RLUIPA Challenge To Zoning Denial For Counselling Center Fails

In Calvary Temple Assembly of God v. City of Marinette, Wisconsin, 2008 U.S. Dist. LEXIS 55500 (ED WI, July 21, 2008), a Wisconsin federal district court rejected a RLUIPA challenge brought by a church that wanted a special exemption to locate a professional counselling center on land next to its church building. The City of Marinette concluded that the proposed faith-based counselling center would be a "professional office," a use not permitted in areas zoned residential. The court held that it need not decide whether the counselling center would be a "religious exercise" under RLUIPA because, even if it was, the church failed to show that the zoning denial imposed a "substantial burden" on its religious exercise.

Student Activity Fee Policy At Wayne State Challenged

At Wayne State University in Detroit (MI), a registered student group, Students for Life, has filed a federal lawsuit against the university challenging its policy on the spending of student activity fees. According to yesterday's Battle Creek Enquirer, last spring the the Student Council denied the group's request for $4000 to support a week of anti-abortion events because of "spiritual and religious" references, even though the group says it has no specific religious affiliation. Events included having one's picture taken with a model of a fetus. The lawsuit alleges that the funding denial amounts to unconstitutional viewpoint discrimination.

Suit Challenges Exclusion of Religious Literature From Distribution to Students

Alliance Defense Fund yesterday announced that it had filed a lawsuit in federal district court in Arizona on behalf of the First Baptist Church of Maricopa and its pastor, Jim Johnson, challenging Maricopa County school district's policy on distribution of literature by nonprofit groups. The school, after months of delay, denied Johnson's request that he be allowed to distribute a flyer on one of his church's weekly programs for high school students-- its Awana Journey 24 Club, a weekly Bible study program. School policy permits nonprofit groups to have their literature promoting various events and activities made available to students in schools. However the policy excludes literature from any sectarian organization or literature that promotes a particular religious belief or participation in religion. The complaint (full text) alleges that the denial violates plaintiffs' First and 14th Amendment rights and their rights under Arizona's Religious Freedom Restoration Act.

UPDATE: An ADF release dated Aug. 13 says that Maricopa Unified School District has reversed its position and will now permit the church's flyers to be distributed.

Senate Judiciary Committee Holds Hearings on Polygamous Sects

The U.S. Senate Judiciary Committee has posted the testimony presented by eight witnesses at yesterday's hearings on Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response. The hearings, which coincided with Utah's Pioneer Day, received wide coverage in the media. Some of the most extensive coverage appeared in yesterday's Deseret News , in the Salt Lake Tribune and at CNN. Senate majority leader, Harry Reid, who is a convert to Mormonism and the Senator who has led the call for hearings and the creation of a federal task force, told the Senate panel:

We do honor our pioneer ancestors by condemning those who have wrongfully cloaked themselves in the trappings of religion to obscure their true criminal purposes.... I am here to tell you that polygamist communities in the United States are a form of organized crime.... The most obvious crime being committed in these communities is bigamy, child abuse — teen and pre-teen girls are forced to marry older men and bear their children. But the criminal activity that goes on in these places is far broader. Witnesses at this hearing will describe a web of criminal conduct that includes welfare fraud, tax evasion, massive corruption and strong-arm tactics to maintain the status quo.

(See prior related posting.)

Pennsylvania Supreme Court Affirms Invalidation of Ethnic Intimidation Law

On Wednesday, the Pennsylvania Supreme Court issued a 2-sentence per curiam order affirming last year's decision by a Pennsylvania appellate court striking down amendments to the state's ethnic intimidation law. The law was amended in 2002 to add sexual orientation and several other categories to its previous coverage of crimes committed because of race, religion or national origin. In Marcavage v. Rendell, (PA Sup. Ct., July 23, 2008) the state Supreme Court agreed that the 2002 amendments violated the state constitution's ban on amending bills during the legislative process to change their original purpose.

The lawsuit challenging the statute was brought by several Christian evangelists, who were members of Repent America. A press release was issued by one of their attorneys, the Foundation for Moral Law. FML head, former Alabama Supreme Court Chef Justice Roy Moore, said: "We are very happy that the Pennsylvania Supreme Court has ruled in our favor to stop the Governor and a group of corrupt politicians from sneaking a 'hate crimes' bill through the Pennsylvania legislature. Preaching to homosexuals about the sin of sodomy should not be made a 'thought crime' in Pennsylvania or any other state."

