Catholic Church Says Historic Designation of Building Infringes Its Rights

The Roman Catholic Diocese of Springfield, Massachusetts says that its First Amendment rights are threatened by the city's move to declare Our Lady of Hope Church an historic district. The Springfield Republican reports today that a final vote on the proposal, already approved by the Historical Commission and by a preliminary vote in City Council, is scheduled for Tuesday. The Italian Renaissance style church will close Dec. 31, as the parish is being merged. However some members petitioned for the historic designation to save the distinctive building erected by Irish immigrants in 1925. The diocese says the designation will make it more difficult to sell or redevelop the building, and questions whether one building alone can be declared an historic district. If the designation is approved, no changes to the exterior of the building could be made without Historical Commission approval.

Recent Prisoner Free Exercise Cases

In In re Taylor, (Cal. 1st App., Dec. 21, 2009), a California state appellate court held that RLUIPA claims may be brought in state court, and that a habeas proceeding may be used to raise the claim. On the merits, however, the court rejected an inmate's claim that prison rules limiting him to purchasing no more than 4 ounces of religious oils each three months imposed a substantial burden on his free exercise of religion. Any burden is also justified by the state's compelling interest in safe management of its maximum security prisons.

In Oliverez v. Albitre, 2009 U.S. Dist. LEXIS 118555 (ED CA, Dec. 2, 2009), a California federal magistrate judge allowed an inmate to move ahead with his free exercise claim that the prison's
Native American Spiritual Leader failed to provide him with the prayer oil he ordered.

No "Necessity" Defense In Trial of Accused Killer of Abortion Doctor

On Tuesday, a state trial court judge in Wichita, Kansas, held that Scott Roeder, the accused murderer of abortion doctor George Tiller, will not be permitted to assert the defense of "necessity" at his trial that will begin next month. Yesterday's Christian Post reported that the judge said while he might permit Roeder to argue that he believed he was saving the lives of fetuses, he will not permit Roeder to assert the defense that he broke the law to prevent a greater harm.

Court Rejects Free Exercise Defense To Bald Eagle Act Prosecution

In United States v. Bertucci, 2009 U.S. Dist. LEXIS 119228 (D NE, Dec. 22, 2009), a Nebraska federal district court accepted the recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 119230, Nov. 25, 2009) and denied a motion to dismiss charges under the Bald and Golden Eagle Protection Act that had been brought against defendant. Defendant, a member of the Omaha Tribe and the Native American Church, claimed that the charges violated his free exercise rights under the Religious Freedom Restoration Act. Without a permit, he killed two bald eagles to use in a feathering ceremony for his children that he wished to conduct while his grandfather was still alive. Eagle parts are available to members of recognized tribes from the National Eagle Repository. The court held:

[T]he repository and permit processes, while arguably inconvenient, do not impose a substantial burden on the defendant's right to practice his religion. The evidence established that a tribal member would have to wait ninety days to six months for delivery of feathers from the repository. This moderate delay does not deny the defendant a reasonable opportunity to practice his religion. Alternatively, the court finds that even if the Eagle Protection Act imposed a substantial burden, the government has met its burden to show that the repository and permit process are the least restrictive means to further the government's compelling interest in protecting and preserving the bald eagle population.

Catholic Hospitals Group Differs With Bishops On Senate Health Insurance Language

The New York Times reported yesterday that a Dec. 17 statement (full text) by the Catholic Health Association, which represents hundreds of Catholic hospitals across the country, apparently signals a split with the U.S. Conference of Catholic Bishops on the abortion language in the U.S. Senate's version of the health reform bill. (See prior posting.) The statement, issued before the final language of the bill was released, said that the hospital group was "increasingly confident that Senator Casey's language can achieve the objective of no federal funding for abortion." Scholars say the difference reflects differing views on whether "remote cooperation" was permissible in order to achieve a moral imperative of health insurance for millions of more Americans.

UPDATE: Catholic Health Association has told CNS 12/28 that the New York Times is wrong. There is not a split between CHS and the Bishops.

Federal Court Enjoins Illinois Hike In Fees For Lobbyists, Partly on Establishment Clause Grounds

In American Civil Liberties Union of Illinois v. White, 2009 U.S. Dist. LEXIS 119476 (ND IL, Dec. 23, 2009), an Illinois federal district court issued a temporary restraining order and preliminary injunction against enforcement of Illinois amended Lobbyist Registration Act. At issue were large increases in registration fees that were scheduled to go into effect January 1. ACLU alleged 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. It also claimed that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination as well as a violation of the Establishment Clause. (See prior posting.) Finding that the federal Tax Injunction Act does not divest the court of jurisdiction over the suit, the court held that the ACLU had demonstrated a reasonable likelihood of success on the merits:

[T]he ACLU has proffered figures derived from public records showing that the LRF has run an approximately $ 100,000 surplus for the last two fiscal years, during which the Secretary collected lobbyist registration fees one-third as large as the fees authorized in the Amended Act. .... These surpluses suggest that the Secretary may be unable to show that the three-fold increase in the lobbyist registration fee adequately relates to the costs of administering the Amended Act....

