Recent and Upcoming Books on Law and Religion

Philip Jenkins, God's Continent: Christianity, Islam, and Europe's Religious Crisis, (Oxford Univ. Press, May 2007).

Malcolm B. Yarnell III, First Freedom: The Baptist Perspective on Religious Liberty, (B&H Publishing, May 2007) (Press release).

Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, (Univ. Press of Kansas, April 2007).

Stephen Mansfield, Ten Tortured Words: How the Founding Fathers Tried to Protect Religion in America . . . and What's Happened Since, (Thomas Nelson, June 2007).

Matthew Chapman, 40 Days and 40 Nights: Darwin, Intelligent Design, God, OxyContin, and Other Oddities on Trial in Pennsylvania, (HarperCollins, April 2007).

NC Supreme Court Dismisses Challenge To Use of Church Funds

In Harris v. Matthews, (NC Sup. Ct., May 4, 2007), the North Carolina Supreme Court dismissed on First Amendment grounds a claim by a faction of the church that its pastor and certain church officials breached their fiduciary duties by improperly using church funds. The majority held:

Determining whether actions, including expenditures, by a church's pastor, secretary, and chairman of the Board of Trustees were proper requires an examination of the church's view of the role of the pastor, staff, and church leaders, their authority and compensation, and church management. Because a church's religious doctrine and practice affect its understanding of each of these concepts, seeking a court's review of the matters presented here is no different than asking a court to determine whether a particular church's grounds for membership are spiritually or doctrinally correct or whether a church's charitable pursuits accord with the congregation's beliefs. None of these issues can be addressed using neutral principles of law.

Justice Brady wrote a concurring opinion, taking a restrictive view of the reach of the Establishment Clause. He wrote:

The "wall of separation" metaphor should only be used, if at all, in cases such as the one sub judice. In other words, the gate to the "wall of separation" only swings one way, locking the government out of ecclesiastical matters.

Justices Hudson and Timmons-Goodson dissented arguing that it was improper to grant an interlocutory appeal in the case and that the case merely presents a property dispute that can be resolved by civil courts using neutral principles of law.

Turkey's Gul Pulls Out of Race As Country Debates Secularist Tradition

In Turkey this morning, Foreign Minister Abdullah Gul withdrew his candidacy for the presidency as Parliament once again failed to muster the quorum necessary to proceed with a vote. Members of Parliament from Turkey's secularist party again boycotted the session. (AP). These developments occurred as tens of thousands of Turks demonstrated in Manisa in support of Turkey's secularist tradition and against the perceived increase of Islamic influence that would follow from Gul's election. (New York Times.) Gul's AK Party has Islamic roots, but claims that it is modern and has moved beyond its Islamic roots. (CNN).

Meanwhile this morning two papers in Britain have interesting analyses of the tensions in Turkey. The Guardian says:

The conflict has been as much about political power and class as it has been about Islam. The simple version paints out inconvenient facts: Erdogan's avowed support for secularism, an AKP whose leadership rejects the label of Islamist, and a programme dedicated to gaining EU membership and attracting foreign investment.

But underpinning this confrontation is something more mundane. It is the fear of the wealthy, highly educated and westernised elite that has traditionally run Turkey - and who are secular - of being pushed aside by a newly-powerful group made up of the urban poor and the lower-middle classes, a group that is conservative and religiously observant.

Today's London Times reports that the complex dispute has become symbolized by controversy over whether Turkish women should wear the the Islamic headscarf. Gul's wife does.

Impacting all of this is a vote in Parliament last Thursday giving initial support to an AKP proposal for direct popular election of the President, instead of the President being elected by Parliament. (Sunday's Zaman). (See prior related posting.)

UPDATE: Monday's Turkish Daily News also has an analysis of the situation, saying that it is more a political battle than a religious one. And a Newsweek columnist reports on his interview with Abdullah Gul who denies that the AKP has an Islamist agenda.

