Coney Island Amphteater Foes Invoke Law Protecting Nearby Religious Institutions

In Brooklyn, New York, opponents of a proposed $64 million amphitheater project in Coney Island's Asser Levy Park plan to use a city law designed to protect religious congregations to fight the project. Yesterday's New York Daily News and YourNabe last week report that opponents are invoking New York City's law prohibiting amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. An Orthodox synagogue, Sea Breeze Jewish Center, which is 300 feet from the park, has services every day. Already police do not issue sound permits for the park for Friday and Saturday nights because of larger services at the synagogue on the Sabbath. But up to now synagogue members have not complained about concerts on other nights in the park's existing band shell. Both Sea Breze and nearby Temple Beth Abraham say that concerts at the new facility will in fact disrupt their services. Borough President Marty Markowitz argues that the new project will turn the park into a prime venue for summertime entertainment. Opponents of the project, however, are gathering signatures on a petition and say they will take Markowitz to court. [Thanks to Steven Sholk and to Joel Katz (Relig. & State In Israel) for the lead.]

Turkish Protesters Want Country To Remain Secular

In Ankara, Turkey yesterday, according to Reuters, some 20,000 protesters marched, calling for the resignation of Prime Minister Tayyip Erdogan. The demonstrators, carrying banners reading "Secular Turkey will stay secular," object to what they believe is Erdogan's moves to make Turkey more Islamic. Protesters were also concerned with the government's handling of the economy.

Recent Articles of Interest

From SSRN:

• Jeremy J. Patrick, Blasphemy in Pre-Criminal Code Canada: Two Sketches, (May 15, 2009).
• Andreas A Jobst, Peter Kunzel, Paul S. Mills, & Amadou N. R. Sy, Islamic Bond Issuance - What Sovereign Debt Managers Need to Know, (International Journal of Islamic and Middle Eastern Finance and Management, Vol. 1, No. 4, pp. 330-344, 2008).

From SmartCILP and elsewhere:

• Hon. Edith Brown Clement, Public Displays of Affection...for God: Religious Monuments After McCreary and Van Orden, 32 Harvard Journal of Law & Public Policy 231-260 (2009).
• John M. Breen, Neutrality in Liberal Legal Theory and Catholic Social Thought, 32 Harvard Journal of Law & Public Policy 514-597 (2009).
• William C. Duncan, Speaking Up For Marriage, 32 Harvard Journal of Law & Public Policy 915-930 (2009).
• Stanley W. Carlson‐Thies, Faith-Based Initiative 2.0: The Bush Faith-Based and Community Initiative, 32 Harvard Journal of Law & Public Policy 931-947 (2009).
• Stanley Fish, To the Pure All Things Are Pure: Law, Faith, and Interpretation In the Prose and Poetry of John Milton [abstract], 21 Law & Literature 78-92 (2009).
• Eli Wald, The Rise and the Fall of the WASP and Jewish Law Firms, 60 Stanford Law Review 1803-1866 (2008).
• Michael Whine, Devising Unified Criteria and Methods of Monitoring Anti-Semitism, Jewish Political Studies Review 21:1-2 (Spring 2009).

New York Court Confirms Israeli Arbitral Award In Etrog Dispute

In Schwartzman v. Harlap, (ED NY, April 13, 2009), a New York federal district court granted a petition to confirm a foreign arbitral award in a dispute between an etrog grower and the grower's exclusive distributor. An etrog (citron) is a fruit used in the worship services by Jews on the holiday of Sukkot. Last week's Jewish Press summarized the case (which had been brought under Chap. 2 of the Federal Arbitration Act):

The case concerned Yaakov Charlop, founder of the popular Esrog Warehouse in Queens who had contracted to purchase esrogim from Betzalel Schwartzman, who represents the renowned Schwartzman Esrogim grown in Israel. Charlop withheld payment of $66,000 because he claimed that the esrogim were of substandard quality.... [,]that he was supposed to be the exclusive distributor of Schwartzman esrogim in the United States and that Betzalel Schwartzman, proprietor, had sold esrogim to other dealers here, thus violating the agreement.

