2nd Circuit: No Right To Be Free of Selective Immigration Law Enforcement

In Turkmen v. Ashcroft, (2d Cir., Dec. 18, 2009), the U.S. 2nd Circuit Court of Appeals rejected claims by seven Arab and Muslim detainees who were in the United States illegally. The now-deported detainees argued that their period of detention before they were removed from the country was illegally prolonged so the government could investigate whether they were tied to terrorism. As reported by New York Law Journal, plaintiffs' counsel contended that the government used religion and ethnicity as a proxy for suspicion of terrorist activity in deciding to prolong plaintiffs' detention. The Second Circuit, however, dismissed plaintiffs' equal protection claims on qualified immunity grounds. It held that "plaintiffs point to no authority clearly establishing an equal protection right to be free of selective enforcement of the immigration laws based on national origin, race, or religion...."

Two Religious Displays On Their Way To Government Property

While a number of governmental units this year are removing religious displays (see prior posting), there is some movement in the opposite direction. Reports from the Oklahoman and AP indicate that last Thursday the Oklahoma Capitol Preservation Committee voted to implement a law passed by the legislature earlier this year (see prior posting) to place a privately funded Ten Commandments monument on the grounds of the State Capitol. It will be placed on an existing raised walkway on the north side of the building. The Commission chairman said he hoped this would start a long-planned development of that area for additional monuments and sculptures. While the 10th Circuit earlier this year struck down a Ten Commandments display on the grounds of an Oklahoma county courthouse (see prior posting), drafters of the state law hope to avoid a similar fate by calling for a monument identical to the one upheld by the U.S. Supreme Court in 2005 in Van Orden v. Perry.

Meanwhile the Luzerne County, Pennsylvania, Commissioners are working to restore a nativity scene and menorah removed last week from the courthouse lawn after a complaint by the ACLU and Americans United. (See prior posting.) A local Wilkes-Barre law firm is contributing $1000 and offering its legal services free of charge to develop a display that meets constitutional standards by also including non-religious elements. According to yesterday's Wilkes-Barre Citizens Voice, an ACLU staff attorney said: "We applaud the county for wanting to comply with the law and we'll see how they do."

Court Refuses To Dismiss Challenge To Graded Released Time Religious Course

In Moss v. Spartanburg County School District No. 7, 2009 U.S. Dist. LEXIS 117744 (D SC, Dec. 17, 2009),a South Carolina federal district court refused to dismiss an Establishment Clause challenge to the released time program for religious instruction that was set up by the Spartanburg County (SC) School District. After finding that parents of school children and the Freedom From Religion Foundation have standing, the court held that plaintiffs had stated a "facially plausible" Establishment Clause claim. Plaintiffs alleged that students attending off-site released time courses get an advantage in competition for state college scholarships and other educational opportunities. Students are given an academic grade for the released time course based on the student's religious status and progress as evaluated by the religious group offering the course. The grades are awarded by a nearby religious high school and then transferred for credit to the student's public high school transcript. This distinguishes the program from the U.S. Supreme Court's decision in Zoraach v. Clauson which upheld a New York released time program. The federal district court however dismissed a second claim by plaintiffs asserting an equal protection violation.

Court OKs Eminent Domain In Cemetery Acquisition for O'Hare Airport Expansion

The Chicago Tribune reports that on Friday, an Illinois state trial court ruled that Chicago can proceed with acquiring by eminent domain the 6.3 acre St. Johannes Cemetery in order to build a new runway at O'Hare Airport. Some 900 known graves will be moved. St. John's United Church of Christ that owns the cemetery says that the beliefs of those buried there call for them to "remain undisturbed until the day of resurrection of Jesus Christ." This is one of the last impediments to beginning construction after a settlement with the village of Bensenville last month. In 2006, the D.C. Circuit rejected a RFRA challenge to the relocation plans. (See prior posting.)

UN General Assembly Passes Defamation of Religion Resolution With Less Support Than Last Year

Today for the fifth year in a row, the United Nations General Assembly passed a non-binding resolution calling for "adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of religions, and incitement to religious hatred in general."It also condemns ethnic and religious profiling of Muslims. Reuters reports that the vote was 80 in favor, 61 against and 42 abstentions. The resolution, sponsored by the Organization of the Islamic Conference, has been widely criticized in Western countries as laying a groundwork for overly broad blasphemy laws. Support for the resolution has been declining each year. This year six fewer nations than last year voted in favor of it. Angela Wu of the Washington-based Becket Fund for Religious Liberty said: "The concept of 'defamation of religions' undermines the foundations of human rights law by protecting ideas instead of people, and empowering states instead of their citizens." (See prior related posting.)