California County Wants To Issue Permits For Religious Use of Roadkill

California's Calaveras County Fish and Game Commission has formally requested the state Department of Fish and Game for permission to issue permits to practitioners of Native American religions so they can salvage dead birds and animals for religious purposes. Today's Stockton (CA) Record says that the issue was raised when former prison chaplain, Fred Velasquez, was cited by a game warden for picking up a dead red-tail hawk near a California highway. Velasquez uses bones and feathers from dead animals to make the regalia used in ceremonies of the Roundhouse tradition.

Author Says LDS Church Historically Suports Church-State Separation

Yesterday's Salt Lake Tribune carries an article by author Gary Bergera chronicling a long history of formal pronouncements of the Church of Jesus Christ of Latter-Day Saints in support of separation of church and state. This article comes as the media focus more and more on the views of Mitt Romney, the Mormon former governor of Massachusetts who is seeking the Republican nomination for the Presidency in 2008. Yesterday Romney gave the commencement address Regent University, founded by televangelist Pat Robertson. He did not discuss his religious beliefs in his address. (Washington Post).

Court Official Says Bailiff Wrong In Asking Witness To Remove Kippah

A Jackson County, Illinois court bailiff acted inappropriately last month when he asked Benjamin Sloan, an Orthodox Jew, appearing as a witness in a civil case, to remove his kippah (skullcap) in the courtroom. That is the conclusion of the court's Director of Operations Linda Austin, who said: "Any individuals with religious garb, be it a Muslim scarf or a skullcap, should never be asked to remove them before entering the courthouse or a courtroom." The Southern today reports that Sloan, saying he is only a little miffed, attributed the incident to cultural insensitivity on the part of courthouse security officers.

Azeri Journalists Sentenced to Prison For Exciting Religious Hostility

The Associated Press and Radio Free Europe report that a district court in Baku, Azerbaijan on Friday sentenced two journalists from the newspaper Senet to 3 and 4 years in prison respectively for publishing an article criticizing Islam and the Prophet Muhammad. Reporter Rafiq Tagi and his editor, reported variously to be either Samir Huseinov or Samir Sadagatoglu, were convicted on charges of exciting religious hostility in violation of Article 283.1 of Azerbaijan's Criminal Code. The article, published last November, said Islam had suffocated people, made them less free and hindered humanity's development. (See prior related posting.)

Yemini Official Threatens To Replace Mosque Leaders Who Push Extremism

Saturday's Yemen Observer reports that at a meeting at the Ministry of Endowments late last week, the new Yemeni Minister of Endowment and Guidance, Hamoud al-Hetar, announced that he would replace any mosque leaders who adopt extremism and fanaticism in sermons and lectures. He emphasized the importance of a culture of tolerance and co-existence. The pronouncement grows in part out of the unrest in Sa'ada province where al-Houthi rebels are demanding the replacement of Salafi and Wahabi mosque leaders.

Is National Day of Prayer Underinclusive?

Is the National Day of Prayer (see prior posting) underinclusive? Has it taken on Judeo-Christian focus that should be expanded to include other faiths as well? Yesterday's Daily Pilot carries comments from seven members of the clergy discussing the issue.

Texas House Approves Adding "Under God" To State Pledge

On Friday, the Texas House of Representatives passed HB 1034, adding "under God" to the pledge of allegiance to the state flag. The final vote was 141- 0 with one person not voting. Since 2003, state law has required public school students to recite the U.S. and Texas pledge, and observe a moment of silence, every school day. (Houston Chronicle). According to the San Antonio Express-News, a small group of Democrats in the House lost in an attempt to also add the words “liberty and justice” to the pledge. If the Senate also passes this bill, the state pledge will read: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God and indivisible." (See prior related posting.)

