Russian Museum At Odds With Orthodox Church Over Loan of 14th Century Icon

Today's Moscow Times reports that officials at St. Petersburg's Russian Museum are distressed at the decision made by the Russian Republic's Culture Ministry last week to lend a fragile 14th century icon of the Virgin Mary in the Museum's collection to a newly-constructed church in an upscale gated community. The Alexander Nevsky Church has no relationship with the icon, but the Russian Orthodox Church generally believes that icons should serve their original purposes of being available to worshippers. This dispute over the icon, originally from a church in the town of Toropets, is part of a larger dispute between preservation experts and the Russian Orthodox Church over the use of culturally and religiously valuable objects. Visualrian has photos of the delivery of the icon to the church.

India's Parliament Given Proposal To End "Bigamy Through Conversion To Islam"

According to DNA, last Thursday the Law Commission of India forwarded to Parliament its August 2009 report titled Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect to Supreme Court Rulings. The report suggests amending the Hindu Marriage Act of 1955 and various other marriage statutes to bar a person who was married as a non-Muslim from marrying again even after converting to Islam, unless the first marriage is dissolved or declared null and void. Muslim and Christian groups are both critical of the proposal. They oppose government interference of any kind in a person's right to choose his or her religion.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill, The Ballot, the Bimah, and the Tax Code, (CCAR Journal: The Reform Jewish Quarterly, Forthcoming).
• Jose Antonio Seoane, The Boundaries of the Medical Conscientious Objection - About the Refusal of a Blood Transfusion by a Jehovah’s Witness, (InDret, Vol. 4, 2009).
• Lyman P. Q. Johnson, Re-Enchanting the Corporation, William & Mary Business Law Review, Forthcoming).
• Frederick Schauer, Social Epistemology, Holocaust Denial, and the Post-Millian Calculus, (Regulating Hate Speech: Context, Content, and Remedies, Michael Herz & Peter Molnar, eds., Cambridge University Press, 2010).
• Stephen G. Gilles, Roe's Life-or-Health Exception: Self-Defense or Relative-Safety?,(Notre Dame Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Symposium. International Protection of Religious Freedom: National Implementation. Articles by Zhuo Xinping, Denise Meyerson, Gennadiy Druzenko, Evaldo Xavier Gomes, Guillermo Garc¡a-Montufar Sarmiento, Daniel Alegre Porras, Sergio Gonzalez Sandoval, Octavio Lo Prete and Jorge Precht Pizarro. 2009 BYU Law Review 513-704.
• Symposium: Law and Religion. Lecture by Cardinal Roger Mahony. Articles by Robert J. Delahunty, Chad Marzen, Kevin Pybas and Lael Daniel Weinberger. 86 University of Detroit Mercy Law Review 603-766 (2009).
• Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 Pennsylvania Journal of Constitutional Law 1 (2008).

Recent Prisoner Free Exercise Cases

On Nov. 30, the U.S. Supreme Court denied certiorari in Chavis v. Fischer, Docket No. 09-7079 (Order List). In the case the U.S. 2nd Circuit Court of Appeals dismissed an inmate's claim that his free exercise rights were infringed when he was required to work on Sundays. (See prior posting.)

In Desimone v. Bartow, 2009 U.S. App. LEXIS 26687 (7th Cir., Dec. 8, 2009), the 7th Circuit rejected an inmate's free exercise and RLUIPA claims, finding that he did not establish a substantial burden on his free exercise of religion. Plaintiff complained that authorities had confiscated his encoded journals that he believed allowed him to maintain a separate realm of thought to conform to the teachings of Yahwism.

In Allen v. Passaic County Jail, 2009 U.S. Dist. LEXIS 113560 (ED PA, Dec. 4, 2009), a Pennsylvania federal district court refused to dismiss a former inmate's claim that his free exercise rights were violated when, because of jail overcrowding, he was unable to attend religious services.

In Hamilton v. Hernandez, 2009 U.S. Dist. LEXIS 113140 (ND CA, Nov. 19, 2009), a California federal district court dismissed an inmate's claims that prison authorities interfered with his practice of his House of Yahweh religion by placing him in a cell with an inmate that did not observe the same religion, by on occasion refusing to release him from his cell to attend Sabbath services, by interfering with House of Yahweh Sabbath services, by failing to provide him a religious diet, and by her infringements and retaliatory action.

