State Freedom of Conscience Clause Does Not Cover Environmentalist Who Refuses To Mow Lawn

In Gul v. City of Bloomington, (IN App., Dec. 22, 2014), an Indiana state appellate court rejected constitutional and statutory challenges to a city ordinance that prohibits grass in yards from being over 8 inches tall.  Environmentalist Alexander Gul claimed, among other things, that the citation he received for for refusing to mow his lawn violated his free expression rights and his freedom of conscience protected by the Indiana constitution. The court recounts:

Gul allows his yard to grow naturally and does not apply chemicals, mow, water, or fertilize it. He explains that his decision to maintain a natural yard is a statement of his sincerely held environmental belief that the overuse of chemicals, water, and lawnmowers to maintain a traditional lawn is harmful to the environment.

Bloomington officials disagree and view Gul’s yard as merely overgrown.

Rejecting Gul's under the state constitution's conscience clause, the court said:

... we find that Article 1, Section 3 was intended to apply to religious, rather than non-religious, matters of conscience. But even if it includes non-religious matters of conscience, it protects only the right to hold one’s own opinions, and does not protect the right to act on one’s own opinions in contravention of the law. 

Lawsuit Challenges Courthouse Lawn Nativity Scene

Despite a disclaimer placed on the courthouse lawn Nativity Scene in Baxter County, Arkansas (see prior posting), this week a federal court lawsuit was filed challenging the display on Establishment Clause grounds.  The complaint (full text) in American Humanist Association v. Baxter County, Arkansas, (WD AR, filed 12/23/2014), alleges that: "Religious and specifically Christian elements overwhelmingly dominate the County’s annual Nativity Scene display." It contends that a purported 2-month lease of the property on which the display stands to the Chamber of Commerce for $1 is "a sham attempt to insulate the County from responsibility...." Last year the County refused to allow two county residents to place a Happy Solstice Banner near the Nativity Scene. AP reports on the lawsuit.

DC Court of Appeals Grants Default Judgment Against North Korea In Torture Death of Christian Missionary

In Kim v. Democratic People's Republic of Korea, (DC Cir., Dec. 23, 2014), the Court of Appeals for the D.C. Circuit awarded a default judgment against North Korea to the family of Reverend Dong Shik Kim who allegedly was abducted from China by North Korean agents, taken to a North Korean labor colony, tortured and then killed. Kim, a Christian missionary, was allegedly targeted for providing humanitarian aid to North Korean defectors and refugees who fled to China seeking asylum, and for his proselytizing defectors.  According to a 2008 Washington Post article:

Kim, whose wife and two children are U.S. citizens, had raised the ire of the North Korean government by helping its citizens flee the repressive regime and by attempting to convert North Korean athletes who attended the 1996 Olympic Games in Atlanta.

The suit against North Korea was based on the "terrorism exception" to the Foreign Sovereign Immunities Act, allowing suits based on allegations of torture. The appeals court found that plaintiffs had produced sufficiently satisfactory evidence of torture to satisfy the requirements for entering a default judgment. The court concluded:

If the DPRK is unhappy with that outcome and has evidence that it has not tortured and killed Reverend Kim, it, like any defendant in default, may ask the district court to vacate that judgment under Federal Rule of Civil Procedure 60(b).

McClatchy News reports on the decision.

Court Orders Sikh Temple Meeting With Quorum Requirement Dropped

According to the Marysville, California Appeal-Democrat, a Sutter County, California state trial court judge last Friday issued an interim order in a dispute over control of a Sikh Temple in Yuba City.  Members who have wanted to hold a meeting to challenge action of the Temple's board of directors have been unable to do so because of the by-laws' unrealistic quorum requirement.  The bylaws require a quorum of over 50% of the formal members of the Temple.  A membership list compiled in 2008 lists over 4400 members, many of whom have died or moved away.  Only 500 people are signed up to receive the Temple's monthly newsletter.  An attempt to obtain a quorum in May 2013 led to 2000 people showing up, but a number still short of a quorum.  The court Friday ordered a special meeting of members to be held, and ordered the Temple to drop the quorum requirement for the meeting. The Temple's attorney argues that the interim order is unconstitutional because it infringes on the Temple's internal governance.

