Cert. Denied In Two Cases Involving Religious Exercise Issues

Yesterday the U.S. Supreme Court denied certiorari in Morrison v. Board of Education of Boyd County, (Docket No. 08-701) (Order List.) In the case, the U.S. 6th Circuit Court of Appeals had denied a Christian high school student and his parents standing to challenge a school's now-abandoned speech code and related anti-harassment training. Plaintiffs alleged that the speech code prevented Christian students from expressing their views that homosexuality is sinful. (See prior posting.) 365Gay News reported yesterday on the decision.

Yesterday the U.S. Supreme Court also denied certiorari in Friday v. United States, (Docket No. 08-6651). (Order List.) In the case, the U.S. 10th Circuit Court of Appeals upheld the criminal prosecution of a member of the Northern Arapaho Tribe, for killing a bald eagle so he could use it in his tribe's Sun Dance. The court found that the Bald and Golden Eagle Protection Act, and the regulations under it, were narrowly drawn to further a compelling governmental interest. (See prior posting.) The case had generated unusual interest among press groups who were concerned about the 10th Circuit's extensive review of constitutional facts. (See prior posting.) Yesterday's Hays (KS) Daily News reported on the denial of cert.

Environmental Requirements Delay O.K. of Hillel Building On California Campus

At the University of California, San Diego, Hillel (the Foundation for Jewish Campus Life), has been attempting for 5 years to get approval to build a new Jewish student center near campus. As reported in yesterday's UCSD Guardian, a California appellate court has agreed with an environmental group that the proposed building may have substantial environmental effects so that an environmental impact statement relating to traffic and parking, biological resources and aesthetics and community character is required. In Taxpayers for Responsible Land Use v. City of San Diego, (CA Ct. App., Feb. 18, 2009), a California appellate court, while imposing the new environmental requirement, rejected claims of procedural defects in the city's sale of the land to the Hillel Foundation.

RLUIPA Lawsuit By Church Over Approval of Concert Site Is Settled

Yesterday's Pittsburgh Post-Gazette reports on the settlement of a RLUIPA lawsuit brought by the Church of Universal Love and Music against Fayette County, Pennsylvania. The church was seeking rezoning or a special exception so it could continue to use property in an agricultural area for religious concerts. County officials claimed that concert venue founder William Pritts did not claim that his organization was a church until zoning problems arose. (See prior posting.) A confidentiality agreement prevented disclosure of terms of the settlement which is merely described as "mutually satisfactory."

Supreme Court Grants Cert In Sunrise Rock Cross Case

The U.S. Supreme Court today granted certiorari in Salazar (Interior Secretary) v. Buono (Docket No. 08-472, cert. granted 2/23/2009). (Order List.) In the case, a panel of the 9th Circuit found Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW. Five judges dissented from the 9th Circuit's denial of en banc review, writing a long opinion saying there that there was no evidence that the government would maintain or support the Sunrise Rock Cross after its transfer. (See prior posting.) The Justice Department has posted the government's petition for cert. which raises both questions of the lower court's ruling on standing as well as its application of Establishment Clause doctrines to the sale of real property as a way to rid the government of Establishment Clause problems. Here is respondent's brief in opposition (from SCOTUS blog), and the government's reply brief. [Thanks to Derek Gaubatz for the lead.]

Timothy Dolan Named Archbishop of New York

Pope Benedict XVI today appointed 59-year old Milwaukee Archbishop Timothy M. Dolan to be the new Archbishop of New York. AP reports that Dolan, who succeeds retiring Cardinal Edward Egan, is a defender of Catholic orthodoxy. Dolan has a doctorate in Church History form the Catholic University of America and for seven years was rector of the North American College in Rome. Dolan is well known for his calls to end abortion, comparing it to the moral urgency of ending slavery. However he does not deny communion to Catholic legislators who support abortion rights, saying it is up to each person to decide whether to take communion. In 2004 Dolan was among those archbishops who publicly released the names of priests credibly accused of sexual abuse, though critics say he has not done enough to expose abusing priests in independent religious orders who work in his archdiocese.

