Osaka Court Goes Other Way; PM's Shrine Visit Unconstitutional

Contradicting a ruling by a Tokyo court the day before (see prior posting), on Friday, according to the Associated Press, the High Court in Osaka, Japan ruled that Prime Minister Junichiro Koizumi's 2004 visits to a Tokyo war shrine violated the constitution's required separation of religion and state. In contrast to the Tokyo court ruling, this court held that the prime minister's act was a public act, not a private one. However, the court rejected the Taiwanese plaintiffs' demands for damages of $88 each.

New Publications

The September issue of Law and Society Review (Vol. 39, pp. 677-722) has published a series of articles under the caption Forum: Lloyd Burton's Worship and Wilderness: Culture, Religion, and Law in Public Lands Management. Among the articles in it are William Blatt, Holy River and Magic Mountain: Public Lands Management and the Rediscovery of the "Sacred in Nature", and Winnifred Sullivan, Advocating Religion on Public Lands: Native American Practice or Buddhist Sermon? [From SmartCILP].

Schools Face Various Church-State Issues This Year

While much of the country is focused on issues relating to the teaching of evolution in public schools, a number of other church-state issues top the agendas of various public schools around the country. Here are three examples:

In Raleigh, North Carolina, an activist Christian group has complained that an elementary school unconstitutionally promotes "New Age" beliefs through its stress-reduction class. Elementary school students were asked to do breathing exercises, chant and use their "life forces". The Sacramento Bee reports on the dispute. The organization promoting the classes, Rites of Passage Youth Empowerment Foundation, says it is not involved in religion; it merely enhances students' learning practices.

In Anna, Illinois, a local pastor is collecting signatures to urge the city's junior high school to put back up a painting of The Last Supper and two portraits of Jesus that the school took down earlier this school year. The Southern yesterday reported that the pictures were removed after Americans United For Separation of Church and State threatened to sue. Now the Alliance Defense fund threatens to sue if the school does not return the pictures to its hallway.

And in Kirkland, Washington, Lake Washington High School has its plate full of church-state issues. The Stranger reports that Antioch Bible Church, a conservative anti-gay congregation, rents the school's gym every Sunday to use for religious services. The school district's sex education program is supplemented by an abstinence presentation from a group called SHARE—an affiliate of the religiously based group Life Choices. The SHARE lecture is taught by volunteers, some of whom are recruited from Antioch Bible Church. Then last June, students in the pre-school program that is affiliated with the high school all received a copy of "10 commandments" at their graduation-- not the traditional ones, but still ones that were religious. They instructed parents to "please take me to church regularly" and to realize their kids are "a special gift from God."

Bush Urged To Overrule FAA On Cemetery Seizure

Two dozen religious and civil rights groups yesterday wrote President Bush urging him to respect the Religious Freedom Restoration Act and prevent federal approval for an airport expansion plan at Chicago's O'Hare which would destroy St. Johannes, an active religious cemetery. The letter read in part:

FAA stands poised to grant final approval and federal funds to an airport plan that would dig up the graves at St. Johannes, despite the availability of feasible options that would address flight delays at O’Hare and save the cemetery. Most upsetting, the FAA is about to do this despite its concession that the desecration of St. Johannes would substantially burden the religious exercise of the Church and those who have family and friends buried in St. Johannes’ sacred ground. In other words, the FAA has admitted that its actions establish a prima facie violation of the Church’s rights under RFRA, but insists that reducing flight delays justifies this burden.

The Becket Fund which represents the cemetery and the church that operates it issued a release yesterday on the controversy. The Illinois legislature has already enacted the O'Hare Modernization Act, excluding the cemetery from state law that protects other cemeteries from seizure.

Japan Prime Minister Did Not Violate Constitution In Shrine Visit

Reuters yesterday reported that in Japan, a Tokyo appellate court has upheld the dismissal of a suit against Prime Minister Junichiro Koizumi challenging his visits to a war shrine. The plaintiffs had argued that the visits to the Shinto shrine violated Japan's constitutional separation of religion and the state. The court ruled, however, that his visits were private acts.

Groups Urge USCIRF To Designate Turkmenistan

A coalition of non-governmental organizations on Wednesday wrote Secretary of State Condoleezza Rice, asking her to designate Turkmenistan as a "country of particular concern" this year under the International Religious Freedom Act of 1998. The full text of the letter has been published by Human Rights Watch. The groups contend: "The state no longer simply controls religion; it is actively trying to eliminate even state-controlled religions in order to establish a new religion based on the personality of the president." Turkmenistan is already on the Watch List of the U.S. Commission on International Religious Freedom.

North Carolina Moves To Dismiss ACLU's Oath Case On Standing Grounds

In North Carolina, the ACLU has sued to challenge state court policies that only permit use the King James version of the Bible in administering oaths. The courts do not allow other holy texts, such as the Quran, to be used instead. (See prior posting). Today's Winston-Salem Journal reports on a motion to dismiss on standing grounds that has recently been filed by the state. The suit was filed on behalf of the ACLU's 8,000 members statewide, some of whom are Muslims and Jews who would prefer to use religious texts other than the Christian Bible for courtroom oaths. The state, however, has moved to dismiss the suit because no named plaintiff has in fact been denied the opportunity to take an oath on a non-Christian book.