Suburban Seattle Residents Sue To Prevent Church From Hosting Tent City

The Seattle (WA) Times on Wednesday reported on a lawsuit filed earlier this month seeking to prevent religious leaders on suburban Mercer Island from hosting Tent City 4, an encampment for the homeless. The city of Mercer Island granted a temporary use permit for the encampment to set up at the Mercer Island United Methodist Church from August 5 to November 10. Greg Asimakoupoulos, president of the Mercer Island Clergy Association, said: "We don't want to be viewed as the suburb of the city that's blind to the needs of people of metropolitan Seattle." However a group of Mercer Island neighbors, calling themselves the Mercer Island Citizens for Fair Process, are seeking an injunction arguing that Tent City 4 will be a nuisance. They also argue that their rights under the due process clause were violated. A hearing on a temporary restraining order is set for Monday.

UPDATE: On July 28, a King County (WA) judge denied a request for a restraining order to prevent Tent City 4 from coming to Mercer Island. According to the Mercer Island Reporter, Judge Michael J. Fox said that plaintiffs had not shown a likelihood of success on the merits at trial.

11th Circuit Holds Parental Rights Can Trump Child's 1st Amendment Protections

Yesterday in Frazier v. Winn, (11th Cir., July 23, 2008), the U.S. 11th Circuit Court of Appeals handed down a decision on the clash between parental rights to control the upbringing of their children and a child's own First Amendment rights. While the case focused on free speech issues, it presumably impacts similar Free Exercise clashes. At issue was a facial challenge to Florida's statute that provides a student must be excused from reciting the Pledge of Allegiance upon written request of his or her parent. In the case, the district court had concluded that the statute unconstitutionally "robs the student of the right to make an independent decision on whether to say the pledge."

The Court of Appeals disagreed, saying:

The rights of students and the rights of parents—two different sets of persons whose opinions can often clash—are the subject of a legislative balance in the statute before us. The State, in restricting the student’s freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect.... Although we accept that the government ordinarily may not compel students to participate in the Pledge... we also recognize that a parent’s right to interfere with the wishes of his child is stronger than a public school official’s right to interfere on behalf of the school’s own interest....

Even if the balance of parental, student, and school rights might favor the rights of a mature high school student in a specific instance, Plaintiff has not persuaded us that the balance favors students in a substantial number of instances—particularly those instances involving elementary and middle school students—relative to the total number of students covered by the statute.... We therefore decline to validate Plaintiff’s facial challenge.

The Court of Appeals also held unconstitutional that the portion of Florida's statute that requires students who are excused from reciting the pledge to nevertheless stand while others recite it. The AP reports on the court's decision. [Thanks to How Appealing for the lead.]

AU Seeks Investigation of Church-Sponsored Program At Army Base

In a letter yesterday (full text) to the Department of Defense's Acting Inspector General, Americans United for Separation of Church and State called for an investigation of the "Free Day Away" program at Fort Leonard Wood (MO) Army base. (AU Release). AU's letter alleges that soldiers at Fort Leonard Wood are given only two days off during their 8 weeks of basic training. One of these is "Free Day Away", sponsored by Tabernacle Baptist Church of Lebanon, MO. A church bus picks up trainees at the military base and takes them for a day of recreation which ends with a required church service during which soldiers are urged to accept Jesus as their personal savior. AU says: "Trainees are given the impression that the event is sponsored by the Army and that they must attend. If they do not attend, they have to remain on the base and continue with training, while those who attend the event have a break for the day." AU says the program involves unconstitutional endorsement of religion and coercion of religious belief.

10th Circuit: Exclusion of Pervasively Sectarian Schools From Scholarships Is Invalid

In an important decision interpreting the scope of the Supreme Court's 2004 Locke v. Davey decision, yesterday the 10th Circuit Court of Appeals held that Colorado acted unconstitutionally in excluding from its college scholarship program students who attend "pervasively sectarian" institutions. In Colorado Christian University v. Weaver, (10th Cir., July 23, 2008), the court found that the exclusion "expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice."

The court analyzed extensively Colorado's statutory criteria for determining that an institution is not "pervasively sectarian". Some of the criteria focus on whether students, faculty, trustees or funding sources are predominately of "one particular religion". The court observed that this requires government officials to decide which groups of believers count as a single religion. For example, do all Christians count as a single religious group?

The court held that "if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices." The court said it did not need, in this case, to decide the exact level of scrutiny that should be applied when states discriminate in funding between denominations because in this case "the State scarcely has any justification at all." Yesterday's Examiner reported on the decision. [Thanks to Steve Sheinberg for the lead.]

UPDATE: On Aug. 1, Colorado's Department of Higher Education announced that the state will not appeal the 10th Circuit's decision to the U.S. Supreme Court. [Thanks to How Appealing for the lead.]

