JP Says Separate Religion and Government In Israel

The influential Jerusalem Post today called editorially for a separation of religion and government in Israel. It urged as a first step that the Knesset abolish the offices of the two Chief Rabbinates (Ashkenazi and Sephardi). The editorial cited recent charges of personal and financial wrongdoing related to the incumbent Chief Rabbis. But it went further, arguing that there is no need for the current governmental religious councils or for the state-sponosred religious courts. The editorial continued by declaring, "We are strong believers in the Jewish state, but the current bonds between Judaism and the state have hurt both immeasurably. We are less of a Jewish state because of the politicization of religion, which has driven many more Israelis away from Judaism than it has brought closer."

Title VII Claim Does Not Survive Asset Transfer In Bankruptcy

In a case decided two weeks ago, the federal district court for the northern district of Indiana held that Sec. 363(f) of the Bankruptcy Code gives the court the power to approve the transfer of a bankrupt company's assets free and clear of Title VII employment discrimination claims. In Faulkner v. Bethlehem Steel/International Steel Group, 2005 U.S. Dist. LEXIS 7501 (ND Ind., 4/27/2005), the court refused to accept plaintiff's argument that his discrimination claim could be asserted against the buyers of the business under a "successor liability" theory. While this case involved a claim of racial discrimination, the same result would follow in a religious discrimination case.

Political Dispute Over Religious Pilgrimage in Kashmir

In Indian Kashmir, the courts find themselves at the center of a political-religious battle. Each year, Hindu pilgrims flock to the cave of Armanath where the image of the god Shiva in the form of a lingam is formed by an ice stalagmite. This year, according to a report published today in Express India, controversy rages over the length of the pilgrimage, known as the Amarnath yatra, and who has the right to set the dates for it.

Traditionally the yatra extends for 59 days in the month of Shravan (July-August). In the last few years, because of the security concerns in Kashmir, the government of Jammu and Kashmir has reduced the yatra to one month. But this year, the Shri Amarnath Shrine Board has scheduled the yatra for the traditional 59 days-- June 21 to August 19. This follows a decision of a single bench of the High Court of Jammu and Kashmir that the Shrine Board has the sole power to set the yatra dates. The Kashmir government is appealing this decision to the full High Court. However, coalition partners who are part of that government disagree. In the face of the appeal, Deputy Chief Minister Mangat Ram Sharma announced that the government will make security arrangements for a traditional 59-day yatra.

In another report today by The Pioneer, this dispute is described in more political terms: "Jammu and Kashmir has been witnessing a rare convergence of three political parties - Congress, National Conference and Bhartiya Janta Party - for the first time in the history of the state politics.... [A]ll these political parties want to teach their common enemy - PDP leader and Chief Minister Mufti Mohd Sayeed - a bitter lesson and have already joined hands to check his growing influence over day-to-day working of the Shri Amarnath Shrine board in the run- up to the annual pilgrimage in South Kashmir starting from June 21."

Parish-Diocese Relationship At Issue In Bankruptcy Proceedings

Today Law.com reports on the difficult bankruptcy law issues posed in proceedings against the Catholic diocese of Spokane, Washington. Pushed into bankruptcy by priest sex-abuse law suits against it, the diocese claims that churches and schools held in trust by the diocese for individual parishes should not be part of the assets that diocese creditors can reach. The diocese argues that civil courts must defer to church law which recognizes individual parishes as separate legal entities. Attorneys for creditors argue that canon law should not govern rights of outsiders to reach property in a bankruptcy proceeding. A hearing is set for June 27 on the issue.

European Parliament Lobbied Over Right to Religious Garb

In Strasbourg, France today, Muslim women from around Europe will gather to lobby members of the European Parliament for the right to wear the Hijab (head covering). Sikhs from around Europe will also lobby for the right to wear turbans. The controversy stems from a French law enacted in March 2004 that bans conspicuous religious symbols and attire in public schools. According to a report today by the Islamic Republic News Agency, May 20 is the deadline to obtain signatures of a majority of the members of the European Parliament to bring up for debate the previously tabled "Written Declaration on Religious Rights and Freedoms in France and Throughout the European Union."

Free Exercise Claim of Native American Prisoners Rejected

On May 4, 2005, a federal district court in North Dakota rejected claims by Native American penitentiary inmates that their rights to free exercise of religion were being denied. In Brown v. Schuetzle, 2005 U.S. Dist. LEXIS 8229, the court rejected both First Amendment and RLUIPA claims over conduct of religious ceremonies at the "sweat lodge" made available for inmates. The dispute involved qualifications of those who conduct the ceremonies and whether ceremonies would be open to non-Native Americans.

PrawfsBlawg Raises Issues of Protecting Ritual Observance

A discsussion today on PrawfsBlawg raises the question of the extent to which observance of religious ritual is protected by the First Amendment (or by laws that prohibit religious discrimination) if the person's practice of the rituals is based on something other than religious faith or a belief in God.