In a handwritten agreement ... Rabbi Eliezer Stern, a respected scholar and head of the Belzer Beth Din in Bnei Brak, was specified ... as the designated Rav to whom each side would bring any disagreements.... Charlop claims now that he was unaware at that time that Rabbi Stern was also to serve as the ... kosher certifier of the esrogim.

The case was heard in Israel at the Belzer Beth Din... [which] decided against Charlop and ordered him to pay $66,000 to Schwartzman. Charlop felt that the Beth Din had a conflict of interest... [that] predisposed the Beth Din to be partial to Schwartzman.... Charlop then brought the disagreement to Federal Court in the United States, where ... Judge Cogan ruled against dismissing the Beth Din decision, writing that, "Respondent cannot use this court to obtain a second bite of the esrog."

[Thanks to Joel Kaatz (Relig. & State In Israel) for the lead.]

Obama Speaks At Notre Dame Over Objections of Pro-Lifers

As I post this, President Obama is delivering his address at the University of Notre Dame's graduation, and receiving an honorary degree. In his speech (full text as prepared for delivery) he addressed both the controversy over his receiving an honorary degree and the broader abortion controversy in the United States. On the honorary degree, he quipped, comparing himself to former Notre Dame president Father Theodore Hesburgh who was in attendance and who holds the record for the most honorary degrees ever awarded to one person:

I want to thank you for this honorary degree. I know it has not been without controversy. I don't know if you're aware of this, but these honorary degrees are apparently pretty hard to come by. So far I'm only 1 for 2 as President. Father Hesburgh is 150 for 150.

On the broader abortion issue, he said:

Maybe we won't agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions.

So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."

Understand - I do not suggest that the debate surrounding abortion can or should go away. No matter how much we may want to fudge it - indeed, while we know that the views of most Americans on the subject are complex and even contradictory - the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.

Passionate protests preceded Obama's speech. On Friday, WNDU reported that seven pro-life protesters-- including former Presidential candidate Alan Keyes-- were arrested when they insisted on bringing their protest onto campus. Also last week, the group Stop Obama Notre Dame issued a press release quoting the words of the honorary degree, and then quoting John Paul II, contending that this demonstrates "that Notre Dame has contradicted Church teaching by her words and actions." However in introducing Obama, Notre Dame President Rev. John Jenkins had profuse praise for Obama, and for his willingness to speak despite the controversy over his appearance.

Census Will Reach Out To Amish Community

Today's Wisconsin State Journal reports that among the special effors being made by federal census officials to make sure that next year's head count is accurate is outreach to the Amish community. Historically the Amish have not been counted accurately. A Census Bureau spokesperson said that the Bureau hopes to include Wisconsin Amish in a partnership program that uses local volunteers to create "complete count committees." The committees, using local business, education and faith-based groups, help spread the word about the importance of responding to the census. The Wisconsin Amish population is currently estimated to be 15,525.

Judge Says Defendant Nun Can Wear Habit During Her Jury Trial

A Kane County, Illinois judge has ruled that Sister Marie Marot can wear her religious habit when she stands trial on a traffic ticket on Monday. Friday's Arlington Heights (IL) Daily Herald reports that the 24-year old nun is charged with disobeying a traffic control device in connection with a 2007 auto accident in which she drove her van through a traffic light and struck a smaller car car whose 16-year old back-seat passenger was killed in the crash. Prosecutors argued that Marot's religious garb might prejudice the jury in her favor, but defense attorneys say that her religious beliefs require her to wear the habit-- a tunic and veil.

UPDATE: On May 19, a jury found Sister Marie Marot not guilty. (Sun Times News Group.)

