Should Pandemic Relief Loans Go to Churches?

When coronavirus hit the United States, it hurt a lot of small businesses and Congress responded by throwing together emergency loans for the Small Business Association (SBA) to distribute to these businesses. Loans were able to be given to any business no matter the religious nature and are forgivable if they go to paychecks, rent, or utilities. Usually under the SBA’s rules religious based organizations are not allowed to be given these loans, the regulations stating, “(organizations barred are those) Principally engaged in teaching, instructing, counseling or indoctrinating religion or religious beliefs, whether in a religious or secular setting.”  Certainly under this regulation churches would be unable to receive any federal funding, however the SBA has decided that they will not enforce these regulations and has said, “faith-based organizations are eligible to receive SBA loans regardless of whether they provide secular social services”. 

 

Churches routinely rely on collection dishes at in person services to fund their institutions and the pandemic has limited their ability to collect in person funds, but has not hampered the ability to hold virtual services or collect money online, which is now a regular and easily accessed way to donate money. So far these churches, schools, and Catholic dioceses have received more than 3,500 loans. Religious groups will also be exempt from the rule that disqualifies businesses of more than 500 workers and the Catholic church has now received between 1.4- 3.5 billion dollars in relief loans due to the pandemic. Chieko Noguchi, a spokesperson for the US Conference of Catholic Bishops, has reported that 407,900 jobs were able to be saved through this aid money. Advocates of this policy argue that not allowing religious based organizations to receive funding is discriminatory against religion and would unfairly prioritize secular organizations. Those against the funding argue that this violates the establishment clause and that this direct funding of religion is basically the federal government establishing religion even though any religious based organization is eligible to apply. This is taking public tax-payer money and giving it directly to religious institutions that promote religion. It is also important to note that many of these churches are not in financial need due only to the pandemic, millions of these dollars has gone to dioceses who have recently declared bankruptcy or paid large settlements of money over sexual abuse coverups. (Washington)  Some of these dioceses, although also economically hurt through the pandemic, were already in financial need due to sexual abuse cases. The Payment Protection loans went to 40 dioceses paying for sexual abuse cases that have received at a minimum 400 million in aid. However this factor should not sway those who believe that the church should be exempt or not exempt due solely to the constitutionality of establishing religion. 

 

I agree that not enforcing the prior SBA regulation that disqualifies churches from receiving funds is in direct violation of the establishment clause. Even though the money will only be forgivable if it goes to paychecks, rent, or utility, it frees up any other funds for direct promotion of religion. Further the three above factors (paycheck, rent, and utilities) already directly benefit religion. Those with jobs in this industry should be helped through other governmental programs that do not go directly towards helping the church, such as unemployment and economic relief packages that went to individuals. However this is also hard because these other packages do not always ensure financial stability. People should be taken care off during pandemics like those working for the church but not the church itself. When looking at the three prongs of the Lemon test, the overall aid package given to the SBA does have a secular purpose, however not enforcing the SBA regulation does not seem to have a secular purpose. For the second prong, the primary purpose of the loans is not to further religion, but again not enforcing the SBA regulation does have a primary purpose of helping religious institutions. The entanglement prong is also violated because this is a significant link between government and state. Further, the pandemic has hurt church revenue in that those who would physically attend church cannot donate money physically but they are still able to donate money electronically and churches are still able to hold virtual meetings. The problem then is that church attendance is down and that those who go to services are not donating as much money and this could be through their own financial troubles due to the pandemic. However does this mean that  churches should receive taxpayer money because they are no longer receiving as many donations or cannot motivate their congregation to attend services? Is there really no difference between a church receiving money and a restaurant? Is this not in fact subsidizing religion?

 

The question then is during an external circumstance, such as pandemics, is the government responsible for helping religious institutions or are only those that believe in the religion and volunteer their money responsible for helping the religious institutions? I feel as though there are clear violations of the wall between church and state in this instance. It shouldn't really be the responsibility of every tax payer to help someone else's faith. If we also wanted to look at sincerity from the government, is the government sincere in providing aid to not discriminate against religion, or could this more be about winning votes in the upcoming election? In countless previous supreme court cases: Wolman, Grand Rapids, Nyguist, Meek, and Ball, the courts have restricted the types of aid that can be given to religious schools because they represented an entanglement between church and state. Many of these were revoked such as Agostini revoking the Grand Rapids and Aguilar decision in part because there is only indirect aid, however in this case there is direct aid going to the actual churches in the form of forgivable loans. 