Moving Demonstrators From Church Does Not Endorse Religion

A Kentucky federal district court has rejected an Establishment Clause challenge by animal rights protesters who were forced to move the location of their picketing. In Friedrich v. Southeast Christian Church of Jefferson County, 2005 U.S. Dist. LEXIS 21218 (WD Ky., Sept. 22, 2005), activists associated with People for the Ethical Treatment of Animals attempted to demonstrate in front of a Louisville, Kentucky church on Christmas eve. Executives of the parent company that owned Kentucky Fried Chicken belonged to the church; demonstrators wished to encourage KFC to treat chickens more humanely. Police required demonstrators to move across the street. The demonstrators sued the Louisville police and the church, alleging numerous causes of action. In dismissing their Establishment Clause claim, the court held that the city did not endorse religion merely by moving the demonstrators away from the church on Christmas eve. It also dismissed civil rights claims against the church, finding that it was not a state actor.

China Limits Religious Speech On the Internet

According to a Sept. 26 press release from Reporters Without Borders, Chinese authorities have published new rules limiting postings by bloggers and website managers. The new edict, issued by the State Council Information Bureau and the Ministry of Industry and Information, brings together in one place a number of prior edicts, and adds some new prohibitions as well. The Beijing News has reported that there are 11 topics that are off limits for Internet transmission. One of those topics is any message that violates national policies on religion, or that promotes the propaganda of sects and superstition. The latter references are presumably to the Falungong movement, thirty of whose members are already in Chinese jails for posting news on the Internet.

Law Favoring Churches Teaching Family Values Questioned

According to today's San Diego Tribune, the mayor of Chula Vista, California is uncomfortable with a 14-year old city ordinance that was designed to set aside affordable land for churches, social service centers, day care facilities and small parks in the city's new eastern neighborhoods. Developments of over 50 acres must set aside land for "community purpose facilities", defined in part as churches that teach "traditional family values". In the 1980's, when the ordinance was enacted, the city was battling, for example, with a sex club owner who claimed his facility was a church. At the mayor's request, the city attorney's office is looking at removing the language referring to traditional family values.

Another Challenge To A Cross On City Property

There seems to be a rash of cases lately raising Establishment Clause challenges to crosses on public property. (See prior postings 1, 2). Jacksonville, Florida's WAWS Fox30 reported yesterday on yet another such lawsuit. In Starke, Florida, a cross has been on top of the city's water tower for over 20 years. Now Lon Bevell, an atheist, along with American Atheists, Inc., is suing the city claiming that the cross is unconstitutional. He says that when he complained to the city about the cross, one official told him it was not a cross, but was the letter "T".

Lot Size Requirement Only For Churches Violates RLUIPA

In Victory Family Life Church v. Douglas County, (Sept. 20, 2005), a Georgia trial court found that the Religious Land Use and Institutionalized Persons Act was violated when the county insisted that churches must be built on lots of at least 3 acres in size. The county articulated no compelling interest for imposing this zoning requirement on religious institutions when it had no similar requirement for any other kind of institution. Alliance Defense Fund yesterday issued a release praising the decision.

Two Rastafarian Prisoner Cases Decided

In Williams v. Snyder (Sept. 26, 2005), the U.S. Seventh Circuit Court of Appeals held that the trial court had applied the wrong standard in dismissing as frivolous a Rastafarian prisoner's claim that requiring him to cut his dreadlocks in order to leave his cell violated his religious free exercise of rights. The trial court's balancing of interests is appropriate only in a motion for summary judgment after additional fact finding. It is not the standard to be used for screening on the pleadings alone.

In Clark v. Briley, 2005 U.S. Dist. LEXIS 21350 (ND Ill., Sept. 26, 2005), an Illinois federal district court held that forcing a Rastafarian prisoner to cut his dreadlocks was the least restrictive means of achieving prison safety and security. His hair could serve as a hiding place of weapons or drugs, a significant risk considering this prisoner's past history. Therefore the court rejected the prisoner's claims under the Religious Land Use and Institutionalized Persons Act and under the First Amendment and granted summary judgment to the defendants.

New Organization Will Counter Religious Right Online

Frederick Clarkson this week has an interesting posting on a new group formed to counter the religious right. Called DefCon, short for "Campaign to Defend the Constitution: Because the Religious Right is Wrong", the group is based in Washington, D.C. It will conduct an Internet campaign modeled on the successful strategy of MoveOn.org. DefCon's website says "We will fight for the separation of church and state, individual freedom, scientific progress, pluralism, and tolerance while respecting people of faith and their beliefs." Links to the webswite and the DefCon blog have been added to the sidebar list on Religion Clause.

