November 20 : October 18 : August 28 : July 27 : June 20 : June 11 : June 5 : May 28 : May 27 : May 20 : April 25 : March
11 : February 25
: February 19 : February
November 20, 2003
- FIFTH CIRCUIT UPHOLDS TEN COMMANDMENTS DISPLAY ON TEXAS STATE CAPITOL
The Fifth Circuit held that the Texas Legislature had a valid
secular purpose for authorizing the installation of the Ten Commandments
monument, and the display has neither the purpose nor the effect
of endorsing or disapproving of religion. The monument stands
between the Texas Capitol and the Texas Supreme Court buildings
amid other statues and memorials commemorating people, events,
and ideals important to Texas history.
ORDEN v. PERRY, No. 02-51184 (5th Cir. November 12, 2003).
October 18, 2003
- SUPREME COURT GRANTS CERTIORARI IN PLEDGE OF ALLEGIANCE CASE
The Supreme Court has agreed to hear Elk Grove Ind. Sch. Dist.
v. Newdow, 02-1624, the case challenging the constitutionality
of the words "under God" in the Pledge of Allegiance. The Court
will address two questions: (1) whether Newdow has standing; and
(2) whether a public school district policy that requires teachers
to lead willing students in reciting the Pledge of Allegiance
is unconstitutional. Justice Scalia has recused himself from the
case, a move he has declined to explain publicly. Newdow asked
for the Justice's recusal based on views Scalia espoused in a
speech celebrating religious freedom.
to access an article summarizing Justice Scalia's speech.
to access the Ninth Circuit's original opinion: Newdow v. United
States Congress, et al., No. 00-16423 (9th Cir. Jun. 26, 2002).
to access the amended opinion and dissents from denial of rehearing
en banc: Newdow v. United States Congress,
et al.[Newdow II], No. 00-16423 (9th Cir. Feb. 28, 2003). PDF
Politics and U.S. Policies Conference Materials
The Pew Forum recently hosted a conference entitled "Muslim
Politics and U.S. Policies: Prospects for Pluralism and Democracy
in the Muslim World." Seminar papers are available on their website.
to access these papers.
- Locke v. Davey Resources
The Pew Forum has a helpful resource page of information regarding
Locke v. Davey (the Blaine Amendment case) and links to
many of the filed briefs. The Supreme Court will hear oral arguments
on Dec. 2, 2003. Click HERE
to access this information.
August 28, 2003
- THIRD CIRCUIT UPHOLDS TEN COMMANDMENTS PLAQUE ON COURTHOUSE
The Third Circuit ruled that a Ten Commandments plaque on the Chester County courthouse in West Chester, Pennsylvania did not violate the First Amendment. The court rejected the argument that historic artifacts should be entitled to a presumption of constitutionality, but it upheld the plaque under the endorsement test because the reasonable observer in the community would view it as a reminder of Chester County's past, not a present endorsement of the sacred text of the Ten Commandments. The court found significant the fact that the plaque was not at the main entrance and that the County had taken no action to highlight or celebrate the plaque since its erection in the 1920s.
The court also found that the plaque passed the Lemon test. Focusing mainly on the county's decision to leave the plaque up when a citizen requested its removal, the court found that the County Commissioners had articulated a sufficiently secular purpose in stating that the Ten Commandments had both secular and religious origins and contributed to the development of the law. It found the "primary effect" prong satisfied for the same reasons espoused under the "endorsement" analysis.
Society v. Chester County,
et al., No. 02-1765 (3d Cir. June 26, 2003). (PDF)
July 25, 2003
- FEDERAL JUDGE RULES WISCONSIN CITY LAND SALE UNCONSTITUTIONAL
The City of LaCrosse, Wisconsin sold public land bearing a
monument of the Ten Commandments to the Fraternal Order of the
Eagles, which originally had given the monument to the city
and had maintained it since the gift, in order to avoid having
to remove the monument from the park. In a previous case, the
federal district court had ruled that the monument's presence
violated the Establishment Clause. The Eagles fenced the area,
installed a sign designating it as their property and specifically
disclaiming city endorsement. The Freedom From Religion Foundation
sued the city, arguing that the city's sole intent was to avoid
removing the monument, and that such intent made the sale insufficient
to cleanse the Establishment Clause violation. The court agreed,
holding that the city must revoke the sale and remove the monument.
