Debate Over Teaching Jihad In Kuwati Schools

The Middle East Media Research Institute today released an extensive report on the debate over curricular reform in the schools of Kuwait. MEMRI says that the controversy centers on the extent to which jihad should be part of the school curriculum, and whether teaching it contributes to extremism. The Education Ministry denies that the present curriculum has extremist content, but has created a new committee to examine the issue.

New Analysis of Cutter Case

An extensive analysis of Tuesday's US Supreme Court decision in Cutter v. Wilkinson by Cardozo Law Professor Marci Hamilton appears in Findlaw's Legal Commentary today. The case upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act as it applies to prisons.

House Committees Reject Pressuring AF Academy on Discrimination

After weeks of reports about religious harassment of non-Christian cadets at the U.S. Air Force Academy (see prior postings 1, 2, 3, 4), attempts by New York Rep. Steve Israel to get Congress to require the Academy to submit a plan to assure religious toleration have been defeated in committee. The Forward reports in its edition dated June 3 that proposed amendments to the National Defense Authorization Act were voted down at a May 23 vote of the House Rules Committee. Backers of the amendments were troubled by statements at a May 18 Armed Services Committee hearing at which some representatives suggested that the real problem was "political correctness" interfering with rights of Christians. North Carolina Representative Walter Jones said that some evangelical Christians feel they are not being promoted because of their faith and Christian chaplains are not being permitted to conduct prayers referring to Jesus.

IN Suit Challenges Sectarian Legislative Opening Prayers

The Indiana Civil Liberties Union yesterday filed suit in federal district court to stop the Indiana House of Representatives from opening its sessions with sectarian or proselytizing prayers. According to a report in today's Fort Wayne Journal-Gazette, invited clergy often emphasize Jesus in their invocations. In one session, the invited minister led the chamber in the singing of "Just a Little Talk With Jesus". Members clapped, sang along, and gave the minister a standing ovation. The law suit does not seek to totally stop opening prayers in the legislative chamber, but asks that they be delivered in a non-sectarian manner. The press release by the ICLU announcing the suit states that it is brought on behalf of a retired Methodist minister, a lobbyist for a statewide Quaker group and two Roman Catholic citizens.

Religious Differences Bridged In Sudan Constitution Drafting

The Constitutional Commission drafting an interim constitution for embattled Sudan has come up with a very lawyerly solution to a religious conflict over the document. Reuters South Africa reports today that a different Preamble will appear in the Constitution for the Islamic north of Sudan than for the non-Islamic south. The Preamble used in the north will begin with the traditional phrase: "In the name of God the Gracious the Most Merciful". This will be omitted from the version used in the south.

Nigerian City Set To Impose More Sharia Restrictions on Taxi Drivers

In Kano, Nigeria, motorcycle taxi drivers are about to lose substantial amounts of business if a new traffic law is enforced, according to a report in today's South African Mail & Guardian. The governor of Kano, who was elected on a platform of enforcing a stricter version of Sharia, is about to ban any male moped driver from carrying female passengers other than his wife or close relatives. Women riding on mopeds come into physical contact with the driver, in violation of Islamic law. The government has purchased 100 busses and 500 motorized tricycles to transport women so that they can be transported without touching the male driver. Tuesday's ceremony to initiate the new policy was postponed, although differing reasons for the postponement were offered. Some support the new policy on safety grounds, but current taxi drivers object strongly to it.

More on Cutter v. Wilkinson

Today's press release from the Beckett Fund on the Supreme Court's decision in Cutter v. Wilkinson does a good job of emphasizing the primary area in which the Supreme Court's approach differed from that of the Court of Appeals whose decision was reversed:

"The Court squarely rejected the core argument of the court below (and of RLUIPA's detractors) that religious accommodation laws that accommodate only religion violate the Establishment Clause of the First Amendment, because they impermissibly favor the religious over the secular. As the Court explained, "Were the Court of Appeals' view the correct reading of our decisions, all manner of religious accommodations would fall."

