Freedom of Conscience or Freedom of Discrimination?

It is fair to say that the legalization of gay marriage is one event in American history that will leave a lasting mark on our national identity.  The movement for this right took decades of fighting from a segment of the population that has historically been labeled as deviant and obscene.  That fighting, over time, led to societal acceptance.  The groundbreaking ruling in Obergfell vs. Hodges made tangible what previously, couldn't have even been dreamed of by many.

The Supreme Court ruling, however, has received blowback from both individuals and state governments.  The main argument used by both is based in the judaeo-christian belief that marriage is between one man and one woman.

Specifically, in the state of Mississippi, the "Protecting Freedom of Conscience from Government Discrimination Law" was created to allow people employed by the state to authorize marriage certificates to refuse certificates to gay couples on religious grounds.

The law states that marriage clerks must "take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal."

The makers of the law believe that state employees should be allowed to refuse authorization as such authorization goes against their belief in the sanctity of marriage.  

Critics, however, believe that this law opens the door to sexuality based discrimination.  Nationwide, advocacy groups have been rallying to contest the law.  

A case was brought against the state of Mississippi by an advocacy group called "Campaign for Southern Equality" in the case: "Campaign for Southern Equality vs. Bryant." 

Originally the case was heard by a U.S. district judge who ruled against the law but last year, a three member judge panel for the U.S. fifth circuit of appeals ruled that the plaintiffs failed to demonstrate how they have or will be affected by the law.  This overturned ruling allowed the law to take effect in October.  Essentially, the court ruled "no harm, no foul."  

Recently, the supreme court declined two cases brought against the law on the same grounds.

Although the law currently stands, the ruling in the court of appeals laid groundwork for similar cases in the future. 

This ruling leaves us with a question that will most probably be asked again in the near future: "does the requirement for government officials to validate gay marriage certificates violate their first amendment right to free exercise?"

I believe that it doesn't.

Although the ruling was made over one hundred years ago, I believe that case can be connected to Reynolds vs. U.S.  In the case, the Supreme Court ruled that Reynolds, a mormon, didn't have his constitutional right to free exercise violated by a law that prevented him from engaging in polygamy.  The main argument presented by the majority opinion was that the state had a compelling interest not to allow polygamy. In short, the court ruled that the law was made to protect the public and was crucial that it let stand for the morality of the society at large.

Although the specifics of the case aren't necessarily pertinent, the idea that a state's compelling interest can outweigh the religious practices of a sect are.

In response to the section of the law that requires clerks to "ensure that the licensing of any legally valid marriage is not impeded or delayed as a result of any recusal," I believe that it's simply not viable in practice nor is it enforceable.  What if there's only one person legally authorized to give marriage certificates for hundreds of miles and they claim religious immunity?  Additionally, how could the state make sure that NO marriage certificate is held up due to the personal refusals of government officials.  That kind of standard would be difficult, if not impossible to uphold. 

For me, this case boils down to weight.  Does a person's religious right to not authorize a document trump a person's right to pursuit of happiness as well as the state's compelling interest to allow for the marriage of it's citizens? Again, I believe it doesn't.

Invocations in Indio City

Edward Holzhauer, a resident of Indio City, California has appeared in front of the Indio City Council raising objection to the invocation that currently precedes City Council meetings.  Holzhauer has a long history of appearances in front of the Indio City Council in objection to Mayor Mike Wilson’s policies, especially those regarding religion and the First Amendment.  The council currently begins their meetings with a prayer, which Holzhauer claims violates his First Amendment rights as it is an establishment of religion.  The holding of invocations before council meetings has been a widely discussed issue in surrounding councils as well, and many other cities are trying to change the law to forbid invocations.  The current law states that “legislative bodies can begin their meetings with a prayer even if it favors a specific religion.” This law was the result of a Supreme Court case Town of Greece v. Galloway in 2014.  In this case, the Supreme Court ruled in a 5-4 split decision that the town’s holding of prayer before their board meetings was not an establishment of religion.  The main concurring opinion stated that members were not coerced into reciting the prayers or acknowledging the prayer, and therefore this was not an establishment of religion.  The Town of Greece v. Galloway ruling allows legislative bodies significant leeway on invocations as long as they are not discriminatory to any religious minorities.  

In surrounding cities that no longer have invocations in their agenda, there has been significant backlash; people are claiming that not holding an invocation is a violation of their right to free exercise.  One speaker, Phyllis Burgess said, “I want the council to know, you’ve not only offended those of us who do believe in God, but you have deeply hurt me by separating me from the city hall.”  Despite the fact that city policy allows for an invocation to be held before council meetings, the city policy also prohibits council members from forcing any member in attendance to stand or bow; the current Indio City Council invocation, however, asks members to stand and bow their heads.

Is it a violation of the First Amendment to hold an invocation before city council meetings?