In Stewart v. Klein, 2009 U.S. Dist. LEXIS 113040 (D AZ, Nov. 19, 2009), an Arizona federal district court refused to overturn a jury's verdict rejecting an inmate's claim that his free exercise of religion was substantially burdened by receiving meals containing meat and egg products. and that defendant, the kitchen manager, should have corrected the problem.

In Garrison v. Michigan Department of Corrections, 2009 U.S. Dist. LEXIS 114719 (ED MI, Dec. 9, 2009), a Michigan federal district court accepted most of a federal magistrate judge's recommendations (2009 U.S. Dist. LEXIS 114640, Oct. 16, 2009), and dismissed objections to various restrictions imposed by prison officials on plaintiffs' Native American Traditional Spiritual Ways religious ceremonies.

Chirstian Leaders Broadly Oppose Uganda's Proposed Anti-Homosexuality Bill

In the wake of a report issued last month by Political Research Associates charging U.S. conservatives with using churches in Africa to promote homophobia on that continent (see prior posting), USA Today reports that last week 75 Christian leaders from a variety of backgrounds signed a Statement (originally released 12/7) denouncing the Anti-Homosexuality Act of 2009 (full text) currently under consideration by the Parliament of Uganda. (Release by Faith in Life.) The Statement said in part:

Regardless of the diverse theological views of our religious traditions regarding the morality of homosexuality, in our churches, communities and families, we seek to embrace our gay and lesbian brothers and sisters as God's children worthy of respect and love.

Subsequently two other influential leaders came out with statements against the legislation-- Pastor Rick Warren (USA Today report; Warren' statement (12/10)) and Archbishop of Canterbury, Rowan Williams (Ekklesia 12/12.)

Bloomberg News (12/9) reports that a revised version of the bill will drop the death penalty (imposed for "Aggravated Homosexuality") and life imprisonment for gays-- provisions that had particularly generated religious opposition. The revised bill reportedly will also encourage counseling to encourage changes in sexual orientation.

Developments On Vatican Treaties With Israel, Brazil

Asia News reports on Thursday's meeting of Bilateral Permanent Working Group between the Holy See and the State of Israel. The talks over implementation of the 1993 Fundamental Agreement between the Vatican and Israel are dealing with issues of Church property and taxation. Progress is slow because of the complexity of the matters, but the atmosphere of Thursday's talks in the Vatican were described as friendly, with dates for further meetings at the plenary and working levels announced.

Meanwhile the Concordat between the Holy See and Brazil signed last year entered into force on Thursday with a formal ratification ceremony in the Vatican. Zenit reports that that the agreement (full text) provides for religious education in public schools; provides tax exemptions for religious institutions; recognizes ecclesiastical decisions on issues of marriage; and recognizes ecclesiastical academic titles.

Catholic Bishops Say Clergy Exemptions In Britain's Proposed Equality Bill Are Too Narrow

On December 15, Britain's House of Lords is scheduled to debate the proposed Equality Bill that has already passed the House of Commons. The Bill is designed to consolidate into a single statute the various anti-discrimination laws that Britain has enacted. (Background.) Britain's Catholic Herald and the Boston Pilot both report on the briefing for Catholic members of the House of Lords prepared by the Catholic Bishops of England and Wales who are concerned that the employment discrimination exemptions for clergy are too narrow. The bill provides an exemption from ban on employment discrimination on the basis of sex, marital status or sexual orientation for individuals whose "employment mainly involves" either "leading or assisting in the observance of liturgical or ritualistic practices of the religion," or "promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)." (Schedule 9, Sec. 2(8)).

The bishops say that many priests do not spend 51% of their time in these two activities. Instead they may be involved for much of their time in pastoral work, private prayer and study or administration and building maintenance. They say the bill may well make it unlawful for the Church to require that a Catholic priest be male, unmarried or not in a same-sex civil partnership, since no priest would be able to demonstrate that he spends most of his time leading worship or explaining doctrine. Last week the House of Commons defeated a proposed amendment that would have allowed religious organizations to hire only people whose conduct was consistent with the Bible's teachings. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Dutch Muslim Lawyer Cleared of Contempt For Refusing To Stand, Wearing Hat

In the Netherlands, the appeals chamber of the Bar Association's disciplinary council has acquitted Muslim lawyer Mohammed Enait on three contempt of court charges. NIS today reports that one charge involved Enait's refusal to rise, as is customary, when the judge enters the courtroom. Enait says that his Muslim religion teaches that everyone is equal, and rising would mean he is subservient. He was also charged because he wears an Islamic head covering in court, and because of comments he made about a judge during a TV talk show.

