One 10 Commandments Display Stays, Another Goes, In Kentucky

A Kentucky federal district court this week upheld the constitutionality of a display of the Ten Commandments as part of a "Foundations of American Law and government" display in the Rowan County (KY) Fiscal Courtroom. The "Foundations" display was authorized by the Fiscal Court after the ACLU challenged an earlier posting of the 10 Commandments among 17 other miscellaneous documents. In American Civil Liberties Union of Kentucky v. Rowan County, Kentucky, (ED KY, Sept. 17, 2007), the court concluded that "plaintiffs have failed to show that religion was the county’s predominant purpose in posting the Foundations Display – it may have been a purpose, but it was not the predominant purpose."

Yesterday's Lexington Herald-Leader reported on the decision, and also reported that in a September 5 decision, the same judge found that a Ten Commandments display inthe Garrard County courthouse was unconstitutional. The Ten Commanments were displayed along with other documents linking government and religion. The court found that in this case, "a reasonable person would conclude that the county's display has the effect of endorsing religion."

Third Circuit Finds JCC Entitled To Title VII Religious Exemption

Yesterday, the U.S. 3rd Circuit Court of Appeals, in a 2-1 ruling, issued an important decision interpreting the scope of the religious institutions exemption in the 1964 Civil Rights Act. In LeBoon v. Lancaster Jewish Community Center Association, (3rd Cir., Sept. 19, 2007), an Evangelical Christian bookkeeper who lost her job at a Jewish Community Center claimed that the JCC was not entitled to claim an exemption from religious discrimination claims under Section 702 of the Civil Rights Act (42 USC 2000e-1(a)). She argued that the JCC "lacked financial or administrative ties with a synagogue and its nature and purposes were primarily cultural, not religious." The majority, however, disagreed, finding "the LJCC was entitled to the protection of Section 702 during the period under scrutiny because its structure and purpose were primarily religious."

Judge Rendell, dissenting, argued that "Congress understood § 702(a) to cover only those entities that, unlike the LJCC, are controlled by a religious sect." He said that the majority's approach places the court in the position of analyzing the activities of religiously inclined organizations to determine which are religiously meaningful.

The court unanimously rejected a retaliation claim by the plaintiff, crediting instead the JCC's explanation that LeBoon was terminated because of the financial problems the JCC was experiencing.

Ontario Catholic Schools Debate HPV Vaccine Program

In the Canadian province of Ontario, the government has begun a school-based program of offering the HPV vaccine to girls in grade 8. Now Catholic schools throughout the province are debating whether to permit the programs. The Hamilton Catholic School Board voted on Monday to allow public health officials into the schools. Tuesday's National Post reported that the Conference of Catholic Bishops issued a statement expressing regret that the program was introduced without more study. Their statement said that the decision is ultimately up to parents, but emphasized that HPV can only be contracted through sex, and sex outside marriage carries "profound risks to a young person's spiritual, emotional, moral and physical health." It went on: "Sexual activity is appropriate only within marriage. Outside of marriage, abstinence is not only clearly the choice that leads to spiritual and moral well being, but it is obviously the best protection against risks of disease."

DC Court Orders Members of Congress To Produce Documents On Mt. Soledad Law

The judicial decisions in the Mt. Soledad Cross cases never seem to end, as plaintiffs attempt to show that the Establishment Clause was violated by legislation under which the federal government acquired the war memorial. Plaintiffs have been attempting to gather evidence to show that Congress had a religious purpose in enacting legislation transferring control of the site to the federal government. A California federal district court has issued two decisions refusing to permit plaintiffs to take the depositions of members of Congress and their advisers on the issue of motivation. (See prior postings 1, 2.) Now, however, in Jewish War Veterans of the United States v. Gates, (D DC, Sept. 18, 2007), the D.C. federal district court has issued a 55-page opinion and an order permitting plaintiffs to subpoena some documents from three members of Congress.

The court held that "each category of documents requested has the potential to shed light on at least one of the three Lemon prongs. Foremost among these is legislative purpose." Responding to defendants' claim that production of the documents are shielded by the Constitution's "speech or debate" clause, the court said:

The Members are correct that... informal information gathering in connection with or in aid of a legitimate legislative act is itself protected by the Speech or Debate Clause. Such information gathering may take the form of communications with organizations, constituents, or officials of a coordinate branch. The Members are likewise correct that the Clause prohibits inquiry into an individual legislator's motives for engaging in particular legislative acts. At the same time, JWV is correct that accepting the Members' position on these points does not necessarily shield from production all documents responsive to specifications 3, 5, 7 and 9. Documents that reflect a Member's efforts to persuade Executive Branch officials to use existing statutory authority, for example, must be produced, as must documents that reflect legislative purpose, rather than the motives of individual legislators.

