Opinion Issued In Case Ordering Parochial School Student Into Public School Band

A Pennsylvania federal district court has now issued a detailed written opinion explaining the temporary restraining order it issued last week (see prior posting) requiring the the Burrell (PA) High School to permit a student who transferred to a parochial school to remain in the high school band. In Trefelner v. Burrell School District, 2009 U.S. Dist. LEXIS 78785 (WD PA, Sept. 2, 2009), the court held that the free exercise rights of Alexander Trefelner, an eighth grade saxophone player, were infringed by the school's policy. The policy, by permitting exceptions for home-schooled students and students attending charter schools, favors secular over religious motivations. The policy is not a neutral policy of general applicability. The reasons advanced for allowing home and charter schooled students to participate apply equally to parochial school students.

Jury Rejects Dance Teacher's Religious Discrimination Claim

In San Diego, California yesterday, a state court jury rejected a former public school dance teacher's religious discrimination lawsuit against the Lemon Grove (CA) School District. According to 10News, Kathy Villalobos claimed the school district fired her for playing dance music containing religious lyrics. However the jury believed the school board that argued Villalobos was fired for missing and cancelling classes. School officials said Villalobos was merely told that if she was going to use religious music, it should be from a wide variety of religions. Villalobos says she plans to appeal the decision.

Groups Urge Change In Senate Bill To Permit Head Coverings In Drivers License Photos

Yesterday more than a dozen religious advocacy and interfaith groups sent a letter (full text) to the chairman and ranking member of the Senate Homeland Security and Governmental Affairs Committee urging them to support an amendment to S. 1261, the PASS ID Act, that is pending in the Senate. The bill pressures states to issue drivers licences and identification cards that contain a digital photograph and other security features. The letter urges that specific language be added to the bill to protect the right of individuals to wear religious head coverings without removal or modification in driver's license and other identification photos. The letter explains: "Our request relates specifically to turbans, yarmulkes, hijabs, and other religious headcoverings; it does not relate to items that conceal the face." Even though language currently in the proposed bill calls for the Department of Homeland Security to issue regulations that include protections for constitutional rights and civil liberties of applicants for licenses and ID cards, apparently DHS does not believe that the language allows them to require states to permit head coverings to be worn in license photos.

Court Enforces Biblically Based Arbitration Agreement

In Easterly v. Heritage Christian Schools., Inc., 2009 U.S. Dist. LEXIS 76269 (SD IN, Aug. 26, 2009), an Indiana federal district court enforced a Biblically-based arbitration agreement between a high school English teacher and the Christian school at which she was employed for some 20 years before she was forced from her job. The contract required teacher Dorothy Easterly to "to resolve differences with others (parents, fellow-workers, Administration) by following the biblical pattern of Matthew 18:15-17," and if that failed to submit any controversy to mediation and binding arbitration conducted under the "Rules of Procedure for Christian Conciliation." The court rejected Easterly's claim that the arbitration agreement was vague, that it deprived her of her ability to vindicate rights protected by disability and age discrimination statutes, and that the procedures were procedurally inadequate. [Thanks to Michael Francisco for the lead.]

Canadian Tribunal Says Internet Hate Speech Law Is Unconstitutional

In a 107-page opinion handed down yesterday, the Canadian Human Rights Tribunal (CHRT) held that Canada's Internet hate speech law is unconstitutional. The CHRT is an adjudicative body that hears discrimination charges referred to it by the Canadian Human Rights Commission. In Warman v. Lemire, (CHRT, Sept. 2, 2009), an opinion by Tribunal member Athanasios Hadjis held that amendments adding monetary penalties to the hate speech law since a 1990 Canadian Supreme Court decision upholding it now make the statute's infringement of free expression disproportionate to the law's objectives. The opinion reasons:

The Supreme Court held in Taylor that despite not requiring any proof of intent to discriminate, s. 13(1) only minimally impairs freedom of expression principally because the Act’s purpose is to prevent discrimination (as well as compensating and protecting the victim), rather than punish moral blameworthiness. ...S. 13(1) has, since the 1998 amendments, lost the exclusively compensatory and preventative features that characterized it in the eyes of the majority in Taylor. Following the Court's reasoning, it can therefore no longer be concluded that the provision still minimally impairs the Charter guaranteed freedom of expression.