First Amendment on College Campuses

On September 9, 2020 the US Department of Education implemented an executive order by President Trump which ensures the protection of a student’s First Amendment rights on college campuses.  The rule states that any public institution could not deny a religious student organization any of the rights, benefits, or privileges that are otherwise afforded to other student organizations.  This in short treats religious organizations the same as secular organizations on public college campuses.  

To ensure the compliance with this new order, public institutions must follow all orders in the First Amendment if they are to receive government funding.  If an institution is found to be breaking these guidelines they could lose privileges to funds now and in the future as well. This ruling also helps to decipher which institutions are controlled by “religious organizations” who would not receive government funding.  Under Title IX, schools who discriminate against individuals based on sex cannot receive government funding. The new order also prohibits schools from using such funding to pay for any promotion of religion and amends the rule against using the funding for secular programs.  

The new order by the US Department of Education and President Trump will go into effect 60 days after September 9.  It is a win for all of the country when the First Amendment is protected.  For example, in 2018 InterVarsity at The University of Iowa was banned from campus because it promoted Christianity.  A year before that, Iowa removed a Christian business club after a complaint about its belief that marriage is between a man and a woman.  Other groups from Iowa that have been banned are the Latter-day Saint Student Association, the Sikh Awareness Club, and the Chinese Student Christian Fellowship.

 

There is a growing movement out there which aims to defund many universities because they are clearly teaching and promoting certain beliefs as objective truth.  Schools such as Catholic University should not get funding because they are religiously affiliated and it would be unconstitutional to do so.  However, schools whose professors and faculty lean to one worldview receive funding; why should they? A study by Mitchell Langbert, a professor at Brooklyn College found that 39 percent of colleges do not have a single Republican professor and are overwhelmingly.  So the question I raise today is; How is indoctrination of religious beliefs different from indoctrination of another set of organized beliefs.  The main distinction between a religious set of beliefs and let’s say the Democratic Party Platform is the belief in God. Both are very organized but only one is eligible for funding.

This argument is not in favor of funding religious schools but instead for the defunding of public schools who promote certain beliefs as objective truth, similar to religious schools.  One belief that I have noticed that is accepted at schools is socialism.  This belief does not directly involve God but it is contrary to Catholic moral teaching and other Christian sects.  So why would this secular belief deserve funding rather than a funding for the teaching against it at a religious school?

Can Jurors Pray?

    During the trial of former U.S. Congresswoman Corrine Brown on charges of fraud, a male juror, called Juror 13, told his fellow jurors that he believed the “Holy Spirit” informed him that Brown was not guilty. The district judge chose to replace Juror 13 because of his statements, and Brown was then convicted and sentenced to prison. The judge dismissed Juror 13 for “injecting religious beliefs that are inconsistent with the instructions of the court, that this case be decided solely on the law… and the evidence in the case.” He referred to the juror’s invocation of God as allowing an “outside force” to influence his decision in the case. When questioned by the district judge, however, Juror 13 implied his prayers were for "the Holy Spirit to aid him in weighing the evidence of the case," and he did not say that he received a divine order to acquit Brown.  

    Brown’s conviction was reviewed and upheld by a three-judge panel of the 11th Circuit Court of Appeals in a 2-1 decision in January 2020. Judge Rosenbaum wrote for the majority, saying that the right to a trial by jury hinges upon the right to a verdict that is based off of evidence, and that cannot be substituted for “some form of divine guidance.” Judge Pryor, however, dissented, arguing that the district court “erroneously” conflated the “divine guidance” the juror believes he received with reliance on “an outside force” and religious beliefs that “render the person unable to perform the duties of a juror.” Pryor argued that if religious jurors have the constitutional right to practice their religion by privately praying for guidance from God, then the court cannot fault them for believing they received a response.

    Brown’s legal team believes the current decision denies the “noble and civic duty to serve as a juror to hundreds of millions of Americans” who seek religious guidance through prayer and could lead to jurors being denied “simply because they believe that God answers prayer.” The issue was reignited on September 24 when the full 11th Circuit Court of Appeals vacated the January ruling and agreed to rehear Brown’s case.

    Although Brown’s case does not directly involve an issue of religion, her conviction relates to the First Amendment issue of free exercise: does a juror have the freedom to seek divine guidance when reviewing a case? Does a juror’s invocation of religious counsel disqualify them from being impartial? I do not believe so. In my opinion, Juror 13 should not have been dismissed. 

