In China, Christian Activist Sues Local Police After Detention For Preaching In Park

According to yesterday's London Daily Telegraph, in China, Christian "house church" activist Cao Nan has filed a lawsuit against the police in the city of Shenzhen to challenge the police decision to detain him for 12 days for meeting with other Christians to preach and sing hymns in Shenzhen's Lizhi Park.  Police charged Cao with "falsely using the name of Christianity to harm social order." Cao hopes to encourage others to speak out against legal persecution and to vindicate his actions through legal means.

Feds Ease Rules On Taking Religious Items Through Federal Building Security

According to a news release this week from the Becket Fund, the Department of Homeland Security last December issued Federal Protective Service Directive Number: 15.9.3.1 creating a procedure to allow religious items through screening at federal buildings, even though they would otherwise be banned.  This has particularly become an issue with Sikh kirpans. The new policy was apparently not made public by the government until a few days ago. It provides in part:

Some items that are otherwise prohibited from a particular Federal facility may have some other legitimate and lawful purpose or use in a Federal facility, including as accommodations for civil rights and civil liberties under Federal laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act, and the Religious Freedom Restoration Act. 

One of the attachments to the FPS Directive is a Training Document titled Accommodating Sikh Articles of Faith.

All of this occurred as yesterday the 5th Circuit heard oral arguments (recording of full arguments) in Tagore v. United States, a federal lawsuit by a former Internal Revenue Service employee who was fired after she insisted on wearing her kirpan in a Houston federal office building. (See prior posting.) [Thanks to Eric Rassbach for the lead.]

Court Dismisses 1 of 3 Suits Challenging Eruv In Long Island Village

The New York Times reports that a New York federal district court on Monday dismissed one of three lawsuits challenging a proposed eruv that Orthodox Jews in Westhampton Beach plan to put up. The dismissed lawsuit was brought by a group calling itself Jewish People for the Betterment of Westhampton Beach which claimed that permitting the eruv would violate the Establishment Clause. (See prior posting.) Proponents of the eruv, who see opposition as an attempt to keep Orthodox Jews out of the community, have bypassed a formal vote by the Village. Instead the East End Eruv Association entered a direct agreement with Verizon and Long Island Lighting to use their utility poles for the eruv-- a symbolic boundary that allows observant Jews to carry things outside their homes on the Sabbath.

Catholic Hospital Says Its "Fetus Is Not A Person" Defense Was Morally Wrong

As reported by the Denver Post, Colorado-based Catholic Health Initiatives (CHI) released a statement (full text) Monday acknowledging that it was "morally wrong" for lawyers representing St. Thomas More Hospital in Canon City, Colorado to raise in a malpractice suit the defense that Colorado's Wrongful Death Act that does not consider a fetus to be a person.  As previously reported, the defense came in a lawsuit by the husband and the daughter of a woman, pregnant with twins, who died in the hospital's emergency room, and who argued that at least a cesarean section should have been performed to save the twins. CHI said that if the Colorado Supreme Court grants review in the case, it will not cite the Wrongful Death Act which does not permit fetuses to sue.

Meanwhile, the losing plaintiff in the lawsuit, Jeremy Stodghill, has filed for bankruptcy because of the $47,000 in legal fees for the defendants awarded against him. CHI did not file a lien or pursue a claim in bankruptcy court against Stodghill, but a physician who was a co-defendant did file lien which led to the bankruptcy filing. Stodghill's attorney says, however, that CHI used the legal fee award as a negotiating tool to try to persuade Stodghill not to appeal.

Another Small Business Challenges Contraceptive Coverage Mandate

On Monday, another Christian-owned for-profit small business filed a challenge to the Affordable Care Act contraceptive coverage mandate. The complaint (full text) in Briscoe v. Sebelius, (D CO, filed 2/4/2013), alleges that plaintiff Stephen Briscoe, owner of affiliated corporations and LLCs that operate senior independent living, assisted living and skilled nursing facilities, believes that furnishing coverage for contraceptives that may prevent implantation of an already fertilized egg is a sin for which he will be held accountable.  Briscoe discovered that his companies' self-insured plan covers these types of contraceptives as controversy over the HHS Mandate arose.   The company that provides his businesses with insurance told him that without a judicial order, it cannot exclude such coverage. The suit claims that the mandate violates plaintiffs' rights under RFRA, the 1st and 5th Amendments and the Administrative Procedure Act. Alliance Defending Freedom announced the filing of the lawsuit.