"There's a strong argument to be made that the anti-accommodation reading of the Establishment Clause has been dead for a long time, but today's unanimous decision removes any lingering doubt,” said Anthony Picarello, President and General Counsel for the Becket Fund. "Cutter is a win for religious exercise in prison, but more importantly, it is a thumping victory for religion-only accommodations nationwide.”

UPDATE: There is also an excellent discussion of the Cutter case on today's SCOTUSblog.

We May See RLUIPA In the Courts Again

The last time the U.S. Supreme Court examined a statute similar to the Religious Land Use and Institutionalized Persons Act (that it upheld today) was in 1997 in City of Boerne v. Flores. There the Court found that the broader Religious Freedom Restoration Act exceeded Congress' legislative powers. Congress had relied on Section 5 of the 14th Amendment in enacting that law.

RLUIPA is narrower, and relies on Congress' commerce and spending powers. The prisoner provisions in Sec. 3 are limited:
"(b) SCOPE OF APPLICATION- This section applies in any case in which--
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes. "

Here is what Justice Ginsberg had to say in footnote 7 about the federalism issues in today's case, Cutter v. Wilkinson:

"Respondents argued below that RLUIPA exceeds Congress' legislative powers under the Spending and Commerce Clauses and violates the Tenth Amendment. The District Court rejected respondents' challenges under the Spending Clause... and the Tenth Amendment..., and declined to reach the Commerce Clause question.... The Sixth Circuit, having determined that RLUIPA violates the Establishment Clause, did not rule on respondents' further arguments.... Respondents renew those arguments in this Court. They also augment their federalism-based or residual-powers contentions by asserting that, in the space between the Free Exercise and Establishment Clauses, the States' choices are not subject to congressional oversight.... Because these defensive pleas were not addressed by the Court of Appeals, and mindful that we are a court of review, not of first view, we do not consider them here.... But cf. post, at 1-2, n. 2 (THOMAS, J., concurring)."

So there may still be another round in the battle over RLUIPA.

Supreme Court Unanimously Upholds RLUIPA in Cutter v. Wilkinson

The US Supreme Court this morning in Cutter v. Wilkinson unanimously upheld the Religious Land Use and Institutionalized Persons Act against a challenge to its constitutionality. The case involved a facial challenge to the Act's application to prisons. Justice Ginsburg's opinion for the Court is available online. So is Justice Thomas' concurring opinion. Here are excerpts from the Court's syllabus (omissions of text are not indicated):

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), provides in part: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means."

Section 3 of RLUIPA, on its face, qualifies as a permissible accommodation that is not barred by the Establishment Clause. (a) Foremost, § 3 is compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. Furthermore, the Act on its face does not founder on shoals the Court's prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, and they must be satisfied that the Act's prescriptions are and will be administered neutrally among different faiths.

Section 3 covers state-run institutions -- mental hospitals, prisons, and the like -- in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion. But the Act does not elevate accommodation of religious observances over an institution's need to maintain order and safety. An accommodation must be measured so that it does not override other significant interests. There is no reason to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.

While the Act adopts a "compelling interest" standard, "context matters" in the application of that standard. Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions and anticipated that courts would apply the Act's standard with due deference to prison administrators' experience and expertise.

Finally, RLUIPA does not differentiate among bona fide faiths. It confers no privileged status on any particular religious sect.

In upholding § 3, the Court emphasizes that respondents have raised a facial challenge and have not contended that applying RLUIPA would produce unconstitutional results in any specific case. There is no reason to anticipate that abusive prisoner litigation will overburden state and local institutions. However, should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize an institution's effective functioning, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.

Judge Offers Church Attendance As Alternative Sentence

A judge in Laurel County, Kentucky offers some defendants the option of attending church services instead of going to jail or rehabilitation, the Louisville Courrier-Journal reports today. The judge, a devout Christian, has offered the choice about 50 times to repeat drug and alcohol offenders. They may select any religious denomination The judge says that the alternative poses no constitutional problems because it is not mandatory. Other lawyers disagree.

