Suit Challenges Ten Commandments On Display In Kentucky Courthouse

A federal lawsuit was filed last week challenging the display of the Ten Commandments in the courthouse in yet another Kentucky county. Yesterday's Lexington (KY) Herald-Leader reports that the ACLU has sued Jackson County and Judge-Executive William O. Smith seeking an injunction and a declaratory judgment that nine copies of the Ten Commandments on walls at various places in the courthouse in McKee (KY) violate the Establishment Clause. Separately, the ACLU has asked the state Administrative Office of the Courts to remove a large copy of the Ten Commandments on display in the court room in the Jackson County courthouse.

UPDATE: The July 11 Louisville Courier-Journal reports in more detail on the displays at issue. Framed copies of the Ten Commandments are posted at both entrances to the courthouse, outside several offices and next to a woman's restroom. Separate from these, and not the object of the ACLU's complaint, a Foundations of American Law and Government display (which includes the 10 Commandments among other historical documents) stands in the rear of the courthouse.

BJC Publishes Analysis of Sotomayor's Religion Decisions

The Baptist Joint Committee for Religious Liberty has published a new report evaluating the free exercise and establishment clause opinions written by Supreme Court nominee Judge Sonia Sotomayor (download of full text). It concludes:

While Sotomayor’s written record raises no red flags, it also fails to provide complete assurance to those who are most concerned about our fragile religious freedom rights. In the free exercise cases, she displays careful attention to protecting religious rights, including in prisons where courts generally give deference to government officials. Likewise, these cases demonstrate an emphasis on the importance of assessing the individual’s specific religious claim. This approach illustrates an expansive view of religious freedom that does not depend on the approval of the majority. Her religious display cases demonstrate the fact-sensitive nature of such disputes, but tell us little about where she would draw the line between permissible acknowledgements of religion and unconstitutional displays that send a message of endorsement of religion by the government. Beyond those cases, her record gives little indication of her views of the Supreme Court’s various Establishment Clause standards or how she is likely to decide such cases.

Sotomayor’s writings include few if any statements articulating how the First Amendment protects religious liberty, promotes the voluntary nature of religion, prevents governmental interference in religion and tends to reduce conflict among religions. Still, her record offers positive signs that she will be a thoughtful, fair-minded jurist in protecting religious freedom.

[Thanks to Don Byrd for the lead.]

Air Force Rejects Flyover Request For Rally Sponsored By Christian Group

For the first time in 42 years, the U.S. Air Force has refused a "flyover request" for the "God and Country Rally" sponsored by the Christian Defense Coalition over the July 4 weekend. (Coalition Press Release.) The Pentagon's e-mail message (full text) rejecting the request says in part: "Air Force and DoD policy prohibit support for events which appear to endorse, selectively benefit, or favor any special interest group, religious or ideological movement." The Christian Defense Coalition says that the annual rally, held in Nampa, Idaho, honors those serving in the U.S. armed forces, and does not promote one religious faith tradition. Coalition director, Rev. Patrick J. Mahoney, asks: "Will the new policy of President Obama be that a person has to surrender their faith tradition to honor and pay tribute to our courageous men and women who serve in the military?"

Daily Kos yesterday, reporting on developments, quotes Military Religious Freedom Foundation president Mikey Weinstein's strong support of the Air Force's decision. Weinstein, in his typically blunt fashion, said: "To those in the fundamentalist Christian cabal who vigorously oppose this long sought, terrific decision by the U.S. Air Force, may I suggest that they consider holding their event next year in Kim Jung Il's North Korea or the Kingdom of Saudi Arabia as neither of those countries have a separation of Church and State as we do in beautiful America."

Israel's President Addresses Interfaith Conference In Kazakhstan

Last week, Israel's President Shimon Peres delivered the keynote address (full text) at an Interfaith Conference in Kazakhstan attended by hundreds of Muslim leaders from the Middle East and around the world, as well as by Israel's chief rabbis. (Background.) Peres' address was often theological in its approach to Islamic terrorism and Middle East peace. He said in part:

While the monotheistic and humanistic believers, Christians, Muslims and Jews, used to believe that there was just one God for all, compassionate, merciful and righteous, there are nowadays others, luckily a minority, that sanctify a different God, a God that permits massacres, forgives cruelty, and calls upon his believers to destroy, kill, lie and ruin. This distorted stream constitutes a defamation of the Lord. It is not a religion, it is a crime, a crime against God and man. We must separate religion from terror. This should be a common effort by all believers, regardless of faith, creed or gender....

Cultivating interfaith ties of understanding and friendship is vital, not only in interfaith relations, but in the religions' perception of God. The first question is always whether God created man in His image, or whether man is trying to create God in his compromised image. Whether we should adopt God's moral code, or whether we should refer our personal desires to God.... Only God who created man has the right to determine life.... God had no partners in the creation of the world, so there is nobody that can declare war against.