Discrimination Found In School's Differential Holiday Leave

In Troy v. City of Lynn School District, 2007 Mass. Comm. Discrim. LEXIS 19 (MCAD, April 18, 2007), the Massachusetts Commission Against Discrimination held that the Lynn school system’s collective bargaining agreement (CBA) with the school administrator’s union discriminated against a Catholic employee. The CBA provided that in addition to general school holidays for Christmas and Good Friday, paid leave was granted to Jewish employees for Rosh Hashanah and Yom Kippur; and to Orthodox employees for Orthodox Good Friday. Administrator Paul Troy, a devout Roman Catholic, was refused his request to have Holy Thursday and Ascension Thursday off as paid holidays. The Commission held that the school had put forward no legitimate non-discriminatory reason for treating members of different religious faiths differently. The Commission ordered the school to end discrimination based on religious affiliation and to pay $4857 in damages to Troy. [Thanks to Eugene Volokh via Religionlaw listserv for the lead.]

7th Circuit: Pharmacist Demanded Too Much Accommodation For Religious Belief

On Wednesday, the U.S. 7th Circuit Court of Appeals ruled that Wal-Mart was not required to go as far as an employee pharmacist requested in accommodating his religious objections to filling birth-control prescriptions. In Noesen v. Medical Staffing Network, Inc., (No. 06-2831)(7th Cir., May 2, 2007), the court found that under Title VII of the 1964 Civil Rights Act, the accommodation sought by pharmacist Neil Noeson would impose an undue hardship on Wal-Mart. Wal-Mart offered to permit Noesen to assist only male customers and women not of childbearing age. However, it insisted that he, like all other staff, needed to answer telephones. However, Noesen insisted that the only acceptable accommodation was to relieve him of all counter and telephone duties unless customers were first pre-screened by others to ensure that they were not seeking birth control.

The court also held that, insofar as Noesen had a claim against the state of Wisconsin, Title VII does not override the state's Eleventh Amendment immunity in federal court. [Thanks to Steven H. Sholk for the lead.]

UPDATE: The 7th Circuit's link to the opinion in this case has been unstable. It has been updated, but if it breaks again, search by case name or number here.

April-May Prisoner Free Exercise Cases

In Allmon v. Butler, 2007 U.S. Dist. LEXIS 31986 (D AZ, April 30, 2007), an Arizona federal district court rejected a prisoner's claim that his free exercise rights were violated when he was kept from attending religious services or talking to a pastor regarding family emergencies. Plaintiff did not allege his religion or how he was unjustifiably prevented him from engaging in conduct mandated by his faith.

In Williams v. Arpaio, 2007 U.S. Dist. LEXIS 31988 (D AZ, April 30, 2007), an Arizona federal district court denied a free exercise claim by a prisoner who complained that he was denied access to religious programming on television and that he is denied Pagan religious counseling.

In Linares v. Mahunik, 2007 U.S. Dist. LEXIS 31488 (ND NY, April 30, 2007), a New York federal district court accepted the recommendations of a magistrate judge to dismiss a prisoner's free exercise claim, agreeing that a one-time cancellation of a callout to attend choir practice did not substantially burden plaintiff's free exercise rights.

In Harwood v. Tyler, 2007 U.S. Dist. LEXIS 31908 (ED WA, May 1, 2007), a federal magistrate judge held that a prisoner's free exercise rights were not substantially burdened by the removal and destruction of his religious materials that deprived him of the ability to study for 30 days.

In Kuperman v. New Hampshire Department of Corrections, 2007 WL 120092 (D NH, April 18, 2007), a New Hampshire federal Magistrate Judge recommended that an injunction issue to require an Orthodox Jewish prisoner to receive a Kosher diet. He held that, as applied here, a prison regulation that suspended the inmate's right to a religious diet for 6 months for a single violation of the diet by him is unconstitutional. The Boston Globe reported on the decision last week. UPDATE: Here is the Lexis link: 2007 U.S. Dist. LEXIS 32859.

