce the original denial of the CUP.... [T]he threat of hardship to the Congregation remains speculative.

Republicans Delay Committee Vote On 7th Circuit Nominee Over His Establishment Clause Decisions

At the request of Republican members of the Committee, the Senate Judiciary Committee postponed a vote that was to have taken place yesterday on the nomination of Indiana district judge David Hamilton to serve on the U.S. Seventh Circuit Court of Appeals. According to yesterday's Indianapolis Star, Alabama Senator Jeff Sessions said that Republicans needed more time to review Hamilton's record on the district court. Sessions pointed particularly to Hamilton's rulings holding that the opening of sessions of the Indiana House of Representatives with sectarian prayer was a violation of the Establishment Clause. (See prior posting.) Subsequently the decision was reversed on standing grounds by the 7th Circuit. Hamilton testified at his nomination hearings that the law on taxpayer standing changed between his decision and the reversal by the 7th Circuit.

Final Defendant Settles In Sex Abuse Case Against Seattle Archdiocese

Yesterday's Tacoma (WA) News Tribune reports that the second of two plaintiffs in a priest sex abuse case brought against the Catholic Archdiocese of Seattle has agreed to settle for $700,000 following his testimony at trial. The Archdiocese gave plaintiff a short deadline to accept, after jurors raised some questions about the testimony. Plaintiff had already settled with other potential defendants, receiving some $600,000 from them. In the current trial, another plaintiff settled earlier this week. (See prior posting.) Both had allegedly been abused by former priest Patrick G. O’Donnell.

Pending British Equality Bill Creates Only Narrow Exemption For Religious Objections

As previously reported, in April Britain's new Equality Bill was introduced into the House of Commons. The Explanatory Notes published by the Equalities Office devoted several pages to the exemption from the provisions on sexual orientation discrimination for organized religious groups. [Scroll to pp. 85-89 of the PDF document]. Wednesday's London Telegraph reported that Deputy Equalities Minister Maria Eagle speaking to the delegates at the Faith, Homophobia, Transphobia, & Human Rights conference in London has indicated that the exemption will be read narrowly. She said in part:

The circumstances in which religious institutions can practice anything less than full equality are few and far between. While the state would not intervene in narrowly ritual or doctrinal matters within faith groups, these communities cannot claim that everything they run is outside the scope of anti-discrimination law. Members of faith groups have a role in making the argument in their own communities for greater LGBT acceptance, but in the meantime the state has a duty to protect people from unfair treatment.

Does "WWJD" Violate Fair Debt Collection Practices Act?

The federal Fair Debt Collection Practices Act prohibits debt collectors from engaging in "conduct the natural consequence of which is to harass, oppress, or abuse any person" (15 USC 1692d) or using "unfair or unconscionable means "(15 USC 1692f) in collecting amounts owed by consumers. In Neill v. Bullseye Collection Agency, 2009 U.S. Dist. LEXIS 41931 (D MN, May 14, 2009), plaintiffs argued that placing "WWJD" ("What would Jesus do?") in the top corner of collection letters violated these provisions. They claimed that the practice "has the effect of invoking shame or guilt in alleged debtors and 'portray[s] the debtor as a sinner who is going to hell.'" The court denied defendant's motion to dismiss the claim, finding that plaintiffs had stated enough facts to make out a plausible claim. The court put off any consideration of the constitutionality of the statute.

French Government Agency Combatting Cults Releases Report

On Tuesday, the French government agency Mission interministérielle de vigilance et de lutte contre les dérives sectaires, (MIVILUDES), i.e. "Interministerial Mission for Monitoring and Combating Cultic Deviances," released its 2008 annual report (full text in French). France 24 says the report:

warns that religious sects are on the increase in France, tripling in the last 15 years to reach at least 600 different movements across the country. The report also denounces a huge increase in unqualified therapists, warning that sects are using the personality coaching and self-help trends to target impressionable people.