Perhaps the debate here is a semantic one flowing from the Supreme Court's usual concept of "religion" as a set of beliefs which may support certain practices. Some traditions might instead view religion primarily as a pattern of obligatory ritual practices that may, optimally, lead to belief in a Supreme Being.

Catholic League Home Page Hacked In Retaliation for Statements

On Saturday, the New York Post published an article about the new movie, Kingdom of Heaven, which is an account of the Third Crusade. The article quotes William Donahue, President of the Catholic League, as saying: "It is a matter of historical record that Muslim violence — in the form of a jihad — was responsible for Christians striking back, hence the Crusades." Apparently in response, the Catholic League's website was hacked over the weekend. Its home page was replaced with a semi-literate message urging the freeing of Palestine and of Iraq. The Catholic League has contacted the New York City police and the FBI about the intrusion.

Asylum For Religious Persecution About to Become More Difficult

The REAL ID Act (H.R. 418) , about to be enacted by Congress, has made the news because of provisions that tighten the rules for the issuance of drivers' licenses. However today the New Jersey Star Ledger reports on another aspect of the bill . It will make it more difficult for immigrants to obtain political asylum based on religious discrimination in their home country. Currently, 8 USC Sec. 1101(a)(42) defines a refugee eligible for asylum as a person who has a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

Under the propsed new legislation, the asylum-seeker will be required to prove that one of these factors was or will be the central reason for his or her persecution at home. Section 101 of the law will also require that proof of this must be by evidence that is credible, persuasive and which refers to specific facts. Human rights groups have previously criticized strongly these provisions.

The bill passed the House last week (May 5) and is likely to pass the Senate this week, according to US Newswire.

Released Time Programs Are Alive and Well

Over 50 years ago in Zorach v. Clausen, the US Supreme Court approved "released time" programs in which students were released from school for a period of time during the day to obtain religious instruction in a nearby church. eMedia Wire reports today that eleven Pennsylvania counties are taking advantage of an old released time law in the state that permits up to 35 hours per year of off-campus religious instruction. Some 3000 students participate in the program run by Joy El Ministries.

State Supreme Courts Reject Church's 1st Amendment Defense In Sex-Abuse Cases

Last week, two state Supreme Courts permitted actions against the Catholic Church to proceed over First Amendment objections by the church. Both cases involved suits against the church by victims of the clergy sex-abuse scandal.

Fortin v. Roman Catholic Bishop of Portland (decided May 3, 2005) involved a claim that the Diocese failed to alert police that one of its priests had a propensity to abuse young boys. The Maine Supreme Court held that the plaintiff’s special relationship with the church created a fiduciary duty on the part of the Church to protect him from harm. It went on to reject the Church’s argument that imposing a fiduciary duty of care would violate its Free Exercise rights. The Court held that the imposition of liability was consistent with the US Supreme Court’s decision in Employment Division v. Smith, because the liability rule is a facially neutral requirement of general applicability that does not target religious beliefs or practices. It also held that the Church failed to identify a specific religious doctrine or practice that would be infringed by imposing this standard on the Church.

Finally the Court rejected the Church’s claim that the free exercise clause of Art. I, Sec. 3 of the Maine Constitution was violated by imposing potential liability on the Diocese. The Court held, however, that in later proceedings the Diocese could still prove that deciding the plaintiff’s claim will unconstitutionally involve the Court in deciding issues of religious law governing an hierarchical church.

Roman Catholic Diocese of Jackson Mississippi v. Morrison (decided May 5, 2005) also involved claims that the Diocese acted improperly when it learned that one of its priests had a propensity to molest children. First the Mississippi Supreme Court rejected the Establishment Clause argument that imposing liability on the Church for negligence in hiring and retaining a priest involves excessive entanglement of government with religion. It focused on the fact that there is nothing religious in nature about the conduct at issue.

The Court also rejected the Church’s Free Exercise argument that “subjecting it to prosecution of civil claims for negligent supervision would be tantamount to attempting to regulate its ecclesiastical policies, principles and procedures.” Finally the Court rejected arguments that Constitutional doctrines of church autonomy prevented it from deciding the case, since no ecclesiastical matters were at issue here. The Court has written a lengthy opinion extensively examining relevant precedent.

In the second part of its opinion, the Court rejects the argument that it should create a First Amendment privilege that would allow the Church to refuse to produce religious-oriented documents during discovery.

Two justices dissented from the court’s opinion.

Kansas Evolution Hearings- An Update

As I noted in a previous post, the Kansas State Board of Education held 3 days of hearings last week on evolution vs. intelligent design. Among the many news reports of the hearings is one by the Lawrence Journal World quoting two of the three members of the subcommittee conducting the hearing as saying that they had only scanned the controversial proposals. Indicating that she had not read the proposed new standards carefully, one of the board members said, "I'm not a word-for-word reader in this kind of technical information".