Moreover, on its face the statute appears to privilege religious over non-religious speech. The ACLU is therefore also likely to prevail on its claim that the Amended Act's exemptions for religious organizations and the newsmedia impermissibly discriminate against the ACLU based on the content of its speech. Indeed, by only exempting religious speakers who are "full-time employees of a religious organization" and who speak to the legislature about "protecting the right of the members [of that organization] to practice the religious doctrines of that church or religious organization" the statute also requires another content-based determination focused on religious speech.....

The ACLU's likelihood of success on its establishment clause challenge is equally plain..... On its face the content based determinations discussed above require the state to set the boundaries of a religious organization's exempt advocacy by inquiring into what the doctrines of a church or religious organization are and how the lobbying activities promote them. Requiring such an examination is likely to violate the establishment clause by fostering excessive government entanglement in religion....

Queen Elizabeth Delivers Christmas Speech

Britain Queen Elizabeth II's 2009 Christmas Speech was broadcast today (full text). In it, she focused on the entire Commonwealth. She said in part:

Each year that passes seems to have its own character. Some leave us with a feeling of satisfaction, others are best forgotten. 2009 was a difficult year for many, in particular those facing the continuing effects of the economic downturn....

It is 60 years since the Commonwealth was created and today, with more than a billion of its members under the age of 25, the organisation remains a strong and practical force for good....

We know that Christmas is a time for celebration and family reunions; but it is also a time to reflect on what confronts those less fortunate than ourselves, at home and throughout the world. Christians are taught to love their neighbours, having compassion and concern, and being ready to undertake charity and voluntary work to ease the burden of deprivation and disadvantage. We may ourselves be confronted by a bewildering array of difficulties and challenges, but we must never cease to work for a better future for ourselves and for others.

The London Telegraph's coverage of the speech links to a video of it.

President Obama and First Lady Send Christmas Greetings

In a joint remarks released yesterday (full text), President Obama was joined by First Lady Michelle Obama to offer Christmas wishes to families across the country. Much of the address (billed as the President's Weekly Address) was directed to the American military and their families, offering thanks and support to them. The President reminded all Americans that:

even in these tough times, there's still so much to celebrate this Christmas. A message of peace and brotherhood that continues to inspire more than 2,000 after Jesus' birth. The love of family and friends. The bonds of community and country. And the character and courage of our men and women in uniform who are far from home for the holidays, away from their families, risking their lives to protect ours.

Final Defendants Sentenced In Tax Fraud Scheme By Hasidic Rabbi

According to a press release issued Monday by the U.S. Attorney's Office in Los Angeles, a California federal district judge has sentenced Grand Rabbi Naftali Tzi Weisz, the Brooklyn, New York, Grand Rabbi of Spinka, to two years in prison for orchestrating a money-laundering tax evasion scheme. Weisz plead guilty last summer to a criminal conspiracy charge (see prior posting), admitting to a scheme in which several of his charitable organizations solicited donations with secret promises to refund large percentages of the donations back to donors who deducted the entire amounts on their tax returns. A pre-sentence report concluded that this practice among certain Hasidic sects has resulted in hundreds of millions of dollars of unreported income. The final defendant in the case, Yaacov Zeivald, was sentenced to 4 months in prison for his part in the fraud. Five others have already been convicted and sentenced in the scheme.

Appeals Court Affirms Conviction of Street Preacher For Disorderly Conduct

In Commonwealth v. Marcavage, (MA App., Dec. 23, 2009), a Massachusetts Appeals Court upheld the conviction of a street evangelist who was arrested on Halloween night, 2007, in the city of Salem and charged with disorderly conduct under M.G.L., Ch. 272, S.53. Michael Marcavage, director of a proselytizing group, visits Salem every Halloween to preach to the crowds that gather there to celebrate. Many in the crowd complained about Marcavage waving a Bible too close to them. Eventually a police officer ordered Marcavage to stop using a megaphone. He resisted confiscation of the megaphone, argued, and then went limp. He fell into a fountain, bringing police officers to the ground with him. He was then arrested. The court affirmed his conviction, finding that his conduct amounted to "tumultuous behavior". It said: "we find nothing in the record to support the inference that the decision to curtail the defendant's use of the megaphone was in any way connected with the content of his speech."

