10th Circuit Denies En Banc Review In 10 Commandments Case By 6-6 Vote

By a vote of 6 - 6 yesterday, the judges on the U.S. 10th Circuit Court of Appeals denied an en banc rehearing in a Ten Commandments case. The 3-judge panel had invoked the Establishment Clause to invalidate a display of the Ten Commandments on the courthouse lawn in Stigler, Oklahoma. (See prior posting.) In Green v. Haskell County Board of Commissioners, (10th Cir. en banc, July 30, 2009), two dissenting opinions to the denial of en banc review were filed. Judge Kelly's dissent, joined by Judges Tacha and Tymkovich said:

The Court’s decision in this case perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country’s founding, history, traditions, and laws is to be strictly excluded from the civic sphere.... The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause, but is also plainly contrary to the Supreme Court’s precedent in Van Orden v. Perry....

A second dissent written by Judge Gorsuch and joined by Judges Tacha, Kelly and Tymkovich criticized the panel's application of the Lemon test and went on to contend:

[By] making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court’s clear message that displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.

As is typical, none of the judges voting to deny review wrote an opinion. [Thanks to Peter Irons for the lead.]

IRS Is Investigating Virginia Church

According to the Washington Post, the IRS is investigating Sterling, Virginia's Calvary Temple. (Washington Post background article on Calvary Temple.) The investigation is apparently focused on Pastor Star R. Scott who controls the church's $8.5 million in real estate and hundreds of thousands of dollars of autos used in a "racing ministry." Scott told his congregation that 8 IRS agents interviewed him for five hours earlier this month. They asked about church credit cards that he uses for vacation homes, travel and entertainment. They also sought information about the church's K-12 school, apparently concerned whether supposed donations from parents should really be treated as tuition for tax purposes. The school charges no formal tuition.

Nigerian Islamist Leader Killed In Police Custody

Nigeria's Vanguard yesterday reported that Mohammed Yusuf, head of the fundamentalist Islamic group Boko Haram, has been killed after being taken into police custody. Recent violence in northern Nigeria by Boko Haram rebels has killed some 300. (See prior posting.) After the announcement of Yusuf's death yesterday, Nigerian President Umaru Yar'Adua told northern governors to mobilize traditional and religious leaders to oppose the Boko Haram. In particular, the President wanted governors to encourage religious leaders to preach on the dangers of extremist groups at Friday Juma'at services in all Mosques. Meanwhile, Reuters has published a Q&A on the Boko Haram (which means "Western education is sinful") and on the recent violence in Nigeria.

Settlement Reached In Church's Use of Pensacola FL Park

Alliance Defense Fund yesterday announced that a settlement has been reached in the lawsuit brought against the city of Pensacola, Florida by St. Faustina Old Catholic Church challenging restrictions on use of a downtown park for a weekly picnic by a Bible study group that shared its food with the hungry. (See prior posting.) Apparently under the settlement, the church will be allowed to hold picnics in the park during summer months, but concern about preserving park grass has led to a ban on use by large groups during the winter.

Some Polish Catholics Protest Upcoming Madonna Concert

August 15 is the Catholic feast of the Assumption of the Holy Virgin Mary. Freemuse and Indeks 73 both report this week that in Poland, conservative Catholics are protesting the Madonna concert scheduled for that day in Warsaw. Appeals are being made to the President of the city Warsaw, the mayor of Bemowo (the Warsaw district where the concert is going to take place) and the Minister of the Interior and Administration to convince them to cancel or postpone the concert. Unum Principium Association spokesperson Krzysztof Zagozda says the scheduled concert is "an Anti-Christian provocation." In addition to the timing, an online petition says that some of Madonna's shows feature her climbing a cross, contain obscene gestures and promote homosexuality. Janusz Kochanowski, spokesperson for Citizens' Rights, says the concert will hurt the "religious feelings" of Catholics in violation of the Art. 196 of Poland's Criminal Code (link to Polish version). Others however say that cancelling the concert would infringe the dissemination of artistic creation in violation of Art. 73 of the Polish Constitution.

Judge Allows Temporary Occupancy of Synagogue After Code Controversy

The Middletown (NY) Times Herald-Record yesterday reported on a building code controversy between the town of Bethel, New York and the local Satmar Bungalow Colony of Hasidic Jews. Apparently town building inspector Tim Dexter issued a building permit for a synagogue and community center building without plans havng gone through the town Planning Board. Brooklyn-based United Talmudical Academy rapidly constructed the building and began using its upper floor prayer space before obtaining a certificate of occupancy. The basement is not yet finished. Dexter inspected the building as it was being built and was ready to issue a temporary certificate of occupancy when town Supervisor Dan Sturm had the city issue a stop work order and an order to vacate the building. The synagogue sued.