Lawsuit Charges Scientology Is Responsible For Man's Suicide

Saturday's St. Petersburg (FL) Times reported on a new lawsuit filed in federal district court in Tampa (FL) against the Church of Scientology and against three individuals. The wrongful death lawsuit seeks damages for the death of Kyle Brennan who committed suicide while visiting his father, a Scientologist who lives in Clearwater (FL). Brennan's mother blames Scientology for the death. The lawsuit alleges that Denise Gentile, twin sister of the Scientology's worldwide leader David Miscavige, (along with her husband Gerald Gentile) convinced Brennan's father to take away Kyle's antidepressant medication. Scientology is strongly opposed to psychiatry and psychiatric medications. The lawyer handling the case, Ken Dandar, previously won a confidential settlement in another long-running high profile wrongful death suit against the Church of Scientology.

City Homeless Shelter Now Operated By Church With Required Prayer

In Hammond, Indiana, a new arrangement between the city and First Baptist Church of Hammond raises interesting church-state issues. Yesterday's Munster (IN) Times reports that when the city-owned Calumet Area Warming Shelter was about to close, the city negotiated an arrangement with First Baptist Church for the church to operate the homeless shelter at church expense while the city retains ownership of the building. The Church is within walking distance of the shelter. Under new rules imposed by the Church, a resident must attend a specified number religious services offered by First Baptist, or church services elsewhere, in order to eat or stay at the shelter. Residents and shelter officials have somewhat different accounts of the number of services at which attendance is required. So far three people have been asked to leave the shelter for non-attendance (or leaving services early) since the Church began operating the shelter as part of its City Rescue Mission Ministry last December 31. [Thanks to Scott Mange for the lead.]

Recent Articles and Book of Interest

From SSRN:

• Andrew F. March, Marriage, Equality and Subsidizing Families in Liberal Public Justification: Is There a Right to Polygamy?, (February, 20 2009).


• Ali Khan, Speech Diversity under Islamic Law, (February 11, 2009).


• Andrew F. March, Are Secularism and Neutrality Attractive to Religious Minorities?, (Islamic Discussions of Western Secularism in the 'Jurisprudence of Muslim Minorities' (Fiqh Al-Aqalliyyat) Discourse, February, 18 2009).


• Natasha Bakht, Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms, (February 2, 2009).


• Geraldine Szott Moohr & Roger Sherman, Book Review: Religion in Criminal Justice by Monica K. Miller, (January 29, 2009).

From the Feb. 2009 issue of Engage:

• Kimberlee Wood Colby, Monumentally Speaking: Pleasant Grove City v. Summum.
• G. David Mathues, Two Visions, Two Results: Making Sense of the Disagreement over the Application of the Ministerial Exception to Teachers in Parochial Schools.
• Stuart J. Lark, Equal Treatment for Religious Expression after Colorado Christian University v. Weaver.

From SmartCILP:

• Anthony A. Braga, David Hureau & Christopher Winship, Losing Faith? Police, Black Churches, and the Resurgence of Youth Violence in Boston, 6 Ohio State Journal of Criminal Law 141-172 (2008).


• Kent Greenawalt, The Cultural Defense: Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act, 6 Ohio State Journal of Criminal Law 299-321 (2008).

The Journal of Law and Religion, Vol. XXIV, No. 1 (2008-09) has recently been published.

Recent Book:

• Warren J. Blumenfeld, Khyati Y. Joshi & Ellen E. Fairchild (Eds.), Investigating Christian Privilege and Religious Oppression in the United States, (Sense Publishers, Dec. 2008), reviewed in the Ames Tribune.

Justice Department Settles RLUIPA/ Housing Suit With Nashville, TN

The current issue of Religious Freedom In Focus (the newsletter of Justice Department's Civil Rights Division) announces the recent settlement of the Justice Department's civil rights suit against Nashville (TN) that alleged both disability and religious discrimination. The lawsuit claimed violations of the Fair Housing Act and of RLUIPA in Nashville's denial of zoning approval for a residential treatment center to Teen Challenge, a Christian substance abuse program. The consent decree in United States v. Metropolitan Government of Nashville and Davidson County, Tennessee, (MD TN, Feb. 5, 2009), among other things requires Nashville to appoint an FHA and RLUIPA Compliance Officer. It also requires Nashville to give fair housing and RLUIPA training to various of its employees. Nashville will pay a $20,000 civil penalty and damages of $50,000 to individual plaintiffs. Teen Challenge itself has already won a significant jury verdict in the case. (See prior posting.)