    There is little direct precedent to be examined here, but we can look at other ways in which the courts have ruled on religious practices within governmental situations. In the 2014 case Town of Greece, New York v. Galloway, the Supreme Court ruled that opening a local government meeting with a prayer does not violate the Establishment Clause as long as there is no coercion and no religion is advanced or discouraged. Unlike Brown’s case, Galloway was about an establishment of religion, but the court stated that regulating whether prayer occurs or how it is carried out would put the government in the position to “act as supervisors and censors of religious speech,” thus involving the government to a greater degree than the practice of prayer itself. In dismissing Juror 13, the district court acted as a “supervisor” of a juror’s religious behavior and speech.

    I find myself concerned with the broader implications of the dismissal of Juror 13. The juror’s prayers were only seen as an issue because he discussed them and he believed they were answered-- would his prayer have been acceptable if he had not told others about it? Or would it be acceptable if he did not believe that God answered his prayers? Prayer is a personal and intimate practice that is central to many religions, and in punishing a juror for privately praying about a case, the government unconstitutionally limited the individual’s free exercise and created an unenforceable standard. The court cannot reasonably regulate prayer or belief in prayer. In dismissing Juror 13, the court essentially said that jurors may not pray about the case, which places the government in a position of supervising private citizens' religious practices.

    The issue is further complicated by the existing interconnection between our judicial branch and religion. Federal jurors traditionally take an oath stating something to the effect of, “Do each of you solemnly swear that you will well and truly try the case now before this court and render a true verdict, according to the law, evidence, and instructions of this court, so help you God?” This oath, similar to the oath witnesses must take, is seen as an appeal to a “higher truth.” It is inconsistent then, for Juror 13 to be removed from court for doing just as the oath states-- asking their God for help. Regardless of your own religious convictions or your opinions on the case of Corrine Brown, the dismissal of Juror 13 sets a dangerous precedent for what disqualifies a juror and creates unrealistic and unconstitutional standards for the government to evaluate jurors’ private religious convictions.

Butler v. Smith County and Ensuing Questions about God's Place in Government Institutions

     On September 14th, 2020, a district court judge in Tennessee issued a permanent injunction against the Smith County Board of Education to stop violations of the Establishment Clause from taking place in their schools. In November 2019, numerous plaintiffs had filed a complaint that their children were being proselytized in public school. The school board admitted that they were aware of various religious practices taking place including, but not limited to: prayer being given over the intercom, distribution of Bibles to fifth-graders, and the posting of signs on which Bible verses and religious phrases were written. While these are rather blatant endorsements of a particular religion, and thus violate the Establishment Clause of the Constitution, most interesting is the blurry case; a mural was painted by students that included a Latin cross and the text "In God We Trust." The cross needs to be removed, as it is a reference to Christianity, a particular religion. The district court in this case, however, seems to have found the phrase next to the cross as equally problematic. But go ahead and take any bill out of your wallet and take a close look at the back. "In God We Trust." Surely if such a phrase was approved to be on our currency, the phrase must not violate the Establishment Clause. Right?

    That is less clear. In 2000, Michael Newdow, a California resident, sued the local school district on his daughter's behalf for requiring the reciting of the Pledge of Allegiance which includes the line "one nation under God." His argument was that the inclusion of God in government-funded buildings or objects constituted an establishment of religion—applying to both currency and schools. What followed was a decade-long legal battle where first the 9th Circuit Court of Appeals ruled in 2002 that "in God we trust" and "under God" indeed violate the Establishment Clause. The Supreme Court ordered a writ of certiorari to review the case in 2004 and had it overturned not on the basis of the Establishment Clause but rather on procedural grounds. As it turned out, Newdow did not have custody of his daughter and thus was ineligible to file a suit on her behalf. It is speculated that the Supreme Court also wanted to avoid ruling directly on the constitutionality of this issue for political reasons. The September 11th attacks had taken place only three years prior and Christianity and patriotism were in full-swing. In 2005, Newdow filed a new suit which came to the same conclusion as that of the 9th Circuit Court of Appeals, but ultimately that too was overruled by the very same court in what is the newest development: Newdow v. Carey in 2010. As it stands, the current judicial precedent is that "In God We Trust" and "under God" do not violate the Establishment Clause because they do not respect the establishment of a particular religion.

    In Butler v. Smith County, the injunction ordered that “[s]chool officials shall not authorize students to post religious iconography or religious messages in classrooms, hallways, or other school facilities… [and] shall remove any such existing displays.” Whether the school board will take this to mean that the "In God We Trust" inscribed on the mural must be removed has yet to be seen. It could serve as the basis for another legal battle in the future.