The First Amendment of the Constitution states that, “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Advocates for the invocation believe that not allowing the invocation is a violation of their ability to freely exercise their religion.  People who object to the invocation state that it violates the establishment clause by promoting religion.  

In response to the issue of violation of free exercise, I do not think that a city council’s refusal to allow invocations is a violation of free exercise.  This does not place a significant burden on religion as the holding of invocations is not part of their religious practices.  Therefore, this is not a large enough burden on religion to overcome the issue of establishment.  

I would agree that this is an establishment of religion on the basis that it does not pass the Lemon test.  The Lemon test states that a law must have a secular purpose, it must not inhibit or advance religion, and it must not promote excessive entanglement between church and state.  Allowing prayer, especially prayer that favors a specific religion, before city council meetings does not have a secular purpose promotes excessive entanglement between church and state.  Holding invocation does not in any way benefit the city council or the state, and it is used solely as a means to give religion a place in the city council.  Because any religious group is granted the right to hold an invocation at the beginning of city council meetings, so long as this group’s request is approved, I do not think it advances or inhibits any specific religion but rather it advances religion as a whole, by giving it a place in government.  Because of this, the holding of invocations at the beginning of city council meetings goes against the Lemon test and therefore I believe it is a violation of the Establishment Clause of the First Amendment.  

The city council should stop holding invocation in the beginning of city council meetings because invocation does not have a secular purpose, and I would argue that the holding of invocation actually inhibits the state as it forces time that should be used discussing issues of the state to be used for religious activities.

High Holy Days - Not So Holy?

Kimberly Edelstein, a former Butler County magistrate, filed a $1 million lawsuit last May against Butler County Common Pleas Judge Greg Stephens, Prosecutor Michael Gmoser, and Assistant Prosecutor Dan Ferguson, claiming that the county's vacation policy is religiously discriminatory.   Edelstein, a devout Jew, asked for eight religious holidays off in October.  However, instead of using official holiday time off for her observance of these High Holy Days, she was required to use her vacation time and work extra hours, a local Fox affiliate Fox 19 WXIX reports.  Outraged, she filed a lawsuit in federal court last May, asking the court to declare the county's vacation policy unlawful as it prevented her from exercising her freedom of religion.  Her denial of these holidays was contradicted, she claims, by the county's policy of allowing Christians Christmas Day off without taking a vacation day.  Moreover, Edelstein was fired two days after asking to receive these days off, and is also asking the court to force the three men to stop speaking poorly of her to prospective employers, as their negative job references prevented her from securing employment else where.

This past Monday, the Butler County court has dismissed most of her claims.

Magistrate Judge Karen Litkovitz held that the county's policy of Christmas is neither discriminatory nor a violation of an individuals rights, and the Sixth Circuit Court has already established Christmas as a legal, paid holiday.  In her ruling, Litkovitz wrote: "Plaintiff (Edelstein) has not alleged any facts to show there are unique circumstances in this case such that application of the paid Christmas holiday policy violated her fundamental rights or discriminated against her based on her religion."  Litkovitz also claims that "Butler County's policy...while not adding certain Jewish holidays, is not arbitrary, nor does it deny Edelstein equal protection of the laws."

Moreover, Litkovitz concluded that Stephens, Gmoser, and Ferguson did not cross the legal line in bad mouthing Edelstein.  Her ruling was based upon the "shocks the conscience" test, in which an action is understood to either violate or uphold the due process requirement of the Fourteenth Amendment.  Litkovitz also claims that "while statements plaintiff attributes to Stephens may have hampered her job search, her allegations do not suggest Stephens' actions and statements curtailed plaintiff's freedom to work in any sense."  Since the men were stating an option, these defamation claims aren't reasonable because opinions are formally protected under the Ohio Constitution.

Thus, the question at hand: is Edelstein's denial of receiving paid leave for her High Holy Days a violation of the Free Exercise clause of the First Amendment?

I believe that yes, denying her the right to exercise these religious days are a clear violation of free exercise.  Moreover, I also believe that it is a violation of the Establishment Clause.   While I do understand how accommodating every religion and every religious holiday can lead to a "slippery slope," establishing Christmas as a legally paid holiday is not facially neutral.

First and foremost, requiring Edelstein to use vacation days and work extra hours is unreasonable.  8 days is a substantial amount of time when put in context.  These are days that should be used for true vacations or emergencies, not religious holidays.  This puts Edelstein at a significant disadvantage compared to her co-workers whom do not observe these days.  What's more is that not granting her these days ultimately brings her to a difficult cross road: be burdened by the costs of not going to work, or miss out on celebrating her religion.  In this sense, it would be a violation of the Free Exercise Clause because she might be compelled her to go to work instead; thus, not being able to practice and enjoy these High Holy Days of her religion.

