Monday, February 23, 2015

The Paradox of "Fairness for All"

In a recent press conference, several of the Mormon Church's leaders announced that they support legal efforts to protect gays and lesbians against housing and job discrimination. Due to the nature of the church's views, it has historically been against things such as same sex marriage and forced actions, like making a Mormon doctor perform an abortion. This statement did not come without strings, however. The Mormon Church would like to see more protection for the LGBTQ community, but also more protection for themselves in the form of religious exemptions.

Many have called this announcement an attempt to alter the perception of bigotry the general public may have of the church. This raises an interesting point that is sometimes overlooked; public views can often influence the official stances of churches. While they clearly did not retract their statements, it still seems as though the Mormon Church recognizes that it is losing the battle against its views. This appeal may even apply to some of its members, as the article states that this may also be a concession to its moderate followers.

In regards to other cases, I am usually for religious exemptions because I generally do believe that people such have the right to practice their beliefs while still having the opportunity to engage with other things. For example, when someone wrote a post on whether or not the Sheikh man should be allowed to join the military, I argued for a religious exemption that would allow him to join and wear his turban. But this case seems to bring up an interesting point about fairness to everyone. By protecting the LGBTQ community and the Mormons' right to not abide by that, the government would be making it fair for someone else to not be fair. Anti-discrimination legislation is, by default, supposed to be fair to everyone. But in a situation like this, it can seem like creating a no-discrimination rule is actually discrimination (against those who do not believe their actions are discriminatory). It’s a paradox that seems to come with the territory of the “right to life, liberty, and the pursuit of happiness” and the right to freely exercise your religion, which may include values that goes against the first.

Much of how you feel about this situation may stem from your own personal belief system. For example, at one time, it was socially acceptable to discriminate based on race/ethnicity, even though people have no control over that. If you believe that LGBTQ people were born the way they are, then allowing a religious exemption to discriminate is wrong. But if you believe that LGBTQ people chose to be the way they are, then this religious exemption makes perfect sense for you to further practice your religion. As someone in the first camp, I think that exempting Mormons and other conservatives from treating people fairly is unconstitutional.

Some may argue that people have the right to serve whoever they want, but at the same time, this would most likely not be one or two cases asking for a religious exemption. With such a large Mormon population, Utah could very well find itself in a position where the government is faced with many requests for religious exemptions. So while it may improve the situation for the LGBTQ community in some cases, it may also just allow the state to say that it has done its job by passing anti-discrimination legislation. Because of a largely conservative population, it does not seem likely such legislation will pass soon without the provision for religious exemptions, so depending on state action, the LGBTQ community may remain unprotected for now.

One of the most fascinating things I find about this example is that it seems as though historically, Mormons have been looked down upon. Thus, they have faced court-justified discrimination in cases such as Reynolds v. United States (1879). Even though the church no longer supports polygamy as apart of its religion, it was once considered a necessary practice. And yet, even with this past of unfair treatment, their official views on other issues are discriminatory in nature just like rules have been towards them.

This case involves two competing principles in terms of who gets treated more fair. While the Mormon Church may publicly wish for "fairness for all," it is still asking for the right to be unfair. Determining whether or not this is right requires a prioritization of what I would consider basic human rights (to equal opportunity) and the constitutionally given right to freely exercise your religion. However difficult it may be to choose between the two, I think the choice is necessary to have a properly and fairly functioning law.

Pediatrician Denies Care To Child of Same-Sex Couple

On February 18th, it was reported that a Detroit couple's child was declined to be seen by her pediatrician. The reason for the pediatrician's refusal was the fact that the child had two mothers. Krista, the baby's biological mother, and Jami Contreras were the mothers who took their child to see Dr. Vesna Roi. Like most caring parents, Jami and Krista took the time to research and talk to the best pediatricians in the are for their newborn daughter, Bay.  They came across and decided upon Dr. Roi. Dr. Roi had been practicing pediatric medicine for 19 years. She was a doctor who took a holistic approach to treating children, which Jamie and Krista found to be an important criteria and one of the main reasons they chose Dr. Roi. Jami and Krista went into the doctor's office for a prenatal visit and explained that they were married and were very interested in having Dr. Roi as Bay's pediatrician. At the time, Dr. Roi showed no issues with the couple's sexual orientation and even told them to schedule an appointment when the child was born. The couple were optimistic about their baby's new pediatrician and scheduled the appointment.