Denominational Disputes Over Gay Clergy Are Moving To Civil Courts

Splits within Protestant denominations on the ordination of gay clergy are now finding their way into civil courts. In Ridgebury, New York, a small Presbyterian congregation is breaking away from the Presbyterian Church (USA) in protest of the denomination's willingness to ordain gays. The Church at Ridgebury however is trying to keep its church building and property in the process. The White Plains Journal News reported earlier this month that the church's regional body is now suing, claiming that under church rules (the Book of Order) all church property is held in trust for the denomination.

Similar disputes are racking the Episcopal Church. Last month (see prior posting), a breakaway Episcopal congregation in California was permitted to keep its church property as it broke away from the parent body in protest over its teachings on homosexuality. Now, according to an Associated Press report yesterday, a more far-ranging federal lawsuit has been filed in Connecticut. In it, six Episcopal parishes at the center of a dispute over gay clergy allege that their civil rights have been violated by Connecticut's bishop, the head of the U.S. Episcopal Church and others.

The priests of the six parishes that filed the lawsuit had asked to be supervised by a different bishop because they disagreed with their bishop's support for the ordination of the Episcopal Church's first openly gay bishop. Interestingly, the lawsuit also names Connecticut Attorney General Richard Blumenthal as a defendant. The suit claims that the state has entangled itself in the religious dispute because state law requires Episcopal parishes to operate under the rules of the Connecticut diocese. The full text of the 67-page complaint in the lawsuit is available online. It asks for an injunction to prevent the parent church from interfering with the dissident parishes, an ejectment order, a declaration that various state statutes relating to the Episcopal Church are unconstitutional, and damages.

School Says Musical Violates Spirit of Church-State Separation

In Old Washington, Ohio, the superintendent of schools has banned the Buckeye Trail High School drama club from presenting the play "Godspell". The superintendent claims that the play, which sets the Gospel of St. Matthew to modern music, violates the spirit of church-state separation. Today's Akron Beacon Journal reports that two teachers have resigned as advisors to the high school's Drama Club because this and another play involving violence were censored.

Prisoner Claims TB Testing Violates Religious Freedom

In Perry v. Levegood, 2005 U.S. Dist. LEXIS 20964 (ED Pa., Sept. 21, 2005), a prisoner alleged that his religious freedom rights were infringed when prison nurses forced him, without good reason, to take a tuberculosis immunization test. A Pennsylvania federal district court held that preventing the spread of TB is a legitimate penological interest, and that if the Department of Corrections' TB testing policy was reasonably related to that interest, it would survive a First Amendment challenge. However, the court allowed the plaintiff to move to additional discovery before determining whether the TB testing policy was applied correctly in this case. The court dismissed the prisoner's claim that the testing also violated the Universal Declaration of Human Rights.

Order On Children's Travel Does Not Violate Mother's 1st Amendment Rights

Earlier this month in Racsko v. Racsko, 91 Conn. App. 315 (Sept. 13, 2005), plaintiff appealed an order issued in connection with the dissolution of her marriage. The order required her to surrender her children's passports and gave her husband sole authority to make decisions about their children's international travel. Plaintiff claimed that the order violated her free exercise of religion because she wished to do missionary work in Israel and wanted her children to go with her. The Connecticut appellate court held that the orders do not limit plaintiff's exercise of religion; they merely impose restrictions on her ability to determine unilaterally the conditions under which her children can travel internationally

FEMA To Reimburse Churches For Hurricane Relief

For the first time, the Federal Emergency Management Agency will use taxpayer money to reimburse churches and other religious organizations involved in hurricane relief efforts. Today's Washington Post reports on the plans. FEMA officials said religious organizations would be eligible only if they operated emergency shelters, food distribution centers or medical facilities at the request of state or local governments in Louisiana, Mississippi and Alabama to help Hurricane Katrina or Rita victims. A FEMA spokesman said in an e-mail: "a wide range of costs would be available for reimbursement, including labor costs incurred in excess of normal operations, rent for the facility and delivery of essential needs like food and water." Groups like Americans United for Separation of Church and State have criticzed FEMA's plans, arguing that they violate principles of church-state separation.

Incisive Analysis Of Bible In American Public Life

Mark Noll's long essay, The Bible In American Public Life, 1860-2005, is definitely worth reading in full. Published in the Sept./Oct. issue of Christianity Today, the article traces the rhetorical, evocative and political use of the Bible in the U.S. Here are two excerpts:

Political use of Scripture is at once more dangerous and more effective than the rhetorical or evocative. It is more dangerous because it risks the sanctified polarization that has so often attended the identification of a particular political position with the specific will of God. It can also be dangerous for religion. In the telling words of Leon Wieseltier,"the surest way to steal the meaning, and therefore the power, from religion is to deliver it to politics, to enslave it to public life."...

To foreign Roman Catholics during the Civil War, to Quebec nationalists of the 19th century, to American Jews in the first generations of immigration, and to African Americans in the period before the exercise of full civil rights, the Bible was held to be a living book, and it was held to be relevant to the United States. But it was not relevant in the way that those at the center of American influence—be they Bible believers or Bible deniers—felt it was relevant.