Some Recent and Forthcoming Books of Interest

Here are some recent and forthcoming books of interest:

• Thomas David DuBois, Religion and the Making of Modern East Asia, (Cambridge Univ. Press, April 2011).
• Robert Kimball Shinkoskey, Do My Prophets No Harm-- Revelation and Religious Liberty in the Bible, (Wipf and Stock, March 2011)
• John D. Wilsey, One Nation Under God, (Pickwick Publications, June 2011).
• Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience, (Harvard University Press, Sept. 2011).
• Thomas Albert Howard, God and the Atlantic: America, Europe, and the Religious Divide, (Oxford Univ. Press, March 2011).
• David Sorkin, The Religious Enlightenment: Protestants, Jews, and Catholics from London to Vienna, (Princeton Univ. Press, May 2011).
• Paul Rasor and Richard E. Bond (eds.), From Jamestown to Jefferson: The Evolution of Religious Freedom in Virginia, (Univ. of Virginia Press, April 2011).
• Elaine R. Thomas, Immigration, Islam, and the Politics of Belonging in France: A Comparative Framework, (Penn Press, Oct. 2011).

Many Churches Miss IRS Filing Deadline For Health Care Tax Credit

According to BNA's (May 20) Daily Report for Executives, thousands of churches with fewer than 25 full-time-equivalent employees missed the May 15 filing deadline to claim a 25% tax credit for health insurance premiums paid to their clergy and staff in 2010. Also to qualify, the average 2010 wages paid per full-time equivalent employee must have been less than $50,000.  Reporting on findings by the Evangelical Council for Financial Responsibility, the report says that the credit-- for both small businesses and small non-profits-- was part of last year's health care reform bill, the Patient Protection and Affordable Care Act. (Information from IRS). Churches operating on a later-than-year-end fiscal year for tax purposes still have time to claim the credit for 2010, and all small churches can claim the credit for 2011 by filing IRS Form 8941 and Form 990-T on a timely basis.

Obama Issues 2011 Memorial Day Proclamation Calling for Prayer for Peace

Last week, President Obama issued this year's Memorial Day Proclamation (full text) titled "Prayer for Peace, Memorial Day, 2011."  Pointing out that: "On this Memorial Day, we honor the generations of Americans who have fought and died to defend our freedom," the Proclamation designates today "as a day of prayer for permanent peace." It specifies 11:00 a.m. local time as "a period ... when the people of the United States might unite in prayer." The Proclamation also asks Americans to observe the National Moment of Remembrance at 3:00 p.m. local time today. The annual Proclamation is called for by federal law, 36 USC 116.

Malta Voters Approve Legalizing Divorce

The official results of yesterday's referendum in Malta on legalizing divorce show that the proposal was approved by a 52.67% majority. The Catholic Church in the 95% Catholic country had been urging a "no" vote. (See prior posting.) DI-VE reports that in a conciliatory statement Sunday, Maltese bishops said:

To those who had an active role on both sides, we would like to show you our sorrow if anyone felt hurt by any word or action from members of the Church, as much as we ascertain our unconditional forgiveness for all those we feel have hurt us. ...

We vow to engage in deep reflection to see how we can improve our work, so that the Christian family can truly be a strong force of love and stability in the centre of the Church’s life in our society.

According to the London Guardian, the vote was advisory, and it is now up to Malta's Parliament to enact a divorce law.  If it does, the Philippines will be left as the only country in the world where divorce is not permitted.  [Thanks to Pew Sitter for the lead.]