Group Sues To Get Kentucky "In God We Trust" License Plate

AP yesterday reported that a Kentucky group, Reclaim Our Culture Kentuckiana (ROCK), has filed a lawsuit challenging the rejection of its application to sponsor a special "In God We Trust" state license plate. The state's Transportation Cabinet rejected the request partly because ROCK promotes "a specific faith or religious position." The lawsuit claims both that religion is not ROCK's primary purpose and that the basis for denial amounts to unconstitutional religious discrimination. Rep. Hubie Collins, chairman of the Kentucky House transportation committee, says he supports an "In God We Trust" plate, but thinks the state should issue it. He does not believe that a private group should profit from use of the national motto. (See prior related posting.)

Upgrade of Russia-Vatican Relationships Is In the Works

According to AFP, Russian President Dmitry Medvedev told Italian media yesterday that Russia is considering upgrading its relations with the Vatican to full diplomatic relations. The Russian Orthodox Church has, both historically and recently, had somewhat tense relationships with the Catholic Church. AP, also reporting on the interview ahead of the G-8 Summit in Italy says that Medvedev declined to comment on whether Pope Benedict XVI would visit Russia in the near future.

Recent Articles and Forthcoming Books of Interest

From SSRN:

• Suzie Chiodo, Big M, Little Freedom: Accommodating Religion in a Secular Society, (June 22, 2009).
• Sadiq Reza, Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice, (Georgetown Journal of International Law, Vol. 40, No. 3, 2009).
• Patrick McKinley Brennan, Self-Love and Forgiveness: A Holy Alliance?, (in Forgiveness, Darlene Weaver, ed., Forthcoming).

Forthcoming Books:

• Mano Singham, God vs. Darwin: The War between Evolution and Creationism in the Classroom, (Rowan & Littlefield, Oct. 2009).
• Sean Oliver-Dee, The Caliphate Question: The British Government and Pan-Islamic Governance, (Lexington Books, Aug. 2009).
• Frederick M. Shepherd, Christianity and Human Rights: Christians and the Struggle for Global Justice, (Lexington Books, July 2009).

British Chief Rabbi Criticizes Court's Decision On Admission To Jewish Schools

Britain's Chief Rabbi, Sir Jonathan Sacks, writes in last Thursday's Jewish Chronicle, sharply criticizing an appellate court decision that struck down the admissions policy of a publicly-funded Jewish school in London. The Court of Appeal held that JFS, by following the traditional Orthodox definition of who is a Jew, engaged in "racial" discrimination rather than in admissions based on religious preferences. (See prior posting.) Sacks argues:

[I]f Jewish schools are compelled by English law to impose a test of religious practice instead of the existing test of membership of the Jewish faith, they will no longer be able to teach the Jewish faith to those who have little or no experience of practising it.... The implications of this ruling are vast and affect us all. To be told now that Judaism is racist, when Jews have been in the forefront of the fight against racism in this country, is distressing. To confuse religion and race is a mistake.

Court Orders Sikh Temple Directors To Disclose Contact Information

An election last year at the Sikh Temple Gurdwara in Yuba City, California brought in new directors who promised reform. Today's Marysville (CA) Appeal-Democrat reports on a state trial court decision last week that requires the Temple's 73 directors to furnish their addresses, phone numbers and e-mail contacts before meeting again. Fellow-director Sukraj S. Pamma sought the information, over privacy objections by some of those who would be required to disclose the data. Responding in part to the privacy concerns, the court's order provided that plaintiff is not to disclose the director information to anyone other than his attorneys and other directors. The Temple board must wait 3 weeks after furnishing the contact information before meeting again. Reform directors say the lawsuit is merely a delaying strategy by opponents who hope to eventually regain power.

Recent Prisoner Free Exercise and Establishment Clause Cases

In Cook v. Long, 2009 U.S. Dist. LEXIS 54159 (ED MO, June 3, 2009), a Missouri federal district court rejected an inmate's claim that 1st Amendment free exercise rights were infringed because he was allowed only one magazine subscription.

In Strope v. McKune, 2009 U.S. Dist. LEXIS 55179 (D KA, June 30, 2009), a Kansas federal district court rejected an inmate's complaint that claims the prison's kosher menu lacked variety, that he was given insufficient time to eat and that on two separate dates he was deprived of a kosher meal on two dates.

Jacobs v. Ohio Department of Rehabilitation & Corrections, 2009 U.S. Dist. LEXIS 55662 (SD OH, June 30, 2009), was a RICO lawsuit filed by a number of prisoners against various state officials. Among the claims was a contention by one of the plaintiffs that his religious materials, including his copy of the Qu'ran, were vandalized by the "Men in Black" during a "shakedown." An Ohio federal magistrate judge recommended that the claim be rejected because none of the named defendants were alleged to have been involved in the incident.