After County Court Judge Frank LaBuda personally toured the building, he granted a six-week temporary occupancy certificate, and ordered UTA to allow engineers into the building. According to the River Reporter, the judge had some safety concerns, such as door opening inward instead of outward, but he allowed the building to be used temporarily for religious purposes. No meals or other activities may take place there. Meanwhile the Town board has ordered an investigation of the town's Building Department. Lawyers and engineers will look into 6 to 10 projects.

UPDATE: Judge LaBuda has filed a written opinion granting the temporary occupancy certificate. It is United Talmudical Academy Torah V'Yirah, Inc. v Town of Bethel, (Sup. Ct. Sullivan Co., Aug. 24, 2009).

Navy Affiliated Website Ends Ban On Religious Discussion Groups

Last month, Liberty Counsel complained to the Navy about the discussion board Guidelines on its Navy for Moms website. They banned religious discussions and the creation of religious discussion groups on the site. (See prior posting.) On Wednesday, Liberty Counsel announced that the Guidelines have been modified. In a letter (full text) to Liberty Counsel, the Navy says it is removing restrictions on religious and political debate. The new Community Guidelines do provide: "Slurs, stereotyping, hate speech, and other forms of discrimination based on any race, color, religion, national origin, disability, or sexual orientation are not permitted. This is not a venue for you to harass or personally attack others."

Federal Claims Court Agrees That Religious Foundation Is Not A "Church"

In Foundation of Human Understanding v. United States, (Fed. Cl., July 21, 2009), the U.S. Court of Federal Claims agreed with the Internal Revenue Service that the Foundation of Human Understanding, while qualifying as a non-profit organization, had lost its status as a "church" under IRC § 170(b)(1)(A)(i). This determination meant that the organization became subject to the rules for private foundations in IRC § 509. The IRS has developed 14 criteria to use in determining church status. While the Foundation met some of these, the court held that it did not meet the threshold requirement that it "serve an associational role in accomplishing its religious purpose." It concluded: "The extent to which Foundation brings people together to worship is incidental to its main function which consists of a dissemination of its religious message through radio and internet broadcasts, coupled with written publications."

Atheist Delivers Protest Invocation At County Commission Meeting

On Tuesday in Cobb County, Georgia, Edward Buckner, president of American Atheists and candidate for state Attorney General, used the invocation time at the county Board of Commissioners meeting to stage a protest against invocations. Today's Atlanta Journal Constitution reports that Bruckner requested that he be allowed to deliver the invocation, and that Commission chairman Samuel Olens granted the request. At Tuesday's meeting Olens told those in attendance that federal law requires him to allow anyone who signs up to deliver the invocation. In his remarks, atheist Buckner announced that he was speaking for "the 700,000 people who live in this county — especially the majority (yes, over half) of those 700,000 who are not members of any church, mosque, temple, or other religious organization,." He went on: "I speak as well for those political leaders who despair that success in politics cannot be achieved without hypocritical piety from politicians and who would prefer to run for office and to govern based on competence and political philosophy rather than on beliefs, real or pretended, in any supernatural beings." Chairman Olens said he found Bruckner's comments "repugnant and insulting."

AU Wants Senate Committee To Question Army Head Nominee On Church-State Issues

Today, the Senate Armed Services Committee holds a hearing to consider the nomination of John M. McHugh as Secretary of the Army. McHugh is currently a Republican member of the House of Representatives from New York, and was previously the ranking member of the House Armed Services Committee. He was nominated in June by the President. In a press release earlier this week, Americans United questioned McHugh's views on church-state matters. In a letter to the Committee (full text), AU urged that the hearings "ascertain the nominee's views on the pervasive problem or religious coercion and proselytizing in the U.S. military." The letter says that McHugh's voting record in the House on these issues is troubling.

UPDATE: Blog from the Capital reports that at his confirmation hearing, the only question directed to McHugh about religion in the military was one by Senator Jack Reed who asked about religious freedom for soldiers. McHugh responded by saying that military chaplains "must be sensitive" to the diversity of troops and must avoid proselytization except in church services conducted on personal time.

Jordan's Parliament Split On Religious Groups Under Societies Act

For a year, Jordan's Parliament has been debating amendments to the Societies Act which governs the operation of civil society organizations. (Background). Today's Jordan Times reports that the latest controversy surrounds a government proposal, approved by the Senate but rejected by the House of Representatives, that would allow all non-Muslim organizations to operate in the country under the law. Deputies who opposed the provision say it would open the way for the licensing of Jewish organizations. They instead approved a provision that would only allow Christian non-profits, in addition to Muslim ones. Minister of Justice Ayman Odeh says that limiting the law to Christian groups is inconsistent with language in the Constitution. It also creates problems for some churches already working in Jordan that are not considered "Christian" by the country's Council of Churches. Next week, the two houses of Parliament will meet in a joint session to consider the matter, as required by Jordan's constitution when there has been a disagreement between chambers.

