Preliminary Injunction Against Illinois Moment of Silence Extended Statewide

Yesterday's Chicago Tribune reports that Illinois federal district judge Robert W. Gettleman has extended his preliminary injunction barring enforcement of Illinois' moment of silence law to all school districts in the state. In November, he had issued a preliminary injunction against one school district, Buffalo Grove. That injunction also applied to the Illinois State Board of Education, but the Board claimed it had no authority to enforce the injunction. In March the court agreed the suit could be converted into a class action against all school districts in the state. (Sherman v. Township High School Dist. 214 [LEXIS link]). Having received no objections to his March order, the court now extended its preliminary injunction statewide. Anyone with standing can now enforce the order against a school district. Plaintiff in the class action, radio talk show host Rob Sherman, however only has standing as to the Buffalo Grove district where his daughter is enrolled in school. [Thanks to Scott Mange for the lead.]

Texas Supreme Court Says State Lacked Basis For Removing FLDS Children

Today in In re Texas Department of Family and Protective Services, (TX Sup. Ct., May 29, 2008), the Texas Supreme Court agreed with the 3rd District Court of Appeals (see prior posting) that the state lacked a sufficient basis to place into Department of Family and Protective Services custody the children that it removed last month from the FLDS Ranch in Eldorado, Texas. The main case before the court involved 126 of those children and a companion case involved 13 more, but the reasoning would appear to apply to all 468 children involved. In a relatively short opinion, six justices held:

On the record before us, removal of the children was not warranted. The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders "for the safety and welfare of the child", including an order "restraining a party from removing the child beyond a geographical area identified by the court". The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense

While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede....

Justices O'Neill, Johnson and Willett in a separate opinion dissented in part, arguing that there was sufficient evidence to justify taking into custody the pubescent female children. They said "evidence indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch..." They argued that resistant behavior by parents and children made it difficult to fashion less intrusive remedies. However these justices agreed with the majority that there was not sufficient evidence to justify awarding custody of male children and pre-pubescent female children to DFPS. CNN reports on the decision.

In the companion case involving 13 other children, the Court issued a brief per curiam opinion reaching the same result.

The pleadings and briefs in the cases are available here and here from the Texas Suprme Court website.

British Churches and Borough Dispute Over Free Trash Pick-Up

In Britain, the Macclesfield Express reports on the controversy between local churches and the Macclesfield Borough Council over trash collection. The UK Department for Environment, Food and Rural Affairs says that its regulations require boroughs to provide free trash pick-up to places of worship. Macclesfield though has been demanding commercial rates from churches-- leading some churches to rely on members to dispose of rubbish for them. Paul Morgan, Macclesfield's Corporate Waste Manager, argued that the government regulations requiring free service are out of date, and are unclear on whether churches can be charged when their halls are used for entertainment.

Army Plans To Remove Crosses From Kosovo Base Chapel Grounds

Life Site News yesterday reported on a controversial plan by the U.S. Army to relandscape the grounds of Peacekeeper’s Chapel that serves US soldiers at Camp Bondsteel in Kosovo. Three wooden crosses outside the chapel will be replaced by a stone monument engraved with the chapel's name and the US Army Chaplain Corps crest. The change will conform to an Army regulation that bars "distinctive religious symbols, such as crosses, crucifixes, the Star of David, menorah, and other religious symbols" from being "affixed or displayed permanently on the chapel exterior or grounds." (Army Reg. 165-1, 13-3.d). As part of the project, a chapel memorial plaque for US Chaplain Gordon Oglesby who died serving in Kosovo will also be removed. The plaque violates Army policy against naming a chapel after a soldier.

Court Hears Arguments In Virginia "Division Statute" Case

Yesterday, a Fairfax County, Virginia trial court heard arguments on the constitutionality of Virginia's 1867 "Division Statute" that allows congregations to vote to separate from their parent body and retain their church property. In an earlier phase of the case, the court ruled that, if the statute is constitutional, it applies to eleven Virginia congregations that broke away from the Episcopal Church. (See prior posting.) Yesterday's Richmond Times-Dispatch reports on the arguments. William Hurd, lawyer for the diocese, argued that the post-Civil War statute was aimed at helping Virginia congregations free themselves from control by religious denominations based in the North. He argued that the requirement the court determine whether a division exists within a denomination unconstitutionally involves the court in theological determinations. Steffen Johnson, representing the break-away congregations, argued that the statute merely provides a neutral test for the court to apply to settle property disputes.