ACLU Challenges Illinois' Increase In Lobbyist Registration Fees, Including Church Exemption

The ACLU announced yesterday that it has filed a federal lawsuit in Illinois seeking to block the January 1 increase in fees for registering as a lobbyist for a non-profit organization under the Illinois Lobbyist Registration Act. The complaint (full text) in ACLU of Illinois v. White, (ND IL, filed 12/11/2009) sets out two challenges to the increased fees. First it alleges that the portion of the registration fee diverted to the Illinois General Fund and other amounts in excess of the cost of administering the statute are an unconstitutional tax on speech. Second it claims that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination.

Hanukkah Greetings, Party Plans From the White House

The White House today released a statement (full text) from the President sending warmest wishes from him and Michelle to all who are celebrating Hanukkah. The statement says in part:

Hanukkah is not only a time to celebrate the faith and customs of the Jewish people, but for people of all faiths to celebrate the common aspirations we share.

The White House also released a Hebrew translation of the President's statement. Hanukkah begins at sundown today and is celebrated for eight days.

Meanwhile the New York Times yesterday reported on the kerfuffle surrounding plans for this year's White House Hanukkah party. Rumors began circulating, first in the Israeli press and then in the U.S., that President Obama had cut the number of invitees from the Bush administration's 800 down to 400. Apparently the reality is that the Bush White House invited 600 to its last Hanukkah party, while Obama is inviting 550. Eyebrows were also raised over the invitations sent out by the White House. They invited their recipients to "a holiday reception" on Dec. 16, without mentioning Hanukkah. Meanwhile, the Forward last week carried an interesting history of Hanukkah (or its absence) at the White House through various presidencies.

Defamation Counterclaims By Charter School Against ACLU Dismissed

In ACLU of Minnesota v. Tarek Ibn Ziyad Acadamy, 2009 U.S. Dist. LEXIS 114738 (D MN, Dec. 9, 2009), a Minnesota federal district court dismissed counterclaims for defamation and tortious interference with contract brought by the sponsor of a charter school against the ACLU that was suing it alleging Establishment Clause violations. The counterclaims were based on statements made by the ACLU's executive director, who repeatedly insisted that the Academy was using taxpayer dollars to operate a sectarian Muslim school. The court held that the body of law holding that government bodies may not sue for defamation applies to a publicly funded charter school. Even if this were not the case, TIZA as a public school would be subject to the requirement to show actual malice to recover for defamation. It has not alleged facts to support such a finding. Finally the court concluded that the tortious interference claims were dependent on the allegations of defamation, and should also be dismissed. Today's Minneapolis Star-Tribune reports on the decision.

Opening Grounds To Displays Gives County Problems On How To Choose

In Leesburg, Virginia, earlier this year the Courts Grounds and Facilities Committee banned all displays on courthouse property this year. However after a request to put a Christmas tree on the courthouse lawn, the Board of Supervisors last week voted to overturn the ban on displays. Now the county finds itself faced with requests to allow seven different displays, including a nativity scene, an interfaith display, a sign honoring the solstice and, most troubling to county officials, a suggestive parody of the Twelve Days of Christmas. Leesburg Today reported on Thursday that the county Board of Supervisors was scheduled to meet yesterday afternoon to create rules to help county staff decide which displays to permit.

Hanukkah Begins Tonight; Chabad Public Menorah Displays Grow

The Jewish festival of Hanukkah begins this evening. A press release yesterday from Chabad Lubavitch traces the largely successful 21-year campaign by Chabad to put up large Hanukkah menorahs on public property. The 1989 U.S. Supreme Court decision in County of Allegheny v. ACLU upheld a menorah display in downtown Pittsburgh against an Establishment Clause challenge, largely because it was combined with displays of a Christmas tree and a sign saluting liberty. This paved the way for today's situation summed up by Chabad: "From Montana to Mumbai, from the Western Wall to the Great Wall of China, Chabad’s public menorah lightings number in the thousands." Chabad spokesman Rabbi Yehuda Krinsky says that resistance to public displays of the menorah are diminishing, adding that "after all is said and done, the menorah is a universal symbol of freedom and independence which totally conforms with the American ideal."