U.S. Muslim Groups Express Increasing Suspicion of FBI Activities

A front-page article in today's New York Times reports on the increasing tensions in the U.S. between the FBI and Muslim organizations. A relationship that had been built beginning in 2001 has unraveled after FBI informers have infiltrated mosques to locate those who may be planning terrorist activity. Many Muslims are increasingly concerned that FBI informers may be everywhere, and are more hesitant to volunteer for Muslim charitable groups. Law enforcement officials are concerned that these suspicions may result in loss of an early-warning system against domestic terrorism that has been created.

Irish Court Upholds Regulation of Sale of Mass Cards

RTE News and IOL News report that a High Court judge in Ireland yesterday upheld the constitutionality of Section 99 of the 2007 Charities Act that bans the sale of any Mass card except pursuant to an arrangement with a bishop of the Church or a provincial of a religious order. (See prior posting.) The challenge was brought by Thomas McNally whose business sold 120,000 Mass cards each year under an agreement with a Polish priest in the West Indies until bishops intervened to withdraw approval. McNally paid the priest 3600 Euros per year to say three masses per month for those for whom the Mass cards were purchased. McNally argued that the Charities Act provision is an unconstitutional infringement of his free exercise of religion protected by Article 44 of Ireland's Constitution, and that it infringed the rights of those buying the cards to profess and practice their religion freely. The court concluded that McNally had not shown that in selling pre-signed Mass cards he was engaged in the profession or practice of his religion. The court also concluded that any favoritism to the Church over McNally's business did not constitute prejudicial discrimination.

Court Upholds Executed Prisoner's Religious Objection To Autopsy

In Nashville on Wednesday, a Davidson County, Tennessee, judge ruled that the state must honor the request of executed prisoner Cecil Johnson that no autopsy be performed on his body. According to yesterday's Tennessean, Chancellor Russell T. Perkins ruled that the state had not presented a compelling reason to reject the strong religious objections to an autopsy that Johnson expressed in a letter to the court before his execution by lethal injection. Johnson's wife promised to waive any right to sue the state over the method of execution if the state would forgo the autopsy.

Latino Elected Officials Using Jesus Poster To Encourage Census Participation

USA Today reported yesterday that the National Association of Latino Elected Officials is leading the drive to encourage Latinos to take part in next year's census through the use of a poster depicting Jesus. This will counter efforts by at least one other Latino group that is encouraging Hispanics to boycott the census to protest Congress' failure to liberalize immigration laws. Thousands of the new posters, most of them in Spanish, are targeted at Latino evangelicals. Rev. Miguel Rivera, chairman of the National Coalition of Latino Clergy and Christian Leaders, however, objects to the posters as "blasphemous" and a violation of separation of church and state. The Commerce Department says the government had no role in creating the posters and did not pay for them. The Leadership Conference on Civil Rights that has its own campaign to encourage everyone to be counted in the 2010 Census likes the posters and will produce versions of them in English, Korean, Creole and Vietnamese.

Several Governments Decide To Concede On Establishment Clause Challenges

In at least three recent cases, governmental bodies have decided to forgo the cost of defending against Establishment Clause challenges. In Lockland, Ohio (suburban Cincinnati) on Monday, officials took down a 10 Commandments sign that has been displayed for several years. Former Mayor Jim Brown paid $1000 of his own funds to put up the plastic replica, but when suit was filed against the village, attorneys advised the current mayor and council that they would not win. In the village, 100 yard signs display the 10 Commandments on private property to support the village's original decision. (Cincinnati Enquirer, 12/17).

In Wilkes-Barre, Pennsylvania, Luzerne County Commissioners took town a creche and a menorah from the courthouse lawn after receiving a letter from the ACLU and Americans United objecting to the display. The the county-owned nativity scene had been displayed for decades, and a menorah was added 20 years ago. The county currently has a budget crisis. (AP, 12/17).

Lake Local School Board (near Canton, Ohio) gave temporary approval (to be made permanent at the Board's January meeting) to change the school district's mission statement. The Board removed from the mission statement a reference to valuing a belief in God, but left in a reference to valuing religious freedom. The changes came after the Freedom from Religion Foundation threatened to sue, and attorney advised that the school district would lose. (Canton Repository, 12/15).