Orthodox Rabbis Suggest Rabbinical Consultation Before Sexual Abuse Is Reported To Police

The Forward last week reported on the May 15  "Halacha Conference for Professionals" sponsored by Agudath Israel of America held in Brooklyn (NY).  Agudath reflects the views of strictly Orthodox Jews.  Part of the conference focused on a recent ruling by a leading rabbinic authority, Rabbi Shalom Elyashiv, that Jews who have reasonable suspicion that a case of sexual abuse has taken place may go directly to secular law enforcement authorities, notwithstanding the usual requirement of Jewish law that disputes be taken to rabbinic courts. Appearing on a panel at the Brooklyn conference, Rabbi Shlomo Gottesman said that Elyashiv's ruling requires "reasonable suspicion", and that a rabbi with experience in these issues should be consulted as to whether this standard has been met before civil authorities are notified. Another panel member said that even teachers, social workers and other professionals who are mandated by state law to promptly report suspected cases of sexual abuse should first consult a rabbi. However, an Ocean County, New Jersey prosecutor whose jurisdiction includes a large Orthodox Jewish community said that this advice may violate New Jersey law.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Smith in Theory and Practice, (Cardozo Law Review, Vol. 32, No. 2055, 2011).
• Steven Aiello, Findings on Religious Freedom in Egypt, (December 21, 2010).
• Bernard M. Levinson and Joshua A. Berman, The King James Bible at 400: Scripture, Statecraft, and the American Founding, (The History Channel Magazine, pp. 1-11, November 2010).
• John M. Finnis, Religion and Public Reasons: Introduction, (John M. Finnis, Religion and Pulbic Reasons: Collected Essays, Vol. V, Oxford University Press, 2011).
• Yossi Nehushtan, The Links between Religion and Intolerance, (Philosophy and Theology, Vol. 23, No. 1, pp. 91-132, 2011).
• Christopher J. Eberle, Religion, Respect, and War: A Critical Examination of the Standard View on Religion and Coercion, (November 4, 2010).
• Yishai Blank, The Reenchantment of Law, (Cornell Law Review, Vol. 96, p. 633, 2011).
• Richard L. Cupp, Seeking Redemption for Torts Law – A Review of ‘Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse’ by Timothy D. Lytton (Harvard University Press 2008), (Journal of Law and Religion, Vol. 27, 2011).

From SmartCILP and elsewhere:

• Jana R. McCreary, Tell Me No Secrets: Sharing, Discipline, and the Clash of Ecclesiastical Abstention and Psychotherapeutic Confidentiality, 29 Quinnipiac Law Review 77-122 (2011).
• Mark Strasser, Public Policy, Same-Sex Marriage, and Exemptions for Matters of Conscience, [Abstract], 12 Florida Coastal Law Journal 135-161 (2010).
• Leonard A. Leo, Felice D. Gaer and Elizabeth K. Cassidy, Protecting Religions from “Defamation”: A Threat to Universal Human Rights Standards, 34 Harvard Journal of Law and Public Policy 769 (2011).

Some Christian Colleges Are Concerned About New Federal Regulations Taking Effect In July

The World Journalism Institute Times Observer reported Friday that private Christian colleges are concerned about new federal regulations that take effect July 1, 2011 that define institutions that qualify to participate in various federal student financial aid programs. Some of the other provisions affecting eligible institutions take effect July 1, 2012. (Full text of DOE Oct. 2010 Release adopting new rules.) The new 34 CFR Sec. 600.9 that takes effect this July to define when an institution is legally authorized by a state, and thus meets one of the eligibility requirements, provides:

(a)(1) An institution ... is legally authorized by a State if the State has a process to review and appropriately act on complaints concerning the institution... and the institution meets the provisions of paragraphs (a)(1)(i), (a)(1)(ii), or (b) of this section.

(i)(A) The institution is established by name as an educational institution by a State ... and is authorized to operate educational programs beyond secondary education....
   (B) The institution complies with any applicable state approval or licensure requirements, except that the state may exempt the institution ... based on the institution’s accreditation ... or based upon the institution being in operation for at least 20 years.

(ii) If an institution is established by a State on the basis of an authorization to conduct business in the State or to operate as a nonprofit charitable organization, but not established by name as an educational institution ...under paragraph (a)(1)(i) of this section, the institution—
   (A) By name, must be approved or licensed by the State to offer programs beyond secondary education...; and
   (B) May not be exempt from the State’s approval or licensure requirements based on accreditation, years in operation, or other comparable exemption....