Faith-Based Alternatives To Traditional Insurance Pose Issue Under Reform Legislation

Amidst the many complexities of health care reform is the little-noticed problem of faith-based health care sharing ministries. BeliefNet yesterday reported on the concern of these Christian groups over whether they will be considered appropriate insurance under the insurance mandate that is likely to be in new legislation. These religious groups pass on monthly fees from members to other participants who have incurred medical expenses. Some 100,000 Christians have chosen this as an alternative to traditional health insurance. They see it as responding to the mandate to help fellow-believers. Some insurance officials, however, are concerned that there is no guarantee these cost-sharing ministries will in fact cover participants' expenses.

IRS Drops Church Investigation Until Procedural Problems Are Resolved

The Internal Revenue Service earlier this month sent a letter (full text) to the Minnesota-based Warroad Community Church indicating that it is closing an ongoing investigation of the church "because of a pending issue regarding the procedure used to initiate the inquiry." Presumably the procedural problem stems from a decision by a Minnesota federal district court in January holding that IRS rules have improperly delegated authority to open a church tax inquiries. (See prior posting.) According to an Alliance Defense Fund release, Warroad Pastor Gus Booth was one of those participating in ADF's Pulpit Initiative to openly challenge the constitutionality of the 1954 Johnson Amendment which precludes tax exempt non-profit organizations from endorsing or opposing political candidates. Booth had sent copies of two of his sermons to the IRS. AP reports that Pastor Booth plans to continue preaching about politics. The IRS letter says that it may open a new inquiry once procedural issues are resolved.

Tarek ibn Ziyad Academy Counterclaims Against ACLU

In Minneapolis (MN) yesterday, the Tarek ibn Ziyad Academy, a charter school being sued for promoting Islam, filed a counterclaim against the ACLU. Last week, a federal district court upheld the ACLU's standing to bring an Establishment Clause claim against the school. (See prior posting.) Now, according to the Minneapolis Star-Tribune and the St. Paul Pioneer Press, TiZA claims that the ACLU has injured its reputation by calling it "theocratic," and has hurt its ability to hire qualified teachers. Ten applicants withdrew from consideration and the school has unfilled positions. The pleadings also claim that the ACLU's lawsuit damaged the school's learning environment and caused several students to withdraw. TiZA is seeking damages totaling $100,000.

Suit Challenges Selective Service Handling of Conscientious Objectors

Twenty-one year old Tobin D. Jacobrown, a Quaker, yesterday filed a lawsuit in federal district court in Washington, DC, challenging the Selective Service System's refusal to include space to register as a conscientious objector on current selective service forms. The Washington Post reports that forms used to collect information on potential draftees in case a draft is ever re-instituted do not allow for a CO claim. Instead, Selective Service instructions allow the individual to claim the status only if a draft is re-instituted. Jacobrown is unwilling to follow the lead of some others and merely write in his CO claim on the current registration card, since the claim is never recorded by the government. Instead he has refused to register entirely. His lawsuit claims that the Religious Freedom Restoration Act requires the government to find a way to keep track of conscientious objectors who file.

Government Report Says Most Volunteering Is Through Faith-Based Organizations

The Corporation for National & Community Service, a federal agency, yesterday announced that it has issued a new report titled Volunteering in America 2009 (Research Highlights). A portion of the research focuses on Volunteering in America's Faith-Based Organizations. It found that faith-based organizations attract the most volunteers. In 2006-2008, 35.9% of all volunteers worked with religious organizations. The percentages are even higher among older volunteers and African-American volunteers. Also, faith-based organizations had the highest retention rate of volunteers (70%) from year to year.

New York's Syrian Jewish Community Reacts To Rabbis' Arrests

New York's Jewish Week and the Forward in two articles yesterday both reported on reactions within Brooklyn NY/ Deal NJ's close-knit Syrian Jewish community to last week's indictment of six rabbis-- 3 of them prominent in the Syrian community. Charges by federal authorities in New Jersey focused on money laundering by the rabbis. A number of others among the 44 individuals arrested were charged with political corruption. (See prior posting.) Some of the accused rabbis are under pressure from lay leaders to immediately resign from their pulpits. Morris Bailey, chairman of the Sephardic Community Alliance, wrote in an internal community memo: "If over time ... these charges prove to be true, we must be clear that we find this conduct reprehensible and that the alleged actions go against the very values and teachings that our community holds dear." The most prominent of those arrested was 87-year old Rabbi Saul Kassin. He is out on $200,000 bail. Others are out on bail as well.