Biblical Literacy Courses Proliferate in Public Schools

An article this morning originating from the Dallas Morning News documents the extent to which courses on biblical literacy are finding their way back into public school classroooms across the country. Over 300 school districts in 35 states use material prepared by the National Council on Bible Curriculum in Public Schools. Critics are concerned that the courses as actually taught will cross the line from objective study to impermissible proselytizing.

The Other Side of the ACLU's RIS Lawsuit

Last month in a post I discussed the ACLU's suit on behalf of several Muslim-Americans against the Department of Homeland Security over the way they were detained and interrogated upon their return from a Muslim conference in Canada. The annual event in Canada is known as the "Reviving Islamic Spirit" conference. On Friday, the National Ledger published an op-ed piece making the case on behalf of DHS. Sherrie Gossett of Accuracy in Media argues that the history of past RIS conferences gave the government a strong basis for their questioning of those who had attended.

Symposium Issue on French Church-State Separation

The current issue of the Houston Law Review, Vol 42, No. 1 (available online) is a very interesting symposium issue on church-state issues. It features Steven Gey's Frankel Lecture entitled Free Will, Religious Liberty, and a Partial Defense of the French Approach to Religious Expression in Public Schools and commentaries on that theme. The issue also contains two student notes on church-state issues. (Note the issue is in fact the 2005 Symposium issue despite the heading on the online table of contents.)

TRO Issued In Challenge to Md. Sex-Ed Curriculum

Yesterday, a federal district judge issued a temporary restraining order against the Montgomery County Public Schools to prevent them from implementing their new sex education curriculum (see prior post). Finding, among other things, that plaintiff's Establishment Clause claim had merit, the Court in its Memorandum Opinion said:

"The Revised Curriculum plainly portrays Baptist churches as wrongly expressing the same intolerance [sic.] attitude towards homosexuals today as they did towards African Americans during segregation. ... [It] also implies that the Baptist Church's position on homosexuality is theologically flawed.... Most disturbingly, the Revised Curriculum juxtaposes this portrait of an intolerant and Biblically misguided Baptist Church against other, preferred Churches, which are more friendly towards the homosexual lifestyle."

Parent Sues Pa. School That Prohibited Bible Reading

The Rutherford Institute announced earlier this week (May 2) that it had filed suit in a Pennsylvania federal district court on behalf of a mother who was prevented from reading Psalm 118 from the Bible when her daughter was the featured student of "Me Week". Parents were asked to read to the class from their child's favorite book when their child was the featured student. But the principal informed the mother that her reading from the Bible would violate the separation of church and state. The mother claimed that parents were permitted to read and teach the class about Judaism and the celebration of Hanukkah, but that expression of religious beliefs by Christians was prohibited. Reporting on the lawsuit today, Agape Press quotes the mother's lawyer as stating that the school is displaying an "ignorant view of the constitution".

Viet Nam Religious Freedom Moves End Threat of US Sanctions

A US official visiting Hanoi has announced that the United States will not impose sanctions on Viet Nam over religious freedom issues, according to a report today by PolitInfo. While Viet Nam had been denominated a "country of particular concern" under the International Religious Freedom Act of 1988 (see prior post), it has since enacted new legislation that may lead to Protestant and Buddhist relgious groups obtaining recognition. It will also reopen some closed churches and end the practice of forcing individuals to renounce their faith. Viet Nam, however, has not yet been removed from the list of offending countries.

Death Penalty Sought for Sudanese Editor Who Insulted Mohammed

Generally I try to post stories without comment, but this report from yesterday's Sudan Tribune out of Khartoum was sufficiently unsettling that I wondered about its accuracy until the BBC and the Australian Broadcasting Corp. reported similar stories.

In April, Mohamed Taha Mohamed Ahmad, chief editor of the newspaper Al Wafiq, published an article written by a well-known Islamic historian. The article examined a 500-year-old Islamic manuscript that claims Mohammed's father was not Abdullah, as Muslims traditionally believe. Taha wrote a commentary next to the article, rejecting its premises.

Not only has the newspaper has been suspended for three days, but the editor is now charged with violating a Sudanese criminal statute that prohibits insulting religion or faith. In accordance with Islamic law which has been implemented in Sudan since 1983, this offense warrants the death penalty and the chief prosecutor is asking for that sentence. A large and angry crowd gathered in front of the court carrying a banner demanding "death to the apostate". The charged journalist refused to be represented by a lawyer and is representing himself. The court postponed the hearing for one day to study papers that had been filed.

Oregon Supreme Court Decides RLUIPA Case in Favor of City

The Oregon Supreme Court today decided its first case under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. City of West Linn, the court held that the city's denial of a conditional use permit to build a new meetinghouse did not impose a "substantial burden" on the Church's religious exercise since a permit would be granted for a revised construction plan. A report about the decision carried today by Oregon Live points out that in the Supreme Court's view, the added expense and delay that would be involved in submitting a new plan is not substantial enough to be prohibited by RLUIPA.