Krista Contreras, 31, left, and her wife, Jami Contreras,The couple showed up to their scheduled appointment and were seated in the waiting room when much to their dismay another pediatrician who worked in the office came out to great them. The other pediatrician broke the news that Dr. Roi had changed her mind. Dr. Roi was quoted as saying that after "much prayer" she would be unable to act as Bay's Pediatrician because the Krista and Jami were lesbians. The couple was blindsided. Dr. Roi sent the couple an apology letter and claimed that she would be unable to form the bond with them that she does with the rest of her patients. She went on to say that they were welcome in the office anytime and could see another pediatrician if they would like. Dr. Roi was very apologetic, but firm in her beliefs and refuses to see Jami and Krista's child.

Even though Dr. Roi never explicitly stated that it was her religious beliefs that is preventing her from treating the child, it can be inferred from her statements in the letter such as "After much prayer..." and "Please know that I believe that God gives us free choice and I would never judge anyone based on what they do with that free choice..." The question is whether or not Dr. Roi has the right to discriminate against patients based on her religious beliefs.

The state of Michigan currently holds no law against discrimination against the LGBTQ community. In fact, only 22 states in the US do. Due to the lack of a law, there is no criminal or civil suit filed in this case. However, had there been statutes in place should Dr. Roi have been allowed an exception for her religious beliefs?

I believe that in this case, Dr. Roi should be compelled to see and treat the child. I believe that her religious exemption is trumped by the code and policies of the American Medical Association (AMA). "Respecting the diversity of patients is a fundamental value of the medical profession and reflected in long-standing AMA ethical policy opposing any refusal to care for patients based on race, gender, sexual orientation, gender identity, or any other criteria that would constitute invidious discrimination," the AMA said in a statement. These guidelines are only advisory, however I contend that they should be the guiding principles for all doctors. All doctors are also held to the ethical standards of the Hippocratic Oath, which I believe supersedes the religious convictions of Dr. Roi. This oath is often cited when doctors during war time treat enemy soldiers. Obviously they differ in belief, but these doctors are able to overlook this difference and treat any human to the best of their ability.

The most pertinent precedent to this case established by the US Supreme Court was in Reynolds v. United States. The court established in this case that there is a distinction between religious belief and the actions that stem from that belief. The state cannot establish law that mitigates belief. As a result, the Court believed the First Amendment forbade the state from legislating against opinion, but allowed it to legislate against action. In this case, there is a secular state interest in providing the best healthcare possible for the citizens of the state. There is substantial reasoning and precedent as to why Dr. Roi should be compelled to treat baby Bay.

I believe that this case has some similarities to the Phillips case, where the court compelled the Colorado baker to bake a wedding cake for a same-sex couple despite the baker's religious objection. In this case the good is medical care, which is a necessary good. In that case the good was a cake. The vitality of medical care along with the precedent set in Phillips further affirms my belief that courts would compel Dr. Roi to treat Jami and Krista's child despite her religious objection. I believe that Dr. Roi's religious objection holds no bearing here as the importance for proper medical care trumps her ability to discriminate. Jami and Krista sought out Dr. Roi and made an educated decision as to the doctor they wanted for their child and should not be denied proper care. The question I would raise is had the child been in critical condition, would Dr. Roi still object to treating her? I believe that she would put her beliefs aside.

Do you believe that Dr. Roi should be allowed to discriminate as to which patients she takes because of her religious beliefs?

Sunday, February 22, 2015

Religion in Marriage

A Bill was recently proposed in Oklahoma that would put severe restrictions on marriages in the state. House Bill 1125 would require a clergy or religious leader’s signature on a marriage license. This would eliminate the use of judges or state officials in performing marriage ceremonies. In order for a couple to be married, they would have to have a religious leader tied to their marriage license. This creates a difficult situation for same-sex couples, couples who have minority religious preferences, or atheist couples. Couples would need the signature of, ““…an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi.” This seems to discriminate not only against those who are not religious, but also those whose religions do not have a such individual.

The reasoning for this Bill is to return marriage to its traditional definition. Rep. Russ said, “Put it back to what it was supposed to be and was originally a holy matrimony and a very solemn and spiritual vow.”

If a couple chooses not to get a religious signature, they do have the option of obtaining a common-law marriage license, however, common-law marriages in Oklahoma do not ensure all of the benefits that a marriage does. This means that couples that choose not to have their marriage signed off on (or couples whose marriage is not approved by clergy and therefore they could not obtain the signature) would be at a severe disadvantage.

This indirectly discriminates not only against same sex couples, who are generally not accepted by mainstream religious sects, but nonreligious people as well. This Bill clearly violates the Establishment Clause because it would result in “excessive government entanglement” by making a religious signature mandatory in a governmental marriage license. 

