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 5

November 20, 2003

• FIFTH CIRCUIT UPHOLDS TEN COMMANDMENTS DISPLAY ON TEXAS STATE CAPITOL GROUNDS
  
  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.
  
  VAN ORDEN v. PERRY, No. 02-51184 (5th Cir. November 12, 2003). PDF

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.
  
  Click HERE to access an article summarizing Justice Scalia's speech.
  
  Click HERE to access the Ninth Circuit's original opinion: Newdow v. United States Congress, et al., No. 00-16423 (9th Cir. Jun. 26, 2002). PDF
  
  Click HERE 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
  
  
• Muslim 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. Click HERE 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.
  
  Freethought 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

• NEW PEW FORUM RESOURCE

  Several transcripts from a recent conference on Teaching About Religion in Public Schools, co-sponsored by the Pew Forum and the Freedom Forum First Amendment Center, are now available on the Forum's Web site. Transcripts currently available include the following sessions (in PDF format):
  
  

• Keynote address (Jon Butler, Yale Divinity School)
• Teaching About Religion in Public Schools: History and State of the Law
• Teaching About Religion Post 9/11
• Yes, But How? Teaching About Religion in History
• The Bible Controversy

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.
  
  King 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 Clause.
  
  Briggs 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, Charitable 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 on 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.
  
  Click HERE 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

• SUPREME COURT GRANTS CERT IN DAVEY v. LOCKE

  As the USSC grants cert in Davey v. Locke, Professor Richard W. Garnett of Notre Dame Law School has written a piece entitled "Deciding the Future of Choice" featured on National Review Online. Click HERE to read his commentary on the significance of the case with regard to religious liberties.
  

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.
  
  Virginia v. Black, No. 01-1107 (April 7, 2003)

• SEVENTH CIRCUIT RULES FUNDING OF FAITH-BASED HALFWAY HOUSE CONSTITUTIONAL

  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.

  Freedom from Religion Foundation, Inc. v. McCallum and Faith Works Milwaukee, Inc., 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 Clause.
  
  Newdow 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.
  
  Lassonde 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 CHALLENGE

  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.
  

  United 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.)