Developments In Two Episcopal Church Claims To Property of Breakaway Parishes

In Pennsylvania, the Episcopal Church has filed a complaint (as Plaintiff-in-Intervention) in an ongoing lawsuit, seeking a declaratory judgment that it, rather than the break-away diocese that has affiliated with the Anglican Province of the Southern Cone, is the proper authority to control the real and personal property of the Diocese of Pittsburgh. The complaint-in-intervention (full text) in Calvary Episcopal Church v. Right Reverend Robert William Duncan, (PA Com. Pl., filed 5/12/2009), also asks for an order requiring breakaway Bishop Robert Duncan and his followers to vacate the property of the Pittsburgh diocese and to furnish an accounting. A report by Virtue Online on Friday describes the lawsuit from the perspective of the breakaway diocese.

Meanwhile in California, an Orange County Superior Court judge has refused to impose sanctions for filing a frivolous claim on St. James Church, which disaffiliated from the Episcopal Diocese of Los Angeles in 2004. Steadfast in Faith reports that the case began as suit by the Episcopal Diocese against St. James and two other breakaway parishes. (Timeline.) They in turn filed anti-SLAPP motions, which were denied by the California Supreme Court. (See prior posting.) The Episcopal Diocese sought sanctions arguing that the anti-SLAPP motions were frivolous. St. James has filed a petition for certiorari with the U.S. Supreme Court in the underlying lawsuit. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Burton v. Clark, 2009 U.S. Dist. LEXIS 39330 (ED CA, April 23, 2009), a California federal magistrate judge dismissed a Jewish prisoner's challenges to his being removed from a kosher diet plan and being placed instead on a Religious Vegetarian diet. The court also rejected plaintiff's claim that he was prevented from attending religious services.

In Farrakhan v. Johnson, 2009 U.S. Dist. LEXIS 40342 (ED VA, May 13, 2009), a Virginia federal district court rejected an inmate's free exercise and equal protection claims that he was denied a religious diet, was forced to eat while fasting and was forced to clean and relieve himself in view of female officers. The court held that he had not shown that his claims are rooted in his religious beliefs.

In Evans v. Albany County Correctional Facility, 2009 U.S. Dist. LEXIS 40630 (ND NY, May 14, 2009), a New York federal district court rejected a Rastafarian prisoner's claim that his receiving the "wrong meals" a number of times (instead of his vegetarian diet) violated his free exercise rights. UPDATE: The magistrate's recommendation in the case is at 2009 U.S. Dist. LEXIS 45983 (ND NY, Jan. 30, 2009).

In Maier v. Swanson, 2009 U.S. Dist. LEXIS 40822 (D MT, May 14, 2009), a Montana federal district court accepted a magistrate's recommendation to dismiss plaintiff's claim that his free exercise and equal protection rights and his rights under RLUIPA were infringed when prison authorities denied him tarot cards in administrative segregation.

Voucher Supporters Want New Law In Arizona

In March, the Arizona Supreme Court held that two school voucher programs-- one for children with disabilities and the other for children in foster care-- violate the state constitutional prohibition on appropriating public money in aid of any private or sectarian school. (See prior posting.) According to a report by AP yesterday, now voucher supporters are seeking a special session of the Arizona legislature to pass new legislation. The proposal would create individual and corporate tax credits for donations to tuition grants for disabled and foster children attending private schools. However, the 9th Circuit recently also held that Arizona's existing scholarship tax credit program violates the Establishment Clause. (See prior posting.)

9th Circuit Stays Proceedings In Boy Scouts Case Pending High Court Actions

Yesterday in Barnes-Wallace v. City of San Diego, (9th Cir., May 15, 2009), the U.S. 9th Circuit Court of Appeals issued an order staying further proceedings in the long -running case that challenges the constitutionality of San Diego's leasing of city property at nominal rents to the Boy Scouts. The 9th Circuit issued the stay pending the final determination of a petition for certiorari pending with the US Supreme Court in the case and pending a decision by the Supreme Court in Buono v. Salazar, another religion case it is scheduled to hear next term. Most recently in Barnes-Wallace, the California Supreme Court denied the 9th Circuit's request that it decide three questions of law certified to it in the case. [Thanks to Bob Ritter for the lead.]

