9th Circuit Says California Law Does Not Ban Anti-Abortion Display Near Schools

The U.S. 9th Circuit Court of Appeals yesterday held that a California statute prohibiting anyone from disrupting a school or its pupils could not be applied to prohibit an anti-abortion organization from driving a truck around the perimeter of a middle school, displaying enlarged, graphic photos of early-term aborted fetuses. In Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department, (9th Cir., July 2, 2008), the court held that First Amendment concerns would be raised if California Penal Code, Sec. 626.8 were read to apply to situations in which officials merely object that the content of speech is offensive to students. The court said the statute should be construed to apply only when disruptions are caused by the manner, rather than the content, of speech. However the court held that officers have qualified immunity as to plaintiffs' claim for damages because previously it was not clear that case law prohibiting a "heckler's veto" applied where the target audience is children. The court remanded the case for consideration by the trial court of injunctive relief.

In a press release reacting to the decision, the Center for Bio-Ethical Reform said: "We are grateful to God for granting the Founding Fathers the wisdom to create appellate courts which can rectify the mistakes of trial court judges.... The First Amendment means nothing if it doesn't mean the right to show people things they don't want to see."

2nd Circuit Rejects Capital Defendant's Challenge To Evidence About His Religious Beliefs

In United States v. Fell, (2d Cir., June 27, 2008), the U.S. 2nd Circuit Court of Appeals rejected the challenge by a defendant who had been sentenced to death to the introduction of evidence at penalty stage of his trial regarding his religious beliefs. The court found that testimony regarding defendant Donald Fell's interest while incarcerated awaiting trial in the Muslim and Native American religions, and his filing of grievances regarding participation in religious rituals, were relevant to whether or not Fell had successfully adjusted to prison. Testimony about Fell's past interest in Satanism was more troubling to the court. The court concluded, however, that it did not prejudice Fell sufficiently to call for a new trial, especially since the trial court had instructed the jury that it could not consider Fell's religious beliefs in rendering its verdict.

LAPD Officer Sues Department Claiming Religious Discrimination

Yesterday's Los Angeles Times reports that L.A. police officer Sgt. Eric Holyfield, who is also a pastor, has filed a religious discrimination lawsuit in state court against the Los Angeles Police Department and Deputy Police Chief Charlie Beck. Holyfield alleges that he was passed up for promotions and raises after he preached a controversial eulogy at the funeral of another police officer, Nathaniel Warthon Jr. Holyfield, dressed in black clerical attire, identified himself as a police sergeant and Warthon's supervisor as he spoke at the funeral. In his eulogy, he said that homosexual acts are "sinful" and would lead to condemnation in hell if there was not repentance. Holyfield quoted Biblical passages that condemn homosexuality. After the funeral, Deputy Chief Beck filed a formal complaint against Holyfield. Holyfield says that Beck's actions were motivated by "religious biases." The complaint in his lawsuit alleges that LAPD has "historically discriminated . . . and continues to discriminate against officers that cite from the Holy Bible."

Some Oppose Obama's Limit On Faith-Based Hiring In Funded Programs

Wall of Separation yesterday reported that a number of conservative religious leaders are unhappy with one part of Barack Obama's plans to expand President Bush's faith-based initiative. Obama announced his proposals in a speech in Ohio earlier this week. (See prior posting.) Obama will not permit faith-based hiring for the social service programs that receive federal funding. (See July 1, Columbus Dispatch report.) Jim Towey, former director of the White House Office of Faith-Based and Community Initiatives, said: "The reality is an Orthodox Jewish group ceases to be Orthodox if they have to hire atheists or Southern Baptists. What Senator Obama is saying is groups will have to secularize if they play ball with government and receive federal funding, and that flies in the face of what many small groups want." Southern Baptist Convention public policy spokesman, Richard Land, said: "If you can’t hire people within your faith community, then you've lost the distinctive that is the reason why faith-based programs exist in the first place."

Get Religion yesterday focused on the same concerns. It quotes an example from the blog Spiritual Politics : "You can certainly imagine situations where ... a relatively small church wants to hire a youth pastor but can only afford one half time, so wants to be able to make that a full-time position ... by making him head of the publicly funded after-school program. That’s not allowed (unless, of course, you open the youth pastor position to people of any religious persuasion). "

UPDATE: The July 5 New York Times surveys the debate over religious-based hiring by religiously affiliated social service providers receiving federal funds. It says that Obama's position implicates "deeper questions about religious freedom that could very well seal the fate not only of any new and potentially improved partnerships between government and religious groups but also even those partnerships that, in reality, had been operating for decades."