(b)(1) Notwithstanding paragraph (a)(1)(i) and (ii) of this section, an institution is considered to be legally authorized to operate educational programs beyond secondary education if it is exempt from State authorization as a religious institution under the State constitution or by State law.
   (2) For purposes of paragraph (b)(1) ..., a religious institution is an institution that—
        (i) Is owned, controlled, operated, and maintained by a religious organization lawfully operating as a nonprofit religious corporation; and
        (ii) Awards only religious degrees or certificates including, but not limited to, a certificate of Talmudic studies, an associate of Biblical studies, a bachelor of religious studies, a master of divinity, or a doctor of divinity.

(c) If an institution is offering postsecondary education through distance or correspondence education to students in a State in which it is not physically located or in which it is otherwise subject to State jurisdiction as determined by the State, the institution must meet any State requirements for it to be legally offering postsecondary distance or correspondence education in that State....  

Apparently the provisions requiring destination state approval in order to offer distance learning courses are a particular concern to some Christian colleges. Also of concern to some schools is the definition of "credit hour" in 34 CFR 600.2. It is defined as one hour of classroom instruction and two hours of out-of-class work by students for 15 weeks (with certain exceptions)

Recent Prisoner Free Exercise Cases

In Lawson v. Secretary, Florida Department of Corrections, (11th Cir., May 25, 2011), the 11th Circuit upheld a district court's dismissal of a claim by a prisoner that he was denied access to kosher meals and to Jewish religious services and observance of Jewish holidays. The district court concluded that plaintiff's beliefs were not sincere.

In McGeachy v. Aviles, 2011 U.S. Dist. LEXIS 53647 (D NJ, May 18, 2011), a New Jersey federal district court dismissed without prejudice complaints by 29 pre-trial detainees that the Hudson County Correctional Center that there are no Muslim worship services or classes, Protestant services are only conducted in Spanish, and there is no access to Jewish or Catholic services in one cell block. The dismissal was based on failure to pay the required filing fee.

In Polk v. Patterson, 2011 U.S. Dist. LEXIS 53868 (D UT, May 17, 2011), a Utah federal district court rejected constitutional challenges by an inmate who was an adherent of Odinism. He claimed that he was denied various items needed for the practice of his religion, including a copy of the Edda, a Thorshammer Medallion, wood runes, bowl, meditation drum and oath ring.

In Hunter v. Director of Corrections, 2011 U.S. Dist. LEXIS 53943 (ED CA, May 18, 2011), a California federal magistrate judge dismissed with leave to amend an inmate's claim that correctional officers denied him access to religious services in retaliation for his filing an unrelated administrative complaint. The handwritten complaint was largely illegible, and also reflects mainly opinion instead of factual allegations.

In Williams v. Montileon, 2011 U.S. Dist. LEXIS 54768 (D NJ, May 20, 2011), a New Jersey federal district court dismissed with leave to amend an inmate's claim that he was denied religious services and a religious diet.

In Patterson v. Bradford, 2011 U.S. Dist. LEXIS 54412 (D NJ, May 19, 2011), a New Jersey federal district court dismissed, without prejudice, an inmate's claims that his rights under the 1st, 14th and 8th amendments as well as RLUIPA were violated when the coordinator of the prison's NuWay Program made mocking remarks about Islam and mimicked an Arabic prayer. It also dismissed claims that supervisors failed to supervise the program coordinator.

In Emmingham v. Seltzer, 2011 U.S. Dist. LEXIS 54448 (D OR, May 19, 2011), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 54438, Jan. 18, 2011) and dismissed an inmate's claim that prison authorities and a former roommate to whom the inmate sent threatening mail violated plaintiff's rights when a prison official restricted his outgoing mail. He claimed in part that the restriction was imposed because he is a practitioner of Buddhism.

