March 2003 AU Bulletin

FBI Mosque Count Raises Constitutional Issues

FBI Director Robert Mueller has ordered the bureau's field offices to start documenting the number of mosques in their areas as part of the federal government's ongoing efforts to combat terrorism, according to news media accounts in January.

A Jan. 28 article in The New York Times reported that a senior FBI official told congressional staff in a secret meeting that the bureau would use the information to help measure the number of terrorism investigations that the various field offices should be expected to open and pursue. The Times piece quoted an unnamed congressional aide as calling the FBI order "pure profiling at its worst form."

Criticism from civil liberties and muslim groups was swift. Nihad Awad, executive director of the Council on American-Islamic Relations (CAIR), said the FBI directive would undermine religious freedom and should be rescinded.

An FBI spokesman, however, told The Washington Times in early February that the counting of mosques was not part of the FBI's investigation of terrorism, but would instead be used to investigate hate crimes and vandalism against Arab-Americans and mosques. Daniel Pipes, a frequent critic of Islam, wrote in a New York Post op-ed that the FBI should not "hide its counterterrorism efforts." According to Pipes, it is common knowledge that "some mosques throughout the West have been used as a base for terror...."

The Patriot Act, which Congress and the president hurriedly set into law after the 9-11 attacks, grants the FBI greater access to mosques and other houses of worship to conduct terrorism investigations.

Supreme Court Skips Columbine Tile Case

The Supreme Court in January declined to review a U.S. 10th Circuit Court of Appeals decision that barred religious themes from a school project at Columbine High School.

After two students entered their Colorado high school in spring 1999 and shot and killed numerous students and faculty, a couple of teachers created a project to help the shocked student body become reintroduced to the building. The project asked students to create "abstract artwork" on tiles that would be installed throughout the halls of the school.

The Columbine administration approved of the undertaking, but added that "to assure that the interior of the building would remain a positive learning environment and not become a memorial to the tragedy," the tiles should not be adorned with references to the attacks, names of the victims or religious symbols.

The Rutherford Institute, a Religious Right legal group based in Virginia, sued Columbine on behalf of parents and children who included religious icons or messages on their tiles. Rutherford's lawyers argued that the ban on religious symbols violated students' religious liberty and free speech rights. A U.S. district court agreed.

The Fleming v. Jefferson County School District R-1 case was appealed to the 10th Circuit, which reversed the lower court's ruling. The appellate panel concluded that the ban on religious symbols did not subvert the students' rights and noted that public schools are not traditional public forums. Ultimately, the court held, school officials retain control over educational assignments.

Native American Loses Lawsuit Over Eagle Feathers

A federal appeals court has turned down a Native American's religious liberty challenge to his conviction for violating an endangered species act.

In a Jan. 31 ruling, the U.S. 9th Circuit Court of Appeals concluded that the religious liberty rights of Leonard Fridall Terry Antoine, a member of a Canadian Indian tribe, were not infringed when he was found guilty of violating the Bald and Golden Eagle Protection Act (BGEPA). The act makes it illegal for anyone to "knowingly ... take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle," or parts of bald eagles.

Antoine was arrested and charged with violating the BGEPA after he was caught smuggling eagle parts into the country and then selling them. Antoine argued before the courts that his exchanges of eagle parts for money were part of a native custom called "potlatch," which holds religious meaning.

In its U.S. v. Leonard Fridall Terry Antoine decision, the 9th Circuit noted that the government's interest in "protecting eagles as a threatened or endangered species" outweighs the harm done to Antoine's religious practices.

"The government has a compelling interest in eagle protection that justifies limiting supply to eagles that pass through the repository, even though religious demand exceeds supply as a result," wrote Judge Alex Kozinski for the 9th Circuit.

AU Protests Mo. Church's Public Funding Jackpot

Americans United has urged city officials in a Missouri town to reverse its decision to fund the repair of a church with public money from casino gambling.

In early January, Boonville city officials awarded the St. Matthew A.M.E. Episcopal Church $85,000 for historical preservation of its building. The money is part of an $850,000 allocation to the community from casino receipts. The church's pastor, the Rev. Edwin Donaldson, told the city newspaper that he "gives God the praise" for the city's financial backing.

AU's legal team sent a letter to Boonville Mayor Danielle Blanck and city council members in late January warning that the city's action subverted the First Amendment principle of church-state separation.