Canadian Press reports on the decision. The Ottawa Citizen says that an appeal to the Federal Court of Canada is likely because two other previous Tribunal decisions found the statute constitutional. [Thanks to PewSitter for the lead.]

Religious Peyote Exemption Does Not Invalidate Federal Drug Laws

In United States v. Valazquez, 2009 U.S. Dist. LEXIS 77946 (WD OK, Aug. 31, 2009), a defendant facing federal drug charges argued that the federal controlled substances laws are unconstitutional because of the exemption they grant to the Native American Church for the use of peyote. Relying on several previously decided cases, the court held that the exemption does not violate the Establishment Clause. It also rejected a 5th Amendment equal protection challenge because defendant did not show that he was similarly situated. His possession of methamphetamine was not related to his religious beliefs or practices.

Churches Sue To Prevent Noise Ordinance From Limiting Their Carillon Bells

Three churches in Phoenix, Arizona yesterday filed a federal lawsuit against the city of Phoenix challenging its noise ordinance that has been applied to limit ringing of carillon bells by local churches. The complaint (full text) in St. Mark Roman Catholic Parish Phoenix v. City of Phoenix, (D AZ, filed 9/2/2009), alleges that the noise ordinance is unconstitutionally vague. It also claims that application of the ordinance to churches violates their free speech rights and their right to free exercise of religion under both the federal and Arizona constitutions and Arizona statutory law. A release by Alliance Defense fund announcing the lawsuit criticized the ordinance for exempting ice cream trucks but not churches. Earlier this year, the clergyman of one of the plaintiff churches in this case was convicted of violating the noise ordinance and given a suspended jail sentence along with 3 years' probation. (See prior posting.)

Dutch Prosecutors Will Move Against Anti-Jewish Cartoon

According to Dutch News yesterday, the Dutch public prosecution department has announced that it will file charges against the Arab European League for a cartoon it has posted on its website. The cartoon depicts two men in business suits discussing how to increase the numbers killed in the Holocaust. Prosecutors say the cartoon 'insults Jews because of their race and/or religion." It suggests that Jews themselves invented the idea that 6 million were killed during World War II. The cartoon was an old one that had been taken off the group's website three years ago. However it was posted again after Dutch prosecutors refused to prosecute the TV program Nova and Dutch politician Geert Wilders over republication of cartoons insulting the Prophet Muhammad. Prosecutors say those cartoons did not violate Dutch law because they targeted Muhammad, not Muslims in general. The Dutch Supreme Court drew this distinction in a case decided earlier this year. (See prior posting.) AEL does not think any of the cartoon should be subject to prosecution.

Canadian Court Rejects Challenge To Quebec's New Religious Survey Courses

In the Canadian province of Quebec, a trial court judge has rejected a challenge by Christian parents to the mandatory new course in grades 1 through 11 in Quebec schools that teaches about a broad range of world religions. The Ethics and Religious Culture course covers Christianity, Judaism, aboriginal spirituality, Islam, Hinduism and Buddhism. (See prior posting.) It replaces parents' choice of one of three separate courses that focused on Catholic or Protestant thought, or moral instruction. Yesterday's National Post reports on the decision by a Drummondville Superior Court. Justice Jean-Guy Dubois wrote that "the court does not see how the ... course limits the plaintiff's freedom of conscience and of religion for the children when it provides an overall presentation of various religions without obliging the children to adhere to them." During the trial, one mother testified that it was confusing for her son to learn about Islam while he was still forming his own Catholic spirituality.

Remarks At Kennedy Memorial Service Raise Issue On Mormon Temple Zoning

According to yesterday's Belmont (MA) Citizen-Herald, remarks delivered by Utah Sen. Orrin Hatch at the memorial service for Sen. Edward Kennedy last Friday (full text) have caused some former litigants to question a decision handed down in 2001 by the Massachusetts Supreme Judicial Court. Here is what Hatch said:

There was another time when the Mormon church was nearing completion of its temple here in Boston. Belmont , I think. I was approached by several people working in the temple and informed that the city would not allow a spire to be placed on the top of the temple with an angel on top of it as is customary on Mormon temples. I immediately called Ted and asked for help. Not long after that conversation, he called me back and said, "All of western Massachusetts will see the Angel Gabriel on the top of the Mormon temple. (LAUGHTER) Though I was tempted to leave it alone, I had to inform Teddy it was actually the Angel Maroni....