Provisions That Kept Sex Offenders From Attending Church Held Unconstitutional

In State of North Carolina v. Demaio, (NC Super. Ct., Dec. 17, 2009), a Chatham County North Carolina trial court dismissed charges against two registered sex offenders who had been indicted for attending church at a congregation that also had a nursery for children on premises. Authorities claimed that this violated provisions barring registered sex offenders from being within 300 feet of an area intended primarily for the use, care or supervision of children, or on premises where children's programs are regularly scheduled. (NCGS 14-208.18(a)(2) and (3)).

The court held that these provisions impose an unconstitutionally broad infringement on associational rights. It concluded further that "there are a host of protected religious activities abridged by this statute which do not serve the compelling governmental interest." The court also decided that the provisions are unconstitutionally vague. Authorities could not agree on whether they barred a registered sex offender from being on the premises of a church when no children were actually present in the church. It was also unclear how the area from which the offender was banned was to be calculated. WRAL News reports on the decision. (See prior related posting.)

Mosque Sues To Challenge Rezoning Denial

Suburban Atlanta (GA) Dar-e Abbas Islamic center yesterday filed suit to challenge Lilburn, Georgia's denial of its request for rezoning of a tract of land and for a special use permit to build a mosque, gymnasium and related cemetery. The complaint (full text) in A.G.A. Islamic Organization, Inc. v. City of Lilburn, Georgia, (ND GA, filed 12/17/2009), points out that Shia Islam calls for the ability to bury the dead near their mosque and facing northeast, a requirement that is difficult to meet in many existing cemeteries. The lawsuit claims that a 5-acre requirement for houses of worship treats religious assemblies on less than equal terms in violation of RLUIPA and of the First Amendment. It also claims violation of various provisions of the Georgia state constitution. Yesterday's Atlanta Journal Constitution reports on the case.

6th Circuit Denies En Banc Rehearing In Faith-Based Funding Case

The Louisville (KY) Courier-Journal reports that the U.S. 6th Circuit Court of Appeals on Wednesday denied an en banc rehearing in Pedreira v. Kentucky Baptist Homes For Children, Inc. In August, a 3-judge panel of the 6th Circuit held that plaintiffs have standing as state taxpayers to maintain an Establishment Clause challenge to the $100 million of state funds paid to KBHC to care for children. (See prior posting.) KBHC says it plans to appeal to the U.S. Supreme Court. A KBHC spokesman added: "The ironic thing about this kind of taxpayer suit is that if the plaintiff prevailed in barring faith-based providers from providing these services, where the funding is subsidized by private donations, it would end up costing the taxpayers more."

Commentary: My Initial Reactions To the British Decision in the JFS Case

While I usually refrain from personal commentary on developments, what follows is my initial analysis of yesterday's JFS decision in Britian (--HMF):

Yesterday Britain's new Supreme Court issued a ruling on racial and religious discrimination (see prior posting) whose lessons are broader than so far has generally been suggested. The case involved JFS, a government-funded Jewish school which under British law, as a faith school, is allowed to favor members of the sponsor religion in admissions (but is barred from discriminating on racial grounds).

The nine justices, immersed in a framework in which "religion" is marked by issues of belief and practice, were in a sense bewildered by Jewish religious law that in effect insists that to be Jewish, one must be a member of the Jewish people, either by birth (one's mother was Jewish) or by choice. British law had no good pigeonhole into which to fit this notion of peoplehood. The best it could do was to treat it as "ethnicity," which for purposes of British law meant that a "racial" classification was involved. The Court found it simpler to reach that conclusion because of a 1983 House of Lords decision, Mandla v. Dowell Lee, which created a broad definition of ethnicity to protect a Sikh student who wished to enroll in a non-religious private school, but wanted a waiver of the uniform requirement so he could wear his religiously mandated turban.

At the core of the JFS litigation was a dispute within the Jewish community between Orthodox Jews and Jews who belong to one of the more "liberal" branches of Judaism-- Conservative and Reform in the U.S. (Masorti, Liberal and Reform in Britain). Orthodox rabbis refuse to recognize conversions performed by rabbis from other movements. JFS stuck to the Orthodox position on this issue, and aggrieved parents who felt they were also Jewish went to the civil courts. The Court's decision requires Jewish schools to move to criteria of belief and practice to determine who is Jewish. What happens when a child from a Messianic Jewish family applies for admission? Will the courts again find themselves in the unenviable position of having to decide whether Messianics, who are considered non-Jewish by all streams of conventional Judaism, are Jews because they consider their beliefs to be Jewish? What about members of Humanistic Jewish synagogues who are Jewish by criteria of matrilineal descent, but whose beliefs focus on Jewish identity and culture, not on belief in God?