Challenge to California Missions Act Pending

In 2004, Congress passed the California Missions Act authorizing the spending of $10 million in federal funds to preserve 21 Spanish-era missions that are in disrepair. The funds are to be matched by private contributions. Today's Contra Costa Times reports on a taxpayer challenge to the constitutionality of that act filed in December 2004 by Americans United for Separation of Church and State. AU's director, Rev. Barry Lynn, argues that if the Establishment Clause means that the government cannot build churches, it also means that it cannot spend funds to repair them. He also objects to use of some of the funds to preserve religious art and artifacts in the missions. Many others, however, argue that preservation of these kinds of historical buildings with government funds creates no Constitutional problem, especially since very little religious connotation remains associated with these historical sites.

Another View of the Van Orden Case

The San Antonio Express-News today carries an article on Van Orden v. Perry, one of the pending US Supreme Court Ten Commandments cases. The reporter offers an interesting perspective from the Texas state house. I mention the article because the reporter spoke with me at length in preparing it and quotes me, but without the nuance that I hoped I had communicated. As reported, I predicted that the Texas display would be upheld, partly because of the Justices concern about forcing bulldozers to tear down these displays around the country. But I also emphasized the peculiar history of the monuments that were furnished by the Fraternal Order of Eagles. Similarly, though not in the article, I predicted that the Kentucky display in the companion case before the Court would be struck down because of its different history. By the way, my record on accurately predicting Supreme Court results is not good.

Op Ed On Negative Impact of Protecting Religious Practice

Writing in Sunday's Observer, Nick Cohen has a provocative op ed criticizing the trend in both the United States and Europe to protect religious practice and belief through workplace religious freedom laws and blasphemy statutes. He argues that the price of these laws are unacceptable limitations on the freedoms of others in society. Says Cohen of fundamentalist religious believers: "Their life and faith must be one and no compromises can be made. In the past, most people who lived outside theocracies either compromised or withdrew into communities where they found sanctuary from the profane by living and working with co-believers."

President Bush At Arlington Memorial Day Ceremony

As reported by Fox News, President Bush spoke today in a Memorial Day ceremony at Arlington National Cemetery. A transcript of his remarks was released by the White House. Religious references were almost entirely absent from the message he delivered before placing a wreath at the Tomb of the Unknown Soldiers. He mentioned "God" three times, all in contexts which seem to clearly qualify for the "ceremonial Deism" label.

New Church-State Book Due in July

New York University Professor Noah Feldman's new book, "Divided By God-- America's Church-State Problem and What We Should Do About It" is scheduled for publication on July 6. Publisher's Weekly reports that Farrar, Straus & Giroux advanced the publication date to coincide with the expected Supreme Court ruling on public display of the Ten Commandments.

Commentary: Our National Motto and the Over-Reading of Precedent

In the past the Supreme Court has upheld the placing of our national motto “In God We Trust” on coins. Dicta in Lynch v. Donnelly is often pointed to. Justice O’Connor justified the practice because the history and ubiquity of the motto on our coins means that its use there is not understood as a government endorsement of religion. Justice Brennan described the motto as “ceremonial Deism”, words that through their rote repetition have lost any significant religious content. However today this precedent is often being over-read.

I would suggest that the Supreme Court’s language does not give the government totally free rein to use the words of the motto when the intent and effect is to in fact promote religion. (see related posting) This idea was driven home by an obscure story in yesterday’s Anderson SC Independent-Mail. It reported that in two neighboring Georgia counties, “In God We Trust” will soon be hanging in school classrooms. The Hebron Baptist Association bought over 500 copies of the motto and gave them to school districts. The superintendent in one of the districts said that she is “glad this is something that the school system can do.”

This is not a new idea. Some time ago, the American Family Association began a national campaign to get the national motto hung in every school classroom in the country. It said it would be “a reminder of the historic centrality of God in the life of our republic”. A number of states have enacted laws specifically permitting the posting of the motto in classrooms. In this context, the motto does not seem to have lost religious content. If it had, why would churches be so intent on funding its posting? In today’s context, the posting of these words is decidedly seen as an endorsement of religion. Holdings, not to mention dicta, in opinions need to be read contextually, and not latched onto with strict literalism as a pretext to violate the spirit of the Constitution’s Establishment Clause.