There is also no secular purpose for passing the law and therefore the Bill violates the separation of church and state. The only purpose of this Bill is to bring religion into state affairs.

In my opinion, this Bill should not be allowed to pass. Our marriages should be secular, as should our bodies that pass laws, whether they be at the federal level or the state level. Governments exist to be the voice of the people, not to restrict the rights of its citizens for religious, not secular reasons.  

Do you think that this advances religion in state affairs? Furthermore, what issues, if any, do you find with this Bill?

Should the Bible become the official state book of Tennessee?

You can read the full article here.

Representative Jerry Sexton (R-Bean Station) proposed the HB 615 bill to the Tennessee code that states, “The Holy Bible is hereby designated as the official state book”. In an online poll, 81% of Tennesseans opposed the amendment to make the Bible the state book. Rob Boston, a member of Americans United for Separation of Church and State, spoke out about this choice and thought that a secular book would be a more appropriate choice. He wrote, “Going with the Bible slights the many authors who are either from these states or who have written about them in significant ways (or both)”. He thought that using the Bible as the state book was singling out a specific religion and making everyone else "second-class citizens."

In January, three Mississippi representatives also proposed bills to make the Bible the state book of Mississippi.  Representative Tom Miles (D-Forest) thought that “The Bible provides a good role model on how to treat people, they could read in there about love and compassion”. People who opposed this bill argued that declaring the Bible as the state book was making the statement that Christians were trying to dictate their religion to non-Christian members of their communities.This bill has also been proposed in Louisiana.

The importance of the Bible in American history has been debated throughout America's existence. President Ronald Reagan made 1983 the national "Year of the Bible" which shows that Americans do believe that Bible has shaped American lives. Even if the Bible has been an important part of America's history, I believe it is unconstitutional to allow state governments the ability to declare the Bible as a state book.

State books are meant to represent qualities that are special and specific to each state in America. I think that declaring the Bible as the state book violates the Establishment clause of the First Amendment because the state is declaring that the Bible encapsulates the best parts of its communities. If Tennessee were to pass this bill then it would be telling everyone in America that Tennessee is a Christian state and the government is trying to help Tennesseans pass laws that help protect their Christian lifestyle.

Later in the article Clark mentions the resolution Representative James VanHuss (R-Jonesborough) is trying to pass in Tennessee. VanHuss is trying to add a resolution to the state constitution that says, “We recognize that our liberties do not come from governments, but from Almighty God, our Creator and Savior”. This is another example of how, in my opinion, the representatives in Tennessee are attempting to destroy the American values that are protected by the Constitution.

Representatives Sexton (R-Bean Station) and VanHuss(R-Jonesborough) are attempting to break the Establishment clause of the Constitution because they are trying to help their state government become religious and maintain Christian values. Our country was founded on the belief of separation of church and state and if bills, like the HB 615 bill in Tennessee, get passed our country will start dividing and the religious majority will hold all of the power in our government.

Do you think that the states should be allowed to declare the Bible as their state book? Should state governments be allowed to amend statements that are strictly religious to their own constitutions?

Employee discrimination at Abercrombie and Fitch? Supreme court ready to hear the case.

The Supreme Court will hear a case of February 25th regarding a 17 year old Muslim girl Samantha Elauf, who was denied a job at the apparel store Abercrombie and Fitch, because she is compelled to wear a Hijab as a part of her religion. The interviewer made no mention to her that the Hijab would be an issue if she received the job. She was given a score in her interview which by the company standards should have landed her the job, but was apparently denied it due to a district managers disapproval, and his recognition that her head dress might not be compatible with the companies image, which was said to be a "classic east coast collegiate style." Her "looks" score on the interview was then changed to the lowest possible one, disqualifying her from the job. The company calls for their floor models and employees not to wear any sort of headdress that is not in their dress code or to deviate in any way from the uniform that the company has approved.

A federal district court ruled in favor of Elauf, but the Court of Appeals sided with Abercrombie. Abercrombie’s lawyers are arguing that Elauf failed to specify her necessary accommodation during the interview process, therefore because the interviewer was made aware of her religious preference, he was not compelled to notify her of the companies strict dress code, and that a Hijab would not be permitted. 