Second, this decision forces us again to consider what is meant by "race" and "religion." At least in the U.S., we are hesitant to treat race as a biological notion in reaction to our own historical anti-miscegination laws and racial criteria created in Nazi Germany. Instead, contemporary Americans treat race more as a cultural construct. The British courts were faced with a definition of Jewish identity that was at least largely biological. The majority of the Justices seemed unable to conclude that biological criteria could be anything other than racial.

Washington University Creates New Center on Religion & Politics

Washington University (St. Louis) yesterday announced the establishment of the John C. Danforth Center on Religion & Politics. The Center is funded by a $30 million endowment gift from the Danforth Foundation. John C. Danforth served as U.S. Senator from Missouri for 18 years. Speaking at the National Press Club yesterday, University Chancellor Mark S. Wrighton said that the new Center "will serve as an ideologically neutral place that will foster rigorous, unbiased scholarship and encourage conversations between diverse and even conflicting points of view." He said the Center will serve as abridge between the religious and political communities. A link to the Center's website has been added to the Religion Clause sidebar listings of Academic Centers.

Arizona County Jails Will Continue All-Day Christmas Music

According to a report yesterday from UPI, Maricopa County, Arizona, Sheriff Joe Arpaio will once again this year have Christmas and holiday tunes played all day long at all of the county's jails. Six lawsuits have been filed by prisoners who object to the music, alleging forced religious participation and cruel and unusual punishment. Four of the six cases have already been dismissed. The sheriff says he expects the other two to also be dismissed, though at least one survived a motion to dismiss in October. (See prior posting.) According to the facts in that case, the sheriff played "multicultural" holiday music ten hours per day. However the music was not piped into inmate's cells, so they could avoid it by remaining in their cells. Arpaio last year explained his policy: "People everywhere deserve a little Christmas cheer. Especially those incarcerated during the holiday season."

Pew Forum Issues New Study On Religious Restrictions Around the World

Pew Forum on Religion & Public Lifeyestereday released a 72-page report titled Global Restriction on Religion. It finds that 64 nations have high or very high restrictions on religion, affecting nearly 70% of the world's population. The report tracks both official government policies and hostile acts from private individuals, organizations and social groups. Actions by local officials were considered restrictions even if they were contrary to national policy, as long as national officials did not contravene them. The study finds that 75 countries limit proselytization, and 117 require religious groups to register with the government. Christianity Today also reports on the Pew findings.

Court Upholds Application of Clergy-Penitent Privilege For Confession To LDS Bishop

In State of Arizona v. Archibeque, (AZ Ct. App., Dec. 15, 2009), an Arizona appellate court held that the clergy-penitent privilege applies to a confession made by defendant, a member of the Church of Jesus Christ of Latter Day Saints, to his Bishop. It also held that the presence of defendant's wife during the confession, and his disclosures to her regarding his sexually touching his stepdaughter made prior to his confession, did not waive the privilege. The court held that the confession met the privilege requirements set out in A.R.S. § 13-4062(3). The title of "Bishop" is officially bestowed and recognized by the LDS Church. The confession was made in furtherance of the Church's repentance process, as part of the Bishop's official duties.

Religious Tolerance Is Dramatically Improved At Air Force Academy

An AP report yesterday says that religious tolerance has dramatically improved at the U.S. Air Force Academy. After extensive complaints, and even a lawsuit, charging Christian proselytizing of cadets, Academy superintendent, Air Force Lt. Gen. Michael Gould, says there has been a top down campaign to insure respect for beliefs of all cadets and a proactive attempt to accommodate all religions, as well as nonbelievers. A Cadet Interfaith Council meets regularly with chaplains to discuss issues. Even long-time critic Mikey Weinstein has praise for the new atmosphere at the Academy, saying that Gen Gould so far "has fixed everything." (See prior related posting.)

School Excuses Atheist Student From Reading Bible As Literature

Newton, Massachusetts school officials have decided that 15-year old high school student Jack Summers will be excused from reading parts of the Bible that were assigned in a sophomore literature course that includes Dickens' A Tale of Two Cities, Antigone and works by Shakespeare. While no one seems to suggest that the use of excerpts from the Bible in the course to teach students about Western cultural traditions and literary allusions poses any church-state problem, Summers refused to read the handouts and failed two quizzes on them. According to yesterday's Wicked Local Newton, at that point, after first suggesting that Summers read summarized versions of the assignment from the Bible, the school's principal and teachers relented, dropped the student's failing quiz scores and said Summers could complete a final project that did not use the Bible. The student who is an atheist says he is not opposed to learning about world religions outside of school, but says he does not want to read what people believe to be the true word of God. [Thanks to Scott Mange for the lead.]