Jury Awards Catholic School Teacher Fired For In Vitro Fertilization Damages of $1.95M

The Fort Wayne (IN) Journal Gazette reports that a federal jury last Friday awarded former Catholic school teacher Emily Herx $1.95 million in damages in her Title VII sex discrimination claim against the Diocese of Fort Wayne-South Bend. Herx's teaching contract was not renewed after she became pregnant through in vitro fertilization. The Catholic Church considers in vitro fertilization immoral, and the Diocese argued that Herx had agreed to uphold Catholic teachings. Herx argued that the Diocese would not have refused to renew a male teacher's contract under the same conditions. While finding substantial actual damages, the jury awarded Herx only a nominal $1 in punitive damages.  It is likely that the Diocese will appeal the decision. (See prior posting.) [Thanks to Wall of Separation for the lead.]

NLRB Announces New Test For Jurisdiction Over Religious Colleges

In an important decision handed down last week, the National Labor Relations Board-- interpreting the U.S. Supreme Court's 1979 decision in NLRB v. Catholic Bishop of Chicago-- developed a new test for when the Board will assert jurisdiction over religiously-affiliated colleges.  In a 3-2 decision in Pacific Lutheran University, (NLRB, Dec. 16, 2014), the Board held:

... when a college or university argues that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty members because the university is a religious one, the university must first demonstrate, as a threshold requirement, that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment.  Once that threshold requirement is met, the university must then show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large.

Applying this test, the majority held that

... although [Pacific Lutheran University] meets the threshold requirement of holding itself out as creating a religious educational environment, it does not hold out the petitioned-for contingent faculty members as performing a religious function in support of that environment.

In a dissenting opinion, Member Johnson said in part:

The majority decision today represents yet another effort to push back against the Supreme Court’s mandate that we avoid striving for jurisdictional boundaries that could violate the First Amendment. Although the majority announces its intent to “articulate a new test that is . . . faithful to the holding of Catholic Bishop,” the majority’s new test falls short in that goal in many regards.

Member Miscimarra, dissenting in part, agreed with this portion of Member Johnson's dissent.  The Board's decision also rejected the argument that the faculty involved were exempt managerial employees.

Chronicle of Higher Education reports on the NLRB's decision. [Thanks to Larry Hansen for the lead.]

Court Says Muslim Witness Cannot Take Oath On Quran

Today's Legal Intelligencer reports on a decision by a Pennsylvania trial court judge holding that a Muslim woman could not take her oath as a witness using the Quran. In Musaitef v. Musaitef, (Philadelphia County, PA Common Pleas), the court read 42 PA.C.S. Sec. 5901 strictly to require that the witness either take the oath on the Christian Bible or else make a non-religious affirmation. The case, a custody dispute between a Muslim mother and Muslim father, is still ongoing.  The father, who took his oath on the Bible, raised the objection to the mother using the Quran.  Apparently the mother's insistence on a Quran was intended to suggest that the father's testimony was untruthful because his Islamic faith included the belief that oaths taken on non-Muslim religious books do not bind him to tell the truth.

British Tax Tribunal: Company Can Assert Religious Rights As Alter Ego of Owner

In Exmoor Coast Boat Cruises Ltd. v. Commissioners for Her Majesty's Revenue & Customs, (UK FTT, Dec. 17, 2014), the United Kingdom First-Tier Tribunal Tax Chamber held that a business entity can assert religious liberty rights where it is the alter ego of a natural person (or possibly a group of persons) whose rights are being infringed.  At issue was whether Exmoor Coast, a company, solely owned by Matthew Oxenham, could claim an exemption from mandatory electronic filing of Value Added Tax returns. VAT regulations permit paper filing by any "practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications...."