Quebec Report on Cultural Accommodation Issued

In Canada last week, Quebec's Consultation Commission on Accommodation Practices Related to Cultural Differences (also known as the Bouchard-Taylor Commission) issued its final report. (Full text of abridged report.) A May 22 press release describes a number of the recommendations relating to state neutrality and accommodation of religion:

representatives who must embody to the utmost State neutrality and maintain the appearance of impartiality that is essential to the exercising of their duties [should] be prohibited from wearing religious signs. This is true of judges, Crown prosecutors, police officers, prison guards and the president and vice-president of the National Assembly. However, teachers, civil servants, health professionals and all other government employees should be allowed to continue to wear religious signs. In keeping with the same principle of neutrality, the crucifix in the National Assembly and the reciting of prayers at meetings of municipal councils should not be permitted in a secular State....

Students who wish to wear in class religious signs such as the hidjab, kippah or turban should be able to do so. Students must not be exempted from compulsory courses in the name of freedom of religion. Educational institutions are not required to offer permanent prayer rooms.... However, it is in keeping with the spirit of adjustment to authorize for the purpose of prayer the use of temporarily unoccupied rooms.

In response, according to the Montreal Gazette, last week the National Assembly voted unanimously to adopt a resolution that expresses "its attachment to our religious and historic heritage represented particularly by the crucifix in our Blue Room and our coat of arms adorning our institutions." (Full text of resolution at pg. 840). A post yesterday on Wall of Separation reviews Canadian reaction to the recommendation to remove the crucifix displayed over the speakers chair in the National Assembly. (See prior related posting.)

Canadian Court Rejects Attempt To Divert Union Dues For Religious Reasons

According to Life Site News, yesterday Canada's Federal Court of Appeals rejected an attempt by an employee of the Treasury Board of Canada to divert her union dues to charity because of her religious objections to the union's support for homosexual marriage. By a 3-0 ruling, the court affirmed the lower court's refusal to allow Catholic employee Susan Comstock to accommodate her religious objections to the stand taken by her union, the Public Service Alliance of Canada.

Australian Town Rejects Plans For Islamic School

In the Australian town of Camden, New South Wales (on the outskirts of Sydney), months of heated argument ended on Tuesday when Camden Council voted unanimously to reject a development application for a proposed 1200 student Islamic school. Camden Mayor Chris Patterson said the rejection was based on traffic concerns and the loss of agricultural land, not on religious grounds. However the heated debate that has gone on for months included an incident last November in which two pigs heads on metal stakes with an Australian flag between them were planted at the school's proposed site. Mayor Patterson said that the the Qu'uranic Society is encouraged to submit a plan for an alternative location. Meanwhile, backers of the school are planning an appeal to the Land and Environment Court. Reports on various aspects of the controversy are in The Australian, ABC and the Daily Telegraph.

Florida City Decides Not To Require Opening Prayers At Board Meetings

In Fort Walton Beach, Florida on Tuesday, City Council by a vote of 3-3 defeated a proposal that would have required every city board to begin all meetings with a prayer. Opening invocations will remain optional. The Destin Log yesterday reported that the proposal to mandate an invocation was introduced by Councilman Jim Hartwell after the city's Community Redevelopment Agency eliminated it opening prayer earlier this month and discussed eliminating the Pledge of Allegiance because it offended one of its members. City Council on Tuesday also directed staff to draft an ordinance requiring all city meetings to be opened with the Pledge of Allegiance, but not requiring board members to recite it.

