Settlement Reached In Evolution Textbook Sticker Case

Parents of Cobb County, Georgia school students have won a victory in a settlement reached yesterday in their long-running federal lawsuit challenging anti-evolution stickers placed in biology textbooks. The stickers read: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered." The case was awaiting retrial in Georgia federal district court after the U.S. 11th Circuit Court of Appeals last May reversed the original trial court decision in favor of the parents, largely on evidentiary grounds. (See prior posting.)

Yesterday's consent judgment and order (press release and full text) in Selman v. Cobb County School District, prohibits Cobb County schools from restoring the disclaimer stickers (which have already been removed) or similar warnings in science textbooks. It also prohibits any other oral or written disclaimers, or the redacting of material on evolution in science textbooks. The school district has also agreed to pay a portion of plaintiffs' attorneys fees, amounting to $166,659. The settlement is discussed in a release from the National Center for Science Education.

Today's Atlanta Journal Constitution reports on rections from both sides. Barry Lynn, executive director of Americans United for Separation of Church and State praised the settlemen. On the other hand, Cobb county parent Larry Taylor said: "It's terrorist organizations like the ACLU that are hijacking our country's educational system by imposing their own secular agenda on the rest of us."

The settlement comes as today marks the one-year anniversary of the widely-publicized Kitzmiller decision in which a Pennsylvania federal judge held that a disclaimer read to public school students promoting intelligent design as an alternative to evolution violates the Establishment Clause. A release by the Discovery Institute-- the chief proponent of intelligent design-- tries to put the best face on the anti-evolution movement's losses.

9th Circuit Certifies State Constitutional Issues In Boy Scout Case to State Court

Yesterday in Barnes-Wallace v. City of San Diego, (9th Cir., Dec. 18, 2006), the U.S. 9th Circuit Court of Appeals certified three questions to the California Supreme Court in a case challenging constitutionality of the City of San Diego's leasing, at nominal rentals, to the Boy Scouts city property on which the Scouts operate a campground and aquatic center. The facilities are used exclusively, or on a preferred basis, by Scout members. However the Scouts requires its members to affirm a belief in God. (It also excludes gays and lesbians as Scout members.)

Seeking to avoid deciding a federal constitutional question by relying on state constitutional law, the 9th Circuit asked the California high court to determine (1) whether the leases interfere with the free exercise and enjoyment of religion by granting preference for a religious organization in violation of the No Preference Clause in Art. I, Sec. 4 of the California Constitution; (2) whether under Art. XVI, Sec. 5 of the California Constitution, the leases amount to "aid", and (3) if so, whether the leases aid a "creed" or "sectarian purpose" in violation of the state constitution's "No Aid" Clause.

Judge Kleinfeld dissented, arguing that the case should be dismissed because plaintiffs lack standing to sue. He said that plaintiffs have never tried to use the facilities, and do not wish to do so while the Boy Scouts are there.

Yesterday's Bay City News Wire reported on the court's decision.

White House Hosts Hanukkah Reception

Yesterday, President and Mrs. Bush hosted a Hanukkah reception at the White House, attended by invited guests and Jewish members of the President's Cabinet and staff. In his remarks (full text), the President said: "Laura and I are honored to have this Hanukkah menorah here at the White House. It's a symbol that the White House is the people's house, and it belongs to Americans of all faiths." The White House website also features a video clip of an invited family lighting the Hanukkah menorah after offering the traditional blessings. The video also features the Indiana University Hillel "HooShir" Choir performing after the menorah lighting.

Suit In Israel Seeks To Require Law School For Rabbinical Court Judges

In Israel, a petition has been filed with the High Court of Justice seeking to require judges in rabbinical courts to have secular law school degrees as well as rabbinical training. Today's Jerusalem Post reports that attorney Dayana Har-Even has argued to the High Court that property disputes in divorce cases are often decided differently religious courts than in secular ones, even though both are required to settle property disputes according to secular law. Har-Even says this is because dayanim (religious court judges) are unfamiliar with secular legal rules.