Digital Journal says that 10 pages in MIVILUDES' 199-page report are devoted to criticizing the activity of sects in the United Nations and the OSCE. The report says that non-governmental organizations are attempting to limit MIVILUDES influence in the UN and OSCE, and that the Church of Scientology has particularly taken aim at MIVILUDES.

Priest's Conviction on Child Molestation Charges Upheld

In State of Wisconsin v. McGuire, (WI Dist. II Ct. App., May 20, 2009), a Wisconsin state appellate court upheld the 7-year prison term imposed on a former, once-prominent Jesuit priest who was convicted of molesting two teenage boys in the late 1960's. Priest Donald McGuire was not charged until 2005, and was tried in 2006. The statute of limitations had not run because McGuire was not in Wisconsin in the intervening years, thus tolling the statute. The court rejected McGuire's claims that the 36-year delay in bringing charges against him prejudiced his defense and violated his constitutional rights; that he received ineffective assistance of trial counsel; and that the trial court had admitted unduly prejudicial evidence. Yesterday's Chippewa Valley (WI) Newspapers reporting on the appeal said that the now 78-year old priest was also sentenced earlier this year by a federal court to 25 years in prison for traveling across state lines and out of the country to have sex with a teenager between 2000 and 2003.

Same-Sex Marriage Not Yet A Done Deal In New Hampshire

As previously reported, New Hampshire Governor John Lynch told the legislature that he would sign the same-sex marriage bill it had passed only if it made changes to grant stronger protections to religious institutions. According to yesterday's Concord Union Leader, the state Senate on Wednesday agreed to the governor's requested changes by a vote of 14-10. However later in the day, the state House of Representatives in a close vote (188-186) refused to adopt the Governor's changes, and by a larger vote (207-168) asked the Senate to negotiate a compromise.

Meanwhile, as gay marriage seems to be gaining momentum in state legislatures, Pew Forum yesterday published a Q&A with Professors Ira "Chip" Lupu and Robert W. Tuttle, titled: A Clash of Rights? Gay Marriage and the Free Exercise of Religion.

4 Men Arrested In New York Charged With Plot To Bomb Synagogues

According to today's New York Times, four upstate New York men were arrested last night, charged with plotting to bomb two synagogues in the Bronx (as well as shoot down planes at Stewart Air National Guard base in Newburgh, NY). The criminal complaint (full text) filed against them charges them with conspiracy to use weapons of mass destruction and conspiracy to acquire and use anti-aircraft missiles. The four men, all U.S. citizens who are Muslims, were arrested after planting what they believed to be bombs in cars outside the Riverdale Temple and the Riverdale Jewish Center in the Bronx. In fact, the bombs were fake, having been provided by an FBI informant. The US Attorney's Office for the Southern District of New York issued a press release yesterday announcing the arrests.

Elementary Teacher Sues Charging Religious Discrimination and Harassment

In Bakersfield, California, Bruce Neal, who has taught for 20 years in the Edison School District, has filed a federal civil rights lawsuit alleging that that former Orangewood Elementary School Principal Mark Holmes engaged in religious discrimination and harassment against him from 1999 to 2008. Yesterday's Californian reports that Neal, a second grade teacher who is also a rabbi, says that the former principal forced him to remove his yarmulke (skullcap). Neal also alleges that he was criticized for his religious diet and clothing and subjected to negative comments from co-workers about being Jewish. In 2008, Principal Holmes, who is the target of Neal's complaints, resigned after he was charged by school officials with fostering an environment in which teachers were free to "terrorize, gossip, tattle."

Permit Requirement For Church's Use As Homeless Shelter Upheld

In Westgate Tabernacle, Inc. v. Palm Beach County, (FL 4th Dist. Ct. App., May 20, 2009), a Florida state appellate court upheld Palm Beach County's application of its zoning rules to Westgate Tabernacle's use of its church building as a homeless shelter. The court rejected challenges under the Florida Religious Freedom Restoration Act and federal RLUIPA, finding that merely requiring a church to apply for a conditional use permit is not a substantial burden on its free exercise. Also plaintiff did not show that running a shelter at a specific location was fundamental to its religious exercise. Yesterday's South Florida Sun-Sentinel reported on the decision.

