California Civil Court Asked To Confirm Bet Din's Ruling On Torah Scrolls

Yesterday's Los Angeles Times reports on an unusual suit filed in Los Angeles Superior Court in which the widow of an Orthodox rabbi is asking a civil court to confirm an award by a Jewish religious tribunal. A hearing is scheduled for April 3. The case, Pauker vs. Ohana, involves the attempt since 2002 by the widow of Rabbi Norman Pauker to recover four Torah scrolls that she says were loaned for two years by her husband to his former assistant, Rabbi Samuel Ohana. The 73-year old Ohana, says that Rabbi Pauker gave the Torahs outright to him for his congregation after Pauker's synagogue closed. The bet din (Jewish religious court) apparently credited the validity of a handwritten agreement reflecting a loan of the scrolls and ordered them returned within 30 days. Ohana says his signature was pasted onto the agreement by someone else. He has now appealed to a higher religious court in Jerusalem. Since both parties had signed an agreement to abide by the bet din's ruling, however, Pauker disputes the jurisdiction of the Jerusalem court.

India's Prime Minister Says No Right To Criticize Other Religions

India's Prime Minister Manmohan Singh, speaking today to a group of Muslim girls on the occasion of Milad-un-Nabi ("Birth of the Prophet"), made an interesting assertion about the scope of free speech in the country. Press Trust of India reports that he said: "Our Constitution gives full freedom to the people to practice any religion of their choice, but it does not give anyone the license to criticize or run down other religions." India's Constitution, Art. 19, protects freedom of speech and expression.

City Hearing on Anti-Discrimination Law Generates Religious Arguments

The Kalamazoo (MI) Gazette reports on a hearing held last night by a subcommittee of the Kalamazoo City Commission on a proposed ordinance that would ban discrimination on the basis of sexual orientation. Originally City Commission adopted the ordinance in December, but a month later rescinded it pending further consideration, after petitions protesting the law were submitted. Both sides at yesterday's hearing attended by nearly 200 people invoked religious arguments. Opponents said that the ordinance would victimize religious groups and would discriminate against those whose religious beliefs teach that homosexuality is wrong. Supporting the ordinance, Rev. Matthew Laney, pastor of First Congregational Church, said: "We firmly believe these peoples' orientations are fully compatible with the godly life. They are part of God's diverse creation and God does not make mistakes."

10th Circuit Refuses Release Pending Appeal of Marijuana Church Founders

In United States v. Quaintance, (10th Cir., March 3, 2009), the U.S. 10th Circuit Court of Appeals denied a request by Mary and Danuel Quaintance-- founders of the Church of Cognizance-- for release from prison pending appeal of their convictions for allegedly religious use of marijuana. The Church teaches the use of marijuana as a central tenet. The trial court concluded that defendants' beliefs did not qualify as a religion and were not sincere. At that point, the Quaintances plead guilty, conditioned on the right to appeal their Religious Freedom Restoration Act defense. (See prior posting.) 18 U.S.C. § 3143(b)(1)(B) calls for defendants' release only if their appeal raises a substantial question of law or fact on which they are likely to prevail. The Court of Appeals concluded that this standard was not met.

Court Says Religious Tattoo Was Relevant In Penalty Phase of Murder Trial

In Robles v. Quarterman, 2009 U.S. Dist. LEXIS 17126 (SD TX, March 6, 2009), a Texas federal district court rejected a convicted murderer's free exercise challenge to evidence introduced in the penalty phase of his state court trial. The prosecution introduced into evidence defendant's tattoo that depicted a demon eating Christ's brain. The prosecutor also made reference to the tattoo in closing argument in the penalty hearing. The court concluded that this was permissible since the tattoo was relevant to a material issue, the defendant's violent character and the likelihood that he would commit future acts of criminal violence.