It turns out that the question of whether a special zoning permit would be granted for the church to build its 85-foot high steeple was litigated all the way to the Massachusetts Supreme Judicial Court. In Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, (MA Sup. Jud. Ct., 2001), Massachusetts' high court held that a state law limiting zoning restrictions on the use of land for religious purposes (the "Dover Amendment") precluded the "unreasonable" height restriction that Belmont's zoning laws imposed.

Now those who opposed the Temple construction are asking whether Kennedy influenced the Supreme Judicial Court's decision. They say Hatch's reference to the time construction was nearing completion would put his call to Kennedy after the February 2000 decision by the Middlesex Superior Court to reverse the decision of Belmont's zoning board of appeals and ban the steeple. The only determination left after that point was that by the Supreme Judicial Court. A spokesperson for the court, however, says they had no interaction with Kennedy and he did not influence the justices in the temple case.

Obama Hosts Iftar Dinner With Interesting Guest List

Last night at the White House, President Obama hosted an iftar dinner marking the Muslim observance of Ramadan. This follows a precedent begun by President Bill Clinton and continued by President George W. Bush (New York Times, Huffington Post). The guest list for last night's dinner was particularly interesting-- cabinet members, members of Congress, ambassadors from counties with significant Muslim populations (including Israel), members (including Jewish and Christian members) of the President’s Council on Faith-based and Neighborhood Partnerships, and various Muslim notables. (Washington Post.) Included were Marine Lt. Cmdr. Abuhena Saifulislam (who has given the prayer at President Bush's Ramadan dinner), and ACLU lawyer Jameel Jaffer whose lawsuit has forced the White House to release secret documents on C.I.A. interrogations and detention. Among the guests highlighted in President Obama's remarks (full text) at the dinner was Nashala Hearn from Muskogee, Oklahoma, whose Justice Department-backed lawsuit vindicated her right to wear a hijab (headscarf) to school.

"Classical" Charter School Sues Challenging Ban On Use of Religious Texts

Yesterday, an Idaho charter school filed a federal lawsuit against members of the Idaho Public Charter School Commission and other state officials, challenging a Commission order banning the use of the Bible or any other religious documents or texts in public charter school classrooms. Plaintiff, the Nampa Classical Academy, had developed its entire curriculum in a classical, liberal arts format, using primary texts-- secular and religious-- as a method of educating its students. The complaint (full text) in Nampa Classical Academy v. Goesling, (D ID, filed 9/1/2009), alleges that a majority of the planned texts are secular. It says that the Academy, which is about to open for its first year of operations, has no intent to use religious texts in devotional manner, and will not be teaching religious tenets. Religious materials, like secular documents, will be used to study western civilization in classes such as history, literature, art or music. The complaint sets out five causes of action: procedural due process, free speech, establishment clause and equal protection clause violations, as well as violations of the state statute setting out procedures for issuing a notice of defect to charter schools. Alliance Defense Fund announced the filing of the lawsuit. (See prior related posting.)

Federal Community Service Agency Designates This Week As "Interfaith Service Week"

The Corporation for National & Community Service (a federal agency) announced yesterday that President Obama's "United We Serve" initiative has designated Aug. 31 through Sept. 6 as "Interfaith Service Week." The week honors efforts of faith-based organizations working across religious lines to strengthen communities. The press release highlighted a number of specific interfaith projects being carried out across the country this week.

Consent Order Settles Suit On In-School Posters Announcing Prayer Events

In May, a Tennessee federal district court issued a preliminary injunction barring Wilson County (TN)'s Lakeview Elementary School from enforcing a broadly written school speech policy to suppress religious references on posters made by students and parents to publicize "See You At the Pole" and National Day of Prayer events at the school. (See prior posting.) On Monday, Alliance Defense Fund announced that the lawsuit has been settled with the entry of a Consent Order (full text). The order makes the preliminary injunction permanent and requires that any new policy restricting religious speech on posters must be reasonable, viewpoint neutral and in accordance with federal law. The Wilson County School Board also paid $50,000 of plaintiffs' attorneys fees and paid nominal damages of $1. The settlement come just in time for this year's See You At the Pole event scheduled nationally for Sept. 23.