William Burgess, a senior staff attorney at the Council on American-Islamic Relations commented on what the supreme courts decision will mean going forward in that it would "permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence if the applicant does not know that she must expressly state her need for a religious accommodation, even when she is unaware of employer policies that would require it.” I have to personally disagree with this statement in that even though she may not have explicitly known the dress code, Elauf had yet to be hired, and was still in the preliminary stages of receiving the job, and that the company and the interviewer, having later received information from her that she would need an accommodation, gave them the right to deny hiring her because of the conflict that her Hijab would conflict with the companies standards.  

I  think that as a private corporation, A & F have the right to set forth a dress code which can be enforced strictly. They clearly have a very particular image which is central to their brand and their ability to sell clothing, which is why I think granting religious accommodations for employees in relation to the dress code may be more of a burden to a company such as this then it would be to others. Because the company feels as though wearing a Hijab would negatively affect their image, and that it could potentially cause an economic burden, they have the right to deny her employment. What if for example the next employee to come in where to be wearing robes, and that they had to be wearing these robes at all times in order to adhere to their religion. Should that person be granted an exception as well? This brings us back to that idea of a "slippery slope" in that if they allow one accommodation, they might continue to escalate and take away certain hiring rights away from private organizations, which in my opinion is too much government intervention into the private sector. One could also make the argument that ruling against Elauf and similar people in cases similar to this would allow for greater discrimination amongst companies in terms of hiring, and that certain people may be denied employment due to their religious beliefs.  In response to a claim like that I would say they have the right to set and enforce a strict dress code, and if a perspective employee feels as though that dress code conflicts with their ability to practice their religious beliefs, there are plenty of other places where they can work where a conflict like this wouldn't arise.

Can religion give power to kidnap, torture and incarcerate individuals?

Image Retrieved from ABC News which you can access here
In a recent news article published by ABC News, a rabbi was reported going to trail for kidnapping and torturing husbands into signing divorce papers. According to ABC News, you can access the article here, Mendel Epstein lead an organized group, that charged Jewish women to kidnap their husbands and obtained a divorce. Jewish laws, according to the article, prevent women from filing for divorce known as a get. The Jewish law allows only the husband to file for divorce and if the husband does not want to get a divorce the women are forced to remain in the marriage. Epstein stated that he is a “champion of women’s right” and that older Jewish laws allow him to use torture measurement to relieve husbands of their “evil” and consent to a divorce. Epstein, his son David, and two other men were investigated by undercover FBI agents, who obtained voice recordings of Epstein’s methods of torture.  Epstein is reported to be a leading rabbi in divorce cases and he is believed to have participated in 2500 divorces.

                When founding fathers Madison and Jefferson talked about freedom of religion for everyone they did not mean freedom for women, African American/ Blacks, or minority religious groups. Supreme Court cases like Reynold v. United States (1879) are examples that religious freedom was directed towards white Christian males only.  However, a couple years after in Cantwell v. Connecticut (1940) the court took a complete different stand. Newton Cantwell and his sons, Jesse and Russell Cantwell were arrested after complaints were filed against their “anti-Catholic” messages. The Cantwells were convicted of door to door solicitations in the form of playing records, and asking for contributions. Justice Roberts who delivered the opinion of the Court stated that the “Amendment embraces two concepts, freedom to believe and freedom to act”.  The Supreme Court in this case decided that the actions the Cantwell’s had engaged in did not show a clear and present danger to society.

                The case against Epstein should be reviewed under this idea. Epstein is free to believe that he has the power of forcing husbands into signing divorce papers. However, he is not free to act upon his belief.  Torture or causing physical harm on anyone is not protected under no constitutional law.  Although the intentions of this man might be considered good, his actions physically and emotionally harmed other people.

                Although this man is guilty of kidnapping and torturing you cannot deny the underlying problem; lack of women freedom.  Not only should the court find this man guilty but they should also find this old Jewish law unconstitutional. The Jewish law deprives women of freedom and additionally, allows the torture of men who are unwilling to give a divorce.  Many would argue that invalidating this Jewish law would be a violation of the free exercise of religion. However, this action of religion is causing harm to individual which is under no law protected by the First Amendment. Justice Roberts explained that an action that is a clear and present danger to society is not protected under the freedom to exercise religion.

                Kidnapping and torturing as well as depriving an individual of his/her freedom it is not protected by the First Amendment or any other law. Epstein is guilty of kidnapping, torturing, and depriving people of their freedom while the old Jewish laws are guilty of enforcing laws that allow these actions.

                What do you think are steps that should be taken in this case? Should the get be legal? Should Jewish women be allowed to obtain a divorce? What are some possible downsides to allowing women to obtain a divorce? 