Court Rejects Teenager's Religious Objection To Cancer Treatment

After a hearing, in a lengthy opinion a Minnesota trial court has issued an order overriding the free exercise objections of 13-year old Daniel Hauser and his parents to Daniel’s receiving chemotherapy for Hodgkin’s lymphoma. The court also rejected his parents’ due process parental rights objections. The court found that Daniel does not understand his medical situation and lacks the ability to give informed consent as to medical procedures. The court concludes that the state has a compelling interest in seeing that Daniel obtains appropriate treatment. The court set the next hearing in the case for May 19, and ordered the parents in the meantime to get a chest X-ray for Daniel and select an oncologist for him. In In re Welfare of Child of Colleen Hauser and Anthony Hauser, (MN Dist Ct., May 14, 2009), the court found:

The family has a genuine and strong belief in the benefits of holistic medicine and, specifically, in Nemenhah. Nemenhah is based upon Native American healing practices. Daniel is deemed to be a “medicine man” by Nemenhah and does not wish to receive any additional chemotherapy.

Daniel Hauser is an extremely polite and pleasant young man. While he is 13 years of age, Daniel is unable to read. He does not know what the term "elder" means, although he claims to be one. He knows he is a medicine man under Nemenhah teachings, but is unable to identify how he became a medicine man or what teachings he has had to master to become one. He believes in the principle of "do no harm" and attributes his belief to Nemenhah teachings.

The court's website provides links to pleadings and partial transcripts from the hearing. AP reports on the decision. (See prior related posting.) [Thanks to Scott Mange and David Waddilove for the lead.]

Radical Group Sued By Church Under Little-Known Federal Provision

Alliance Defense Fund on Wednesday announced the filing of an interesting lawsuit in federal district court in Michigan. The Freedom of Access To Clinic Entrances Act, 18 USC Sec. 248, in addition to protecting abortion clinics, contains a little-known provision banning forcible obstruction or intimidation of anyone exercising the First Amendment right of religious freedom at a place of religious worship. The complaint (full text) in Mount Hope Church v. Bash Back!, (WD MI, filed 5/13/2009), relying on these provisions (as well as common law trespass), seeks an injunction and damages against a self-described "Radical Trans/Queer" group, Bash Back!, that engaged in a protest, infiltration and disruption of the Church's service in November 2008.

New Hampshire Governor Will Sign Same-Sex Marriage Bill Only If New Religious Protections Are Added

New Hampshire's Governor John Lynch yesterday released a statement saying that despite his personal views on the subject, he will sign the same-sex marriage legislation passed by the state legislature last week only if legislators first amend it to provide more protections for religious institutions. Otherwise he will veto it. NECN News has posted both a transcript and a video of his statement, which says in part:

... I understand, the very real feelings of same-sex couples that ... a civil law that differentiates between their committed relationships and those of heterosexual couples undermines both their dignity and the legitimacy of their families. I have also heard, and I understand, the concerns of our citizens who have equally deep feelings and genuine religious beliefs about marriage. They fear that this legislation would interfere with the ability of religious groups to freely practice their faiths.

Throughout history, our society's views of civil rights have constantly evolved and expanded. New Hampshire's great tradition has always been to come down on the side of individual liberties and protections. That is what I believe we must do today. But ... we must act to protect both the liberty of same-sex couples and religious liberty. In their current form, I do not believe these bills accomplish those goals.

The Legislature took an important step by clearly differentiating between civil and religious marriage, and protecting religious groups from having to participate in marriage ceremonies that violate their fundamental religious beliefs. But the role of marriage in many faiths extends beyond the actual marriage ceremony.... [T]he laws of other states, including Vermont and Connecticut, ... go further in protecting religious institutions.... This morning, I met with House and Senate leaders, and the sponsors of this legislation, and gave them language that will provide additional protections to religious institutions. This new language will provide the strongest and clearest protections for religious institutions and associations, and for the individuals working with such institutions. It will make clear that they cannot be forced to act in ways that violate their deeply held religious principles.

If the legislature passes this language, I will sign the same-sex marriage bill into law. If the legislature doesn't pass these provisions, I will veto it.