Churches Split On Boy Scout Proposal To End Ban On Gay Scouts and Leaders

According to yesterday's New York Times, the Boy Scouts at their national board meeting in Texas this week may vote to drop its ban on gay scouts and gay scout leaders. According to today's Atlanta Journal Constitution, the Scouts' decision implicates many churches.  70% of scout troops are sponsored by churches. The three largest religious sponsors are Church of Jesus Christ of Latter-day Saints (37,000 units), the Methodist Church (11,000 units) and the Roman Catholic Church (8,000 units). Within church bodies, there are strong feelings on both sides of the issue. The most outspoken criticism of the proposed change has come from Southern Baptist churches.

UPDATE: On Feb. 6, the Boy Scouts announced that it is postponing until May a decision on whether to lift a ban on gay scouts and scout leaders. (AP).

Victims Argue That LA Archdiocese Document Release Is Incomplete

In accordance with a settlement in a lawsuit by clergy abuse victims, last week, the Catholic Archdiocese of Los Angeles released 12,000 pages of internal files on accused priests. (See prior related posting.) Now, according to yesterday's New York Times, victim advocates charge that the files released are incomplete and many documents are unaccounted for.  On many pages of documents, the names of supervisors of offending priests have been redacted. Lawyers for victims also argue that there should be many more documents. In litigation in which the Archdiocese opposed going through the documents to remove prior redactions, it argued that there were 30,000 pages, not the mere 12,000 produced.  The lawyer for the Archdiocese said the 30,000 number was a "wild guess."

Court Rejects Standing-Ripeness Defenses To Diocese's Contraceptive Coverage Challenge

In Roman Catholic Diocese of Fort Worth v. Sebelius, (ND TX, Jan. 31, 2013). a Texas federal district court rejected both standing and ripeness challenges to a lawsuit challenging the application of the Affordable Care Act contraceptive coverage mandate to the Fort Worth Diocese. The government argued that a temporary enforcement safe harbor for religious non-profits and the Advance Notice of Proposed Rulemaking proposing amendments to the Mandate make the case unripe for review and remove plaintiff's standing.  The court concluded however:

The Mandate ... is a final rule with a definite effective date, and neither the ANPRM nor Defendants’ related announcements change this. And because the Mandate is “on the books,” there is nothing improper about subjecting it to the limitations of the United States Constitution and other applicable laws.

The American Center for Law and Justice reports on the decision. [Thanks to Hillary Byrnes for the lead.]

Romanian Court Orders Demolition of Office Building To Protect Cathedral

The National Catholic Register reports that an appeals court in Romania has ordered the city of Bucharest to pay for the demolition of a 19-story skyscraper that threatens the physical security of an historic Catholic cathedral located just 26 feet away.  The Cathedral Plaza office tower, located in an active earthquake zone, threatens the unreinforced walls of Bucharest's Cathedral of St. Joseph. The office tower was built without proper permits or authorizations and contains a number of building code violations.  The court ordered  that the office tower site be restored to its prior condition as a small park.

Arkansas Legislature Passes Law Giving Churches Right To Allow Concealed Carry

As reported by KATV News, yesterday the Arkansas legislature gave final passage to SB 71, the Church Protection Act of 2013.  The bill eliminates the absolute ban on carrying a concealed handgun in a church or other place of worship, and allows the place of worship to decide who may carry a concealed handgun on their premises. The bill now goes to Gov. Mike Beebe who says he will sign it. Proponents of the bill say that current law infringes a church's freedom by deciding for it whether guns are permitted.