The court left it in part to the defendants to decide which documents must be produced under the principles announced in the court's decision. Today's New York Sun reports on the decision.

Soldier Sues Army Claiming Religious Discrimination

A press release distributed by the Military Religious Freedom Foundation yesterday announced a religious discrimination lawsuit that has been filed against the Department of Defense and an Army Major:

(MRFF) and U.S. Army Specialist Jeremy Hall have filed a lawsuit against Defense Secretary Robert Gates and Major Paul Welborne in U.S. District Court in Kansas City, Kansas citing a pattern of military practices that discriminate against non-Christians in the military. The lawsuit also cites overt government support of private civilian religious organizations and activities.

... In August of this year, Specialist Hall, after receiving permission from a chaplain at Contingency Operations Base Speicher, Iraq, posted flyers around his base announcing a meeting of atheists and other non-Christians.... Army Major Paul Welborne disrupted the meeting and threatened to retaliate against Hall by charging him with violating the Uniform Code of Military Justice and vowed to block Hall's reenlistment in the Army because of Hall’s role in organizing the meeting, a violation of Hall's First Amendment rights under the Constitution.

The complaint charges that Hall, who is based at Ft. Riley, Kansas, has been forced to "submit to a religious test as a qualification to his post as a soldier in the United States Army," a violation of Article VI, Clause 3 of the Constitution.

The International Herald Tribune has also published a report on the lawsuit.

Methodist Pavillion Loses Tax Exemption For Refusing To Host Civil Unions

New Jersey's Commissioner of Environmental Protection has refused to renew the real estate tax exemption for the Ocean Grove Boardwalk Pavilion which is operated by an organization affiliated with the Methodist Church, according to an article yesterday in Edge. The exemption denial came because the Ocean Grove Camp Meeting Association (OGCMA) that owns the Pavilion has refused on religious grounds to make it available for same-sex couples to use for civil union ceremonies. Two lesbian couples have filed a complaint with the state Division of Civil Rights arguing that the Pavilion is a public accommodation subject to the state's non-discrimination laws. The Pavilion is broadly used by the public, but is also used by OGCMA for Sunday worship services and a Youth Ministry program. Last month a federal judge refused to order a halt to the state's civil rights investigation. The real estate tax exemption for the rest of the boardwalk and the beach, both of which are also owned by OCGMA, however were renewed. (See prior related posting.)

Nebraska State Senator Sues God To Protest Frivolous Lawsuits

Ernie Chambers, a Nebraska state senator, has filed a lawsuit in a Douglas County, Nebraska state court naming God as defendant. The suit accuses God of causing, death destruction and terror through floods, earthquakes, hurricanes, tornadoes and plagues. The lawsuit asks for a permanent injunction ordering defendant to cease harmful activities. Chambers says the court has jurisdiction because since Defendant is omnipresent, God is personally present in Douglas County. Chambers filed the suit to protest frivolous litigation, particularly a suit filed recently by Tory Bowen claiming that her free speech rights were violated when a state judge barred words such as "rape" and "victim" in a sexual assault trial. Yesterday both the AP and the Christian Post report on these developments.

UPDATE: On Thursday, the Christian Post reported that a one page document mysteriously appeared on the counter in the clerk's office at the Douglas County Court House. Captioned a "Special Appearance", it argues that Chambers' lawsuit should be dismissed because there was not proper service of a summons on defendant.

Paper Profiles Bush's Orthodox Jewish Attorney General Nominee

Today's Jerusalem Post points out that President George Bush's nominee for U.S. Attorney General, Michael Mukasey, is an Orthodox Jew. If confirmed, Mukasey would be only the second Jewish Attorney General in U.S. history.

Turkey's Prime Minister Wants To Permit Headscarves To Be Worn At Universities

BBC News reports that Turkish Prime Minister Recep Tayyip Erdogan has said, in a Financial Times interview, that he wants to lift Turkey's ban on Muslim women wearing headscarves at state universities. President Abdullah Gul supported Erdogan, saying: "It is much better for [women who are covered] to go to university than to stay home and be isolated from social life." In Turkey, the headscarf has become a symbol of a perceived threat to the country's secular foundations, and was a major issue in the Parliamentary election of Gul as President earlier this year. Military and judicial leaders oppose any changes that would erode Turkey's official secularist rules.