In Pittman v. Broadus, 2009 U.S. Dist. LEXIS 55350 (SD MS, June 15, 2009), plaintiff alleged some 18 different violations of his civil rights by jail officials. One of the claims that a Mississippi federal magistrate judge permitted to move ahead was plaintiff's claim that his free exercise rights were violated by the jail's failure to provide Islamic religious services or alternatively allow inmate-led services. However the court rejected the claim insofar as it alleged that the failure to provide services prevented non-Muslim inmates an opportunity to learn about Islam.

In Bey v. Douglas County Correctional Facility, 2009 U.S. Dist. LEXIS 55748 (D KA, Jan. 27, 2009), a Kansas federal district court held that a delay in responding to an inmate's request for a kosher diet did not violate his free exercise rights under the 1st Amendment or RLUIPA. The inmate was a member of the Moorish Scientific Temple of America. At least the initial part of the delay resulted from officials researching the legitimacy of plaintiff's request. Subsequently the parties disagreed for a period of time over whether the meals met the proper standards for kosher food.

In Castle v. Schriro, 2009 U.S. Dist. LEXIS 55843 (D AZ, June 30, 2009), an Arizona federal district court accepted a federal magistrate's recommendations and rejected a habeas corpus petition by a prisoner who challenged his sentence on Establishment Clause grounds, among others. In considering the aggravating factors at the sentencing hearing, the state trial court had mentioned the fact that the defendant used his purported Christan beliefs to deceive victims in his real estate fraud.

10th Circuit Rejects Parents' Claim of Religious Bias In Child Neglect Proceeding

In Starkey v. Boulder County Social Services, (10th Cir., June 29, 2009), the U.S. 10th Circuit Court of Appeals rejected claims by parents that their free exercise and substantive due process rights were violated when Boulder County, Colorado child welfare officials placed their 3 children in foster care. Plaintiffs claimed in part that the children were removed because officials disapproved of the parents' fundamentalist Pentecostal religious beliefs. The court concluded that there was little in the record to support a contention of religious bias. What was there referred hospitalization of one of the children who suffered a days-long anxiety attack after undergoing a "spiritual cleansing."

Court Rejects Street Preacher's Suit Against Police

In Decker v. City of Athens, 2009 U.S. Dist. LEXIS 55348 (ED TN, June 29, 2009), a Tennessee federal district court dismissed a street preacher's 1st Amendment claims against the city of Athens, Tennessee and two of its police officers. Police officers insisted that James Decker and his daughter, who were preaching and displaying signs, move back from the curb to continue. An argument broke out that escalated into police eventually using pepper spray on Decker. Rejecting plaintiff's free exercise claim, the court concluded that the officers were applying a neutral, generally applicable regulation prohibiting interference with traffic. It rejected plaintiff's free speech claim, finding that the regulation was a content-neutral time, place and manner restriction.

Newspaper Examines Workings Of British Sharia Courts

Today's London Daily Mail carries a long article on the workings of Britain's Islamic Sharia Council. This is the first time that a newspaper has been granted access to observe the full sharia legal process in Britain. The article says in part:

Sharia has been operating here, in parallel to the British legal system, since 1982. Work includes issuing fatwas - religious rulings on matters ranging from why Islam considers homosexuality a sin to why two women are equivalent to one male witness in an Islamic court. The Islamic Sharia Council also rules on individual cases, primarily in matters of Muslim personal or civil law: divorce, marriage, inheritance and settlement of dowry payments are the most common. However, in the course of my investigation, I discovered how sharia is being used informally within the Muslim community to tackle crime such as gang fights or stabbings, bypassing police and the British court system.

Court Dismisses Defamation Claims By Islamic Groups Against Internet Writer

In Kaufman v. Islamic Society of Arlington, (TX Ct. App., June 25, 2009), a Texas state appellate court dismissed a defamation action brought by a group of Islamic organizations brought against the author of an article published on an Internet website. The article criticized "Muslim Family Day" scheduled for Six Flags Over Texas amusement park. The article alleged that the primary sponsor, Islamic Circle of North America (ICNA), had terrorist ties, and that the event was "nothing but a charade, created to spread hatred, but veiled in a way to make the sponsoring organization look harmless." ICNA was not one of the plaintiffs bringing the lawsuit.

First the court concluded that Front Page Magazine, the Internet site carrying the article, is part of the electronic media for purposes of a procedural rule in Texas that allows an interlocutory appeal when summary judgment is denied a media defendant asserting free speech or free press defenses. The court then concluded that the statements objected to were not ones that were directed towards the groups who were plaintiffs in the lawsuit, and thus they could not maintain the defamation action.