Archbishop Says Gays Should Be Protected From Discrimination

RNS reports that Archbishop Vincenzo Paglia, head of the Pontifical Council for the Family, in his first press conference sine he was appointed, urged protection of gays and lesbians from discrimination in countries where homosexuality is illegal. While emphasizing the Church's continued opposition to same-sex marriage, the Archbishop at a press conference yesterday said:

In the world there are 20 or 25 countries where homosexuality is a crime.  I would like the church to fight against all this.

Oregon AG Investigating Bakery's Refusal To Provide Cake For Same-Sex Wedding

The Oregon Attorney General's civil enforcement office has opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage.  According to today's New York Daily News, Aaron Klein, the owner of Sweet Cakes in Gresham, Oregon, says he was following his strong religious beliefs in deciding not to be a part of a same-sex marriage. Oregon's Equality Act of 2007 bars sexual orientation discrimination in public accommodations.

Mennonite Pastor Ordered Back To Jail For Refusing To Testify To Grand Jury

AP on Friday reported that Kenneth Miller, a Mennonite pastor from Stuarts Draft, Va., was sent back to jail by a Vermont federal district judge who has ordered him to testify before a grand jury about a man involved in the 2009 flight of Lisa Miller and her daughter to Central America. Kenneth Miller already faces up to 3 years in prison after  he was convicted of abetting an international kidnapping. (See prior posting.). He told Vermont district judge William Sessions III: "If I were to bring testimony against a fellow member of Christ’s kingdom, for honoring Christ’s kingdom’s laws, I would be disloyal to his kingdom and to Christ." Lisa Miller renounced homosexuality, became a Baptist and then a Mennonite, and fled the country after her former same-sex partner was awarded custody of of the daughter. Lisa Miller was originally granted custody, but after she refused to comply with visitation schedules for her former partner, courts in both Virginia and Vermont granted custody to the former partner. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Mine Yildirim, Religion in the Public and Private Turkish Workplace: The Approach of the Turkish Judiciary, (in A Test of Faith? Religious Diversity and Accommodation in the European Workplace, K. Alidadi, M.-C. Faoblets and J. Vrielink, (eds.), Ashgate, 2012).
• Steven H. Resnicoff, The Causes and Cures of Unethical Business Practices – A Jewish Perspective, (January 27, 2013).
• Deirdre M. Bowen, I Wanna Marry You: An Empirical Analysis of the Irrelevancy and Distraction of DOMAs, (January 31, 2013).
• Matthew I. Hall, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot), (Stanford Law Review Online, Vol. 65, p. 92, 2013).

From SmartCILP:

• Haider Ala Hamoudi, Repugnancy in the Arab World, [Abstract], 48 Willamette Law Review 427-450 (2012).
• Javaid Rehman and Stephanie E. Berry, Is "Defamation of Religions" Passe? The United Nations, Organisation of Islamic Cooperation, and Islamic State Practices: Lessons from Pakistan, [Abstract], 44 George Washington International Law Review 431-472 (2012).
• Remembering David Michael Cobin. Introduction by Howard J. Vogel; articles by Paul Finkelman, Daniel Sinclair, Michael J. Broyde, Ira Bedzow and Earl Schwartz; memorial by Michael Tsur. 35 Hamline Law Review 547-673 (2012).

NFL Publishes Copyright Guidelines For Church Super Bowl Viewing Parties

With the Super Bowl about to begin, it should be noted that again this year the NFL has issued Guidelines to prevent copyright infringement by churches that are hosting viewing parties.  As reported by Copyright Community:

A church may hold their “viewing party” in its usual place of worship and must not charge a fee for attending such viewing party. If those requirements are met, the NFL will not object when a church has a party for its congregants to watch the Super Bowl together.”...

If  a church is only using NFL marks and no logos to describe the party in materials distributed to its congregants, the NFL will not object. For example, you can refer to the party as the Super Bowl party and you can refer to the two teams participating (i.e., “San Francisco 49ers vs. Baltimore Ravens”), but cannot use the NFL Shield, Super Bowl or Club logos.