Ireland's Massive Report On Clergy Sex Abuse Released

Yesterday Ireland's Commission to Inquire Into Child Abuse released its mammoth 2,600-page report on child abuse at Catholic institutions in Ireland from 1936 to the present. The 30-page Executive Summary and the text of the full report are both available online, as are transcripts of testimony that the Commission took in 2004 and 2005. BBC News summarized the findings:

The report, nine years in the making and covering a period of six decades, found thousands of boys and girls were terrorised by priests and nuns. Government inspectors failed to stop beatings, rapes and humiliation....

The five-volume study concluded that church officials encouraged ritual beatings and consistently shielded their orders' paedophiles from arrest amid a "culture of self-serving secrecy". The commission found that sexual abuse was "endemic" in boys' institutions, and church leaders knew what was going on.

Victims of the abuse-- particularly those who had testified before the Commission --were particularly upset by the fact that the report will not be used as the basis for additional criminal prosecutions. In part this is because one of the largest religious orders involved-- Christian Brothers--obtained a court order in 2004 to keep all its members discussed in the report anonymous. Police were called to the news conference in which the report was released as victims who were prevented from attending began to object. BBC News has reactions of abuse victims, church leaders and political leaders.

Court Dismisses Some Discrimination Claims Brought By Muslim Researchers

In Ridha v. Texas A&M University System, 2009 U.S. Dist. LEXIS 41290 (SD TX, May 15, 2009), a Texas federal district court dismissed some, but not all, of the claims brought by husband and wife medical researchers against various defendants alleging discrimination on the basis of race, national origin and religion. Both plaintiffs are Iraqi Muslims (one Arab and one Kurdish) who left Iraq after the U.S. invasion in 2003. Both plaintiffs, who conducted research in the Reproductive Sciences Lab at Texas A&M, alleged among other things that various individuals who worked with them ridiculed their Muslim faith and threw animal urine and feces on their prayer rugs. Plaintiffs also allege that they were fired from their positions in retaliation for their complaints about harassment and discrimination. Among other things, the court held that the University System was not plaintiffs' employer for purposes of Title VII and that the 11th Amendment shields the University from damage claims for alleged 1st Amendment violations. It also held that claims under 42 USC Sec. 1981 can be brought for racial discrimination (including discrimination on the basis of ethnicity), but not for religious discrimination.

Taliban Terrorize Peshwar, Pakistan In Drive Against Un-Islamic Activities

Today's Wall Street Journal reports from Peshawar, Pakistan on a terror campaign by the Taliban on businesses they consider "un-Islamic." They have already used car bombs to destroy an Internet cafe, women's clothing stalls, and have threatened a video store. Taliban have also bombed girls' schools and Sufi religious shrines. The Journal reports further that while the Taliban are unlikely to seize Peshwar, the capital of Pakistan's North West Frontier Province:

through a campaign of bombings, kidnappings and murders, the militants are increasingly imposing on Peshawar the rigid religious restrictions that are already enforced in Swat, Waziristan, and other northwestern areas that have succumbed to Taliban control. Such "Talibanization" is a grim setback for a storied city that braced itself for revival when a secular Pashtun nationalist movement, the Awami National Party, won provincial elections last year, ousting a coalition of religious parties.