Mercier, et al. v. City of La Crosse, No. 02-C-3 86-C
(W.D. Wis. July 14, 2003), available HERE.
June 20, 2003
June 11, 2003
- PICTURE OF TEN COMMANDMENTS ON COURT SEAL CONSTITUTIONAL
The Eleventh Circuit held that use of a court clerk's seal
containing, inter alia, a representation of the Ten Commandments
does not violate the Establishment Clause.
v. Richmond Cty., No. 02-14146 (11th Cir. May 30,
2003), available by clicking HERE. (PDF)
June 5, 2003
- MISSISSIPPI STATE FLAG DECLARED CONSTITUTIONAL
The Fifth Circuit upheld the presence of St. Andrew's Cross
within the Confederate battle flag on the Mississippi state
flag against a Muslim's challenge that it violated the Establishment
v. State of Mississippi, No. 02-60737 (5th Cir., June
3, 2003), available by clicking HERE.
May 28, 2003
- CHARITABLE CHOICE STUDY RELEASED
Indiana University's Center for Urban Policy and the Environment
has released a new report suggesting that government-funded
faith-based organizations providing job training and placement
services to welfare recipients don't necessarily perform as
well as non-religious organizations. Click to read the report,
Choice: First Results from Three States. (PDF)
For more information and resources on charitable choice and
the faith-based initiative, read the Pew Forum's issue page
Faith-Based Initiatives and the Bush Administration.
May 27, 2003
- SUPREME COURT TO ADDRESS BLAINE AMENDMENTS
The Supreme Court granted certiorari in Davey v. Locke,
299 F.3d 748 (9th Cir. 2002), a Ninth Circuit case holding that
the State of Washington could not deny a scholarship grant to
an otherwise eligible student on the basis that he was majoring
in a divinity program. The State based its denial on its constitution,
which contains a Blaine Amendment, and a statute preventing
aid grants to students pursuing a degree in theology.
for the Ninth Circuit's opinion. (PDF)
The cert petition is available by clicking HERE.
The brief in opposition is available by clicking HERE. (PDF)
May 20, 2003
April 25, 2003
- SUPREME COURT RULES CROSS BURNING EXPRESSIVE SPEECH
The Court struck down a Virginia statute making it a felony
to "burn a cross on the property of another" with "the intent
of intimidating any person or group." The statute also specified
that "any such burning . . . shall be prima facie evidence of
intent to intimidate." In a five-four decision, the majority
held that cross burning was expressive speech, that the restriction
was content based, but cross burning could still be banned because
it is a symbol of impending violence. Four justices held that
the presumption of intent was unconstitutional.
v. Black, No.
01-1107 (April 7, 2003)
- SEVENTH CIRCUIT RULES FUNDING OF FAITH-BASED HALFWAY HOUSE
The Seventh Circuit held constitutional a program allowing
drug offenders a choice of rehabilitative halfway houses, one
of which incorporated Christianity into its program. In an expansive
holding, Judge Posner found that the program was voucher-ish
(and thus analogous to constitutional indirect funding regimes
as in Zelman) because the beneficiary chose the recipient of
the state funds. The court considered irrelevant the fact that
the money did not actually flow through the hands of the recipient.
from Religion Foundation, Inc. v. McCallum and Faith Works Milwaukee,
No. 02-3102 (April 2, 2003)
For Lupu and Tuttle's summary, click HERE.