The court concluded that while the alter ego test was met, it was not shown that the electronic filing requirement interferes with Oxenham's manifestation of his religion or belief. His objections relate to the amount of CO2 created by the Internet and its impact on climate change.  However Oxenham was willing to use the Internet for some purposes.  The court concluded:

... it was [Oxenham's] belief that the internet should not be used save where he judged it economically necessary to do so.... [T]hat belief does not attain a level of cogency, seriousness, cohesion and importance such that it should be protected. This is because his belief ... is not so strongly held that he will make economic sacrifices for it; further, [Article 9 of the European Convention on Human Rights] cannot have been intended to protect a belief system which allows the practitioner to pick and chose when it suits him to adhere to his principles as that would amount to allowing people to pick and choose when they can be compelled to obey the law.

Law & Religion UK has more on the case.

India Considering Anti-Conversion Law

According to a report from AFP on Saturday, in India, Parliament is paralyzed over a proposed law against "forced conversion." The term is used in India to describe not just conversion under threat of violence, but also conversion through inducements such as offers of free food or education.  Hindu nationalists connected to Prime Minister Narendra Modi's Bharatiya Janata Party (BJP) have become more aggressive in their conversion efforts. The Daily Times reports

The Bharatiya Janata Party’s (BJP’s) militant wing, the Rashtriya Swayamsewak Sangh (RSS) has started a forced conversion movement called homecoming. The RSS believes that these Muslims and Christian were originally Hindus and the homecoming movement is simply an attempt to bring them back to where they belong.

RSS was accused of converting some 50 poor Muslim families a week ago, promising the converts ration cards and other financial incentives.  A larger planned conversion of Christians and Muslims on Christmas day has been called off.  Amit Shah, leader of BJP, says the party favors a new law.

Recent Articles of Interest

From SSRN:

• Jane Mair, Belief in Marriage, (Forthcoming in the International Journal of the Jurisprudence of the Family).
• Ines Michalowski, What is at Stake in Military Chaplaincy When Muslims Join the Ranks? An International Comparison, (Robert Schuman Centre for Advanced Studies Research Paper No. 2014/126 (Dec. 2014)).
• Linda C. McClain, Corporate Conscience and the Contraceptive Mandate: A Dworkinian Reading, (Forthcoming in the Journal of Law and Religion, Vol. 30, No. 1, February 2015).
• Thomas J. McSweeney, Magna Carta, Civil Law, and Canon Law, (Magna Carta and the Rule of Law (Daniel Magraw et al eds., 2014)).

From SmartCILP:

• Symposium on Ronald Dworkin's Religion Without God. Introduction by James E. Fleming; articles by Jeremy Waldron, Stephen L. Carter, Paul Horwitz, Andrew Koppelman, Cecile Laborde, Linda C. McClain, Micah Schwartzman and Steven D. Smith. 94 Boston University Law Review 1201-1355 (2014).

Cert. Petiiton Filed In 6th Circuit ACA Non-Profit Contraceptive Mandate Case

On Dec. 12, a petition for certiorari was filed with the U.S. Supreme Court in Michigan Catholic Conference v. Burwell. (Docket entry). The full text of the petition is available on Westlaw at  2014 WL 7166539. In the case, the U.S. 6th Circuit Court of Appeals denied preliminary injunctions to several Catholic non-profit entities that object to the Affordable Care Act contraceptive coverage accommodation. (See prior posting.) BNA Daily Report for Executives [subscription required] reports on the filing of the petition.

President Signs Bill Extending Until 12/31 Tax-Free Charitable IRA Distributions

On Friday, President Obama signed H.R. 5771, the Tax Increase Prevention Act of 2014. Section 108 of the Act extends until Dec. 31, 2014 the provision allowing tax-free distributions from IRA's for charitable purposes. The benefit applies to IRA holders who are at least 70 1/2 years old.  The Wall Street Journal reports in more detail on the provision.