Voucher Programs

At the end of last month, from January 25 to 31, National School Choice week was held. National School Choice Week is “a nonpartisan, nonpolitical public awareness effort” which aims to educate families across the country about “effective education options for all children.” Although this sounds harmless, the American Civil Liberties Union (ACLU) warns that school choice discussions often lead to private school vouchers. The voucher system provides government funding to families whose children do not attend public schooling. For instance, the voucher may assist in covering the cost of tuition for a private school or the expenses needed for homeschooling. “There are 13 states plus the District of Columbia and Douglas County School District in Colorado with school voucher programs.” 

As the ACLU points out, voucher programs are unconstitutional because they infringe upon the separation of church and state and help in the establishment of religion. More often than not, the government funded vouchers are directed towards private religious schools. Many of these religious schools discriminate against applicants “on the basis of religion, sexual orientation, or disability.” Furthermore, “private religious schools are not required to comply with the same academic standards applied to public schools, and many use Christian textbooks” that teach various “inaccurate lessons.” 

Recently, the ACLU filed a “friend-of-the-court brief” in opposition with North Carolina’s voucher program. Private schools which are eligible to participate in the voucher program “must administer state assessments or an equivalent exam to voucher students and report results to the state.” The crux of the ACLU’s argument against the voucher program is that “by spending taxpayer dollars to support private religious schools, the voucher program violates the North Carolina Constitution’s requirement that “[t]he power of taxation shall be exercised in a just and equitable manner, for public purposes only” (ACLU Brief). The North Carolina voucher program is therefore unconstitutional because it uses government funding, taxpayer’s money, to finance parochial schooling which does not align with a public purpose. 

If we recall Lemon v. Kurtzman (1971), the Court found that the Pennsylvania and Rhode Island statutes that reimbursed private schools for teacher’s salaries, textbooks and other instructional materials to be unconstitutional. Taken for their face value, both the PA and RI statutes seemed to be neutral and enacted for the purpose of furthering secular education. The statutes attempted to avoid direct involvement with religion by placing strict regulations that “prohibit[ed] reimbursement for any course that contain[ed] ‘any subject matter expressing religious teaching, or the morals or forms of worship of any sect” (Alley 84). However, in practice, the statute was directly helping religious schools, more specifically Roman Catholic Schools. During the deliberation of this case, the Court developed a three prong analysis which could be used to determine the constitutionality of a statute; “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion” (Alley 85). In conclusion, the Court found that the Pennsylvania and Rhode Island statutes violated the latter of the three tests. 

If we apply the Lemon Test to the question before us, whether or not the North Carolina voucher system is “undermin[ing] the separation of church and state”, I believe that a similar conclusion must be drawn. Similar to the Pennsylvania and Rhode Island statutes from Lemon v. Kurtzman, the North Carolina statute also involves an excessive entanglement with religion and therefore violates the Establishment Clause. The voucher directly is providing financial aid to private religious schools. Taxpayer’s money is being used for religious teachings from religious institutions which discriminate and exclude students based on religion, sexual orientation, or disability. Given these facts, I believe that this is one of the very “evils which the Establishment Clause was intended to afford protection” (Alley 85).

Monday, February 16, 2015

Spiritual Healing for All, None, or Established Doctrines Only?

In Tennessee v. Crank, Jacqueline Crank was convicted of child neglect and sentenced to one year of probation.  Crank, a member of the Universal Life Church, relied solely on prayer to heal the cancer that was killing her 15-year-old daughter.  There is a state law that prohibits parents from failing to provide medical for children.  When her daughter died, Crank claimed she was protected by Tennessee's spiritual treatment statute which covers anyone who "provides treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment."  

However, the trial court concluded that her church was not a “recognized church or religious denomination”.  Crank relied on Ariel Ben Sherman, another member of her church group, as the daughter's "spiritual father".  Sherman was an accredited member of the Universal Life Church, which will accredit anyone who fills out an application.  The Department of Child Services described the church as a “cult-like” atmosphere with about 30 members living under one roof.  In fact, Sherman was caught seeking out medical attention for the cancer he had, which ultimately ended his life, as well.

Crank then claimed that Tennessee’s spiritual treatment statute was unconstitutional because it was naming some prayer as legitimate and some as criminal.  The Court of Appeals stated that they did not need to answer that question because striking down the law would collapse her initial argument. 

Her final claim was that this statute violates the Establishment and Equal Protection Clauses of the Constitution.  