March 11, 2003
- NINTH CIRCUIT FINDS RECITATION OF PLEDGE OF ALLEGIANCE TOO
COERCIVE FOR SCHOOL CHILDREN
In a slightly revised version of its opinion issued last summer,
the Ninth Circuit maintains that an atheist child in an elementary
school ought not have to choose between participating in or
protesting the recitation of the pledge of allegiance in class.
Equating pledge recitation with other religious exercises, such
as prayer or Bible reading, Judges Goodwin and Reinhardt found
that the practice failed the coercion test. Judge O'Scannlain,
dissenting from the denial of rehearing en banc argued that
pledge recitation is not a religious exercise under Supreme
Court precedent and thus does not run afoul of the Establishment
v. United States Congress, et al.[Newdow II],
No. 00-16423 (9th Cir. Feb. 28, 2003) (PDF)
February 25, 2003
- NINTH CIRCUIT ISSUES GRADUATION PRAYER RULING
In Lassonde v. Pleasanton Unified School District, the
Ninth Circuit upheld the censorship by school officials of proselytizing
remarks by a high school class salutatorian. The principal allowed
references to God with regard to the student's personal beliefs,
but not those that exhorted the audience to follow the Bible.
The Ninth Circuit panel held that the school's actions were
necessary to prevent an Establishment Clause violation. It declined
to apply a forum analysis because it believed the graduation
ceremony bore the imprimatur of the school in a way that, for
example, after school meetings would not.
v. Pleasanton Unified School District,
No. 01-17226 (9th Cir. Feb. 19, 2003)
February 19, 2003
- FAITH-BASED INITIATIVES AND RELIGIOUS EMPLOYMENT
One of the hottest issues in the faith-based initiative debate
concerns the employment practices of relevant service providers.
Specifically, to what degree does (or should) the initiative
preserve the ability (now primarily available as an exemption
to Title VII of the Civil Rights Act of 1964) of participating
religious groups to make employment decisions according to their
beliefs? Click HERE
to read a timely article by Professor James Sonne of Ave Maria
School of Law that analyzes the most likely version of the legislation
and suggests that even if the Title VII exemptions are not preserved,
the Religious Freedom Restoration Act of 1993 may have something
to say on the matter.
February 5, 2003
- NINTH CIRCUIT UPHOLDS EAGLE FEATHER REGULATION AGAINST RFRA
The Ninth Circuit held last week that a Canadian Indian's conviction
under the Bald and Golden Eagle Protection Act, which prohibits
the trade or transport of eagles or eagle parts, does not violate
the Religious Freedom Restoration Act. Native Americans of recognized
tribes may apply for permits to trade or transport eagles or
eagle parts from a federal repository for religious purposes,
but the Canadian Indian was not eligible for such a permit.
The eagle parts in question did not come from the federal repository,
and the Canadian Indian was not a member of a recognized tribe.
The Ninth Circuit had previously held that the permit scheme
survived RFRA because the government had a compelling interest
in protecting the endangered eagle and that the permit was the
least restrictive means. Considering that the supply of permissible
eagle parts is finite, the burden on religion or nonreligion
is inescapable. Thus, restrictions on eligibility burdening
the convicted Canadian Indian here did not constitute a valid
RFRA claim because lessening the burden for his religious exercise
would increase the burden on others seeking eagle parts for
scientific or religious uses.
States v. Antoine,
No. 02-3008 (9th Cir. Jan. 31, 2003)
- PRESIDENT BUSH'S FAITH-BASED PLAN TO BE DEBATED
Both The Washington Timea and The Washingotn Post
recently reported developments in the faith-based proposals
of President Bush. The Washingto Times, Amy Fagan reported
"Senators to take up faith-based plan
; Bill reintroduced without 'charitable choice' provision,"
on Monday, February 3, 2003. "Faith-Based
Proposals May Face Legal Challenge" appeared in The
Washington Post on January 30, 2003. Written by Alan Cooperman.
(Please click on the article title to view the article.)