Belarus Fines Organizer of "Too Small" Bible Discussion Group

The Belorussian Law on Freedom of Conscience and Religion provides that a new religious organization must have at least 20 members over the age of 18 to receive government recognition. BosNewsLife reported yesterday that Valentin Borovik was convicted of violating this law by the Grodno Regional Court after he organized an informal Christian Bible discussion group of less than 20 people. On July 9, Borovik was fined the equivalent of (US) $150, despite his argument that he was not intending to form a new religious group.

4th Circuit Upholds City Council Mandate For Non-Denominational Invocations

Yesterday in Turner v. City Council of Fredericksburg, (4th Cir., July 23, 2008), the U.S. 4th Circuit Court of appeals upheld the policy of Fredericksburg, Virginia's city council requiring prayers which open its sessions to be nondenominational. In an opinion by former U.S. Supreme Court Justice Sandra Day O'Connor, sitting by designation on the case, the court held that legislative prayer is government speech. The city's policy was challenged by Hashmel Turner, a Baptist minister who was elected to city council. When his turn to offer an invocation came, Turner wanted to close by praying in the name of Jesus. The court held that council's policy precluding such prayer violates neither the Establishment Clause nor Turner's free exercise rights. The court concluded:

Turner was not forced to offer a prayer that violated his deeply-held religious beliefs. Instead, he was given the chance to pray on behalf of the government. Turner was unwilling to do so in the manner that the government had proscribed, but remains free to pray on his own behalf, in nongovernmental endeavors, in the manner dictated by his conscience. His First Amendment and Free Exercise rights have not been violated

In a release praising the decision, People for the American Way said that the ruling "is a vindication of the constitutional principle that the government must not take sides when it comes to religion." On the other hand, the Rutherford Institute which had represented Turner issued a release criticizing the decision, saying: "If the government can censor speech on the grounds that it is so-called 'government speech,' it will not be long before this label becomes a convenient tool for silencing any message that does not conform to what government officials deem appropriate." The Institute said it would ask the U.S. Supreme Court to review the decision.

Cult Leader Says Lying Naked With Girls Is Religious Healing Practice

In Ranton, New Mexico last Friday, Wayne Bent was indicted for inappropriately touching three minor girls while "lying naked" with them. Tuesday's Raton Rage reports that Bent, known to his followers as Michael Travesser, is the leader of The Lord Our Righteousness Church. He was arrested in May after police and social workers removed three teenagers from his Strong City compound. (See prior posting.) Bent (Travesser) claims that his practice of lying with naked children is a "religious healing practice" and does not have sexual connotations. Bent's attorney has moved to have the indictment dismissed.

Al-Aqsa TV Promotes Extremism Via Children's Show That Reaches Britain

Yesterday's London Telegraph reports on the children's show, Tomorrow's Pioneers, broadcast on the al-Aqsa television channel, a satellite channel set up by Hamas that broadcasts from the Gaza Strip. (Background on channel.) The channel has a substantial following in the Arab world, and can be received in Britain. The show currently features a Bugs Bunny type character named Assud who often promotes radical Islamic stances. In one episode Assud says he will kill and eat all Danish people in retaliation for caricatures of the Prophet Muhammad which appeared in Danish newspapers. In a July 11 episode, Assud is seduced by Satan into stealing money from his father. The studio audience and a phone-in audience as well discuss whether Assud's hands should be cut off for the offense. Eventually the host rules that only Assud's ear should be cut off. MEMRI has video clips with English subtitles and English language transcripts of this and several other episodes. YouTube also has a number of clips of the program with English subtitles. A spokesman for Britain's Association of Muslim Schools says the organization is opposed to any shows that incite violence.

HHS Considers Expanding Doctors' Rights of Conscience

The Department of Health and Human Services (HHS) is proposing to expand the rights of doctors who have religious objections to prescribing contraceptives that can cause the expulsion of a fertilized egg. This week's US News & World Report says that HHS is circulating to members of Congress a draft of rules that would prohibit federally funded medical facilities—including teaching hospitals and Planned Parenthood clinics—from refusing to hire doctors who object to dispensing such contraceptives. It is already illegal to refuse to hire doctors who object to performing abortions. These rules would protect those who believe that life begins at the moment of fertilization, even if the fertilized egg is not yet implanted in the womb. The Christian Post reports that on Monday, 104 members of the House of Representatives signed a letter to President Bush urging him to stop the new rules. Among other things, they object to the fact that the new rules would pre-empt state laws requiring hospitals to make emergency contraception available for rape victims.

UPDATE: Here is the full text of the draft rules being considered. [Thanks to Blog from the Capital for the lead.]