AU Wants IRS To Investigate Washington Religious Group

Americans United for Separation of Church and State in a release yesterday urged the Internal Revenue Service to investigate a Tacoma, Washington non-profit religious group, Christian Businessmen’s Connection. Last week the group hosted the Republican candidate for governor of Washington, Dino Rossi. At the event, CBC's president, Dwight Mason, prayed for Rossi. He then told members that fund-raising envelopes for Rossi were on their tables. Under the Internal Revenue Code, non-profit organizations are precluded from involvement in political campaigns.

Cert. Denied In Case Interpreting RLUIPA "Equal Terms" Provision

The U.S. Supreme Court today denied certiorari in Lighthouse Institute for Evangelism v. Long Branch, NJ, (Case No. 07-1111). (Order List.) In the case, the 3rd Circuit below held, in a 2-1 decision, that the "equal terms" provision of Religious Land Use and Institutionalized Person Act (Sec. 2(b)(1)) does not require a church to show that a "substantial burden" has been been placed on its religious exercise, but merely to show that it was treated worse than a secular organization that has a similar negative impact on the aims of the land-use regulation at issue. (See prior posting.)

California High Court Hears Case On Religious Exception To Civil Rights Law

The California Supreme Court this morning heard oral arguments in Northcoast Women's Care Medical Group v. Superior Court. In the case, a California appellate court held that two doctors being sued by a lesbian woman for refusing to perform intrauterine insemination on her could assert their constitutional right to free exercise of religion in defending against her discrimination charges. (See prior posting.) Reporting on today's arguments, the San Diego Union-Tribune said that the Court's seven justices questioned both sides about the circumstances under which there should be a free exercise exemption from state civil rights laws. The defendants in the case also argue that the main reason they did not treat plaintiff Guadalupe Benitez was that they refuse to perform the procedure for any unmarried couple.

UPDATE: An article in Thursday's issue of The Recorder says that "the court gave every indication during oral arguments ... that it would rule that doctors can't invoke their religious beliefs to deny gays and lesbians medical services."

Recent Prisoner Free Exercise Cases

In Adegbuji v. Green, (3d Cir., May 19, 2008), the U.S. 3rd Circuit Court of Appeals agreed with the district court that the free exercise rights of an INS detainee were not violated when he was limited to attending only one religious class or service per week while in custody.

In Tayr Kilaab Al Ghashiyah v. Litscher, (7th Cir., May 15, 2008), the U.S. 7th Circuit Court of Appeals upheld the lower court's dismissal of three sets of free exercise claims by a prisoner-- that he was not permitted to use only his religious name when filing grievances and sending mail, that he could not obtain food that complied with his religious requirements, and that he was denied access to religious property and the use of prayer oil.

In Harris v. Alves, 2008 U.S. Dist. LEXIS 40180 (ED WA, May 19, 2008), a Washington federal district court rejected a prisoner's free exercise and RLUIPA challenges to a prison rule that did not allow him to leave his desk to pray during a computer class, but instead limited him to praying silently at his desk, or praying before or after class or during the class break. The court also rejected an equal protection complaint regarding the denial of plaintiff's right to change his work schedule and to take certain educational classes.

In Schipke v. Chapman, 2008 U.S. Dist. LEXIS 40287 (ND TX, May 19, 2008), a Texas federal district court rejected a federal prisoner's religious objection to prison authorities collecting a DNA sample from her as required by federal law.

In Waff v. Reisch, 2008 U.S. Dist. LEXIS 39710 (D SD, May 14, 2008), a federal magistrate judge refused an indigent pro se prisoner's request for appointed counsel in his lawsuit challenging a denial of access to a kosher diet.

Texas Fears Flight If FLDS Children Are Released

In Texas, Child Protective Services lawyers have raised a new argument in their appeal to the Texas Supreme Court seeking to keep custody of children taken during a raid of the FLDS compound in Eldorado. Today's Houston Chronicle reports updated court filings argue that if the children are released to their parents, the families might flee to FLDS settlements in Utah and Arizona, taking the children outside the reach of Texas courts. (See prior related posting.)