Recent Prisoner Free Exercise Cases

In Wakefield v. Indermill, (9th Cir, Dec. 18, 2014), the 9th Circuit affirmed dismissal of an inmate's complaint that he was denied weekly communion and foot washing services in the security housing unit.

In Presley v. Scott, 2014 U.S. Dist. LEXIS 172742 (ND AL, Dec. 15, 2014), an Alabama federal district court, while dismissing a number of plaintiff's claims, allowed an inmate to proceed against certain of the defendants for seizing and destroying his medicine bag and other religious items.

In Johnson v. Lewis, 2014 U.S. Dist. LEXIS 173411 (WD NC, Dec. 16, 2014), a North Carolina federal district court held that a Hebrew Israelite inmate seeking a kosher diet can move ahead with claims for injunctive relief against defendants in their official capacities, but dismissed damage and individual capacity claims.

In Surles v. Cater, 2014 U.S. Dist. LEXIS 174236 (SD GA, Dec. 17, 2014), a Georgia federal district court accepted a magistrate's recommendation and dismissed an inmate's claim that his free exercise and equal protection rights were infringed when on one occasion he was denied a pre-Ramadan meal.

In Ben-Levi v. Brown, 2014 U.S. Dist. LEXIS 175040 (ED NC, Dec. 18, 2014), a North Carolina federal district court upheld enforcement of a prison's rule that Jewish Bible study with fewer than ten participants must be led by a rabbi.

In Smith v. Perlman, 2014 U.S. Dist. LEXIS 175341 (ND NY, Dec. 18, 2014), a New York federal district court dismissed an inmate' complaint that the number of Islamic holy days designated as family events was reduced from 2 to 1; he was denied attendance at congregate religious services while in keeplock; and that his request to incorporate halal meats into his therapeutic diet was refused.

In Pickering v. California Department of Corrections, 2014 U.S. Dist. LEXIS 175656 (ED CA, Dec. 18, 2014), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that authorities have hindered his practice of his Asatru/Odinic faith in numerous ways including denial of chapel times on a few occasions, denial of outdoor worship space and of various items needed for worship.

A suit was filed this week in an Ohio federal district court on behalf of a Muslim woman who alleges that, over her objections, she was forced to attend Christian prayer services while serving a 60-day sentence in the Cuyahoga County (OH) jail. Cleveland.com reports on the lawsuit. (Full text of complaint in Majeed v. Cuyahoga County, (ND OH, filed 12/18/2014)). [Thanks to Matthew Besser for the lead.]

Chabad Rabbis At George Washington University Litigate Over Contract

Thursday's Baltimore Jewish Times reports on an unusual lawsuit just concluded in D.C. Superior Court between two Chabad rabbis:

“American Friends of Lubavitch (Chabad), et al. v. Yehuda Steiner, et al.” pits Rabbi Levi Shemtov, executive vice president and director of American Friends of Lubavitch (Chabad), one of the most recognizable and politically connected Jewish leaders in the country, against [Rabbi Yehuda] Steiner and his wife, Rivky Steiner, the couple Shemtov appointed in 2008 as shluchim, or emissaries, to coordinate Chabad’s presence on George Washington University’s campus.

D.C. Superior Court Judge Neal Kravitz ruled on Monday that Rabbi Steiner, popular with students, was in breach of his contractual obligations that had previously been worked out between the two rabbis through a Jewish religious court. Kravitz enjoined Steiner from leading further Chabad activities at GWU. However, Kravitz also ruled that the non-compete provision in the Steiners' employment contract was unenforceable, leaving open the possibility that Steiner might move his outreach to D.C. students to nearby Georgetown University.