Texas Grand Jury Indicts Jeffs and Other FLDS Members

Yesterday in Eldorado, Texas a state grand jury issued indictments against former FLDS leader Warren Jeffs and five others, apparently based on evidence seized during a widely-publicized raid on the religious group's YFZ Ranch in April. AP and the San Angelo (TX) Standard-Times report that Jeffs and four others were charged with sexually assaulting girls under 17, and one of Jeffs' four followers was also charged with bigamy. A sixth individual was charged with failing to report child abuse. Jeffs who is already in jail has been convicted of related charges in Utah and is awaiting trial in Arizona. (See prior related posting.)

DoD Inspector General Finds Religious Discrimination In Tenenbaum Case

The Project on Government Oversight yesterday made available a July 13 Department of Defense Inspector General's Report (full text) on the case of Army employee David Tenenbaum. In a series of events beginning in 1997, Tenenbaum, an Orthodox Jew, lost his access to classified information and had his security clearance revoked on the basis of unsubstantiated allegations that he was spying for the state of Israel. The IG's report found that Tenenbaum was the subject of inappropriate treatment by investigative officials who used an investigation to upgrade his security clearance "as a ruse for a counterintelligence investigation." The Report concluded that:

Mr. Tenenbaum was subjected to unusual and unwelcome scrutiny because of his faith and ethnic background, a practice that would undoubtedly fit a definition of discrimination, whether actionable or not.

In the case, the U.S. Attorney had declined to prosecute because of insufficient evidence. Tenenbaum had brought two lawsuits alleging disparate treatment and civil rights violations. One was dismissed because defendants would need to disclose state secrets in their defense, and the other because security clearance issues were found non-justiciable. In 2003, Tenenbaum's security clearance was restored and upgraded.

EEOC Issues New Guidance On Issues of Religious Discrimination

Yesterday the EEOC issued consolidated and updated guidelines for investigating and analyzing charges of religious discrimination. New Section 12 of the EEOC Compliance Manual also contains numerous examples to help employers understand their obligations under Title VII of the 1964 Civil Rights Act. Business Week quotes an EEOC spokesman who said the new guidelines were issued as a result of a growing number of religious discrimination complaints. The number doubled between 1992 and 2006.

UPDATE: The EEOC also issed a press release, a question-and-answer fact sheet and best practices booklet along with the new guidelines. [Thanks to Melissa Rogers for the lead.]

Israeli Court Fines Recalcitrant Husband In Divorce Proceeding

In Israel, Jerusalem's Family Court has ruled that a wife may recover damages for mental anguish when a husband refuses to grant her a religious divorce ("get"). Haaretz today reports on the decision which awarded the damages after a husband refused to follow orders of a Rabbinic Court to grant his wife a divorce. Judge Ben-Zion Greenberger ruled, however, that damages could also be awarded even where women did not have a Rabbinic Court order.

Pastor's Candidacy For City Council Creates Church-State Concerns

The Arizona Republic reports on issues raised by the candidacy of Kevin Hartke for Chandler, Arizona City Council. Hartke is pastor of Trinity Christian Fellowship. He was originally appointed to Council to fill the seat of a member who was called to active military duty. A fellow-clergyman, Rev. Tom Rakoczy of Chandler First Assembly of God Church, has asked Hartke to remove a campaign sign that was near Rakoczy's church out of concern that it might appear that his church was endorsing Hartke. Also, Hartke says it is difficult to separate his two roles, especially when congregants approach him at Sunday services about municipal issues.

Suit Challenges Illinois Grant To Help Rebuild Historic Church

In Chicago last week, atheist activist Rob Sherman filed a state court lawsuit against Illinois Governor Rod Blagojevich and other state officials challenging a $1 million state grant to help rebuild Chicago's historic Pilgrim Baptist Church. The church was severely damaged by fire in 2006. The state grant is to go toward rebuilding the church's administration building that housed a school, and historical documents.(See prior posting.) The complaint (full text) alleges that while the grant agreement provides state funds are not to be used to further sectarian activities, the state-funded portion will be identified with the church, the grant will allow the church to divert $1 million in its own funds toward the promotion of religious activities, and there is no meaningful way to segregate the non-religious from the religious uses of the building. It also alleges that the agreement provides no enforcement mechanism after two years. The suit alleges violations of the Establishment Clause as well as various provisions of the Illinois Constitution that effectively bar expenditures for religious purposes.

Today's Chicago Tribune reports that Sherman's lawsuit comes after Sherman received a large inheritance from his mother last year. This allows him to operate on more than the shoestring budget that characterized his earlier challenges to government favoritism for religion.

UPDATE: The AP reports that on Friday, a Sangamon County circuit judge approved plaintiff's moving ahead with his taxpayer suit against the state Comptroller and the Department of Commerce and Economic Opportunity, but required that Gov. Blagojevich be dropped as a defendant.