This case specifically reminds me of Sherbet v. Verner, in which Adeil Sherbert, a member of the Seventh-Day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith.  Sherbert was denied benefits from the South Carolina Unemployment Compensation Act because she "failed without good cause" to accept and pursue a job.  Similarly, the court ruled that Edelstein's claims are "nuts."  Both cases apply a same reasoning: a religious obligation confronted with some sort of financial burden.  The appellants proved their sincerity towards their claims by choosing their religion over their employment sake.  While the court ruled in Sherbert v. Verner that this imposed a significant burden on Sherbert's ability to freely exercise her faith, Edelstein's ruling proved less favorable.

Additionally, whereas establishing Christmas as a legal, paid holiday is constitutional according to the Sixth Circuit court, other religious holidays are not.  I took a look on the Butler County District Court website to view their holiday schedule.  Christmas Day is the only religious holiday they have off.  This, I believe is a violation of the Establishment Clause because they are not adhering to other religious holidays.  Though I do see how some might argue that Christmas has become more of a secular holiday now more than a religious one, I still do not see the justification in selecting one religion over another.   Additionally, in order to avoid a "slippery slope" situation, this policy must be facially neutral rather than the clear bias towards Christianity.

Lastly, the remarks made by Stephens, Gmoser, and Ferguson, although they passed the "shocks the conscience" test, were still hurtful and discriminatory.  These comments, although protected, still posed a significant burden to Edelstein.  As Edelstein wrote in a court document, "As a result of the abuse of power and disregard of the law by these public officials, plaintiff has been effectively denied the ability to become employed in her chosen profession, rendering her license useless as a means to support her family."  Thus, we see again the substantial financial and relgious cross road for Edelstein.

Conclusively, though I recognize the compelling holdings of the court to dismiss Edelstein's case, it nonetheless remains vital to understand the implications this has on herself, her family, as well as her religious obligations.  By requiring her to use vacation days that could have been put to good use elsewhere to practice her High Holy Days, she is being denied freedom to exercise.  Moreover, establishing Christmas as a legal paid holiday is not a facially neutral statue, and thus, a violation of the Establishment Clause.

Friday Night Lights Friday Night Prayers

Joseph Kennedy was fired from his role as the assistant football coach of Bremerton high school in Washington because of his refusal to stop praying after games. A three judge panel, in August, had ruled that the school district was justified for firing the coach due to him silently praying at the 50-yard line after football games. Apparently the school district had warned Kennedy that public displays of a religious exercise, praying in this instance, promotes certain beliefs. And this promotion of beliefs would cause infringement upon the Constitution’s Establishment Clause. After Kennedy’s attorneys requested a rehearing by the full court, the 9th Circuit Court of Appeals has rejected Kennedy’s request to reconsider reinstating him to his job.

This three judge panel, as mentioned, had stated that Joseph Kennedy had a duty to the district as a teacher. Part of his job is to set an example for parents and students. The appeals court saw Kennedy’s actions as a way of taking advantage of influence of impressionable minds. Coach Kennedy does not have the right to practice First Amendment rights as a private citizen when he was going against the Bremerton school district’s orders as an employee of the district.

Kennedy’s post-game ritual began in 2008, and no one complained until, in 2015, a member of another district pointed it out to someone of the Bremerton district. The district told Kennedy he could only continue under the circumstances that he prays when the field is empty and the players have left. Joseph Kennedy did not agree, and his 2015 contract was not renewed.

In an LA Times article it is said that the Christian coach also led students and team staff in prayers before and after most games in the locker-room. Students joined him in prayer on the field eventually. In addition, he would give motivational speeches with religious content.

Apparently Kennedy’s actions gained media attention, and a Satanist group wanted to pray on the field too.

Praying has been a common ritual incorporated before/after football games and other sporting events. However, a coach can be motivational without the addition of his religious values. I do not believe that Coach Kennedy has the right as an employee of a public school to share his religious beliefs and practices with his players, students, and/or those attending the games. His prayers may be silent on the field, but they have been on the 50-yard line where all can see. This sends a message to everyone watching. Considering Kennedy is paid by the school and an important figure of the football team, the message sent misleads the audience on what the school/team believes in as a whole. It is simply violating the separation of church and state. I think the school has a right to ask Kennedy to pray once the field is empty and the players have left to avoid any conflicts. He can exercise his religious freedom, but others do not need to watch or participate. Also, as shown in Reynolds v. United States, the state does not necessarily need to protect the practices of a religion.

In addition, Kennedy leading the team in prayer during locker-room talks violates the team members’ Establishment Clause. They would be swayed to participate in prayer whether or not they are followers of the same religion. This is because their coach is an influential figure in their lives, and if others follow along, players would not want to feel ostracized if they did not.

Lastly, Joseph Kennedy being able to pray on the public school’s field with students and faculty watching would create this slippery slope effect. As members of other religions, such as the Satanist group mentioned, would ask why they couldn’t exercise religious practices in this public setting as well. The school district would then be subject to the notion that they have to show neutrality to all religious beliefs. It is best to maintain the separation of religion and state schools.