Orthodox Jewish Medics Say Volunteer Fire Company Refused Accommodation

According to yesterday's Baltimore Sun, three medics who are Orthodox Jew, have filed complaints with the Maryland Commission on Human Relations and the U.S. EEOC, complaining that the Pikesville Volunteer Fire Co. has been unwilling to permit them to ride on emergency calls. The fire company says that the men's religiously mandated (but short-trimmed) beards might interfere with breathing masks that the Pikesville department was considering buying for its medic corps. However, according to one of the medics, Matthias Goldstein, medics have never been required to wear the masks. The three men say that the real reason for the refusal is Pikesville Volunteer Fire Company's resentment over their involvement with Hatzalah-- a competing volunteer rescue organization organized by Orthodox Jews in neighboring Northwest Baltimore. There have been conflicts between the two groups when Hatazalah responds to a call near or over the county line. A Pikesville spokesman denies the charge, and says this is purely a safety issue.

11th Circuit Hears Oral Arguments In Challenge To Park Rules Limiting Feeding the Poor

Last Thursday, the U.S. 11th Circuit Court of Appeals heard oral argument in First Vagabonds Church of God v. City of Orlando. In the case, a Florida federal district court found that Orlando's Large Group Feeding Ordinance violates the speech rights of an activist group that feeds the poor and infringes the free exercise rights of a church that holds Sunday services, including the sharing of food, in a downtown city park. The Ordinance requires a permit to feed more than 25 people in any downtown park, and limits a group to two permits per park in a 12 month period. (See prior posting.) According to the Fulton County Daily Report, at last Thursday's oral argument, two of the judges on the panel expressed some skepticism over the district court's holding. However Judge Rosemary Barkett sharply questioned the city's lawyers, asking whether the food distribution actually put a burden on the parks.

2nd Circuit: World Trade Center Recovery Did Not Violate Free Exercise Rights

In World Trade Center Families for Proper Burial, Inc. v. City of New York, (2d Cir., Dec. 23, 2009), the U.S. 2nd Circuit Court of Appeals rejected an attempt by families of 9/11 victims to force New York City to reclaim the finely-sifted residue of the World Trade Center debris now at the City's Fresh Kills landfill in Staten Island and move it to a more suitable location, and to create a cemetery for the 1,100 who perished without identifiable remains. They argue that the sifted residue itself has become hallowed.

One of the claims put forward by plaintiffs was that the City's recovery efforts violated their right to the free exercise of religion. The court rejected the claim, concluding that the City's efforts did not target religious beliefs and that the City had a compelling interest in clearing the World Trade Center debris efficiently and economically. The court also rejected plaintiffs' due process claims, holding that they have no property interest in unidentifiable human remains, and that their dissatisfaction with the way the city handled recovery efforts did not rise to the level of a constitutional violation. The court concluded:

On a human level, plaintiffs' claims are among the most compelling we have ever been called on to consider. They have endured unimaginable anguish, and they seek nothing more than the knowledge that their loved ones lie in rest at a place of their choosing. We regret that we cannot bring them solace...

The decision was handed down only a week after the court heard oral arguments in the case. The New York Times reported on the arguments.

Police Protect Atheist Sign In Illinois Capitol

Next to the Christmas tree and near a nativity scene in the Illinois State Capitol Building, the Freedom From Religion Foundation has placed a sign reading:

At the time of the winter solstice, let reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is just myth and superstition that hardens hearts and enslaves minds.

CBS News reports that William J. Kelly, a conservative activist and candidate for state comptroller, yesterday attempted to take down the sign, but was briefly detained and told to leave the building by Capitol police (who wrote up an incident report) when he turned the sign around so that it was face down. Kelly says the sign constitutes "hate speech" and mocks religion. He says that anyone going to look at the Christmas tree would be confronted by the sign because of its placement. Capitol police say it is their duty to protect any property in the Capitol building. [Thanks to Scott Mange for the lead.]

Rifqa Bary Case Moves Ahead As Her Lawyers Wait For Her To Turn 18

There have been new developments in the case of Rifqa Bary, the Ohio teenager who fled from her parents' home to a pastor in Florida, saying she feared her father would kill her because she had converted from Islam to Christianity. The 17-year old girl is now in foster care in Ohio. The Christian Science Monitor reports that an Ohio judge has approved a recommendation by an Ohio Children's Services Board caseworker (see prior posting) that calls for Rifqa and her family to discuss their views of religion with each other as a first step toward reunification. However the judge did not order the girl and her parents to meet face-to-face. Rifqa's lawyers want her to remain in foster care until she turns 18 and is legally entitled to make her own decisions. On Tuesday, the parents' lawyer also withdrew a motion they had filed seeking to have Christmas cards that were being sent to Rifqa screened by social workers. (See prior posting.)