Court Dismisses Religious Group's Challenge To Support Order

In Christ's Household of Faith v. Ramsey County, (D MN, May 18, 2009), a Minnesota federal district court dismissed a number of federal challenges to a state court's order that a religious group, Christ's Household of Faith, as a "payor of funds" send child support and spousal maintenance payments (including arrearages) to the Ramsey County (MN) Department of Community Services for Patricia Rooney who had been awarded the amounts in her divorce proceeding. Michael Rooney, Patricia's former husband who had originally been ordered to pay the amounts, was a member of Household of Faith whose members give up most of their property, live communally and merely receive a small stipend of less than $100 per month. In the 20 years since the Rooneys divorce, the parties have been involved in numerous lawsuits challenging state determinations of the value of Michael's services to CHOF and CHOF's liability to pay the child support owed by Michael. The court dismissed the challenges under the Rooker-Feldman doctrine that calls for dismissal of cases in which federal district courts are called on to review and reject a state court judgment. Yesterday's Minneapolis Star-Tribune reports on the decision.

Iran's Guardians Council Approves 4 Presidential Candidates

In Iran, the country's 12-member Guardians Council has selected the 4 candidates who will run in the Presidential election next month. According to a report today from AFP, a total of 475 Iranians (including 42 women) had registered as possible candidates. The Council is made up of six clerics picked by the supreme leader and six jurists chosen by the head of the judiciary. The approved candidates are incumbent president Mahmoud Ahmadinejad, former head of the Revolutionary Guards Mohsen Rezai (a conservative), former prime minister Mir Hossein Mousavi (a moderate reformist) and ex-parliament speaker Mehdi Karroubi (a reformist).

Teen and Mother Fail To Appear At Hearing On Cancer Treatment For Boy

Thirteen-year old Daniel Hauser and his mother Colleen Hauser failed to appear at their scheduled court hearing in New Ulm, Minnesota yesterday. They apparently have gone into hiding rather than comply with a court order to take steps toward obtaining chemotherapy for Daniel's Hodgkin's lymphoma. They object on religious grounds to the treatment. (See prior posting.) In accordance with the court's mandate, Daniel did obtain a new chest X-ray on Monday. It showed that his tumor had returned to its size before the one chemotherapy treatment he had. The Minneapolis Star-Tribune reports that Daniel's father, Anthony Hauser, told the court that he does not know his wife's and son's whereabouts. Brown County District Judge John Rodenberg held Colleen Hauser in contempt of court. and ordered that Daniel be placed in foster care for oncology treatment as soon as he is found. AP reports that Daniel's father, Anthony, now believes his son should restart chemotherapy.

NY Town Charges Zoning Violations In Cow and Chicken Slaughter

Lower Hudson Journal News reports on motions that were granted in the Ramapo, New York town court yesterday in two cases pitting zoning authorities against some of the town's Orthodox Jewish population. In one case, the judge granted owners of a yeshiva more time to answer charges that they violated zoning regulations when they slaughtered a cow in the school's back yard. In the other case, the court permitted organizers of last fall's kaparot ceremony involving slaughter of 13,000 chickens in a parking lot in Monsey (NY) to withdraw their guilty pleas and go to trial on zoning violation charges. Officials charged defendants with washing slaughtered chicken remains down a storm sewer and with leaving the parking lot littered with trash and chicken remains. (See prior posting.)

Reports On Two Priest Sexual Abuse Cases

The Seattle Times reported yesterday that a settlement has been agreed to in mid-trial by one of two plaintiffs suing the Catholic Archdiocese of Seattle over sexual abuse by a priest in 1976. The offending priest, Patrick O'Donnell, was transferred from Spokane to Seattle without Spokane Bishop Bernard Topel telling Seattle Church officials that O'Donnell was a repeat pedophile. 87-year old former Seattle Archbishop Raymond Hunthausen testified at the trial yesterday. Yesterday's Seattle Post-Intelligencer describes his testimony in some detail. The second plaintiff in the case has not settled, and the trial continues on his claims.

Meanwhile, the Wilmington, Delaware News-Journal reports on another ongoing priest abuse case. A civil suit was filed in Delaware state court by a 46-year old man against the Oblates of St. Francis de Sales and Salesianum School. Plaintiff says he was abused from 1982-1984 by now-deceased Rev. Richard Grant who was principal of the school. This is one of more than a dozen suits that have been filed against the Oblates and several of their priests since Delaware opened a two-year window for old claims to be filed through its 2007 Child Victim Act.