Proposed Iranian Law Would Treat Blogs That Promote Apostasy As Capital Offense

Khaleej Times reported yesterday that Iran's Parliament is set to debate a draft bill that would not only continue to punish apostasy and a number of other crimes with death, but would add to the list of capital offenses "establishing weblogs and sites promoting corruption, prostitution and apostasy." The draft bill also provides that the sentence in these cases "cannot be commuted, suspended or changed". Last year, Iran carried out 317 executions.

Former Texas Science Curriculum Director Sues Over Agency Policy On Creationism

An interesting lawsuit has been filed by Christina Comer, former science curriculum director of the Texas Education Agency (TEA). Yesterday's Dallas News reports on the suit filed in federal district court in Austin. Comer was forced to resign last year after she forwarded to a number of people an e-mail announcing a presentation by an author who is critical of intelligent design and creationism proponents. (See prior posting.) Comer's supervisors took the position that Comer had violated TEA's policy to remain neutral on the issue of teaching creationism as the Agency's review of the state science curriculum approached. The complaint in Comer v. Scott, (WD TX, filed July 2, 2008) asserts in part:

By professing "neutrality," the Agency unconstitutionally credits creationism, a religious belief, as a valid scientific theory. The Agency's policy is not neutral at all, because it has the purpose or effect of inviting dispute about whether to teach creationism as science in public schools.... The Agency's "neutrality" policy violates the Establishment Clause ... because it has the purpose or effect of endorsing religion.

The complaint asserts that Comer's constitutional rights were violated when she was fired for violating TEA's unconstitutional policy, and that she was also denied due process when TEA operating procedures were not followed in her dismissal.

EEOC Sues On Behalf of Sikh Job Applicant

The U.S. Equal Employment Opportunity Commission last week filed suit against a Texas company on behalf of a Sikh man who the company refused to hire. When Sukhdev Singh Brar, a certified security officer, applied for a position with Champion National Security and was called for an interview, he was told to shave and take off his turban. The EEOC suit, reported on by the Indo-Asian News Service, charges Champion National with religious discrimination.

Court Upholds Ban on 12-Foot High Cross In 4th of July Celebration

Yesterday a Virginia federal district court refused to grant a preliminary injunction against new regulations banning objects taller than 8 feet high at Chesapeake, Virginia's traditional 4th of July celebration in Lakeside Park. the celebration follows a parade. The Hampton Roads Virginian-Pilot reports that the challenge was filed by Steve Taylor, founder of Christian Rights Ministries. He wanted to display a 12-foot high cross at the celebration. At last year's celebration, the cross was allowed in the parade, but not in the park. At the court hearing on Tuesday morning, a Ministries member carried the cross on his back to the front of the courthouse and brought it into the court room. During the hearing, two defense attorneys held the cross up in front of the judge. (Minutes of court proceeding in Christian Rights Ministries v. City of Chesapeake, (ED VA, July 1, 2008)). [Thanks to Scott Mange for the lead.]

Appeal Filed In Photographer's Sexual Orientation Discrimination Case

Yesterday Alliance Defense Fund announced that an appeal was filed in a New Mexico state court seeking reversal of a controversial April decision by the state's Human Rights Commission. The Commission concluded that a photography company had violated state public accommodation anti-discrimination laws by refusing to photograph a lesbian commitment ceremony. Photographer Elaine Huguenin refused to provide photography services because moral, philosophical and Christian religious beliefs held by her and her husband are in conflict with the message communicated by the ceremony. (See prior posting.) In the appeal (full text of pleadings), the photography company claims that it is not a "public accommodation" under New Mexico's anti-discrimination laws that ban, among other things, discrimination on the basis of sexual orientation. The appeal also asserts that the Commission's decision violates the speech and religion protections in the U.S. and New Mexico constitutions and the New Mexico Religious Freedom Restoration Act.

Florida RFRA Challenge To Park Feeding Ordinance Dismissed

In First Vagabonds Church of God v. City of Orlando, 2008 U.S. Dist. LEXIS 49314 (MD FL, June 26, 2008), a Florida federal district court rejected a challenge under Florida's Religious Freedom Restoration Act (FRFRA) to Orlando's Large Group Feeding Ordinance. The Ordinance requires a permit to feed more than 25 people in a downtown city park, and limits any group to two permits in a 12 month period. First Vagabonds Church of God holds services every Sunday in Orlando's Langford Park, and sharing food is part of the service. The Ordinance effectively requires that the Church rotate its services among downtown parks, or hold them outside of the downtown area. The court held: "Clearly, the ordinance places a significant burden on FVCG's services. However, it does not rise to the level of a substantial burden as defined by FRFRA." Last week's Orlando Sentinel reports that other counts alleging restrictions on freedom of speech and assembly remain to be decided. The Orlando Sentinel also covered some of the testimony in last week's bench trial of the case. (See prior related posting.)