10th Circuit Hears Arguments In Utah Highway Patrol Cross Case

The U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in American Atheists, Inc. v. Duncan. (AP). The case involves an Establishment Clause challenge to crosses placed on public property by the Utah Highway Patrol Association to memorialize state Highway Patrol officers who died in the line of duty. The district court rejected the challenge, holding that the cross can be seen as a secular symbol of death and burial. (See prior posting.) The Becket Fund issued a press release describing oral argument:

During the argument, the judges expressed concern about whether Utah's policy would prevent troopers' families from displaying the symbols of other religions such as Stars of David.... The court also expressed interest in how this case tests the boundaries of the Supreme Court's recent decision in Pleasant Grove City v. Summum. Summum set the standard for deciding when permanent monuments are government speech, and when they are private speech. Two of the three judges in the original Summum panel are hearing this appeal, and the lawyer for Summum is also the lawyer for American Atheists.

The appellate brief filed by American Atheists, Inc. is available on Westlaw at 2008 WL 3285457. Westlaw also links to all the other briefs filed in the case. The brief filed for the Utah Highway Patrol Association, and several amicus briefs supporting their position, are linked from this ADF press release.

Saudi Court Sentences Elderly Widow To Prison and Lashes For Meeting With Men

Saudi Arabia's Commission for the Promotion of Virtue and Prevention of Vice and local Saudi courts are again under attack for their strict enforcement of Islamic law. CNN and the London Telegraph yesterday reported on the conviction of a 75-year old widow who was charged by religious police with meeting in her home with two unrelated 24-year old men-- one of whom was her deceased husband's nephew. They were bringing her several loaves of bread. Syrian-born Khamisa Sawadi has been supported by neighbors since her husband's death. She was sentenced to 40 lashes, four months imprisonment and deportation from the Kingdom for mingling with men who are not immediate relatives. The two men were also sentenced to prison terms and lashes. Sawadi had unsuccessfully argued that her husband's nephew was considered her son under Islamic law because she had nursed him as an infant. Sawadi's lawyer, Abdel Rahman al-Lahem, says he will to appeal the conviction.

President Reverses Policy on Federal Funding of Stem Cell Research

Today President Barack Obama signed an Executive Order (full text ) lifting the ban on federal funding for embryonic stem cell research. In remarks (full text) delivered before signing the Order, the President referred to the religious debate that has surrounded the issue:

[I]n recent years, when it comes to stem cell research, rather than furthering discovery, our government has forced what I believe is a false choice between sound science and moral values. In this case, I believe the two are not inconsistent. As a person of faith, I believe we are called to care for each other and work to ease human suffering. I believe we have been given the capacity and will to pursue this research – and the humanity and conscience to do so responsibly.

It is a difficult and delicate balance. Many thoughtful and decent people are conflicted about, or strongly oppose, this research. I understand their concerns, and we must respect their point of view.

But after much discussion, debate and reflection, the proper course has become clear. The majority of Americans – from across the political spectrum, and of all backgrounds and beliefs – have come to a consensus that we should pursue this research. That the potential it offers is great, and with proper guidelines and strict oversight, the perils can be avoided.

The President added some assurances:

We will develop strict guidelines, which we will rigorously enforce, because we cannot ever tolerate misuse or abuse. And we will ensure that our government never opens the door to the use of cloning for human reproduction. It is dangerous, profoundly wrong, and has no place in our society, or any society.

Reactions from religious groups, which came quickly after news of plans for today's Executive Order became known on Friday, varied. The Interfaith Alliance called the decision "good news for science and religion," saying that "the ban instituted by President Bush was based on the views of a select group of faiths rather then on sound science." JTA reports that Jewish groups also praised Obama's decision, focusing on the importance in Judaism of saving lives. The Vatican on the other hand strongly condemned the policy reversal. The International Herald Tribune quotes from an article in Saturday's L'Osservatore Romano which called embryonic stem cell research "deeply immoral." The Family Research Council issued a statement on Friday calling the move by the President "yet another deadly executive order."

UPDATE: The White House List of Attendees at the President's signing of the Stem Cell Executive Order and Scientific Integrity Presidential Memorandum includes seven religious leaders: (1) Maureen Shea, Episcopal Church USA Director of Government Relations; (2) James Winkler, United Methodist Church Secretary of the General Board of Church and Society; (3) Rabbi Steve Gutow, Jewish Council for Public Affairs; (4) Rev. Welton Gaddy, Interfaith Alliance; (5) Nancy Ratzan, National Council of Jewish Women; (6) Nathan Diament, Union of Orthodox Jewish Congregations; (7) Rabbi David Saperstein, Religious Action Center for Reform Judaism.