Village Removes Menorah Rather Than Permitting Creche After Court Order

On Friday, a New York federal district court issued a temporary injunction in a creche case, Ritell v. The Village of Briarcliff Manor, (SDNY, Dec. 15, 2006). Briarcliff, Manor, New York had erected a 9-foot menorah beside a lighted natural evergreen tree in a public park, but refused to permit Henry Ritell to place a privately-funded creche next to the menorah. The village said that Christmas was already represented by the lighted tree. Court TV reports that Ritell disagreed, saying: "That's decorative. It doesn't mean Christ or Christianity. It's just lights on a tree."

The federal judge essentially agreed with Ritell. The court ruled that the prominent display of the menorah combined with the village's refusal to grant permits for other religious symbols constitutes an endorsement of one particular religion in violation of the Establishment Clause. It ordered the village to either permit the creche or remove the menorah. To the dismay of the Alliance Defense Fund (release), the city chose to remove the menorah. Initially it replaced it with a sign protesting the court's decision, but that was also removed after complaints by village residents. Today's Westchester Journal-News reports on reactions of village residents. (Also see prior related posting.)

UPDATE: The court's full opinion supporting its grant of a temporary injunction is available at 2006 U.S. Dist. LEXIS 94894 .

Christmas Wars Raise Funds For Christian Advocacy Groups

An article yesterday from Religion News Service says that conservative Christian groups are using the supposed "War Against Christmas" as a fund raising device. Sales of buttons, bumper stickers and other items through their websites have been brisk. Anita Staver, president of Liberty Counsel, says: "When its an issue affecting Christmas people will sit up and take notice."

College, Seeking To Hire Christians, Challenges Workforce Investment Act

The federal Workforce Investment Act provides for federal financial assistance to state employment and job training agencies to encourage them to create "One-Stop Career Centers". The WIA (Sec. 188(a)(2)) requires that programs funded under its provisions may not discriminate on various grounds, including religion.

The Pennsylvania Department of Labor & Industry set up a federally-financed Internet-based job listing service for use by job seekers. An employer can list a position in the system only if the employer agrees to non-discrimination requirements. Geneva College, a Christian university, requires all employees to articulate a commitment to Jesus. However, the Department of Labor & Industry refused to permit the College to include religious criteria in its job postings with the agency. Yesterday, Geneva College, along with the Association of Faith-Based Organizations, filed suit in federal court in Pittsburgh against the U.S. Department of Labor and the Pennsylvania Department of Labor & Industry challenging their refusal to permit religious organizations to use otherwise permissible faith-based criteria in their job listings.

The complaint (full text) alleges that the refusal infringes the First Amendment expression and religion rights of religious employers, as well their equal protection rights and their rights under the Religious Freedom Restoration Act. Plaintiffs are represented by the Christian Legal Society and the Alliance Defense Fund, (ADF Release.) Today's Pittsburgh Tribune-Review reports on the case.

Yemeni Editor's Sentence Suspended Pending Appeal

In Yemen yesterday, the Sana'a Appeals Court suspended the prison sentence of a newspaper editor and the closure of his paper, pending appeal of his conviction for publishing Danish cartoons of the Prophet Muhammad. Kamal Al-Olufi, editor-in-chief of Al-Rai Al-A'am weekly, had been in hiding for 17 days to avoid beginning the one-year jail sentence that had been handed down last month. (See prior posting.) Meanwhile, according to the same report in the Yemen Observer yesterday, lower courts continue to convict other journalists for reprinting the cartoons.

Deutsche Oper Finally Performs Controversial Mozart Opera

Germany's Deutsche Oper yesterday finally performed the controversial Mozart opera, Idomeneo. In September, the scheduled performance of the opera was cancelled out of fear of Muslim backlash. (See prior posting.) In one scene, the severed heads of Muhammad, Jesus, Buddha and Poseidon tumble out of a sack lifted by Idomeneo. The Associated Press reports that heavy security caused a half-hour delay yesterday in the curtain rising before the nearly-sold-out house. Germany's Interior Minister Wolfgang Schaeuble attended along with six representatives of Islamic organizations he had invited to the performance. However Ali Kizilkaya, head of Germany's Islamic Council, turned down the invitation. When the controversial scene was performed, one person in the audience yelled "stop it", while several others responded "continue, continue".