Florida's School Zone Safety Law Held Vague In Suit By Gideons Member

In Gray v. Kohl, 2008 U.S. Dist. LEXIS 49482 (SD FL, June 18, 2008), a Florida federal district court held that Florida's School Safety Zone statute is unconstitutionally vague insofar as it precludes anyone "who does not have legitimate business" to be within 500 feet of a school during school hours, or to loiter near campus. (Fla. Stat. Sec. 810.0975 .) The court permanently enjoined enforcement of these provisions. The lawsuit was filed by a member of Gideons International after members were prevented from distributing Bibles near a Key Largo (FL) school. However the court dismissed damage claims against the county sheriff, finding he was not liable for the arrest made by one of his officers, nor was he liable for failure to train his officers regarding enforcement of the School Safety Zone law. (See prior related posting.)

Church Required To Identify Some Members In RLUIPA Interrogatories

Christ Covenant Church v. Town of Southwest Ranches, 2008 U.S. Dist. LEXIS 49483 (SD FL, June 29, 2008) poses an interesting issue of a church's right to protect its membership list. Christ Covenant church filed a RLUIPA challenge to the denial of its zoning request. The Town of Southwest Ranches, Florida denied its application to build a new building on its property because of insufficient parking. The Church claimed that the denial burdened its religious exercise because its current space was insufficient for its programs. The town, in interrogatories, sought a list of all Church members, and the identities of those members whose religious exercise has been burdened by the zoning denial. The Church objected, asserting that furnishing the information would violate its First Amendment associational and religious rights.

The court held that while the church made a prima facie showing of infringement of its rights, the town had demonstrated a compelling need for the information in order to investigate the Church's claims. However, the court concluded that a narrower order would provide the town with relevant information. It ordered the Church merely to identify all members who have attended Church programming where they have had to stand, or have been denied admission, because of inadequate space, and members who have had to reschedule personal events because of space limitations. In addition, this information was placed under a protective order and was to be disclosed only to defendant's attorney. Finally any questioning of Church members whose names are furnished must be limited to factual questions about numbers of people in attendance, and may not involve inquiry into members' religious beliefs.

Court Rejects Ministerial Exception Defense In Firing of Pregnant Teacher

In Redhead v. Conference of Seventh-Day Adventists, 2008 U.S. Dist. LEXIS 49416 (ED NY, June 27, 2008), a New York federal district court, applying the 2nd Circuit's recent "ministerial exception" decision in Rweyemamu v. Cote, refused to grant defendant's motion for summary judgment in a Title VII pregnancy discrimination case. Plaintiff, an unmarried teacher at a Seventh-Day Adventist school, was fired after she became pregnant. The school claimed that she was dismissed because she violated its religious policy against fornication. Plaintiff, Jewel Redhead, argued that this was a pretext for pregnancy discrimination, and that the anti-fornication policy was not applied equally to men and women employees.

The court rejected defendant's "ministerial exception" defense, holding that "while certain statements in Cote can be read to foreclose a ministerial employee from ever being able to challenge his employer's stated religious motive for a discharge..., nothing in that decision ... supports extending a similarly absolute prohibition to secular employees such as plaintiff." The court went on to hold that an inquiry into the school's motivation in this cased would not violate the Establishment Clause because it could be made without calling into question the validity or truthfulness of religious doctrine. The decision reaffirmed the court's 2006 holding in the case, which it had agreed to reconsider in light of the recent 2nd Circuit decision.

NY High Court Rejects Attempt To Require Election At Hindu Temple

New York's high court yesterday rejected claims by dissident members of a Hindu Temple who wanted the court to remove the organization's old trustees, appoint a receiver and order new elections. In Matter of Venigalla v Nori, (NY Ct. App., July 1, 2008), the court held that Art. 9 of the Religious Corporation Law under which the Temple chose to incorporate provides for a self-perpetuating board of trustees. Provisions in organization's 1970 bylaws that called for election of trustees by the "General Body" were invalid because they were in conflict with the Religious Corporation Law. Moreover, the court said, the 1970 bylaws "have long been defunct". [Thanks to J.J. Landa for the lead.]

Obama To Support Expansion of Faith-Based Initiative

An advance text of remarks by Barack Obama to be delivered today in Zanesville, Ohio indicates that Obama will support expansion of President Bush's faith-based initiative. According to the AP: "Obama proposes to elevate the program to a 'moral center' of his administration, by renaming it the Office of Community and Faith-Based Partnerships, and changing training from occasional huge conferences to empowering larger religious charities to mentor smaller ones in their communities." Obama would also allow faith-based charities receiving federal money to make hiring decisions on the basis of religion, but does not support religious restrictions on aid recipients or use of federal funds to proselytize.