Mukasey Decided Few Religion Cases As Judge

A Lexis search indicates that Michael Mukasey, President Bush's nominee for Attorney General, decided only few cases involving free exercise claims during his 18-year tenure as a federal district judge in New York. The major decision he wrote was in United States v. Rahman, 1994 U.S. Dist. LEXIS 10151 (SDNY, 1994), in which defendant, charged with conspiracy to commit urban terrorism, raised First Amendment objections. Mukasey wrote: "it is the rare offense, particularly the rare conspiracy or aiding and abetting offense, that is committed entirely in pantomime. However, that speech -- even speech that includes reference to religion -- may play a part in the commission of a crime does not insulate such crime from prosecution."

In three cases, Mukasey denied prisoner free exercise claims: Robinson v. Scully, 1990 U.S. Dist. LEXIS 3632 (SDNY, 1990) (removal of prisoner's kufi during search); Prins v. Coughlin, 1995 U.S. Dist. LEXIS 8673 (SDNY, 1995) (Jewish prisoner protests lack of hot kosher food); Salahuddin v. Mead, 2000 U.S. Dist. LEXIS 3932 (SDNY, 2000) (Muslim prisoner denied access to chaplain during prison work program hours).

Candidates' Religious Views Continue As An Issue Among Christian Conservatives

A "Value Voters" debate among Republican presidential candidates, sponsored by several conservative Christian groups, was held yesterday in Ft. Lauderdale, Forida. However, the major Republican contenders did not participate, according to the Florida Sun-Sentinel. Seven of the second-tier candidates did take part: Mike Huckabee, Tom Tancredo, Ron Paul, Sam Brownback, Duncan Hunter, Alan Keyes and businessman John Cox. Among the information that came out at the debate was when several of the candidates first accepted Jesus as their personal savior. WorldNet Daily also reports on the debate.

Meanwhile, the Florence (AL) Times Daily says that Fred Thompson's performance on the campaign trail is causing concern among conservative Christian voters. Thompson has said that he does not belong to a church in his home community in Virginia and does not attend church regularly. He says he attends services when he visits his mother in Tennessee. He also has declared that he will not talk about religion in his campaign.

Pope Comments On Church-State Relations

Catholic World News yesterday reported on remarks made by Pope Benedict XVI as he accepted the credentials of Ireland's new ambassador to the Vatican:

Speaking about the broad question of Church-state relations in a democratic society, Pope Benedict said that the faith "serves all of society by shedding light on the foundation of morality and ethics, and by purifying reason, ensuring that it remains open to the consideration of ultimate truths and draws upon wisdom." In making that contribution, he said, the Church does not threaten the proper authority of the state, but "keeps public debate rational, honest and accountable."

Zenit reprints additional portions of his remarks.

South Korea To Permit Alternative Service For Conscientious Objectors

South Korea's Defense Ministry has announced that for the first time it will permit religious conscientious objectors to perform alternative service. Today's Korea Herald says the government will introduce the option of serving in special care hospitals instead of the army by 2009. Veterans groups say they will oppose the plan, arguing that it will undermine compulsory military service and promote inequality.

California City To Consider Return of Creche To Public Property

The Sonoma (CA) News reports that at this week's City Council meeting, freshman Council member August Sebastiani will propose that the city bring back a creche display to the city's Sonoma Plaza this Christmas season. The Sonoma Valley Ministerial Association previously moved the display to a local church in order to avoid controversy, but Sebastiani says that a poll shows 72% of the people want it returned to public property. City attorney Tom Curry says that in order to meet constitutional requirements, the city must either include the creche as part of a broader holiday display along with secular symbols and religious symbols from various traditions, or permit a private group to set up the creche under a policy that allows anyone to set up a display on a first-come first-served basis regardless of the display's content.

No Religious Discrimination In Denial Based On Religious Arguments

In Boston v. Dawn Unknown, 2007 U.S. Dist. LEXIS 67939 (ED MO, Sept. 13, 2007), a Missouri federal district judge held that St. Louis Fitness Club employees did not engage in religious discrimination when they failed to renew plaintiff's membership in the Club because he had engaged in heated debates about religion with the club's staff.