Former Catholic Schools Try To Still Teach Values As Public Charter Schools

Today's New York Times reports on the effort to maintain Catholic values in seven Washington, D.C. parochial schools that converted to publicly funded charter schools this year. Instead of opening each day with the Lord's Prayer, students recite the school's honor code. Much of the curriculum focuses around 10 core values. Many students and teachers however still miss religion classes, references to scripture and the crosses that used to hang in classrooms.

Connecticut Bill Would Reform Financial Management of Catholic Parishes

In Connecticut, the Catholic Church is strongly criticizing a bill introduced in the state legislature last week to reform oversight of finances in Catholic parishes. Yesterday's Stamford (CT) Advocate reports that Raised Bill No. 1098 (full text) was introduced in response to the conviction of a Darien (CT) priest who stole $1.4 million in donations over several years. Under the proposed bill, any Catholic parish organized as a religious corporation would be required to elect a lay board of between 7 and 13 members to manage and oversee its financial affairs. A nominee of the bishop or archbishop will serve as an ex-officio member of each parish board. The bill provides, however, that it shall not be construed to limit the power of the bishop or pastor in matters pertaining exclusively to religious tenets and practices. Complaining that the bill is an atttempt to interfere in the internal affairs of the Church, a statement by the Diocese of Bridgeport says in part:

This bill violates the First Amendment of the United States Constitution. It forces a radical reorganization of the legal, financial, and administrative structure of our parishes. This is contrary to the Apostolic nature of the Catholic Church because it disconnects parishes from their Pastors and their Bishop.... This bill, moreover, is a thinly-veiled attempt to silence the Catholic Church on the important issues of the day, such as same-sex marriage.

UPDATE: The Meriden (CT) Record and The Hour reported Tuesday that the bill has been withdrawn from consideration for this legislative session while constitutional issues surrounding laws currently governing religious groups are reviewed. Tuesday's scheduled hearing on the bill was cancelled.

UPDATE 2: Here is the full text of a letter sent by 12 prominent law professors challenging the constitutionality of the bill before it was withdrawn.

Catholic Group Says Austalian Abortion Law Violates International Treaty

Last October, the Australian state of Victoria passed the Abortion Law Reform Act of 2008. Section 8 of the Act provides that

If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—

(a) inform the woman that the practitioner has a conscientious objection to abortion; and

(b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

Melbourne's The Age yesterday reports that Catholic Health Australia is calling on the federal Attorney General to declare the provision in violation of the International Covenant on Civil and Political Rights. An interpretive Comment (Par. 3) to the Covenant provides that "No one can be compelled to reveal his thoughts or adherence to a religion or belief." Attorney-General Robert McClelland so far has refused to take any action, but some senators from his own party are calling on him to reconsider.

Illinois Senate Committee Tables Proposed Change In Moment of Silence Law

As previously reported, an appeal is pending in the U.S. 7th Circuit Court of Appeals in a case which found Illinois' current moment of silence law an unconstitutional violation of the Establishment Clause. Last month, Sen. Kimberly Lightford, sponsor of the original bill, introduced an amendment to make the provision more clearly neutral and less likely to be seen as supporting prayer as the preferred alternative during the moment of silence. (Full Text of SB1658.) A Chicago Tribune column reports on the state Senate's Education Committee hearing on the amendment held last Thursday. When Lightford indicated that the proposal would likely moot the pending appeal, the Committee tabled the bill in the middle of a roll call vote, preferring to wait to see how the court rules. Eric Zorn's Tribune column says this demonstrates that proponents are motivated by the desire to encourage prayer.

Recent Articles and Books of Interest

From SSRN:

• Brian M. Lusignan, The Clause Less Taken: Pleasant Grove City v. Summum and the Establishment Clause of the Utah Constitution, (March 3, 2009).
• Frederick Mark Gedicks, Truth and Consequences: Mitt Romney, Proposition 8, and Public Reason, (March 5, 2009).
• Thomas C. Folsom, Evaluating Supernatural Law: An Inquiry into the Health of Nations (the Restatement of the Obvious, Part II), (21 Regent Law Rev. 105 (2008)).
• Susan Drummond, Polygamy's Inscrutable Secular Mischief, (CLPE Research Paper No. 2/2009).