The Supreme Court of Tennessee stood by the trial court and the court of appeals in rejecting Crank's appeal.  The majority stated that the statute was intended for "established institutions with doctrines or customs that authorized healers within the church to perform spiritual treatment via prayer in lieu of medical treatment."  Clearly, they did not recognize the Universal Life Church as an established institution and they did not recognize Sherman as an authorized healer, considering he went back on their beliefs himself.

I agree with the narrow ruling in this case because I believe any other ruling would be unrealistic.  Ultimately, I would like to live in a world where the health of all children comes first and people trust modern science.  A great deal of evidence over the years has shown us that modern medicine is usually a safer bet than prayer when it comes to cancer and various other illnesses.  However, I also understand that many people hold strong religious beliefs, values and traditions that they wouldn’t be ready to give up on overnight.  Therefore, I am okay with this Tennessee law as long as it is referring to recognized institutions.  Striking down the law entirely would bring a whole mess of religious lawsuits into court for people who use spiritual healing.  On the other hand, if the state didn’t regulate which prayer was legitimate and which prayer is criminal it would create a slippery slope for any child abuser to claim spiritual healing.  Although Sherman was technically qualified by filling out the application, he breached his beliefs when seeking medical attention for his cancer.  This proves some invalidity within the Universal Life Church and degrades its establishment as a recognized institution. 

Justice Stewart’s interpretation of Abington Township v. Schempp can justify the decision in this case.  The Establishment clause was created in an effort to restrict the national government from imposing any particular religion on the country.  However, states are free to establish any religious values they would like. Therefore, the Supreme Court of Tennessee has the right to determine which prayer is legitimate and which is criminal in this case.

Sunday, February 15, 2015

Electioneering Issues May Be Creeping Up On Us

Since the recent shift in Congress to all Republican control in both the Senate and House of Representatives, there has been a bill proposed, titled H. R. 153, by Representative Walter Jones Jr. [R-NC] that would allow for electioneering practices for churches and other 501(c)(3) tax-exempt groups.

Currently as most of us know, there is a legal prohibition of electioneering for such organizations and/or entities.  This current prohibition is termed the "Johnson Amendment," which was established in 1954.  For those of us who are either unfamiliar with electioneering or just need a quick refresh, electioneering occurs when an organization publicly endorses or opposes a political candidate who is up for (re)election.

The American Humanist Association who, under this proposed bill, would also be allowed to employ electioneering practices, is not happy that this would allow churches more free speech and "untold" influence in politics.  The AHA released a statement which says, "This is fundamentally un-American, and weakens the state of our democracy by giving religious leaders untold influence."

It is important, however, to keep in mind that the diction of the bill itself does not appear to favor religious organizations/churches.  The most relevant section of the bill to us is stated as follows: "Paragraph (3) of section 501(c) of the Internal Revenue Code of 1986 (relating to list of exempt organizations) is amended by striking “, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."  This wording demonstrates that all 501(c)(3) tax-exempt groups would truly be included, not just churches and other religious organizations.  The proposed bill can be viewed in its entirety here.

One of the biggest issues that people seem to have with this bill is that it would allow for churches and other religious organizations to practice electioneering while also receiving a tax deduction, which seems unfair and may appear to violate the Establishment Clause.  Most people, however, would not object to the fact that other 501(c)(3) tax-exempt groups would have this privilege as well.  As stated by Rep. Jones Jr., the purpose of the bill is "To restore the Free Speech and First Amendment rights of churches and exempt organizations by repealing the 1954 Johnson Amendment."

Another concern is that by passing this bill into law, there would be more open support and/or opposition from churches and religious groups which creates a large window of opportunity for government and politics to be influenced and also for general coercion.

In my opinion, it would be wrong for Congress to pass this bill.  Not only does it slightly violate the Establishment Clause by providing religious groups with a tax benefit, it also allows for more religious influence in government and legislation, which Thomas Jefferson and James Madison explicitly told us to avoid.  Remember the wall of separation between church and state? It does not seem to be too high here.

Some might point out that the function of the bill is actually neutral, with which I am not inclined to totally disagree.  However, it seems to me that this bill functions more as a slippery slope rather than a totally neutral bill in practice, even if it may be neutral in regards to intent.  The author of the article I read said that passing this bill would "make things worse for secular Americans," and to an extent, I would agree.

University Intervention in Religious Organizations

The Republican members of South Carolina’s congress recently wrote a letter in an attempt to give religious groups on college campuses the ability to choose who can join their respective organizations. Membership is currently regulated by colleges through the “all-comers policy” that states that these clubs must grant everyone the option to join, regardless of whether or not they follow and/or agree with the beliefs of said religion.
This policy came about due to the Christian Legal Society v. Martinez case in which the Christian Legal Society of The University of California, Hastings College of the Law fought against having to let students join if their beliefs differed from those of the group. The Supreme Court stated that they must treat all people equally; therefore making it mandatory for the CLS to allow anyone the option to join.