British Court For First Time Refers Marital Dispute For Arbitration By Jewish Religious Court

As reported by the Hodge Jones & Allen law firm, the English and Wales High Court (Family Division) last week handed down a judgment that for the first time in Britain endorsed the determination of a matrimonial dispute through reference to a Jewish religious court (Bet Din).  In AI v. MT, (EWCH, Jan. 30, 2013), after the parties instituted custody proceedings in British courts, they agreed to refer their disputes to arbitration by a senior rabbi, Rabbi Geldzehler of the New York Bet Din.  They then asked to court to enter an order referring the case to the Bet Din. The court then recounted:

At the outset ... I indicated to the parties that I did not consider the terms of the draft order to be lawful. In particular, they flouted the principle that the court's jurisdiction to determine issues arising out of the marriage... cannot be ousted by agreement. On the other hand, having regard to the parties' devout religious beliefs and wish to resolve their dispute through the rabbinical court, and acknowledging that it always in the interests of parties to try to resolve disputes by agreement wherever possible... I indicated that the court would in principle be willing to endorse a process of non-binding arbitration....

I indicated that I would endorse the parties' proposal to refer their disputes to a process of arbitration before the New York Beth Din on the basis that the outcome, although likely to carry considerable weight with the court, would not be binding and would not preclude either party from pursuing applications to this court in respect of any of the matters in issue....

It was not until September 2011 ... that the New York Beth Din eventually handed down its ruling on the arbitration. The award covered all issues between the parties.... Even then, there were further negotiations between the parties....

There was, furthermore, one remaining impediment. Under Jewish law, it was necessary for the father to give the Get. Within orthodox Jewish culture, great social stigma attaches to a woman who is separated from her husband but has not been granted a Get.... For this reason, the mother was unwilling to agree to the complex provisions of the arbitration award unless the Get was given. Equally, the father was unwilling to agree to give the Get until the court had approved the award and indicated that it would agree to its terms being incorporated in a court order. The solution arrived at by the parties was for the court to convene a hearing, consider the terms of a draft order based on the arbitration award and, if so minded, indicate that it would be prepared to make the order in the best interests of the children, whereupon the father would forthwith attend at the London Beth Din with the mother and go through the lengthy ceremony for the giving of the Get....

DOJ Reaches Settlement With California City Over Permit For Islamic Center

The Justice Department announced Friday that it has reached a settlement with the city of Lomita, California in a RLUIPA lawsuit challenging the city's refusal to allow the Islamic Center of South Bay to tear down existing buildings it is using and replace them with a single worship and activities center. Under the Agreed Order (full text) in United States v. City of Lomita California, (CD CA), the city will consider on an expedited basis a new application from the Islamic Center. The parties have separately reached an agreement on its contents. The city will also comply with training, reporting, record keeping and monitoring provisions set out in the Agreed Order. The order must still be approved by the court. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Thompson v. Smeal, (3d Cir., Feb. 1, 2013), the 3rd Circuit vacated the trial court's decision and remanded for further proceedings an inmate's complaint that Christian inmates were not allowed to congregate for special feasts on Christmas and Easter, even though various other religious groups were allowed special religious meals.

In Weeks v. Corizon Medical Services, 2013 U.S. Dist. LEXIS 10016 (ED MO, Jan. 25, 2013), a Missouri federal district court dismissed an inmate's complaint that he was forcibly injected with a tuberculosis test, in violation of his sincerely held beliefs as a member of The House of Yahweh.

In Lewis v. Zon, 2013 U.S. Dist. LEXIS 10374 (WD NY, Jan. 25, 2013), a New York federal district court dismissed a Jewish inmate's complaint that his RLUIPA and free exercise rights were violated by prison policies in the Special Housing Unit requiring the plastic wrap covering his kosher meals to be removed and barring him from attending congregational services. It also rejected his claim that denying him food he needed for medical reasons on Jewish fast days violates the Establishment Clause.

In Pennick v. Williamson, 2013 U.S. Dist. LEXIS 10420 (WD WA, Jan.25, 2012), a Washington federal district court dismissed on qualified immunity grounds an inmate's complaint that for two days he was mistakenly left off the list of those to receive Passover food.  In a separate order (2013 U.S. Dist. LEXIS 10489, Jan. 24, 2013) the court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185127, Oct. 19 2012) to allow plaintiff to proceed with his complaint regarding what lists control entitlement to Passover meals.