Q&A On Faith Healing and the Law Posted

The Pew Forum on Monday posted a Q&A interview on Faith Healing and the Law featuring George Washington University Professor Robert W. Tuttle. Among other issues, Tuttle reflects on the Establishment Clause questions posed by state law exemptions from abuse and neglect statutes for those who rely on faith healing for their children.

Civil Rights Division Will Return To Traditional Agenda Without Ending Religious Discrimination Initiatives

Today's New York Times reports that U.S. Attorney General Eric Holder is pressing major changes in the Justice Department's Civil Rights Division by refocusing on its traditional role that emphasized racial discrimination cases. The Division will again focus on high-impact cases involving voting rights, housing, employment discrimination, bank lending and Congressional redistricting. This shift was widely expected when Holder's nomination was announced. The Bush administration had shifted Division resources to focus on issues such as religious discrimination and human trafficking. (See prior posting.) Holder does not plan to dismantle these efforts, but instead to hire enough additional attorneys to do everything.

Christian Groups May Not Intervene To Challenge Plan B Decision

A New York federal district court has denied a motion by three conservative Christian groups to intervene in a lawsuit in order to challenge a ruling by the court requiring the Food and Drug Administration to make Plan B emergency contraceptives available to 17-year olds without a prescription. (See prior posting.) The groups attempted to intervene after the FDA decided not to appeal the court's ruling. (Full text of Memorandum in Support of Motion to Intervene.) In Tummino v. Hamburg, (ED NY, Aug. 27, 2009), the court held that the groups lack standing to intervene, and that their motion to intervene was not timely filed. The court rejected arguments by Concerned Women for America, Christian Medical & Dental Associations, and Christian Pharmacists Fellowship International that they had suffered informational and procedural injuries, that the court's decision will force pharmacists to sell misbranded drugs, that they had third party standing and that the change in status of the prescription drug gave them standing. Finally, the court rejected intervenors' motion for an extension of time to appeal. LifeSite News yesterday reported on the decision, as did the New York Law Journal.

Court Says Injunction Request Is Moot In Suit Against History Teacher

In C. F. v. Capistrano Unified School District, 2009 U.S. Dist. LEXIS 76932 (CD CA, July 27, 2009), a California federal district court refused to grant injunctive and declaratory relief to a high school student and his parents in their suit against high school history teacher James Corbett. In an earlier decision (see prior posting), the court found that the teacher's statement in class characterizing Creationism as "superstitious nonsense" violated the Establishment Clause. However now the court concluded that the proposed injunction to bar Corbett from expressing any disapproval of religion while acting in his official capacity as a public school employee was overbroad. It also held that any request for a narrower injunction is moot since plaintiff is no longer in Corbett's class. Finally it concluded that a declaratory judgment would serve no useful purpose.

Former Miss California USA Sues Claiming Religious Discrimination

Former Miss California USA, Carrie Prejean, yesterday filed a lawsuit in a California state court against Miss California pageant officials accusing them of religious discrimination, as well as defamation , disclosure of private medical facts and intentional and negligent infliction of emotional distress. Prejean's title was taken away in June 2009, allegedly for breach of contract. The complaint (full text) in Prejean v. Lewis, (Los Angeles Superior Ct., filed 8/31/2009), alleges in part that defendants violated California's Unruh Civil righs Act (CA Civil Code Sec. 51) by conspiring to have Prejean dismissed as Miss California USA because she insisted on publicly expressing her religious beliefs opposing same-sex marriage. Entertainment Tonight reports on the lawsuit. (See prior related posting.)

Scotish Tribunal Asks European Court If Volunteer Is Covered By Discrimination Directive

In Scotland, a Glasgow employment tribunal has ruled that a case should be referred to the European Court of Justice for a preliminary determination of whether EU's employment discrimination directive applies to a volunteer. Today's Scotsman reports on the religious discrimination charges filed by Church of Scotland minister Mahboob Masih, who for six years co-hosted a radio show for Awaz FM on a voluntary basis. He was terminated after a show featuring a "lively" debate about religion and the views of a prominent Muslim speaker. He was directed to apologize on air, which he did. However he refused an additional demand that he go to a local mosque and offer a second apology.