Loooking Inside Bible Course In Tennessee High School

Yesterday's Chatanooga (TN) Times Free Press reports on what goes on inside the classroom during teaching of the course on the Bible and its influence on literature, art, music, culture, and politics, authorized by a 2008 law enacted by the Tennessee legislature. (See prior posting.) In the Marion County classroom of high school teacher John Paulsen, many of the copies of the Bible used as a textbook were purchased with funds donated by churches. Paulsen challenges students to think about religion scientifically and to think of science religiously. He walks a fine line, urging students to decide for themselves whether various miracles in the Bible are reported accurately, or are a form of religious mythology.

Recent Prisoner Free Exercise Cases

In Allen v. Hense, 2009 U.S. Dist. LEXIS 11363 (ED CA, Feb. 3, 2009), a California federal magistrate judge concluded that a Muslim inmate had not shown a substantial burden on free exercise in alleging that he was served two meals that did not meet his religious dietary requirements and was met with racial and religious comments when he complained.

In Ashanti v. Tilton, 2009 U.S. Dist. LEXIS 11899 (ED CA, Feb. 18, 2009), a California federal magistrate judge recommended that a preliminary injunction issue requiring a Muslim prisoner to be served a kosher diet to satisfy his religious needs until a proposed Halal meat diet plan is implemented by the prison system. However the magistrate judge recommended denying relief on plaintiff's claim that separate worship space for Muslims should be provided.

In State ex rel. Myers v. Smith, (WI Ct. App., Feb. 18, 2009), a Wisconsin court of appeals affirmed a trial court's dismissal of a prisoner's complaint because it was directed at the wrong individual. In the case, a Wiccan prisoner was attempting to obtain access to a book he argued was needed for spiritual purposes, but which prison authorities claimed was pornographic. The court also agreed that his suit was frivolous and that he could not circumvent regulations by attempting to obtain the book through discovery to prepare his case.

Clinton's Visit To China De-emphasizes Religious Rights Issues

On Friday, Secretary of State Hillary Clinton travelling in Asia held a news conference in Seoul, South Korea (full text) as she was about to leave for China. As reported by AFP, human rights activists were upset by her statements that she would not let human rights concerns interfere with U.S.-Chinese cooperation on the economic crisis, climate change and security issues. As Clinton put it:

We know that we're going to press them to reconsider their position about Tibetan religious and cultural freedom, and autonomy for the Tibetans and some kind of recognition or acknowledgment of the Dalai Lama. And we know what they're going to say, because I've had those conversations for more than a decade with Chinese leaders.

Reuters reports today that Clinton ended her visit in China by attending services at a government-approved church. She also spoke with women's rights activists. These activities were aimed at showing Clinton's commitment to civil and religious rights without offending the Chinese government.

Op-Ed Suggests Compromise On Same-Sex Marriage

An op-ed in today's New York Times suggests an innovative compromise on the divisive issue of gay marriage. This is the crux of the proposal made by David Blankenhorn and Jonathan Rausch:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

British Baroness Urges New Requirements To Stop Muslim Polygamy In UK

In Britain, Baroness Sayeeda Warsi, the Conservative Party’s shadow minister for community cohesion has called for the government to require all religious marriages to be civilly registered within four weeks of being performed. Warsi, herself a Muslim, is pressing for this reform in order to stop Muslim men from taking more than one wife. Currently some Muslim men get around the British ban on polygamy by marrying a first wife in a registered, civil law ceremony and then taking additional wives only in an unregistered religious service. UAE's The National today reports on Warsi's complaint that "cultural sensitivity" is preventing the government from taking action against the increasing incidence of polygamy in Britain. Manzoor Moghal, chairman of the Muslim Forum, however, argues that British Muslims should be able to continue their religious and cultural practices without governmental interference.

Christian Science Wants Health Care Reform To Include Their Practitioners

Yesterday's Ft. Worth (TX) Star Telegram reports that Christian Scientists are monitoring proposed health care reforms because of their interest in insurance coverage for treatment by Christian Science practitioners who treat patients through prayer. Phil Davis, spokesman for the religion, says that accommodations are already made by Medicare, Medicaid, military insurance and federal employees’ insurance. In the Massachusetts, insurance covers stays in Christian Science facilities, but not care by private-duty nurses or practitioners.