From SmartCILP:

• Mohamed A. Elsanousi, A Growing Economic Power: Muslims in North America and Integration and Contribution to Social Justice, 9 Journal of Law In Society 100-135 (2008).
• Adam Silberlight, Thou Shall Not Overlook Context: A Look At the Ten Commandments Under the Establishment Clause, 18 Widener Law Journal 113-147 (2008).
• Meredith M. Snyder, One Nation Under God: An Examination of the New Religion Law and Its Consequences for Minority Faiths In Post-Communist Romania, 2 Columbia Journal of East European Law 233-271 (2008).
• Taylor J. Turner, Freedom Under Control: Registration of Religious Organizations in Kazakhstan, 2 Columbia Journal of East European Law 272-311 (2008).
• Religious Jurisprudence Essay Series. Essays by John W. Welch and Thomas C. Folsom. 21 Regent University Law Review 79-180 (2008-2009).

New Books:

• Jay Wexler, Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, (Beacon Press, June 2009), author interview at Religion Dispatches.
• Bruce Ledewitz, Hallowed Secularism: Theory, Belief, Practice, (Macmillan, March 2009).

Recent Prisoner Free Exercise Cases

In Smithback v. Crain, (5th Cir., March 5, 2009), the U.S. 5th Circuit Court of Appeals held that a prisoner's religious exercise was not substantially burdened by a prison rule that prohibits drawings or messages-- including religious ones-- on the outside of envelopes being mailed from prison.

In Strope v. Cummings, 2009 U.S. Dist. LEXIS 15720 (D KS, Feb. 26, 2009), a Kansas federal district court found no substantial burden under the 1st Amendment or RLUIPA on an inmate's free exercise rights, rejecting allegations relating to religious call outs, the amount of time for Sabbath services and the quality of kosher food. In a related decision involving the same prisoner, in Strope v. McKune, 2009 U.S. Dist. LEXIS 15730 (D KS, Feb. 27, 2009), the same court rejected a related complaint regarding the availability and quality of kosher food.

In Plater v. Superintendent, Cayuga Correctional Facility, 2009 U.S. Dist. LEXIS 16225 (ND NY, March 2, 2009), a New York federal district court held that in a prisoner's challenge to denial of good time credit for failing to complete the prison's alcohol and substance abuse program, the prisoner had procedurally defaulted on his First Amendment challenge to the program. Also his challenge was vague and conclusory.

In Gresham v. Granholm, 2009 U.S. Dist. LEXIS 16092 (WD MI, Feb. 25, 2009), a Michigan federal district court rejected a prisoner's challenge to the prison's no-smoking rule. Plaintiff alleged that his right to practice his religion of white witchcraft was infringed by the rule. The court also rejected plaintiff's equal protection and 8th Amendment claims.

In Proverb v. O'Mara, 2009 U.S. Dist. LEXIS 16078 (D NH, Feb. 13, 2009), a New Hampshire federal magistrate judge, recommending dismissal of an inmate's free exercise claim, held that attendance at Bible study groups was not essential to the exercise of plaintiff's religious beliefs where no other denial of access to religious programming, services, or materials was claimed. Plaintiff had been denied access to Bible study classes for several months. Among plaintiff's numerous other claims, the court permitted him to move ahead with a challenge to a correctional officer's actions in forcing plaintiff to repeatedly state "I love Black people."

In Nickles v. Taylor, 2009 U.S. Dist. LEXIS 16832 (D NJ, March 4, 2009), a New Jersey federal district court dismissed plaintiff's challenge to the practice of furnishing Muslim inmates vegetarian meals, but not Halal meals containing meat. The court however said plaintiff could reopen the case if he is able to supplement his pleadings to demonstrate that his claim is not controlled by a prior 3rd Circuit decision on which the court relied.