UPDATE: The original AP report was inaccurate in saying that Obama will support religious-based hiring. In the full text of his remarks, Obama says just the opposite:

Now, make no mistake, as someone who used to teach constitutional law, I believe deeply in the separation of church and state, but I don’t believe this partnership will endanger that idea – so long as we follow a few basic principles. First, if you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion. Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs. And we’ll also ensure that taxpayer dollars only go to those programs that actually work.

Salon provides further coverage. [Thanks to Blog from the Capital for the lead.]

Russian Musem Officials Being Prosecuted For Religiously Offensive Art Show

In Moscow, the director and the curator of the Andrei Sakharov Museum and Community Center have been charged with inciting religious hatred because of its "Forbidden Art" exhibition held last year. France24 reports that vandals destroyed some of the art, claiming it is offensive to Orthodox Christians, but they were not prosecuted. The art (some of which is shown in the France24 story) often uses Jesus as a theme. For example, one piece superimposes Lenin's head on Jesus on the cross.

Australian State Imposes Rules For World Youth Day Conduct

Later this month, the 6-day long World Youth Day festival will take place in Sydney, Australia. Pope Benedict XVI will be in the country and will lead mass and conduct prayer meetings at the event. Today's International Herald Tribune reports that a regulation promulgated recently by New South Wales gives police and emergency services workers power to order anyone to stop behavior that "causes annoyance or inconvenience to participants in a World Youth Day event." It also bans conduct that obstructs the event or causes risk to the safety of others. Police already have similar authority at large sporting events, but Anna Katzman, president of the New South Wales Bar Association, criticized the new police powers. The provision is part of a broader World Youth Day Regulation 2008 promulgated by New South Wales governor on June 25. (The full text is published in the Government Gazette [scroll to page 5813]). The regulation also requires those selling various items during the festival-- including religious items-- to obtain a permit, and restricts planes carrying advertising banners over events.

Report Supports British Faith Schools

The Centre for Policy Studies, a British think tank, issued a controversial report (full text) this week titled: In Bad Faith: The New Betrayal of Faith Schools. The report's author, Christina Odone, concludes in her 41-page report:

Faith schools have been wrongly attacked for the wrong reasons. Political positioning has led the Minister of Education to denounce these schools. In so doing, he was stoking and validating a smear campaign, orchestrated by a strident secularist lobby, that has long plagued this sector....

The schools do not cream-skim pupils. The intake of Christian schools reflects a broader ethnic range than comprehensive schools in the same area. Faith schools do not turn away children in care..... The schools are not divisive.... Faith schools are not misogynist. Girls who attend Muslim schools are more than twice as likely to go on to higher education than those who attend secular state or independent
schools.

Faith schools do not charge parents for places.... The schools do not create a ghetto mentality.... Faith schools do not teach Creationism in science classes.... Faith schools have an excellent academic record, serve their local communities, and ground their students in a religious as well as the national identity....

[F]or low-income parents, these schools represent the only way their children can be taught the faith that their own family holds dear....For Muslims in particular, faith schools offer a bridge between their religious community and the wider secular society. For Muslim girls, they are the route out of a forced marriage, or their parents’ kitchen, and into higher education.... Quite simply, we need more, not fewer, faith schools.

Odone's report has been attacked by the British Humanist Association and by Ekklesia. (Ekklesia release.)

Dutch Will Not Prosecute Wilders For Anti-Muslim Film and Statements

The Dutch Public Prosecution Service issued a statement yesterday (full text) saying that right-wing politician Geert Wilders will not be prosecuted for a letter he wrote to a national newspaper urging that the Quran be banned in the Netherlands (see prior posting), nor will he be charged in connection with his anti-Muslim film, Fitna (see prior posting). The Prosecution Service's statement said in part:

The fact that statements are hurtful and offensive to a large number of Muslims does not necessarily mean that such statements are punishable. It is true that some statements insult Muslims, but these were made in the context of public debate, which means that the statements are no longer of a punishable nature....

Criticism of religion is not covered by the prohibition of discrimination, unless this criticism includes insulting conclusions about the adherents of the religion concerned.... [T]he Public Prosecution Service arrives at the opinion that neither the film Fitna nor Mr Wilders’s statements incite hatred against Muslims.

CBC News reports on the Prosecution Service's statement.

Epsicopal Bishop Urges Separation of Civil and Religious Marriage

The bishop of the Episcopal Diocese of California is urging that the state begin to follow the pattern of some European countries and separate civil marriage from religious marriage. Today's Sacramento Bee reports that under the proposal, every couple would first marry civilly, and then, if the couple wished, the marriage would be blessed by the church. This removes clergy as agents of the state in performing marriages. The proposal was triggered by the California Supreme Court's recent legalization of gay marriage. (See prior posting.)