Flags of Christian Churches Advocated to Oppose Confederate Flag

Yesterday’s Galax Virginia Gazette reports the latest installment in the battle of flags. In April, Carroll County supervisors accepted funds from the Jubal Early Sons of Confederate Veterans Camp 1691 to erect a new flagpole on the courthouse lawn. It is to be used to fly flags honoring veterans of all wars from Carroll County, including those from the Civil War. This means that the Confederate flag will sometimes fly there. Many residents have objected to that. One opponent, Gary Marshall, director of the Bethesda Heritage Trust, has now requested that yet a third flagpole be set up for him to use to fly historic Christian flags of various denominations. He says that these are also part of the county’s history. [Thanks to Becky Dale on Religionlaw listserv for this information.]

Commentary: What "God-Talk" Is Permissible At School Graduations?

With graduation season upon us, a story today from Agape Press reminds us of the continuing ambiguities in the rules regarding what may be said at public school graduation ceremonies. Thirteen years ago in Lee v. Weisman, the Supreme Court struck down on Establishment Clause grounds a prayer by an invited clergyman at a graduation ceremony. The Court's holding was based both on the school's involvement in inviting the clergyman, and on the peer pressure placed on students attending graduation to show their support for the content of the prayer by standing or remaining respectfully silent.

Now, in a Wisconsin high school, the class valedictorian included the following in her talk: "There is Someone Who can make the journey seem a lot easier. His name is the Lord Jesus Christ. He is the ultimate source of success, love, laughter, dreams and the future. He is the Creator of the universe who longs to have a relationship with you." School officials required students to submit their speeches in advance. When this student did, the school told her to delete references to religion, God or Jesus. However, acting on the student's behalf, Liberty Counsel convinced school authorities that their action amounted to unconstitutional censorship, and that neutrality required the school to permit the student to share her gratitude to God with other students and family members.

I am not sure that is correct. The student prayer here was far more sectarian than the rather neutral one at issue in Lee v. Weisman. Students in the audience feel equal peer pressure to sit silently and accept the prayer. School officials have control over the content of student speeches-- they require them to be submitted in advance. Just as the clergyman was invited to speak in Lee, the valedictorian was invited to speak here by the school. Nothing requires a school to have a speech by the valedictorian at graduation, just as nothing requires it to have an invocation. Perhaps schools are merely responding to whichever lawyers lay siege to them first.

How Can Muslim Airport Cabbies Pray?

The question of when government must make exceptions to neutral generally applicable regulations in order to accommodate religious practice arose anew this week at the Cleveland, Ohio airport. The Associated Press reported yesterday on the problem faced by Somali immigrants who drive cabs and wish to carry out their duties to pray 5 times daily. Often prayer time comes while their cabs are in line at the airport terminal. When that happens, the cabbie must go into the airport rest room to wash, and must then pray standing and kneeling on the ground facing Mecca. Doing this runs afoul of airport regulations that prohibit leaving cabs unattended within 300 feet of the terminal. USA Taxi Company says that a third of its drivers have quit after receiving $150 tickets (plus $69 court costs). Police say that they are just enforcing a general rule that furthers safety and security, without regard to the offender's cultural background.

New Case: Workers Comp When Hajj Interferes With Employment

Over the years, the US Supreme Court has upheld the rights of employees to receive workers compensation even though they refuse new employment, if the refusal was for religious reasons. Yesterday, a Wisconsin Court of Appeals decided Rashad v. Labor & Indus. Review Commn., a case of this sort with a new twist. Rashad, a college instructor, refused a Spring Semester position because it would interfere with her making the Hajj (pilgrimage to Mecca).

The WI Workers Compensation Statute (Sec. 108.04(8)) permits applicants to refuse work for "good cause". The Labor Commission however had held that there was not good cause here because Rashad was not obligated to make the Hajj in any particular year. Rashad disagreed, arguing that she was required to make the pilgrimage at the first opportunity, and that this was the first time that she was financially able to do so.

The Court of Appeals held that there was no evidence in the record to support the state board's apparent finding that there was not a religious necessity that the pilgrimage be made in one particular year. The court remanded for further factual findings and for consideration of the constitutional issues that are involved if workers compensation is denied.