On July 1, plaintiffs filed a motion to seek en banc rehearing. The Thomas More Society, which represented defendant in the litigation, issued a release last Thursday describing the original lawsuit as frivolous and "an example of the legal jihad being waged by radical Islamic organizations throughout our nation... aimed at stifling the free speech rights of Americans who dare to expose their agenda."

7th Circuit Holds No Damage Claims Against States Under RLUIPA

In Nelson v. Miller, (7th Cir., July 1, 2009), the 7th Circuit joined the 4th and 5th Circuits in holding tht states did not waive their sovereign immunity for damage actions in prisoner claims under RLUIPA by accepting federal funds. The 11th Circuit has taken an opposite position. The 7th Circuit also held in the case that RLUIPA -- enacted under Congress' spending clause powers--does not authorized damage claims against state officials in their individual capacities since they were not recipients of state funds. It remanded for further findings on whether Illinois had a compelling interest a prisoner's complaint regarding denial of a non-meat diet.

Liberal Christian Groups Increase Activism on Public Issues

The Wall Street Journal today reports on a new political activism by progressive and liberal Christians. For example, a recent ad campaign by the American Values Network on Christian and country music stations in ten states encouraged support for federal legislation to limit greenhouse gas emissions, framing support in religious terms. Another coalition of Christian groups is about to begin an ad campaign supporting health care reform. Conservative Christian groups, such as the Cornwall Alliance for the Stewardship of Creation which rejects concerns about global warming, are organizing in opposition. [Thanks to Steven H. Sholk for the lead.]

Religious Groups Kept Out of Challenge To Canadian Prostitution Laws

In Canada, an Ontario trial court judge has refused to permit the Christian Legal Fellowship and the Catholic Civil Rights League (as well as a conservative women's group, REAL Women of Canada) to intervene in a case challenging the constitutionality of several of Ontario's anti-prostitution laws. Today's Toronto Globe and Mail reports that the court gave several related reasons for denying standing to the groups. It feared they would prolong and disrupt the trial and would be presenting contentious moral views that reflect only a small part of Canadian society.

Obama Meets With Catholic Press Ahead of Vatican Visit

Yesterday President Barack Obama met with eight members of the Catholic press ahead of his planned meeting with Pope Benedict XVI next Friday. Obama will be in Italy for the Group of Eight meeting after visiting Russia earlier in the week. (AFP report on trip.) Obama opened the White House meeting with media with a statement and then answered questions from each reporter. The National Catholic Register has a series of reports on questions asked. Most attention has been given to Obama's statement that "there will be a robust conscience clause in place" when the White House finishes its review of HHS regulations that were put in place at the end of the Bush administration. Obama promised that the conscience protections will not be weaker than those that were in place before the Bush changes. The President also responded to questions on abortion rights, tensions between liberal and conservative Catholics, his own choice of a new church, homosexual rights, and the Middle East.

Final Rules for British Teachers Modified After Religious Objections To Diversity Standards

On Wednesday, the General Teaching Council for England announced the adoption of a new Code of Conduct and Practice for Registered Teachers. It contains 8 principles aimed at helping children learn and promoting cooperation with other professionals and parents. The original draft of the Code published for comment last November drew objections from Christian and other religious groups that argued the mandate to "promote equality and value diversity" would require teachers to promote homosexuality in violation of their religious beliefs. (See prior posting.) Substantial changes in response to these concerns were made in the final draft. According to yesterday's Guardian, "the new version of the code ... has been radically reworded to take out requirements to 'promote' diversity. Teachers no longer have to 'proactively challenge' discrimination and are instead simply required to address it...."

Court In India Strikes Down Law Banning Consensual Adult Homsexual Relations

In India, the Delhi High Court today struck down as unconstitutional Section 377 of the Indian Penal Code insofar as it bans homosexual sexual acts in private between consenting adults. (Background.) In a 105-page opinion in Naz Foundation v. Government of NCT of Delhi, (High Ct. Delhi, July 2, 2009), the court cites extensively not just to Indian precedent, but to that in the U.S. Britain and other Commonwealth countries. The court concluded that the challenged provision, infringes the right to privacy guaranteed by Section 21 of India's Constitution as well as Section 14 (equality before the law) and 15 (discrimination on the basis of sex) of the Indian Constitution. It writes:

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. ..... In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

The law at issue was enacted in the 19th century when India was a British colony. The challenge was brought by a group working on HIV/AIDS prevention. The court described petitioner's contentions, in part, as follows:

Section 377 IPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of procreation only. Any non-procreative sexual activity is thus viewed as being "against the order of nature”. The submission is that the legislation criminalising consensual oral and anal sex is outdated and has no place in modern society.... Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts.

Bloomberg today reports on the court's decision. Indian Express reports on the reactions of various religious leaders in India to the decision.