Court Finds No Jurisdiction Over Church Decision To Rehabilitate Cemetery

The Ravenna, Ohio Record-Courier last Friday reported on a decision by the Ohio 11th District Court of Appeals dismissing a suit against the Catholic Diocese of Youngstown, Immaculate Conception Parish in Ravenna and its pastor, the Rev. John-Michael Lavelle. Plaintiffs challenged the Church's decision to permit the cutting of trees in St. Mary's Cemetery in order to widen access roads, construct new buildings and prevent damage to above-ground headstones. They claimed that the tree removal violated the terms of a charitable trust of which they, as cemetery plot owners, were beneficiaries. The court, however, ruled that it lacked jurisdiction to infringe on the Church's decision regarding the use of its own property.

UPDATE: Here is the full opinion in Plough v. Lavelle, (OH 11th Dist. Ct. App., Nov. 24, 2006).

Alaska School Gets Federal Funds After Filing Corrective Plan

In October 2005, the U.S. Department of Education (DOE) withdrew $450,000 of Congressionally earmarked funds from Alaska Christian College after a federal investigation found that the school had been spending the money on religious instruction. (See prior posting.) Today's Anchorage Daily News reports that the College has now gotten back a $100,000 federal grant after filing a plan with DOE promising to separate some academic and religious functions. The school also has promised to spend the federal money only for secular purposes such as tutoring the school's Alaska Native students, and teaching them writing and mathematics. Becket Fund director of litigation Derek Gaubatz, attorney for the College, says that corrective plans such as the one filed by the College are becoming common.

Another Menorah Dispute- This Time In Colorado

Yesterday's New York Times reports on the dispute in Fort Collins, Colorado over a rabbi's request to place a menorah on publicly-owned property for the eight days of Hanukkah. For the second year in a row, the Fort Collins Downtown Development Authority has refused to permit the menorah in Old Town Square. Several city council members, backing the decision, said they were concerned that permitting the menorah would open the way for many other religious groups and organizations to demand that their symbols be placed in Old Town Square as well. Many in Fort Collins think that the city is wrong is excluding the menorah. This year, as it did last year, CooperSmith's Pub and Brewing in Old Town Square has permitted the rabbi to place the 9-foot tall menorah on its privately-owned premises. Many other businesses and residents are displaying their own small menorahs in support of the city's small Jewish population.

Property Fights Looming As Conservative Episcopal Churches Leave the Fold

New legal fights over ownership of church property may lie ahead as two large and influential Episcopal parishes in Fairfax and Falls Church, Virginia voted yesterday to leave the Episcopal Church in the United States (ECUSA) and affiliate with the Convocation of Anglicans in North America, a branch of the Nigerian Anglican church led by conservative archbishop Peter J. Akinola. The action of these parishes, and five smaller ones elsewhere in Virginia, result from disagreements with ECUSA over its increasingly liberal policies, culminating in the 2003 ordination of an openly gay bishop. Today's New York Times reports that while both sides want to avoid legal battles, Bishop Peter James Lee of the Episcopal Diocese of Virginia says that under church law, parish property is held in trust for the denomination and the diocese. He added: "As stewards of this historic trust, we fully intend to assert the church’s canonical and legal rights over these properties."

New Articles and Book On Religion and Law

From SSRN:
Jaynie R. Randall, Sundays Excepted: Originalism, the Blue Laws, and the Christian Nation, (Dec. 2006).

Nicholas Aroney, The Constitutional (In)Validity of Religious Vilification Laws: Implications for Their Interpretation, (Federal Law Review, Vol. 34, p. 287, 2006 ).

David Burnett, Atheism and the Courts, (May 2006).

From SmartCILP:
Decisions and Families: A Symposium on Polygamy, Same-Sex Marriage, and Medical Decision Making. Articles by Armand H. Matheny Antommaria, John E.B. Myers, Elizabeth B. Cooper, Christine Talbot and Irwin Altman. 8 Journal of Law & Family Studies 293-394 (2006).

New Book:
Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts, (Cambridge University Press, 2006) (Abstract).