In order to avoid the all-comers policy, religious organizations have the option to move off campus and disaffiliate from any connections with the university. However, this puts the group at an extreme disadvantage because they will then not be able to receive benefits from these connections such as money, the use of campus buildings, etc. This raises the issue of whether or not schools should have the right to regulate aspects of religious organizations. It is understandable to want to limit or restrict possible discrimination by making it mandatory for groups to allow anyone membership, but the worry is that these new members will be against the religious beliefs and merely be joining in order to cause problems or be unfriendly to the members. This leaves the clubs having to choose between having focused members dedicated to the beliefs and standards of said religion, or receiving the benefits the school has to offer.

I think religious oriented groups at colleges should be able to choose who can join, and that not allowing it is a breach of freedom of association. A strong purpose of these clubs is to come together to further understand and discuss the common beliefs, but how can this be possible if the constituents are not faithful followers? However, I would also count it as discrimination to not let someone join because his or her thoughts go against the religion. It is possible that said person is actually interested in learning more about a different faith, so they want to join and gain a better perspective. Problems with this occur when dissenting members are rude to the organization and their beliefs, so I think a better way to handle this would be to have it mandatory for religious groups on campus to follow the all-comers policy, but grant them the option to remove said dissenter if he or she begins being rude and disruptive.

This issue is important because it once again brings up the idea of how intertwined, if at all, schools and religions can be. Considering the religious group is located on a college campus, I believe that the school has some control over what the club is able to do because they are affiliated with said university. However, I strongly believe that taking away one’s freedom of association by not allowing groups the right to work towards commonly desired goals is clearly unconstitutional. It is true that they could avoid this policy by going off campus, but this then makes the members have to choose between gaining benefits from the school and having fully committed members, a decision they should not have to make. These groups consist of people who want to pursue their religious goals and beliefs surrounded by people with the same interests, and it is unconstitutional to disrupt this process by forcing them to take people in. This would then lead to the issue of deciding who is truly following the religion and would therefore be granted the ability to join, along with who actually gets to make this decision. There is clearly no definitive solution to the issue, but I think religious organizations have the right to choose who is able to join in order to best follow the interests of the group as a whole, and that taking this away is completely disregarding freedom of association.

What do you think? Is it constitutional for universities to have control over who can join on-campus religious affiliated organizations?

Protection for Unwilling Clergy?

The article can be found here.

A bill was recently overwhelmingly passed by the State Representatives in Oklahoma that would allow protection for church clergy members whom refuse to perform marriages for same-sex couples. The bill is deemed to, "protect clergy members from any civil claim or cause of action if they refuse to recognize the marriage of same sex couples". David Brumbaugh, the bill's sponsor, stated that, "It's not about discrimination or anything like that, its just we want to make sure [the clergy] are protected". 

 Although there has been some out-lash from Oklahoma's L.G.B.T community, most claim that while the bill is "unnecessary, it is not discriminatory". This is because as Reverend Walke explains, "No one is forcing anyone to officiate same sex marriages". The first amendment provides the clergy the freedom to practice their own faith, even if that entails denying a couple marriage.

The salient point that this article brings up is whether it should be constitutionally legal for people to refuse or deny service to a group of people whose rights are allowed by law?  Should we expect everyone to put away their beliefs in the name of the State? Or should people with objections based on religions reasons be allowed exemptions? If we allow exemptions, for whom do we stop allowing exemptions for? 

The article particularly reminded me of the baker who refused to bake a cake for a same sex couple in Colorado. The couple took their complaint to court and argued that it is their "constitutional right" to not be denied service on a bases of their sexual orientation. On that first day of class, I originally agreed with the same sex couple and thought that it was wrong of the baker to not bake the cake for the couple. Upon further reflection although, it is clear to me that it is within their first amendment right to refuse service to anyone they please.

Does this then mean that clergy have the right to refuse service as well? Well, upon further research it is clear that while Colorado has a non-discrimination law in place meaning that it, “bars discrimination based on sexual orientation or gender identity” (, Oklahoma does not. And so, private entities are allowed to refuse service based on these factors.