Lawsuit Charges Indiana Lawyer Assistance Program With Religious Bias

The ArchAngel Institute is a Christian pro-life organization. Its Executive Director, Bryan Brown, a member of the Kansas bar since 1996, was denied admission to the Indiana bar in 2008 after psychological and psychiatric examinations ordered by the Indiana Board of Law Examiners and the Judges and Lawyers Assistance Program (JLAP). Brown this week filed suit in federal district court in Indiana challenging the operations of JLAP. The examinations they ordered resulted in findings that Brown suffered from a sub-clinical bipolar disorder, or from a personality disorder. The complaint (full text) in Brown v. Bowman, (ND IN, filed 12/8/2009) was filed pro se and in 265 paragraphs chronicles his view that he was the victim of collusion, bias and invidious discrimination. He argues that JLAP and its experts targeted his pro-life beliefs that grow out of his traditional Christian worldview and his constitutional, conservative political perspective. The complaint asserts 26 federal and state constitutional and statutory violations.

Describing the underlyinig facts on the ArchAngel Institute's website, Brown commented that he"was remanded from the Indiana Board of Law Examiners into the Judges and Lawyers Assistance Program on January 25, 2008 (the Feast day of St. Paul) and subjected to that agency’s machinations until they remanded him back to the Indiana Board of Law Examiners on January 22, 2009 (the anniversary of Roe v. Wade)." A column in yesterday's Ft. Wayne (IN) News-Sentinel examines the case.

Group Complains About City's Favoritism of Salvation Army

Each year, the city of Meriden, Connecticut sponsors the Festival of Silver Lights in Hubbard Park. From Thanksgiving until the week after New years, the Festival features over 300 lighted displays. For the past two years, each night a different local charity was allowed to collect donations. This year, however, according to Wednesday's Meriden Record Journal, the Salvation Army has been given the exclusive right, throughout the Festival, to solicit funds. The Connecticut ACLU has objected, arguing that a single religious group should not be the exclusive beneficiary of a city-run attraction. The Salvation Army says that the $1400 collected so far will be used for social services, not religious programming.

Suit Challenges Refusal To Permit Solstice Display at State Capitol

Yesterday the Arkansas Society of Freethinkers filed a federal court lawsuit against the Arkansas secretary of state challenging the state's refusal to allow the Freethinkers to install a temporary Winter Solstice display on the state capitol grounds. According to the complaint (full text) in Arkansas Society of Freethinkers v. Daniels, (ED AR, filed 12/10/2009), the only other temporary display currently on capitol grounds is a creche. Arkansas' written Policy on Temporary Displays on State Capitol Grounds sets out no guidelines on which displays will be permitted, except for a ban on any display blocking traffic. The lawsuit contends that the denial of plaintiffs' request was based solely on the secretary of state's unbridled discretion and unconstitutionally restricts access to a designated public forum by limiting displays to those that the Secretary of State personally finds acceptable as to content and viewpoint. Arkansas Blog has further background and reprints the Arkansas ACLU's press release on the case.

Obama Accepts Nobel Peace Prize With Speech Focusing on "Just War"

President Barack Obama this morning accepted the Nobel Peace Prize with a speech (full text) that focused extensively on the concept of "just war." Here are some excerpts:

Over time, as codes of law sought to control violence within groups, so did philosophers, clerics and statesmen seek to regulate the destructive power of war. The concept of a "just war" emerged, suggesting that war is justified only when it meets certain preconditions: if it is waged as a last resort or in self-defense; if the forced used is proportional; and if, whenever possible, civilians are spared from violence.

For most of history, this concept of just war was rarely observed. The capacity of human beings to think up new ways to kill one another proved inexhaustible, as did our capacity to exempt from mercy those who look different or pray to a different God. Wars between armies gave way to wars between nations — total wars in which the distinction between combatant and civilian became blurred. In the span of 30 years, such carnage would twice engulf this continent. And while it is hard to conceive of a cause more just than the defeat of the Third Reich and the Axis powers, World War II was a conflict in which the total number of civilians who died exceeded the number of soldiers who perished.

In the wake of such destruction, and with the advent of the nuclear age, it became clear to victor and vanquished alike that the world needed institutions to prevent another World War.
...