Supreme Court Denies Stay of Florida Same-Sex Marriage Ruling

The U.S. Supreme Court late yesterday afternoon denied an application for a stay in a Florida same-sex marriage case while the decision is on appeal to the 11th Circuit.  The Supreme Court's order (full text) in Armstrong v. Brenner, (Dec. 19, 2014) results in a district court decision handed down in August taking effect on January 5. (See prior related posting.)  Justices Scalia and Thomas dissented from the Court's action.  SCOTUSblog reports on the Court's action.

Westboro Baptist Attempt To Intervene In Same-Sex Marriage Case Again Rejected

In Marie v. Moser, (D KA, Dec. 18, 2014), a Kansas federal district court for a second time (see prior posting) refused to allow Westboro Baptist Church to intervene as a party in a lawsuit challenging the Kansas ban on same-sex marriage. The court said that WBC's arguments were based on speculation about future possible claims by same-sex couples.  WBC was allowed to continue to file amicus briefs to assert arguments it would like the court to consider.

Hawaii Supreme Court Hears Oral Arguments On Challenge To Marriage Equality Law

Yesterday the Hawaii Supreme Court heard oral arguments in McDermott v. Abercrombie, a case challenging the state legislature's authority to enact the Hawaii Marriage Equality Act of 2013. The Court, on its website, summarizes the issues:

Respondents argue, inter alia, that the Hawai`i Marriage Equality Act is unconstitutional because in 1998, the people of Hawai`i voted to amend article 1, section 23 of the Hawai`i Constitution to state that “the legislature shall have the power to reserve marriage to opposite-sex couples.” Respondents argue that the intent of this amendment was to constitutionally reserve marriage to opposite-sex couples, so the legislature was not authorized to pass the Hawai`i Marriage Equality Act. In response, Petitioners argue that article 1, section 23 allows the legislature to reserve marriage to opposite-sex couples, but does not require it to do so. Petitioners also argue that Respondents lacked standing to bring this lawsuit.

An audio recording of the full oral arguments is available from the Court's website. AP reports further on the case.

Lawsuit Against Hebrew National Dismissed In State Court With No Appeal Filed

American Jewish World reported yesterday on the end of the long-running lawsuit against ConAgra Foods challenging the adequacy of its standards for kosher slaughter of the beef used in manufacturing Hebrew National hot dogs.  As previously reported, in April the U.S. 8th Circuit Court of Appeals remanded the case to state court.  Then, in a little noticed October 6 opinion (reported on at the time by American Jewish World), a Minnesota state court judge dismissed the case, saying that a civil court cannot make a judgement about whether religious standards for kosher slaughter have been met.  He added:

At bottom, the ultimate remedy for those who feel they don’t have confidence in the degree of kashrut observed in the production of [Hebrew National] products is not to purchase them.

Now the time for appeal of that dismissal has run with no appeal being filed.

Chicago Travel Agent Charged With Mail Fraud In Hajj Visa Misrepresentations

The U.S. Attorney's Office for the Northern District of Illinois yesterday announced the arrest on mail fraud charges of Chicago travel agent Rashid Minhas.  A criminal complaint charges that Minhas sold Hajj travel packages to some 50 customers for a total of $525,000, falsely representing to them that the package contained the required visa to enter Saudi Arabia. It is alleged that Minhas knew that his company, Light Star Hajj, was not authorized by Saudi Arabia to obtain visas.

Israel's High Court Approves Rabbinical Court's Retroactive Invalidation of Conversion

On Wednesday, a 3-judge panel of Israel's High Court of Justice ruled that a rabbinical court had authority to retroactively cancel a conversion of a woman to Judaism where the woman misled the rabbinical court about her intention to lead an Orthodox Jewish life style.  Times of Israel and Jerusalem Post report that the rabbinical court acted two years after approving the conversion because convert Yonit Erez completely changed her Orthodox lifestyle shortly after her conversion. Critics of the decision say there is no basis in Jewish law, short of bribery, for reversing a conversion. Reform Rabbi Uri Regev says that false promises to maintain an Orthodox lifestyle are common among converts from the former Soviet Union in Israel.