Oregon Suits By Abuse Victims Against Archdiocese Settled

In Eugene, Oregon last week, U.S. District Judge Michael Hogan, at a press conference with church officials and lawyers for abuse victims, announced a settlement between the Archdiocese of Portland and almost 150 plaintiffs. Last Friday's Catholic Sentinel says that the settlement does not require the Archdiocese to sell off parish or school property. Among the suits settled is one that pushed the Archdiocese into bankruptcy proceedings in 2004. Insurance companies will contribute $50 million to the settlement fund, and the rest of the undisclosed settlement amount will come from the sale of non-parish and non-school real estate. Creditors, including abuse victims, must still vote to approve the settlement. Part of the settlement plan will result in parishes and schools being incorporated separately as charitable entities separate from the archdiocese.

5th Circuit Issues Splintered Decision On School Board Prayer

The U.S. 5th Circuit Court of Appeals on Friday issued an important decision on the opening of school board meetings with sectarian prayer. In Doe v. Tangipahoa Parish School Board, (5th Cir., Dec. 15, 2005), the court, in three divergent opinions, affirmed in part and vacated in part an injunction against opening school board meetings with religious invocations that had been issued by the district court in 2005. The district court, in its opinion, had held that the proper test to be applied was the Supreme Court's three-part Lemon test, rather than the legislative prayer exception of Marsh v. Chambers.

In the 5th Circuit, only Judge Stewart agreed fully with the district court. Judge Clement's opinion said that Marsh rather than Lemon applies to school board invocations, and found that all of the challenged prayers were permissible under Marsh. None of them "exploited the prayer opportunity either 'to proselytize or advance any one, or to disparage any other, faith or belief'." Judge Barksdale assumed, without deciding, that Marsh applied, but found that the prayers at issue were overtly sectarian, and were therefore not permitted by Marsh. The result of these splintered opinions was that the trial court's injunction was affirmed as to four specific prayers, but vacated insofar as it more broadly prohibited all prayer at board meetings.

The decision was covered by today's New Orleans Times-Picayune.

Bankruptcy Court Invites Free Exercise Challenge To Nearly-Repealed Chapter 13 Provision

Shortly before Congress passed an amendment to the Bankruptcy Act that would change the court's result, a New Mexico Bankruptcy Court refused to confirm a Chapter 13 plan that allowed over-median income debtors to deduct charitable contributions as a reasonably necessary expense. However the court gave the debtors 45 days to show that Congress infringed their free exercise of religion by distinguishing between above- and below-median income debtors in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. In the case, In re Meyer, 2006 Bankr. LEXIS 3383 (D NM Bankr., Dec. 4, 2006), the United States Trustee supported the debtors who were attempting to protect their ability to continue to make charitable contributions before obligations to other creditors were satisfied. The statutory change to Chapter 13 that will protect charitable contributions is awaiting the President's signature.

Russia's NGO Law Burdens Religious Organizations

Reuters reports that church leaders in Russia are asking the government for an exemption from the country's Law on Non-Governmental Organizations enacted earlier this year. The law, which takes effect in April 2007, requires NGOs to register with a special state agency and supply details of membership, sources of finance and a record of all meetings. Moscow's Catholic Archbishop says this means it would need to report the number and names of attendees at every Mass the church conducts. The Russian Orthodox church says the new requirements are reminiscent of the Soviet era. The Moscow Orthodox Patriarchate told Interfax last week that a number of the provisions of the law are impossible to observe. It suggests that religious organizations should be exempted from the requirement to report on the number of members.

Christian Group's Suit Against Chicago Police Survives Dismissal Motion

In Marcavage v. City of Chicago, 2006 U.S. Dist. LEXIS 90443 (ND IL, Dec. 14, 2006), an Illinois federal district court refused to dismiss First Amendment free expression and equal protection claims brought by volunteers for Repent America, a Christian ministry, against the Chicago police department. Plaintiffs alleged that police limited their ability to pass out leaflets during Chicago's "Gay Games" last July by attempting to restrict them to "Free Speech Zones". The court also refused to dismiss plaintiffs' claims under the Illinois Religious Freedom Restoration Act.

Religious Day Cares Resist Regulation In Pennsylvania

Today's Lancaster (PA) Sunday News carries a lengthy article on the ten-year battle in Pennsylvania over state licensing of religiously affiliated day-care centers. The state's welfare department has threatened to close down a dozen unlicensed non-profit day cares. The religious day-care centers do not object to health and safety inspections, but rear that licensing will lead to state regulation of hiring and curriculum.