As the world grows smaller, you might think it would be easier for human beings to recognize how similar we are, to understand that we all basically want the same things, that we all hope for the chance to live out our lives with some measure of happiness and fulfillment for ourselves and our families.

And yet, given the dizzying pace of globalization, and the cultural leveling of modernity, it should come as no surprise that people fear the loss of what they cherish about their particular identities — their race, their tribe and, perhaps most powerfully, their religion. In some places, this fear has led to conflict. At times, it even feels like we are moving backwards. We see it in the Middle East, as the conflict between Arabs and Jews seems to harden. We see it in nations that are torn asunder by tribal lines.

Most dangerously, we see it in the way that religion is used to justify the murder of innocents by those who have distorted and defiled the great religion of Islam, and who attacked my country from Afghanistan. These extremists are not the first to kill in the name of God; the cruelties of the Crusades are amply recorded. But they remind us that no Holy War can ever be a just war. For if you truly believe that you are carrying out divine will, then there is no need for restraint — no need to spare the pregnant mother, or the medic, or even a person of ones own faith. Such a warped view of religion is not just incompatible with the concept of peace, but the purpose of faith — for the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.

Adhering to this law of love has always been the core struggle of human nature. We are fallible. We make mistakes, and fall victim to the temptations of pride, and power, and sometimes evil. Even those of us with the best intentions will at times fail to right the wrongs before us.

Court Rejects Free Exercise Challenge To New Mexico Cock Fighting Ban

In Kizzar v. Richardson, 2009 U.S. Dist. LEXIS 114191 (D NM, Oct. 31, 2009), a New Mexico federal district court dismissed a pro se plaintiff's scatter-shot challenge to New Mexico's 2007 law banning cock fighting. Plaintiff's pleadings were somewhat incoherent as to the exact action that had been taken against him under the new law. One of his numerous challenges was that his free exercise rights were being infringed. He alleged that the statute on cockfighting "states that laws giving animals entitlement to rights, and judging or condemning individuals by the manner of treatment of animals contradicts the Bible, disparaging the Plaintiff's Christian belief, while bolstering the Animal Rights creed." The court held that plaintiff failed to allege how his rights had been violated, nor did he allege that he is no longer free to practice his religion.

Resolution To Protect Sanctity of Christmas Introduced Into House

On Tuesday, South Carolina Congressman Henry E. Brown, Jr. introduced H. Res. 951 which urges protection of the symbols and traditions of Christmas. The operative language reads:

Resolved, That the House of Representatives—
(1) recognizes the importance of the symbols and traditions of Christmas;
(2) strongly disapproves of attempts to ban references to Christmas; and
(3) expresses support for the use of these symbols and traditions by those who celebrate Christmas.

Rep. Brown's press release explaining the resolution says in part:

I am troubled by the growing sentiment that the phrase 'Merry Christmas' is not appropriate and I am worried that attempts to celebrate a 'politically correct' holiday season may cause the loss of some of the traditions sacred to this widely celebrated holiday.

I recognize that there are many religions that celebrate a variety of holidays this month and in accordance with the First Amendment, I believe it is important to preserve the right for everyone to worship as they believe....

We must not forget that the true meaning of Christmas is to celebrate of the birth of Christ and I will continue to work to protect the sanctity of this great holiday.

The Resolution has 17 co-sponsors.

UPDATE: On Dec. 10, Rep. Brown criticized President and Mrs. Obama for sending out White House holiday cards that say "Season's Greetings" and do not specifically mention Christmas. (Fox News.) [Thanks to God and Country blog for the lead.]

9th Circuit Hears Latest Appeal In Mt. Soledad Cross Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments in Jewish War Veterans v. City of San Diego. (Recording of full arguments.) The case is part of the 20-year long series of lawsuits challenging the Mt. Soledad Veterans Memorial in San Diego, California, and the large Cross that is part of the memorial. This latest chapter is an appeal from a federal district court decision that rejected an Establishment Clause challenge, holding that Congress' primary purpose in acquiring the memorial was to preserve the site as a veterans' memorial, not to advance or favor a particular religion. The court went on to hold that maintaining the site with its cross has primarily a patriotic and nationalistic effect, rather than a religious one. (See prior posting.) Reporting on the oral arguments, yesterday's San Diego Union Tribune said that lawyers faced particularly heavy questioning from Judge M. Margaret McKeown.