In Blanks v. Cate, 2013 U.S. Dist. LEXIS 11233 (ED CA, Jan. 25, 2013), a California federal magistrate judge recommended dismissing complaints by a Rastafarian inmate that authorities failed to procure a Rastafarian chaplain, did not provide a separate outside place of Rastafarian worship, delayed issuing renewed artifact chronos and approval of a Rastafarian religious vendor.

In Ward v. Rich, 2013 U.S. Dist. LEXIS 11310 (CD CA, Jan. 25, 2013), a California federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185223, Sept. 26, 2012) and dismissed claims that an inmate was punished for continually singing gospel songs, and that he was denied his Bible for three days.

In Warren v. Washington, 2013 U.S. Dist. LEXIS 12679 (WD MI, Jan. 30, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185360, Dec. 10, 2012) and dismissed an Orthodox Jewish inmate's complaint that he was discriminated against, was banned from the building where the Messianic Jewish group was allowed to continue their services, and was forced to practice his religion outside on a smoke pad.

In Crawford v. Bukowski, 2013 U.S. Dist. LEXIS 12113 (CD IL, Jan. 28, 2013), an Illinois federal district court dismissed an inmate's claim that he was denied vegan meals that were required by his religious beliefs.

In Papa v. Chester County Prison, 2013 U.S. Dist. LEXIS 13054 (ED PA, Jan. 31, 2013), a Pennsylvania federal district court dismissed an inmate's complaint that he had not received kosher meals, had rarely seen a rabbi, did not have his worship requests met and received a Tanach only after significant delay.

In Sargent v. New Hampshire Department of Corrections, 2013 U.S. Dist. LEXIS 13964 (D NH, Jan. 31, 2013), a New Hampshire federal magistrate judge in a supplemental report concluded that an inmate's free exercise rights were not violated when he was barred from proselytizing other inmates during the sex offender treatment program.

In Ericson v. Magnusson, 2013 U.S. Dist. LEXIS 12992 (D ME, Jan. 31, 2013), a Maine federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185504, Dec. 18, 2012) and permitted an inmate to move ahead with claims for declaratory or injuntive relief based on his complaint that he was not allowed to attend Protestant worship services or fast, and was not given access to sufficient hymnal books or a baptismal font.

Court Dismisses Challenge to Hebrew National's Kosher Certification

In Wallace v. ConAgra Foods, Inc., (D MN, Jan. 31, 2013), a Minnesota federal district court dismissed a suit by consumers who claim that ConAgra misrepresented on packaging that Hebrew National products are made of "100% kosher beef." Plaintiffs claim that the method of cattle slaughter used by the contractor that slaughters cattle for ConAgra fails to meet standards for kosher slaughter even though a certifying agency, Triangle K, certifies the beef as kosher. The court concluded that whether products meet the standards for kosher meat "is a religious question that is not the proper subject of inquiry" by a civil court, even though this will leave consumers without a remedy, other than not purchasing Hebrew National products or those certified by Triangle K. (See prior related posting.)

Court Dismisses Priest's Suit Against Parishioner On Ecclesiastical Abstention Grounds

In Jennison v. Prasifka, (TX App., Jan. 28, 2013), a Texas state appellate court invoked the ecclesiastical abstention doctrine to dismiss a suit by an Episcopal priest against a parishioner alleging slander, tortious interference with contractual relationship and wrongful discharge. Plaintiff, Raymond Jennison, who also was a stockbroker, sued over a letter that Jeanette Prafiska had written to the Bishop complaining that Jennison had been churning her brokerage account.  In response the Bishop placed Jennison on inactive status as a priest. The court held:

Jennison’s claims ... are inextricably intertwined with the church’s investigation of his performance as a priest and the discipline imposed by the church for inadequate performance.... Therefore, adjudication of Jennison's claims would neccessariIy require an inquiry into and interpretation of canon law, application of church policies, and the church’s assessment of Jennison’s fitness to perform the duties of a priest....[This] would impinge upon the church’s ability to manage its internal affairs and impair the effectiveness of the church’s disciplinary process.