In Clark v. Small, 2011 U.S. Dist. LEXIS 54931 (SD CA, May 23, 2011), a California federal district court rejected a Muslim inmate's challenge to a lock down that occurred during two weeks of Ramadan in 2008 after a large scale disturbance and a riot among inmates. The lock down prevented plaintiff from assembling with others in the chapel to pray, study and break the fast as a group.

In McReaken v. Schriro, 2011 U.S. Dist. LEXIS 55560 (D AZ, May 23, 2011), an Arizona federal district court rejected a complaint by a Wiccan inmate that a prison order treats Native American Sweat Lodge ceremonies more favorably than outdoor ceremonies by other religious groups by barring interruption of Sweat Lodge ceremonies except for security concerns.

Cert. Denied In Corporation Sole's Challenge To FTC Regulation

Last week, the U.S. Supreme Court denied certiorari in Daniel Chapter One v. FTC, (Docket No. 10-1292, cert. denied 5/23/2011) (Order List.) In the case, the D.C. Circuit Court of Appeals held that an organization's formal legal status as a religious corporation sole does not prevent the Federal Trade Commission from regulating its advertisements for dietary supplements. The organization actually operated as a for-profit. The Circuit Court also rejected the argument that the FTC violated the Establishment Clause by using "scientism" as the basis for its requirements. (See prior posting.)

Algerian Christian Sentenced To 5 Years For Blasphemy

International Christian Concern reports that last Wednesday the Criminal Court in Algeria's Djamel District sentenced an Algerian Christian, Siagh Krimo, to five years in prison for violating Art. 144 bis 2 of Algeria's Penal Code. That section prohibits acts that "insult the prophet and any of the messengers of God, or denigrate the creed and precepts of Islam...." Krimo's neighbor, who did not appear as a witness, accused Krimo of Christian proselytizing and of making defamatory statements against the Prophet Muhammad. Krimo holds weekly prayer servies at his home which apparently are monitored closely by Algerian police.

North Dakota Will Vote On Religious Freedom Constitutional Amendment

In the state's June 2012 election, North Dakotans will vote on a religious freedom amendment to the state constitution.  According to the Devil's Lake Journal, the North Dakota Secretary of State ruled this week that sufficient signatures had been obtained to place the initiative on the ballot.  The proposed amendment provides:

Government may not burden a person's or religious organization's religious liberty. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

[Thanks to Don Byrd for the lead.]

Delaware Enacts Same-Sex Civil Union Legislation

On May 11, Delaware's Gov. Jack Markell signed SB No. 30 (full text), authorizing same-sex civil unions in the state. The Wilmington (DE) News-Journal reported on the signing ceremony. The bill, which gives parties to a civil union the same rights as married couples, provides that civil unions may be performed by clergy, judges or clerks of the peace.  It, however, protects the rights of clergy (but not of clerks of the peace) to refuse to do so, providing:

nothing in this section shall be construed to require any person authorized to perform solemnizations of marriages or civil unions to perform a solemnization of a civil union, and no such authorized person who fails or refuses for any reason to join persons in a civil union shall be subject to any fine or other penalty for such failure or refusal. Notwithstanding the preceding sentence, a Clerk of the Peace or deputy thereof who issues a civil union license shall be required to perform a solemnization of such civil union if requested by the applicants for such license....

The new law will become effective on Jan. 1.

Graduation Prayers From High School To Kindergarten Generate Complaints

Americans United announced Friday that it had filed a lawsuit challenging a Texas school district's plan to officially include prayers in its graduation ceremony, scheduled for June 4.  The complaint in Schultz v. Medina Valley Independent School District, (WD TX, filed 5/26/2011) requests emergency relief, alleging that the planned student-led  invocation and benediction violate U.S. Supreme Court precedent under the Establishment Clause. UPDATE: Reuters reported that on May 31, the court ruled that the graduation ceremony may not include an opening or closing prayer and the ceremony may not include presentations called an "invocation" or "benediction". The school does not plan to appeal the ruling. UPDATE2: Subsequently the San Antonio Express News reported that Medina Valley High School officials are appealing the court's ruling.

