Disputes over religion return to Supreme Court

WASHINGTON — A Muslim prisoner in Arkansas, a Christian pastor in Arizona and an 11-year-old Jewish boy born in Jerusalem will present the Supreme Court with three chances in the next few months to rule on cases with religious overtones.

It won't be anything new to the justices, who divided 5-4 on two controversial religious freedom cases in their last term. The court's conservative majority upheld the practice of opening government meetings with a prayer, even when nearly all the clergy are Christian. And it exempted family-owned businesses with religious objections from having to pay for contraceptives in their insurance plans under Obamacare.

Compared with those cases, the new trio are flying under the radar. One focuses on prison inmates. Another deals with outdoor signs. The third affects Americans born in Jerusalem.

All three cases will bring the delicate issue of religion back to the court chamber, along with questions about politics, public safety and Middle East peace.

"It shows how intertwined religion is with political life," says Marc Stern, general counsel for the American Jewish Committee. "As much as one talks about separation of church and state, it's not so simple to disentangle sometimes."

Here's a look at the cases in the order they will reach the court:

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A DEVOUT MUSLIM'S BEARD

Say this much about Gregory Holt, also known as Abdul Maalik Muhammad: He convinced the Supreme Court to hear his case with a 15-page, handwritten petition, something the justices wouldn't normally look at.

Holt's grievance stems from the Arkansas Department of Corrections rule prohibiting beards unless medically required — a policy more than 40 other prison systems do not share. Muslims wear beards as part of their religious faith; Holt has agreed to keep his no longer than a half-inch long.

"This is a matter of grave importance, pitting the rights of Muslim inmates against a system that is hostile to these views," he wrote in his petition. "It can affect thousands of inmates and is creating unnecessary attention between Muslims and their keepers."

Prison officials call Holt "a Yemen-trained Muslim fundamentalist" who threatened to kidnap and harm President George W. Bush's daughters. He is serving a life sentence as a habitual offender for aggravated residential burglary and domestic battery after stabbing a former girlfriend in the neck and chest.

The state argues that long beards can be used to hide weapons and contraband. But last month, the state admitted its brief to the court mistakenly said a prisoner had committed suicide with a razor hidden in his beard. The razor had been supplied by prison officials.

Holt brought suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), passed unanimously by Congress in 2000. Like the Religious Freedom and Restoration Act of 1993 — the basis for the successful challenge to the contraception mandate by Hobby Lobby and other family-owned corporations — the statute is intended to protect religious rights.

Both the federal district and appeals courts ruled against Holt, even though a magistrate who heard testimony said it was "almost preposterous" to think he could hide a weapon in his beard. The judges reasoned that Holt had been granted several other religious rights, such as a prayer rug, a special diet and holiday observances, and they deferred to the state's judgement about its security needs.

The case is scheduled to be heard Oct. 7. The federal government and 16 religious and law enforcement groups have lined up behind Holt, and the Justice Department cited what it called the state's "exaggerated fears or mere speculation" about security.

A HOLY CITY'S LOCATION

Menachem Binyamin Zivotofsky was born in Israel in 2002 — or so his parents thought.

Actually, the young man was born in Jerusalem, a holy city claimed by Israelis and Palestinians — and not recognized by the U.S. government as part of any country.

Under long-standing U.S. policy, Zivotofsky's birthplace was listed on his passport as "Jerusalem" — period. His parents went to court in 2003 to change it to "Jerusalem, Israel." They later agreed to settle for simply "Israel."

For more than a decade, the family has been at the center of a legal battle between the executive and legislative branches that has had judges digging through founding documents and researching policies dating back to George Washington's administration.

"The status of the city of Jerusalem is one of the most contentious issues in recorded history," the U.S. Court of Appeals for the D.C. Circuit noted last year. "For more than two millennia, the city has been won and lost by a host of sovereigns."

Congress passed a wide-ranging foreign relations law in 2003 requiring that Israel be recorded as the place of birth for Americans born in Jerusalem, if they request it. President George W. Bush signed the law but indicated he would not abide by that provision, which runs counter to U.S. policy in the Middle East. President Obama has stuck by that position.

Until now, federal courts have sided with the president and against Congress — and the Zivotofskys. Though Congress has a role to play in passports and immigration, courts have ruled that presidents have the power to recognize foreign nations.

The law passed by Congress "runs headlong into a carefully calibrated and long-standing executive branch policy of neutrality toward Jerusalem," the appeals court ruled.

The Zivotofskys' brief to the court belittles fears of foreign policy retaliation if some of the estimated 50,000 Americans born in Jerusalem get their passports altered. They note that for 20 years, the same treatment has been accorded Americans born in Taiwan, even though the United States does not recognize Taiwan's sovereignty.

"Nobody is going to look at this and say, 'Ah, it's a political statement about Jerusalem,' " argues Steve Freeman, director of legal affairs at the Anti-Defamation League.

A CHURCH'S 'SIGN' LANGUAGE

Good News Presbyterian Church in Gilbert, Ariz., lives on a shoestring. Its Sunday services are held at a senior center. In the past, it used an elementary school in the city next door.

The church, which has only a couple of dozen members, is heavily dependent on signs posted around town that advertise its service hours and location. Under Gilbert's sign code, those temporary directional signs are dwarfed by others that can be much larger and stay on public property much longer — political campaign signs, for instance.

For six years, the church and its pastor, Clyde Reed, have waged a legal battle against the town for equal treatment. Its free speech claim is that non-commercial signs should be treated similarly. Although political signs can be 32 square feet and stand for up to five months in some cases, the church's signs are limited to 6 square feet and 12 hours before each service.

Though the dispute focuses only on a town sign code, the church's lawyers from Alliance Defending Freedom, which focuses on religious freedom issues, says it applies to billboards, news racks, picketing, cable broadcast signals and video games.

The town says the restrictions are not based on content; politics, for instance, isn't favored over religion. Rather, it says, the differences are due to the reasons for posting signs — and elections are different from directions.

The U.S. Court of Appeals for the 9th Circuit sided with the town in a divided ruling. "Each exemption is based on objective criteria, and none draws distinctions based on the particular content of the sign," a three-judge panel ruled last year. "It makes no difference which candidate is supported, who sponsors the event or what ideological perspective is asserted."

Judge Paul Watford, who was named to the bench by President Obama and is a potential Supreme Court nominee, dissented. He noted that the time limitation on Good News' signs relegates them mostly to darkness.

The town treats political and ideological speech as more valuable, Watford said, "and therefore entitled to greater protection from regulation than speech promoting events sponsored by non-profit organizations. That is precisely the value judgment that the 1st and 14th Amendments forbid Gilbert to make."

The Supreme Court has been particularly sensitive to the perception that religious speech is discriminated against, says Paul Smith, chair of the Supreme Court and appellate practice at Jenner & Block. That could mean good news for Good News Presbyterian.