This non-discrimination law in general is what I think is at the heart of this argument. Basically, the bill that would give clergy extra protection is an unnecessary step that only furthers Oklahoma from adopting policies such as non-discrimination laws. That being said, are the non-discrimination laws themselves within our first amendment rights? Although it is certainly a progressive step and I by no means think that anyone should be discriminated against, is it okay to punish people whom have a religious reason they want to deny service? If we have the freedom to practice out religions, and this is within our religious, does it make sense that people have the right to refuse service even if it appears to be discriminating against a certain group?

Oklahoma’s L.G.B.T community even claimed for themselves that “freedom means freedom for everyone” and despite the nuisance of such a bill, it is only a reaffirmation of the first amendment right.

In my opinion, the bill is not unconstitutional, but it is just unwarranted. Oklahoma has no anti discriminatory laws, and the clergy should have the right to deny officiating a marriage that they do not want to be involved in. Similar to the man who did not want to bake a cake for the gay couple, although it is unfortunate, it is within his first amendment right to deny service or his own private entity. 

What do you think? Should clergy have protection from persecution if they refuse to acknowledge a same sex marriage?

Sunday, February 8, 2015

Blacklisting Boyscouts

California State Supreme Court recently passed a bill prohibiting state judges from being members of the Boy Scouts of America. The Court’s reasoning behind this was that the Boy Scouts discriminate against homosexuals and promote heterosexuality as a norm. In 2000, in a case entitled ‘Boy Scouts of America v. Dale,’ the Supreme Court held that the Boy Scouts of America, a private organization, has the constitutional right to exclude a person from membership when ‘his or her presence affects the group’s ability to advocate public or private viewpoints.’ The BSA does allow homosexuals to be members of the organization, however there are restrictions for Scout leaders and other volunteer positions. The Boy Scouts have a strict religious policy maintaining that ‘no member can grow into the best kind of citizen without recognizing an obligation to God.’ Atheists and agnostics are excluded from the BSA.

California judges must abide by a code of ethics that dictates their professional and personal lives. One section of this code speaks directly to this issue: “A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.” The Court argues that prohibiting BSA membership will ‘promote the integrity of the judiciary’ and ‘enhance public confidence’ in the system.

I believe that preventing California State Supreme Court judges from participating in the Boy Scouts of America is a blatant infringement on their constitutional rights of free association, free speech, and the free exercise of religion. California judges should not be prevented from being leaders in the BSA. These judges are permitted to gain membership to organizations such as The National Rifle Association, the Council on American-Islamic relations and even the North American Man/Boy Love Association. Many of these permitted organizations have strong political and social values just as the BSA does.

As we have discussed in class, being a member of an organization does not necessarily mean that all of your values are determined by that organization. For example, just because you are a Catholic does not mean that a juror will disagree with the death penalty. Being a leader in the Boy Scouts does not mean that a judge will be biased against homosexuals in their court.

Additionally, California’s code of conduct contains exceptions for some organizations that discriminate- namely religious ones. For example, Californian judges can be members of the Catholic Church even though it discriminates against women by preventing them from becoming priests. Likewise, Orthodox Jews ban women from becoming rabbis. However, judges in California are permitted to gain membership to these churches and congregations. Despite these discriminatory practices, the state does not believe that membership with these organizations will make judges biased based on gender. Clearly, the ban on organizations that discriminate on the basis of gender has some exceptions.

To me, this almost seems like the state government is preferencing religion over non-religion. To make such blatant exceptions to this discrimination rule shows a partiality to religion. While the Boy Scouts of America have values deeply connected with religion, it is not a religious organization. It doesn’t seem fair to grant exceptions to religious institutions but not to private organizations.

Furthermore, a person’s values do not necessarily change depending on which organizations they are a part of. Judges are expected to be fair and impartial at all times. These attributes should be clear and unquestionable before they are appointed as judges. If a judge is somehow homophobic, restricting his or her admission to the Boy Scouts of America will not change his or her mind. This could also lead to a slippery slope for judges and their restrictions. If we prevent them from joining an organization that has an unpopular opinion, what is to stop the government from preventing judges from joining a certain political party or volunteering for a nonprofit organization that works to empower women, for example? Many organizations take stances on issues such as gender and race. Would we bar judges from joining these organizations because of this?

The Boy Scouts of America are legally protected in prohibiting homosexuals from being leaders in their organization due to their religious preferences. Though it is an extremely unpopular opinion to many, the BSA is exercising its freedom of religion right granted in the First Amendment. This issue is extremely important because judges are the ones that society expects to be upholding constitutional rights. Instead, they are having their rights restricted in order to keep their jobs.

Do you think the government has a right to restrict its judges from joining certain organizations based on their values?