Meanwhile, the Freedom from Religion Foundation said in a press release yesterday that it has sent a letter (full text) to the Giles County, Tennessee, Director of Schools complaining about a two-minute sectarian prayer by a local clergyman at the kindergarten graduation at Pulaski Elementary School.  Apparently prayer is traditional at the school's kindergarten graduations. The school principal introduced the clergyman who then offered the prayer which ended with the words "in the name of Jesus Christ." [Thanks to Alliance Alert for the lead.]

Suits Against Atlanta Pastor and His Mega-Church Are Settled

The Atlanta Journal Constitution reports today that there has been a settlement in four civil lawsuits against Bishop Eddie Long, his LongFellows Youth Academy and his New Birth Missionary Baptist Church. In the suits, four men alleged that the prominent Atlanta pastor used his spiritual authority to coerce young male members and employees of his mega-church into sexual relationships. (See prior posting.) Apparently the settlement is the result of contentious mediation that has been underway in the lawsuits since February. Neither side would comment on the terms of the settlements, except to say that they will result in the lawsuits being dismissed with prejudice.

VA May Not Require Memorial Day Invocation At National Cemetery To Be Non-Denominational

In Rainey v. U.S. Department of Veterans Affairs, (SD TX, May 26, 2011), a Texas federal district court issued a temporary restraining order preventing the Department of Veterans Affairs from regulating the content of the invocation and benediction that are to be delivered at a Memorial Day ceremony in Houston's National Cemetery.  The annual ceremony is put on by a charitable organization.  The director of the National Cemetery required ministers to deliver the text of their prayers in advance to assure that the prayers are non-denominational and inclusive of all beliefs. Invoking that policy, the Veterans Affairs Department told Rev. Scott Rainey that he could not deliver his invocation if he did not remove references to Jesus and to his religious beliefs. Rainey sued.  In a rather colorful opinion, the court wrote that the government cannot gag a citizen in the name of "some bureaucrat's notion of cultural homogeneity." The court went on:

The government's compulsion of a program's inclusion or exclusion of a particular religion offends the Constitution. The Constitution does not confide to the government the authority to compel emptiness in a prayer, where a prayer belongs. The gray mandarins of the national government are decreeing how citizens honor their veterans....

These people say that remarks need to be content-neutral messages. The men buried in the cemetery fought for their fellow Americans-- for us. In those fights, they were served by chaplains, chaplains of two faiths and many denominations.... No deputy general counsel of the Department of Veterans Affairs was in the Ia Drang Valley....

The government cannot realistically speak for the religious sensibilities of the numerous and varied people of America, even if it were constitutional for it to try. It is for them to speak for themselves as when the President asked Rick Warren to speak for him in Jesus' name at his inauguration. Americans are free-- free to read, write, talk, and pray without permission from George III or other governmental power.

The Houston Chronicle reported on the decision yesterday. [Thanks to Kate Shellnutt for the lead.]

UPDATE: The Houston Chronicle reported Friday that the Department of Veterans' Affairs has informed the court that it will no longer raise an objection to Rev. Rainey's planned invocation. [Thanks to Don Byrd for the update lead.]

6th Circuit Invalidates Ban On Leafleting Outside Dearborn's Arab International Festival

In Saieg v. City of Dearborn, (6th Cir., May 26, 2011), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, held unconstitutional on free speech grounds the city of Dearborn's leafleting restrictions that barred a Christian group from proselytizing on public sidewalks surrounding the city's annual Arab International Festival. The decision comes in time for the 2011 Festival which will be held June 17-19. The court held that while the leafleting restriction is content neutral, it does not further a substantial governmental interest. The adjacent inner perimeter sidewalks are kept open for public traffic and sidewalk vendors are permitted to operate there. Leafleting is no more disruptive than the sidewalk tables in the same area. Leafleting restrictions on outer perimeter sidewalks do not implicate a substantial interest in crowd control merely because the proselytizers might attract a few listeners. The city's interest there is in vehicular traffic control and parking. Assuming this to be a substantial interest, the restriction on pedestrian leafleting is substantially broader than necessary to further this interest.