Israeli Lawyer Sues To Open Rabbinical Court Staff Employment To Women

In Israel, lawyer Naama Safrai-Cohen is trying to open employment in the rabbinical court system to women. Haaretz reports today that Safrai-Cohen last month petitioned the Jerusalem Labor Court to order the Civil Service Commission and the Rabbinical Court Administration to cancel a job tender for the position of legal aide in the rabbinical courts because it required that applicants be certified by the Chief Rabbinate of Israel. The chief Rabbinate only certifies men. The tender was withdrawn, but the court is still considering the case.

Catholic Group's Suit Against University of Wisconsin Settled

The University of Wisconsin has settled a lawsuit filed against it by UW Roman Catholic Foundation challenging UW's refusal to recognize the Foundation as a student organization. Originally the University had two objections-- the Foundation limited its membership to Catholics, and it was not controlled by students. In March, a federal judge ruled that the University was violating the organization's rights by applying non-discrimination rules in a way that forced it to admit non-Catholics. (See prior postings, 1, 2.)

In yesterday's settlement (full text of court order), reported by the Badger Herald, and by the Chippewa, the Foundation agreed to reorganize to separate St. Paul’s University Catholic Parish from the University's Catholic student group. The University will recognize the separate student group, RCF-UWM, as a student organization. RCF-UWM agreed, however, that it would not seek funding from student fees for Masses, weddings, funerals or other events "requiring the direct control of ordained clergy." In exchange, University Chancellor John Wiley agreed to include $253,274 in student fee funding for the group in his recommended budget for next year. As part of the settlement, the court vacated its preliminary injunction orders issued in March and dismissed plaintiff's complaint.

White House Threatens Veto Of Hate Crimes Bill, But Not On Religious Expression Grounds

An odd show down is is being orchestrated in Washington over H.R. 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007, which was approved by the House of Representatives yesterday. The vote was 237-180. (New York Times.) The bill expands the definition of hate crimes to include crimes of violence connected in some way to interstate commerce that are committed because of the victim's actual or perceived sexual orientation, gender identity or disability. It also provides funds and other assistance to promote local hate crimes prosecutions. The bill now moves to the Senate which has not yet voted on its parallel bill, S.1105.

Conservative Christian groups have opposed the bill, claiming that it would infringe their right to religious expression. Presumably they are concerned that preaching about the sinfulness of homosexuality could lead to prosecution, particularly if someone is inspired to commit violence by a denouncement of gays and lesbians. The bill's proponents argue that it contains extensive provisions assuring that prosecutions will target criminal acts, not expressions of belief. (See prior postings 1, 2, 3.)

Following the House vote, the White House issued a statement (full text) saying that if the bill ultimately passes the Senate, the President's "senior advisors would recommend that he veto the bill." Interestingly, however, the statement makes no mention of claimed interference with the expression of religious beliefs as a ground for veto. Instead it makes three very different arguments.

First it objects to federalizing as many violent crimes as the bill does. Second, it complains that the bill does not cover crimes against the elderly, members of the military, police officers, and victims of prior crimes. Interestingly, the statement makes no mention of another class that Christian conservatives wanted included in the bill-- unborn babies. Finally, the White House statement objects to a provision in the bill that does not apply to crimes motivated by sexual orientation of the victim, but only to crimes motivated by a victim's race, color, religion or national origin. 18 USC Sec. 249(a)(1), the White House says, raises constitutional concerns because it is not limited to activities which Congress could criminalize under its powers to regulate interstate commerce, enforce equal protection or protect federal personnel.

The Anti-Defamation League issued a statement praising the House action, criticizing the President's threatened veto, and saying that the law would withstand constitutional attack.