Vatican Protests Israeli TV Segment Ridiculing Jesus and Mary

Yesterday's Jerusalem Post reports that the Vatican has filed a complaint with Israel's foreign ministry over an offensive satiric segment broadcast last week on Israeli late-night TV. Israel's Channel 10 comedian Lior Shlein aired the piece in response to the Vatican's lifting of the excommunication of Holocaust-denier, Bishop Richard Williamson. (See prior posting.) The offending piece questioned Jesus' virgin birth and ridiculed the claim that Jesus walked on water by saying "he was so fat he was ashamed to leave the house, let alone go to the Sea of Galilee..." The Vatican complained that Mary and Joseph were "ridiculed with blasphemous words and images" that amounted to a "vulgar and offensive act of intolerance toward the religious sentiments of the believers in Christ." Shlein apologized live on Wednesday, Channel 10 has assured the Israeli foreign ministry that the segment will not be aired again, and the station's attorney has sent a letter of apology to the attorney for a Christian group that was offended. This YouTube clip appears to be the satirical segment that generated the Vatican's concern. [Thanks to Joel Katz for the lead.]

Opinion Available In Mt. Tenaabo Gold Mine Case

The full opinion in South Fork Band v. U.S. Department of Interior, 2009 U.S. Dist. LEXIS 12000 (D NV, Feb. 3, 2009), has now become available. As previously reported, in the case a Nevada federal district court denied a preliminary injunction to prevent Barrick Gold Corp. from beginning to dig a 2,000-foot deep open pit mine on Nevada's Mount Tenabo. (See prior posting.) In the full opinion, the court found that RFRA applies to the case, even though it involves the government's management of its own land. The court found that the tribes bringing suit had standing to do so on their own behalf as well as under the standards of associational standing. However the court found that plaintiffs had not, so far, demonstrated a substantial burden on their religious exercise because they will continue to have access to religiously significant areas. The court also rejected claims under the Federal Land Policy And Management Act and the National Environmental Policy Act. The decision has been appealed to the 9th circuit. (See prior posting.)

California Firefighters Win Damages After Being Forced Into Gay Pride Parade

On Tuesday, a San Diego, California jury awarded four San Diego firefighters damages totalling $34,300 for emotional distress resulting from their being required to participate in San Diego’s 2007 annual Gay Pride parade. Catholic News Agency reports that the four were required to ride in uniform in the parade in their fire truck. They were taunted by sexual remarks and gestures by individuals along the parade route. This was the second trial in the suit against the city. The first trial last October ended with a hung jury. (See prior posting.)

Britain Excludes Westboro Baptist Protesters

Britain's Border Agency this week banned entry into the country of Westboro Baptist Church leaders Fred Phelps and Shirley Phelps-Roper. (BBC News and Kansas City Star). Westboro Baptist has gained notoriety for picketing funerals of veterans in the U.S. with signs denouncing America's toleration of homosexuality. (ADL Report.) In Britain, the pair had planned to picket a drama, The Laramie Project, being performed at Queen Mary's College in Basingstoke. The play focuses on the death of gay student Matthew Shepard, killed in 1998 in Laramie, Wyoming. Phelps-Roper said she would encourage different Westboro member to enter Britain and carry out the planned demonstration. BBC News reports today that only one picketer showed up, and he was heckled away by counter-protesters.

Counsellor Sues After Suspension For Taking Teens To Religious Performance

The Orange County Register and a press release from Pacific Justice Institute report on a religious discrimination lawsuit begun in Orange County (CA) last week. The suit was filed in Superior Court by a counsellor employed by the county-owned Orangewood Children's Home. It charges that plaintiff was suspended for six weeks without pay for taking four teens to an "unapproved religious activity." In June 2006, Counsellor Maureen Loya first took the teens to the Anaheim 5K, but the girls did not like the loud music. So Loya then took them to Huntington Beach Pier's Celebrity Surf Jam where one of the featured bands was playing contemporary Christian music. Last week's lawsuit was filed after first being screened by the California Department of Fair Employment and Housing.