Laid-Off Church and Synagogue Employees Find No Unemployment Benefits

UPI today, in a report from Richmond, Virginia, says that many people recently laid off their jobs by churches and synagogues are surprised to find that they are not entitled to state unemployment benefits. Under Virginia law, churches are exempt from paying unemployment taxes. (Va. Code § 60.2-213(B)) The Catholic Diocese of Richmond has a voluntary self-insurance arrangement with the state under Va. Code § 60.2-501. Laid-off workers file for unemployment, and if the claim is approved, the state bills the Diocese for the actual amount of benefits paid out to the former employee.

Israel's High Court Orders Equal Funding For Non-Orthodox Conversion Classes

Jerusalem Post reports that Israel's High Court of Justice today handed down a landmark ruling requiring the government to fund Reform and Conservative institutions that offer classes to prepare individuals for conversion to Judaism, on an equal basis with Orthodox bodies. Ruling in a case brought by the Israeli Movement for Progressive Judaism, a 3-judge panel of the Court ordered the Immigration and Absorption Ministry to set criteria for equal funding, and to retroactively fund the organizations for the past three years. Justice Dorit Beinisch, president of the Supreme Court , wrote in her opinion that the government must allow different conversion institutions to "coexist" as a matter of "freedom of religion and pluralism." Her opinion suggested that an alternative would be for the government to stop funding private Orthodox conversion classes.

Meanwhile, JTA reports that in another ruling yesterday, Israel's Supreme Court ordered the High Rabbinic Court to explain why, in a decision last year, it retroactively nullified conversions that had been carried out through special conversion courts headed by Rabbi Haim Druckman. (See prior posting.)

Conference Discusses Legal Issues In Sharia-Compliant Financing

Reuters reports on a conference of Islamic scholars held yesterday in Bahrain to discuss legal issues raised by Sharia-compliant financing arrangements. Western business partners generally want contractual provisions that stipulate British law will govern commercial contracts-- and any arbitration proceedings to settle contractual disputes. However strict interpretations of Islamic law preclude this because Sharia does not accept human-made law that is not derived from Islam. Scholars urged parties to contracts to build in arbitration provisions that refer disputes to Sharia-based arbitration centers, like Dubai's International Islamic Centre for Reconciliation and Commercial Arbitration. However Westerners are reluctant, and Dubai's center, created in 2005, has yet to hear a case.

As international economic problems increase, courts are beginning to see disputes involving Sharia-compliant real estate financing. One of the issues being raised is whether, in loans structured as purchases by the bank on behalf of the borrower to comply with Islamic law, courts should look to the form of the transaction and apply laws applicable to real estate sales, or should instead look through form to substance and apply rules applicable to loans.

Federal Lawsuit By Jews for Jesus Seeks To Enjoing Park Permit Regulations

Following a state court ruling earlier this year dismissing criminal charges against "Jews for Jesus" missionary Susan Mendelson who was arrested for violating park rules in distributing literature in Burns Park in the Town of Oyster Bay, New York (see prior posting), a federal court lawsuit seeking to enjoin further enforcement of the Town's permit regulations has been filed. The challenged code and regulations require a permit to distribute leaflets in Town parks. Mendelson refused to limit her distribution to a fixed table location in the park as authorities demanded. The complaint (full text) in Jews for Jesus, Inc. v. Town of Oyster Bay, (ED NY, filed 5/7/2009), alleges that Town of Oyster Bay Code § 168-16 and Regulations promulgated under it, as well as the town's actions against her, violate the 1st and 14th amendments as well as the free speech provisions of New York's constitution. The complaint also seeks a declaratory judgment. An Alliance Defense Fund release yeaterday announced the filing of the lawsuit.