Former Library Employee Brings Free Exercise Suit Over Harry Potter Event

In Cape Girardeau, Missouri yesterday, the ACLU filed suit on behalf of library-assistant Deborah Smith who was suspended for ten days without pay after she refused to work at an event that she said violated her religious beliefs. After she returned, her duties were made more labor intensive. This led her to resign for medical reasons. St. Louis Today reports that Smith refused to take part in a July 2007 event at the Poplar Bluff Public Library that was held to mark the release of the book "Harry Potter and the Deathly Hallows." Library employees were expected to dress as witches and wizards at the event. Smith, a Southern Baptist, believes that the Harry Potter books popularize witchcraft and practice of the occult. Smith's federal lawsuit-- filed after the EEOC and the Missouri Commission on Human Rights upheld her right to sue-- claims that the library's action against her violated her right to the free exercise of religion.

Philadelphia Boy Scouts Sue To Keep Free Space

In Philadelphia, the Cradle of Liberty Council of the Boy Scouts has sued the city in an attempt to remain in their city-owned headquarters without paying market-rate rents. For the last 80 years, the Boy Scouts have leased a building from the city for $1 per year. However Philadelphia's 1982 Fair Practices Ordinance bars the city from supporting groups, like the Boy Scouts, that discriminate, and the city had ordered the Scouts to pay $200,000 per year beginning June 1. The Scouts, under their national policy, exclude openly gay boys from membership. They also ban atheists from membership. The Washington Post and Philadelphia Inquirer report that the scouts federal lawsuit filed last Friday claims that the city leases space for nominal rent to around 100 other groups with restrictive membership criteria, including the Roman Catholic Church of the Maternity of the Blessed Virgin Mary and Zion Baptist Church. [Thanks to Bob Ritter for the lead.] [Updated]

Christian School Loses Non-Profit Status

BNA's Daily Report for Executives [subscription required] reports that the IRS has revoked the non-profit tax eligibility of Heritage Christian Schools for Children, Stone Mountain, Ga. The determination made public in IRS Announcement 2008-49 [BNA subscription required] is scheduled for publication today in Internal Revenue Bulletin 2008-21.

Church Challenges Anchorage, Alaska Zoning Rules

In Anchorage, Alaska last week, the Rabbit Creek Community Church filed a federal lawsuit against the city charging that the city's land use code discriminates against religious groups. KTUU News reported yesterday that under the city's zoning laws, only churches are required to obtain additional review and approval before building in or near a residential neighborhood. For years, the city has refused to allow Rabbit Creek Community Church to expand its present building, citing safety, drainage, water and buffering issues.

Indian Artist Cleared of Charges From Painting of Nude Goddess

In India earlier this month, a 92-year old artist, Maqbool Fida Husain, was cleared of charges that his painting Bharat Mata (Mother India) is obscene and hurts public sentiments. The painting depicts the Hindu goddess as a nude woman. Both the London Times and the Times of India reported on May 9 on quashing of the indictments in three cases. Complaints against Husain, who is sometimes known as the Picasso of India, were filed by right wing Hindu groups. In a strongly worded opinion, Delhi High Court Justice Sanjay Kishan Kaul said: "A painter has his own perspective of looking at things, and it cannot be the basis of initiating criminal proceedings.... It is most unfortunate that India's new puritanism is being carried out in the name of cultural purity and that a host of ignorant people are vandalising art and pushing us towards a pre-Renaissance era." Husain moved to Dubai in 2006 after Hindu activists focused on his art work.

Catholic School Wins Temporary Injunction Against New Zoning Restrictions

In Notre Dame Academy, Inc. v. City of Suwanee, Georgia, (Super. Ct., Gwinett Co. GA, May 23, 2008), a Georgia state trial court issued a temporary injunction prohibiting the city of Suwanee, Georgia from enforcing its moratorium on accepting building or development permits. It also barred the city from adopting new special use permit requirements that had been proposed. The court found that the moratorium and proposed permit requirement infringe the religious exercise rights of Notre Dame Academy, a Catholic elementary school that intends to purchase land to relocate its school to Suwanee. Imposing the moratorium on the religious school, the court said, would violate several provisions of the Religious Land Use and Institutionalized Persons Act. Alliance Defense fund issued a press release on Friday discussing the decision.