Airline Settles With EEOC Over Failure To Grant Religious Accommodation

Yesterday's Twin Cities Pioneer Press reports that Mesaba Airlines (a subsidiary of Delta) has settled a religious discrimination lawsuit brought by the EEOC. A federal district court judge in Milwaukee on Tuesday approved a $130,000 settlement in the suit brought on behalf of five individuals who were refused accommodations of their religious beliefs. The consent decree will also require monitoring and training. The suit was initially filed on behalf of former customer-service agent Laura Vallejos was fired when she refused to work on the Jewish Sabbath. Subsequently the EEOC identified four Christians who were refused customer service jobs because they wanted time off to attend Sunday church services. Mesaba has since dropped its "no shift swap" policy and also no longer employs customer service agents.

County Reverses Order On Removing Stars and Angels From Christmas Trees

Bowing to a storm of criticism from around the world, Acting Sonoma County (California) Administrator Chris Thomas yesterday rescinded his request that stars and angels be removed from Christmas trees in county buildings. (See prior posting.) The original ban was put in place after a complaint by an activist who has a long history of opposing government use of religious symbols. According to yesterday's Santa Rosa (CA) Press Democrat, Administrator Thomas now says that county employees should just use their best judgment as to appropriate decorations in public spaces. Thomas said his original decision was based on concerns that the county would be seen as endorsing a particular religion, but he changed his mind after a conversation with County Supervisor Shirlee Zane convinced him that there were varying opinions on whether that was the case. Meanwhile, Barry Collins, a trial attorney in the Public Defenders Office, had put up a Christmas tree with a star in the lobby of his building to protest Thomas' ban. Collins is Jewish, but says he does not believe the star is a religious symbol. He contends it is symbolic of American tradition, like stars on the American flag. He points out there is a star on the White House Christmas tree. The entire issue will be discussed a a future county supervisors' meeting.

"War on Christmas" Subsides

An interesting article in Canada's National Post yesterday documents the reduced intensity of the this year's "War on Christmas" in the United States:

Because the furor was media-driven in the first place, media mentions seem as good a metric as any. After 2005, Google Trends shows a continuous decline in searches for and mentions of the "war on Christmas." Media mentions of a "war on Christmas" have fallen steadily as well, according to Nexis: There were 431 articles mentioning it as of Dec. 17, 2006; 187 by that time in 2007; 155 in 2008; and 97 in 2009. Even Fox News, the network that pushed the story in the winter of 2005, has essentially stopped talking about it: At this time in 2005, Fox had aired 80 episodes explicitly referring to the "war on Christmas"; in 2006, there were 24; in 2007, 11; in 2008, five; and three so far this year. The departure in 2008 of Fox News host John Gibson, who penned The War on Christmas: How the Liberal Plot To Ban the Sacred Christian Holiday Is Worse Than You Thought, may have had something to do with it.

As a result, some groups dedicated to secularism and the separation of church and state — the anti-Christmas warriors — have gotten fewer invitations to debate the issue on radio and TV.

Baghdad Conference Focuses On Future of Iraqi Christians

AINA this week reported on a conference held in Baghdad on Dec. 11-12 to discuss the future of Iraq's Christian community. Attended by over 120 leaders of Christian groups and former and current government officials, the conference made dozens of recommendations, mostly to the government of Iraq, but some to Kurdistan, the UN, the international community and Iraqi Christians themselves. The recommendations (set out in the AINA report) ranged from urging Iraq's federal government to provide greater security for Christians and other minorities to urging Christian satellite channels to refrain from programming that encourages Christians to leave for Western countries.

Defendant Gets Light Sentence From Tribal Court For Bald Eagle Act Violation

As previously reported, the long-running prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, charged with killing a bald eagle so he could use it in his tribe's Sun Dance, was transferred to a tribal court. In the case, the 10th Circuit rejected Friday's challenge to the Bald and Golden Eagle Protection Act, and the Supreme Court denied cert. AP reports that yesterday Winslow Friday pleaded guilty in a Shoshone and Arapaho Tribal Court on the Wind River Indian Reservation in Wyoming. He was fined $2500 and his hunting privileges on the reservation were suspended for a year. In federal court, Friday faced a possible sentence of a year in jail and a $100,000 fine. Those charges will now be dismissed.