Ireland Proposing to Relax Ban On Religious Advertising

Today's London Times reports that Ireland's Communications Minister Eamon Ryan plans to introduce amendments to a broadcasting bill currently being considered by the Oireachtas (Ireland's Parliament) to relax the ban on religious advertising. Currently the Broadcasting Act bans all ads "directed towards a religious end." (See prior posting.) The planned amendments would retain a ban on religious groups using ads to recruit members. However language that would call for proportionality in applying the law would eliminate current bans on such things as ads for first Holy Communion gifts and similar ads for meaningful Christmas gifts that had been proposed by the organization Veritas.

Globe Publishes Interview With Geert Wilders

Today's Boston Globe carries an interview with Geert Wilders, a member of the Dutch Parliament known for his anti-Muslim views. Last month the British government denied Wilders entry to the country after he was invited to show his controversial video "Fitna" in the British Parliament. (See prior posting.) Here is an excerpt from Wilders' Globe interview:

Islam and freedom of speech are incompatible. Cultural relativism makes it difficult to fight, because cultural relativism says that Islam is the same as Christianity. Europe is being Islamized very, very quickly. In our prisons, we have a mark in every cell indicating the direction of Mecca.... People are getting beaten up on the streets of Amsterdam and Brussels for drinking water during Ramadan. We should have a sense of urgency.

Connecticut Catholic Conference Wants Protections For Objectors To Same-Sex Marriage

On Friday, the Connecticut General Assembly's Joint Judiciary Committee held a hearing on Raised Senate Bill No. 899 that was introduced last month to implement the state Supreme Court's 2008 decision validating same-sex marriages. (Bill status.) (See prior posting.) The bill would recognize same-sex unions from other states and would merge Connecticut civil unions into marriages. One provision in the bill guaranties that clergy will not be required to solemnize same-sex marriages when doing so would violate their religious beliefs. According to Saturday's Hartford Courant, the Catholic Conference is asking the legislature to expand that provision to also protect individuals such as florists, wedding photographers and justices of the peace who refuse to be involved in same-sex wedding ceremonies.

Canadian Conscientious Objector Is Prosecuted For Refusing To File Census Form

In Brockville, Ontario, religious conscientious objector Todd Stelmach is defending himself in a prosecution under Canada's Statistics Act. Yesterday's Brockville Recorder & Times reports that Stellmach refused to file his 2006 census form because the software and data processing equipment for Canada's 2006 census was supplied by a subsidiary of U.S. defense contractor Lockheed Martin Corp. Stellmach objects to the fact that Lockheed profits from the Iraq war and has moral objections to Lockheed's manufacture of cluster bombs. Stellmach told the court that his church supports his beliefs. Stellmach is registered as a conscientious objector with the Free Methodist Church of Canada. If convicted, Stellmach faces a $500 fine and up to 3 month in jail.

New Information Shows Reagan Pressed Gorbachev On Religious Issues

Today's Wall Street Journal carries a fascinating article disclosing previously unreleased information about negotiations in 1988 between U.S. President Ronald Reagan and Soviet leader Mikhail Gorbachev. In their fourth summit meeting, Reagan made a strong plea for religious tolerance inside the Soviet Union and then moved to try to convince Gorbachev that he should personally believe in God.

D.C. Circuit Upholds Firefighters' Victory In Challenge To Ban On Beards

In Potter v. District of Columbia, (DC Cir., March 6, 2009), a case brought under the Religious Freedom Restoration Act, the D.C. Circuit Court of Appeals affirmed a district court's grant of summary judgment barring enforcement of a grooming rule against firefighters who wear beards for religious reasons. (See prior posting.) The D.C. Department of Fire and Emergency Services justified a rule that required personnel who wear face masks to be clean shaven on the ground that this was necessary for effective use of the breathing equipment used in firefighting. The Court of Appeals held that the District of Columbia, however, had already conceded that one type of respirator could safely be worn by bearded firefighters, and that these firefighters could be deployed in fire areas that permitted use of this type of equipment.

Judge Williams concurring complained that: "Unfortunately for the District, its own muddled litigation strategy rendered summary judgment for the plaintiffs a legitimate outcome." He focused on the fact that OSHA regulations-- although they do not apply to the D.C. government-- consider facial hair a problem for all kinds of respirators. The BLT reports on the decision.