Oklahoma Governor Signs 10 Commandments Bill

The Tulsa World reports that Oklahoma Governor Brad Henry on Monday signed House Bill 1330 [Word .doc] that authorizes placement of a Ten Commandments monument on the State Capitol grounds. The new law may well invite litigation. Anticipating that, the drafters specified that the Oklahoma monument-- which will be paid for by private funds-- should have the same text as the monument on the Texas State Capitol grounds that was upheld against an Establishment Clause attack in a 2005 U.S. Supreme Court decision, Van Orden v. Perry. (See prior posting.)

Indian Christians Applaud Results of Parliamentary Elections

Last weekend's Parliamentary elections in India resulted in the Indian National Congress, leading a secular alliance, winning the largest number of seats. (Wall Street Journal analysis). (Official results.) According to UCAN, Christian groups are elated. The All India Christian Council applauded the electorate's "consummate and decisive" rejection of divisive and sectarian political forces. Christians had feared that that National Democratic Alliance, led by the pro-Hindu BJP (Bharatiya Janata Party), would win. BJP is the political arm of right wing Hindu groups that want to create a Hindu theocracy in India.

Supreme Court Rejects Discrimination Claim By Muslim For His Post- 9/11 Arrest

Today in Ashcroft v. Iqbal, (Sup. Ct., May 18, 2009), the U.S. Supreme Court reversed the 2nd Circuit and rejected 1st and 5th Amendment Bivens claims brought by a Pakistani-Muslim who was arrested in the U.S. in the wake of the September 11 attacks. The complaint alleged that the former U.S. Attorney General and the former Director of the FBI subjected Iqbal to harsh conditions of confinement as a person of high interest because of his race, religion and national origin. In a 5-4 decision written by Justice Kennedy, the majority concluded that Iqbal's complaint failed to state sufficient facts to support a claim for purposeful discrimination:

Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.... [T]o state a claim ... respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral,investigative reason but for the purpose of discriminating on account of race, religion, or national origin....

The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.

Justices Souter, Stevens, Breyer and Ginsburg dissented. SCOTUS Wiki has links to all the briefs that were filed in the case. The New York Times reports on today's decision. (See prior related posting.)

Magazine Discloses Rumsfeld Embellished Top Secret Reports To Bush With Bible Quotes

GQ yesterday published a long article critical of former Secretary of Defense Donald Rumsfeld. One of the things it disclosed for the first time was Rumsfeld's practice of often placing Biblical verses on the cover sheet of the top secret Worldwide Intelligence Update delivered daily to President George W. Bush and a few top military leaders. Here is GQ's slide show of a number of the cover sheets that carry Biblical quotes to embellish images from the previous day's battle front. GQ explained the origin of the cover sheets:

These cover sheets were the brainchild of Major General Glen Shaffer, a director for intelligence serving both the Joint Chiefs of Staff and the secretary of defense. In the days before the Iraq war, Shaffer’s staff had created humorous covers in an attempt to alleviate the stress of preparing for battle. Then, as the body counting began, Shaffer, a Christian, deemed the biblical passages more suitable. Several others in the Pentagon disagreed. At least one Muslim analyst in the building had been greatly offended; others privately worried that if these covers were leaked during a war conducted in an Islamic nation, the fallout—as one Pentagon staffer would later say—"would be as bad as Abu Ghraib."

But the Pentagon’s top officials were apparently unconcerned about the effect such a disclosure might have on the conduct of the war or on Bush’s public standing. When colleagues complained to Shaffer that including a religious message with an intelligence briefing seemed inappropriate, Shaffer politely informed them that the practice would continue, because "my seniors"—JCS chairman Richard Myers, Rumsfeld, and the commander in chief himself—appreciated the cover pages.

[Thanks to Scott Mange for the lead.]

UPDATE: New York Times coverage this morning of the CQ article quotes former Pentagon officials as saying that they doubted President Bush regularly saw the Pentagon briefing, which was less complete than his daily intelligence briefing. One former Pentagon spokesman said while he had no recollection of the Biblical quotes, he doubted that Rumsfeld would have tolerated them or used them to influence the White House.