Creationism Group Using Copyright Law To Silence Critics On YouTube

Although the reports coming in the last few days are sketchy, apparently a group that promotes Creationism as factual science is using the Digital Millennium Copyright Act to silence its critics that post videos on YouTube. The DMCA provides a safe harbor to online service providers who take down content promptly after being notified that it infringes a copyright. (Background). Apparently, unsupportable DMCA notices of infringement are being filed by Creation Science Evangelism against any YouTube video that criticizes its founder, Kent Hovind. (Panda's Thumb, Slashdot). In order to get the videos restored, under the DMCA their producers need to file a counter-notification with YouTube. However, apparently YouTube is closing the accounts of individuals who have DMCA notices filed against them before they get a chance to file their objections. (RichardDawkins.net).

California Supreme Court To Hear Episcopal Church Dispute

Last Thursday, the California Supreme Court voted unanimously to grant review in the Episcopal Church Cases. The lower court (see prior posting) held that it should give deference to the highest adjudicatory authorities of the Episcopal Church, instead of applying neutral property principles to decide whether three break-away congregations or the Episcopal Church USA own the property on which the local churches are located. Virtue Online last week reported extensively on the case.

New Articles, Books and DVD's of Interest

From SSRN:

• John Mikhail, The Free Exercise of Religion: An American Perspective, (chapter in Matthias Mahlmann and Hubert Rottleuthner, eds., Ein neur Kampf der Religionen? Staat, Recht und religiose Toleranz (2007)).


• Haider Ala Hamoudi, The Muezzin's Call and the Dow Jones Bell: On the Necessity of Realism in the Study of Islamic Law, (American Journal of Comparative Law, Vol. 56, No. 2, 2008).


• Margaret F. Brinig, Children's Beliefs and Family Law, (Notre Dame Law School Legal Studies Research Paper Series, Sept. 11, 2007, Forthcoming).


• Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, (Boston College Law Review, Forthcoming).


• Martha Minow, Tolerance in an Age of Terror, (Southern California Interdisciplinary Law Journal, Vol. 16, No. 3, 2007).

From SmartCILP:

• Roger W. Bowen, Exploring the Role of Religion, 53 Loyola Law Review 157-163 (2007).
  
• Catholicism and the Court: The Relevance of Faith Traditions to Jurisprudence. Keynote address by Hon. Diarmuid O'Scannlain; panel articles by Margaret O'Brien Steinfels, Michael J. Gerhardt, Sheldon Goldman, Edward A. Hartnett, Brian Z. Tamanaha, Sanford Levinson, Robert F. Cochran, Jr., Scott C. Idleman and Hon. Joan B. Gottschall. 4 University of St. Thomas Law Journal 157-341 (2006).

Vol. XXII, No.2 of the Journal of Law and Religion (2006-07) has recently been published.

Recent Books:

• Stephen Bates, God's Own Country: Tales from the Bible Belt, (Hodder & Stoughton, July 2007), reviewed by The Guardian.


• Mark Lilla, The Stillborn God: Religion, Politics and the Modern West, (Alfred A. Knopf, 2007), reviewed by the Wall Street Journal and the New York Times.

New DVD:

• Baptist Center for Ethics, Golden-Rule Politics: Reclaiming the Rightful Role of Faith in Politics, (2007), reviewed by The Tennessean.

Pennsylvania Weddings By Clergy Without Congregations Ruled Invalid

Earlier this month, a York County, Pennsylvania judge ruled that Pennsylvania law limits clergy who can perform weddings to those who have a "regularly established church or congregation." (23 Pa. Consol. Stats. 1503). Law.com reported last week on the decision that came in the case of a couple who broke up seven months after their wedding ceremony was performed by a Universal Life Church minister who was ordained online. Apparently the effect of the ruling was to eliminate the need for the couple to obtain a divorce. Philadelphia's NBC10 outlines the implications of the ruling on other couples.

Israeli Rabbinate Fears Conversion Efforts During Sukkot Festivities

In Israel, many celebrations and events are scheduled during the week-long Jewish holiday of Sukkot that begins this year on the evening of September 26. One of these is the annual parade in Jerusalem that attracts thousands of foreign tourists as well as Israelis. According to YNet News (Sept. 12), this year an official committee appointed by the Chief Rabbinate says that Jews should not participate in the parade, or in various Feast of Tabernacle activities planned by International Christian Embassy Jerusalem. The Rabbinate fears that the events will be used by Christian missionaries to attempt to convert Jews. The Jerusalem municipality however issued a statement saying that "participation (in the parade) is planned in advance and approved by the city, whose inspectors wouldn't allow a missionary group or any other political group to attend the parade." Christian Embassy also says that it is not a missionary organization.