Some in the community are criticizing FBI informant, Solomon Dwek, son of a Syrian Jewish rabbi in Deal, New Jersey. Dwek was a key in obtaining evidence against those arrested. On Saturday, Dwek's father denounced the concept of Jews informing on each other during a study session at his synagogue. Then, to emphasize the point, Rabbi Dwek co-taught a class with Rabbi Edmund Nahum, one of those arrested and released on bail. On a Jewish radio program Saturday night, Sam Hirsch, a former Borough Park assemblyman, called for Solomon Dwek to be ostracized by the community. He also analogized Dwek to the halachic concept of a moser, the Jewish informer who was to be executed. Hirsch backed off his remark later.

The Forward article also has a lengthy discussion of the possible impact of the indictments on the rivalry between factions in Deal's Orthodox Jewish community.

"WWJD" Debt Collection Suit Voluntarily Dismissed After Counterclaims Filed

Both AP and a Liberty Counsel press release yesterday report that a lawsuit under the Fair Debt Practices Collection Act against Bullseye Collection Agency of Monticello, MN has been voluntarily dismissed. The suit was brought by Mark and Sarah Neill who received a collection letter from Bullseye with "WWJD" (What Would Jesus Do?) at the top. The lawsuit claimed that this was an unfair collections practice because it had the effect of invoking shame or guilt. (See prior posting.) It turns out, however that plaintiff Mark Neill is the president of a rival collection agency, Bureau of Collection Recovery. So defendants filed a counterclaim alleging abuse of legal process and conspiracy to harm Bullseye competitively and to infringe its constitutional rights. Both sides have agreed to a dismissal with prejudice.

Indiana Atheist Bus Campaign Lawsuit Settled

AP reported Monday that the Indiana Atheist Bus Campaign has settled its federal lawsuit against the Bloomington Public Transportation Corporation. IABC had been refused ad space to run its ad reading: " You Can Be Good Without God." (See prior posting.) Under the settlement agreement, IABC will be permitted to buy as much ad space as it wants on Bloomington busses at standard ad rates. The transit company will also pay a substantial portion of the legal fees incurred in the suit brought by ACLU-Indiana. IABC has posted a video of the transit system board's approval of the settlement. [Thanks to Scott Mange for the lead.]

Dearborn (MI) Wrestling Coach Sues Principal Claiming Religious Bias

In Dearborn, Michigan (a city with a large Muslim population), a long-serving and "legendary" high school wrestling coach who was fired has filed a federal religious discrimination lawsuit against the principal of Fordson High School and the Dearborn school system. Plaintiff Gerald Marszalek and two of his three assistant coaches were practicing Christians. One of the assistants, volunteer coach Trey Hancock, is a Christian minister and the father of a state champion wrestler. Tensions between principal Imad Fadlallah (a Muslim) and Coach Marszalek came to a head as the result of a Muslim student's decision to convert to Christianity after attending a summer wrestling camp run separately by Trey Hancock. The principal ordered Marszalek to bar Hancock from entering Fordson High School, and ordered him not to mention Hancock or his independent wrestling club. In 2008, Fadallah terminated Marszalek as wrestling coach.

The complaint (full text) in Marszalek v. Fadlallah, (ED MI, filed 7/27/2009), alleges more broadly:

57. Defendant Fadlallah, since assuming duties as Fordson’s principal in 2005, has systematically weeded out Christian teachers, coaches, and employees, and has terminated, demoted, or reassigned them because of their Christian beliefs, expressions, and associations. Defendant Fadlallah acts in this manner because Christian beliefs are inconsistent with his personal Muslim beliefs.

58. Defendant Fadlallah has publicly stated "he sees Dearborn Fordson High School as a Muslim school, both in students and faculty, and is working to that end," or words to that effect.

The lawsuit, challenging Marszalek's firing, alleges discrimination, due process violations, and infringement of free exercise, speech and association rights under various provisions of the U.S. and Michigan constitutions. It also alleges violations of Michigan's Elliot-Larsen Civil Rights Act and a claim for tortious interference with advantageous business relationships. Yesterday's Detroit Free Press reported on the lawsuit.

A press release by the Thomas More Law Center that filed the suit on behalf of Marszalek quotes TMLC president Richard Thompson, who made a broader assertion. He said: "We are getting a glimpse of what happens when Muslims who refuse to accept American values and principles gain political power in an American community. Failure to renew coach Marszalek’s contract had nothing to do with wrestling and everything to do with religion."