Indonesia Charges 41 Christians Criminally Over Insulting Video

Asia News reported yesterday that in Malang, Indonesia, 41 Christians have been arrested on blasphemy charges growing out of a controversial hour-long video they produced. They have been charged under Section 156A of the Criminal Code with offending Islam. Those charged are all members of the Indonesian Students Service Agency (LPMI). If convicted, they face a 5-year prison sentence. The video shows a gathering of young people in Muslim dress praying to the sound of Christian song. The priest leading the prayer points his finger at the Koran and says that it is the "source of all evil in Indonesia, from violence to terrorism".

White House Ceremony, Capitol Hill, Mark National Day of Prayer [Corrected]

This morning in the White House, President George W. Bush hosted a ceremony marking the National Day of Prayer. (See prior posting.) The program (video) was introduced by the head of the National Day of Prayer Task Force, Shirley Dobson, wife of Focus on the Family chairman James Dobson. Making certain that the ceremony was not solely a Christian event, the U.S. Army Chorus sang "Sim Shalom," a prayer from the Jewish liturgy, and Chicago Rabbi Michael Siegel was among the clergy who spoke. (JTA). Among the other speakers were the chaplain of the corps of cadets at Virginia Tech University (AP).

Musical presentations at the White House ceremony included two spirituals. No Muslim clergy spoke at the event. The President's remarks at the event (full text) focused on the reasons for prayer. He concluded saying: "Prayer has the power to change lives and to change the course of history. So on this National Day of Prayer, let us seek the Almighty with confidence and trust...."

Following the National Day of Prayer ceremony, the President discussed comprehensive immigration reform with some of the clergy who were present. (White House Press Release.)

A National Day of Prayer event was also held on Capitol Hill in the Cannon Office building. Among the speakers was Mississippi Supreme Court Chief Justice James W. Smith Jr. (Hattiesburg American). Smith gained notoriety in 2006 when he appeared in the film Borat . He was shown at a Pentacostal camp meeting saying that "we are a Christian nation now, we were a Christian nation in the beginning, and we're gonna always be a Christian nation until the good Lord returns." (Ethics Daily). After Smith's National Day of Prayer remarks, event organizer Barbara Byerly prayed for God to "reverse the course" of the nation's judges for their "ungodly" rulings. (Jackson Clarion Ledger). [Note, an earlier version of this posting incorrectly reported that Smith had spoken at the White House ceremony.]

House Passes Head Start Reauthorization With Ban On Religious Discrimination Intact

Today, the U.S. House of Representatives passed HB 1429 , the Improving Head Start Act of 2007. The vote was 365-48. (Washington Post). The bill passed after the defeat of a motion to send it back to committee with instructions to remove provisions currently in federal law that ban religious discrimination in hiring Head Start teachers, staff and volunteers. Blog from the Capital has extensive coverage of the contentious debate on the House floor on the motion to recommit, as well as background on the dispute. The House did pass (229-195) an amendment proposed by the Democrats that supports the right of faith-based groups to participate in Head Start. (Washington Times). People for the American Way issued a release welcoming the retention of the anti-discrimination provision in the bill. (See prior related posting.)

4th Circuit Upholds Principal's Removal Of Religious Material From Bulletin Board

Yesterday the U.S. 4th Circuit Court of Appeals upheld the actions of a York County, Virginia principal who removed religious-themed material that Spanish teacher William Lee had posted on his classroom bulletin board. The posted articles and photos focused on instances of governmental involvement with religion and on religious activities of a former Virginia high school student. In Lee v. York County School Division, (4th Cir., May 2, 2007), the court rejected the Spanish teacher's claim that his First Amendment free expression rights were violated by the principal's actions. The court held that the items removed from the bulletin board were curricular in nature, constituted school-sponsored speech and bore the imprimatur of the school. This makes the dispute over Lee’s postings of the items merely an ordinary employment dispute, and not a dispute over his right to speak out on matters of public concern. In reporting on the decision yesterday, the Washington Post quoted the head of the Rutherford Institute as saying that it would ask the U.S. Supreme court to review the decision. (See prior related postings 1, 2.) [Thanks to Derek Gaubatz for the lead.]