Judge Daugherty filed a one paragraph dissent, relying on the district court's reasoning (see prior posting) that found the leafleting restrictions to be a reasonable time, place and manner restriction. The Dearborn Press and Guide reports on the decision. The 6th Circuit had previously issued a preliminary injunction to cover last year's Festival.

Herman Cain Backs Off Of Prior Anti-Muslim Statement

The Iowa Independent reports that Herman Cain, former CEO of Godfather Pizza and a candidate for the Republican Presidential nomination, is backing away from a statement he previously made that he would be uncomfortable appointing a Muslim to his cabinet or as a federal judge because Sharia law does not belong in our government. Appearing on Fox News Glenn Beck's radio program, Cain said that his remarks had been misconstrued.  He told Beck:

I immediately said, without thinking, ‘No, I would not be comfortable.’ I did not say that I would not have [Muslims] in my cabinet. If you look at my career, I have hired good people regardless of race, religion, sex gender, orientation and this kind of thing.

Rockford, Illinois Catholic Diocese Will End Adoption and Foster Care Services Over Civil Union Law

The Catholic Diocese of Rockford, Illinois announced yesterday that its Catholic Charities office will stop offering state-funded foster care and state-funded adoption services. At a press conference (full text), diocese officials said that the move comes in reaction to the failure of the state legislature to enact an explicit exemption from the state's new civil unions law for religious entities. They explained:

On June 1, 2011 the Illinois Religious Freedom Protection and Civil Unions Act will take effect. This new law may allow unmarried cohabitating couples, whether same‐sex or opposite sex, to apply for adoptions and licenses to become foster parents.... [T]he Catholic Church does not condone same‐sex unions or unmarried cohabitation between individuals of the opposite sex.

(See prior related posting.)

Australian State Defeats Bill To Exempt Religious Groups From Some Equal Opportunity Requirements

Parliament in the Australian state of Victoria on Thursday defeated by a 44-43 vote a proposal to create an exemption for religious organizations from the state's Equal Opportunity Act 2010. The Act takes effect August 2011. (Background.) The amendment would have permitted faith-based groups to refuse to hire workers on the basis of religion, sexuality, marital status or gender. According to The Age, the defeat of the amendment proposed by the governing Liberal Party came because Women's Affairs Minister Mary Woolridge missed the vote and Liberal speaker Ken Smith voted against the bill. Woolridge said she was embarrassed at not making it to Parliament in time for the vote and would later explain what had happened. The government will try to have a new vote on the proposed amendments next week.

CBO Analyzes Options For Changing Tax Treatment of Charitable Contributions

Yesterday the Congressional Budget Office announced the release of a new report, Options for Changing the Tax Treatment of Charitable Giving. The report analyzes the likely impact on charitable giving of 4 options:

 Retaining the current deduction for itemizers but adding a floor.
 Allowing all taxpayers to claim the deduction, with or without a floor.
 Replacing the deduction with a nonrefundable credit for all taxpayers, equal to 25 percent of a taxpayer’s charitable donations, with or without a floor.
 Replacing the deduction with a nonrefundable credit for all taxpayers, equal to 15 percent of a taxpayer’s charitable donations, with or without a floor.

The report further refines its analysis by discussing the differential impact of these changes on individuals at different income levels.

Included in the report (at pg. 6) is a breakdown of charitable contributions currently by type of recipient and income group (based on 2005 data). This reveals that donors with annual income under $100,000 give 67% of their donations to religious organizations. Those in the $100,000 to $200,000 income bracket give 57% to religious causes.  Those earning $200,000 to $1 million give 23% to religious organizations. Those earning over $1 million give 17% to religious organizations. [Thanks to Steven H. Sholk for the lead.]