(See prior related posting.)

Contempt Citation Sought For Violation of School Event Prayer Ban In Florida District

Earlier this month, a Florida federal district court formally approved a consent decree barring the Santa Rosa (FL) school district and its employees from including prayers in any school event. (See prior posting.) Yesterday's Pensacola (FL) News Journal reports that now the ACLU has filed a motion seeking to hold school clerical employee Michelle Winkler in contempt for violating the preliminary injunction that preceded the consent decree [corrected]. Winkler called on her husband-- who is not employed by the district-- to deliver a prayer at the school district's "non-instructional employee of the year" banquet after Winkler was told that she could not offer a prayer, but only a nonreligious "thought of the day." In seeking permission, Winkler had e-mailed a supervisor, saying: "I would like to use the prayer I had prayed about and received from God and will suffer whatever consequences for." The contempt motion contends that district officials should have intervened to stop the prayer at the banquet, or at least afterward told those in attendance that it violated the court order.

Catholic Leaders Urge Removal of Harry Knox From Faith-Based Advisory Council

On Wednesday, two dozen conservative Catholic religious and political leaders sent a letter (full text) to President Barack Obama urging him to remove Harry Knox from the President's Advisory Council on Faith-Based and Neighborhood Partnerships. Among the signers was House Republican Leader, John Boehner. The letter charges that: "Knox is a virulent anti-Catholic bigot, and has made numerous vile and dishonest attacks against the Church and the Holy Father." Knox is director of the Faith and Religion Program at the Human Rights Campaign, an LGBT civil rights organization. CNS News reports on Knox's reaction. He told a Newsmax interviewer: "I have a tremendous amount of respect for the Roman Catholic Church and for all the good that it does. I do think that we have a real disagreement about the role of lesbian, gay, bisexual, and transgender people, both in the role of the church and in the role of public service." (See prior related posting.)

Australian State Charges Racial Vilification In Posting of Anti-Semitic Video

AP reported yesterday that in Perth, Australia, a 38-year old man has been charged with violating Western Australia's Racial Vilification Act of 2004 by posting a threatening anti-Semitic 10-minute video on YouTube. Under Australian law, defendants cannot be identified by name until their first court appearance. If the prosecution is successful, the defendant will become the first person convicted under the law.

En Banc Review Sought In Arizona Scholarship Tax Credit Case

The Institute for Justice announced yesterday that it has filed a petition with the 9th Circuit Court of Appeals seeking en banc review of the 3-judge panel's decision in Winn v. Arizona Christian School Tuition Organization. In the case, a 3-judge panel ruled that, as applied, Arizona's tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations" violates the Establishment Clause. Most of the funds are used for scholarships to religious schools. (See prior posting.) The Institute argues that the Arizona program is religiously neutral. It says that nothing in the law encourages parents or taxpayers to choose religious organizations or schools over secular ones.

Tennessee AG Says Specialty Plate For Church Is Unconstitutional

On Wednesday, the Tennessee Attorney General's Office issued Opinion No. 09-82 finding that a proposed bill to create a specialty license plate honoring the Church of God in Christ would violate the Establishment Clause. SB2145, as amended, provides that the funds produced by sale of the plates will be allocated to Church of God in Christ Charities. The AG's opinion concludes that the proposed law favors one religious entity and that both the message on the plates and the direct payment of funds to the church and its charities would be seen as an endorsement of religion. Finally, the Opinion concludes that the program would probably require monitoring to make sure that the funds were not used for religious purposes, and that would create an unconstitutional intrusion into church operations. Wednesday's Memphis Commercial Appeal reported on the AG's advisory opinion.

New Monograph Traces Limits On Government Funding of Religion

The Pew Forum on Religion & Public Life announced yesterday that it has issued a new report titled: Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations. The 18-page monograph traces the history-- beginning in the 18th century-- of public funding of religious activity and the development of legal principles restricting funding. This is the fifth in a series of reports issued by the Pew Forum, beginning in 2007, under the label: "Religion & the Supreme Court: The Pillars of Church-State Law."