Citing U.S. Supreme Court precedent, AU Legal Director Ayesha Khan said the city's award of money to the church subverted "longstanding constitutional principles and should be withdrawn so as to avoid legal liability."

In the high court's 1973 ruling in Committee for Public Ed. & Religious Liberty v. Nyquist, a government award of maintenance and repair grants to religious school facilities in New York was invalidated.

"If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair," the Court ruled in Nyquist.

Juror Oath To God Not Required, S.C. Court Rules

The South Carolina Supreme Court ruled in early February that citizens may not be forced to swear an oath to God to sit as jurors.

State trial judge Marc Westbrook dismissed Robert Woodham as a juror after Woodham refused to swear an oath to God. Woodham insisted that the phrase "so help you God" undermined church-state separation. Judge Westbrook ruled that "you've got to take that oath and that is the bottom line."

In an opinion issued Feb. 10, however, a unanimous South Carolina Supreme Court said that Westbrook "erred in holding that jurors were required to take the oath."

"In fact, South Carolina law specifically permits a juror to make an affirmation rather than swear an oath," the state Supreme Court ruled. (The State of South Carolina v. Wesley Floyd and John New)

Va. School Officials Consider 'Intelligent Design'

The West Virginia Board of Education will decide later this month whether to alter the state's science education standards to allow teachers to discuss "intelligent design."

According to The Charleston Gazette, the board of education has been pressured by special-interest groups to open science classes to the teaching of "intelligent design," the latest variation of creationism.

One of the groups pushing for "intelligent design" in the West Virginia public schools conferred in a private meeting with state education officials to make the case for changing the standards. The Gazette reported that John Calvert, managing director of the Kansas-based Intelligent Design Network, apparently impressed some of the school representatives.

"It sounded to me like the guy had some good points," State School Board President Howard Persinger Jr., told the newspaper.

Fundamentalist Protestants lost their battle in the 1920s to ban the teaching of evolution in the public schools, but have re-emerged in recent decades to try to force public schools to also teach "creation science" or forms of it, such as intelligent design.

Federal court precedent holds that public school science classes are not the proper forums for discussions of the Bible. In 1987, the U.S. Supreme Court, in Edwards v. Aguillard, invalidated a Louisiana "Creationism Act" that forbade the teaching of evolution in the public schools unless accompanied by instruction in the theory of "creation science."

Writing for the court majority, Justice William Brennan said it was "clear from the legislative history that the purpose" of the act was to narrow the state's science curriculum "to advance the religious viewpoint that a supernatural being created humankind."

Sunday Liquor Sales Resume in Pennsylvania

Pennsylvania's state liquor board in early February permitted a portion of its state-owned liquor stores to open for business on Sunday for the first time since the 1920s.

The state legislature last year approved of the program to start opening the state liquor stores on Sunday. The Associated Press reported that store openings had spurred some protests from those concerned with the "damage alcohol can do."

Jonathan Newman, chairman of the state liquor board, told the AP that many citizens still "think Sundays are a day for families and a day for God and that it's inappropriate to sell things."

European Union Debates Role Of Religion

Members of the European Union are considering whether the union's yet-to-be-formed constitution should pay homage to God.

The 15-member EU, which is set to admit 10 more countries this spring, has found itself being lobbied by the Vatican, as well as a host of other religious entities, to include in its constitution a reference to God or Christianity. According to a Feb. 5 article from the International Herald Tribune a debate has erupted over God's place, if any, in the EU's governing document.

The IHT reported that language had been drafted for a section of the future constitution about European values, which contained a reference to God. The statement reads, "The union values include the values of those who believe in God as the source of truth, justice, good and beauty as well as those who do not share such a belief but respect these universal values arising from other sources." Supporters of the God reference include delegates from Poland, Italy, Germany, and Slovakia.

The Vatican is also weighing in on the debate. According to media reports, Pope John Paul II has lobbied EU officials to support a reference to Christianity in their forthcoming constitution.

On Feb. 6, the draft language for the EU's constitution was released containing no reference to God. An unnamed, "official source" in the Vatican told Agence France-Presse that the proposed text was "totally unsatisfactory, not only for reasons which have already been pointed out by Pope John Paul II, but also because it is against the wishes expressed by many European countries."

The debate, however, is still roiling. The delegates are now calling for the future constitution's preamble to include a religious reference.

"If you look at the last 1,000 years of history in Europe, the role of Christianity is an important thing," Polish delegate Edmund Wittbrodt told the IHT. "It should be somehow mentioned in the constitutional treaty."