    In my opinion, this is a contentious issue with valid arguments on both sides. While neither the national motto nor the Pledge of Allegiance make reference to a specific religion, it does respect that there is a God and heavily implies that he is the only God. It would be dishonest to ignore the country's Christian background when dealing with these matters, and an originalist interpretation would hold that the Abrahamic God was more than likely the basis for these phrases. In that regard, those against these phrases' inclusion have expressed valid concerns. 

On the other hand, a textualist reading of these phrases would fall in line with the 9th Circuit Court of Appeals' ruling in Newdow v. Carey; the phrases are acceptable on the grounds that they do not establish a particular religion. I am more inclined toward textualism as it is far easier to look at a law and determine what it says rather than what its writers intended. We can look at "In God We Trust" and say that no specific god is invoked, but it would be hard to find documentation proving particular religious intent behind the phrase's creation. Thus, while I agree with the general outcome of Butler v. Smith County, I would be opposed to the removal of the "In God We Trust" phrase on the mural at their school.

Smith v Butler

          For this week's blog assignment, I will be focusing on the First Amendment establishment clause and its ramifications in a school in Tennessee.  In this case, titled Butler versus Smith County, the First Amendment and its establishment clause is being determined in deciding whether or not prayer and religious activities are allowed within the smith county middle school and high school in the Smith County school system.

 

The school district in Smith County Tennessee is a very racially and religiously diverse school, as it has many different students from different religious backgrounds all in one district. For years, the  high school and middle school have promoted and practiced Christian religious beliefs, and there is no attempt to hide these practices. There is school sponsored prayer at athletic and other school events, religious decoration and decor around both schools, religious messages and verses adorned throughout the schools, and teachers which emphasize and openly practice the Christian faith with their students regardless of the students’ beliefs. For students who do not practice Christianity, they are left feeling like ‘second-class citizens’, as what is emphasized in the school is not what they believe in. This causes students to question whether their different religion is right, as the practice and emphasis of Christianity everyday causes the students to decide whether the religion  being emphasized upon them is better than the religion that is practiced in their respective homes. 

 

Kelly Butler, the lead plaintiff in the case who has a child in the middle school in Smith County believes that his child should not be subjected to different religious teachings from what is taught in his home. Kelly Butler is a retired army serviceman and he is an atheist. His atheist beliefs, which he imposes upon his family, are directly contradicted everyday he sends his children to school. He files this suit on behalf of other families in the school district as well who either abstain from religion entirely like himself or practice different religions than the Christianity that is emphasized within the school district. Butler seeks that the Supreme Court declares that the defendants, Smith County School District,  repeal all religion from the school and furthermore have the court declare the practices which promote Christianity within the school district become determined as unconstitutional, as Butler feels the establishment clause in the First Amendment is being violated.  The plaintiffs have been practicing this emphasis on Christianity for decades, as Butler who was also a graduate from both the middle school and the high school in Smith County was subjected to the same teachings and emphasis during his tenure within the school districts and its respective schools.   

 

Personally, I believe that the court should unequivocally rule the actions of the school district unconstitutional and determine that the establishment clause in the First Amendment is being violated.  This is a public school district that receives funds from the taxpayers, and the establishment of religion is in the open and readily apparent for all to see. The First Amendment and its establishment clause was created to prevent exactly what is happening in the Smith County School District from occurring. Students of different religious backgrounds or from no religious background at all are being subjected to teachings about religion and further forced involvement with the Christian teachings. The school had religious verses on its walls, prayers administered by teachers that entire classes would take part in, massive crosses which were adorned in gyms and other rooms throughout the schools,  prayer before and after athletic events, distribution of Bibles to all students to read and decipher in class, religious murals around the schools,  and many other various first amendment in fractions. Seeing and partaking in religion everyday and having peers who practice Christianity and buy into what is being taught is enough to sway any students opinion on the religion, which is enough to determine that establishment of religion is being had. This is a PUBLIC SCHOOL where these practices were being conducted.  The most important part about the first amendment is the emphasis which is placed upon separation of church and state. In this case, the public school system in Smith County was receiving taxpayer funds from the government and was then indoctrinating these students in Christianity when religion as a whole should be a private matter. In this case, there is ZERO separation of church and state, as it is clear that the state is funding this establishment of religion in the school district. Furthermore, there is clear establishment of religion in the school district as evidenced by the decor, the teachings of the teachers, distribution of Bibles, and communal prayer upon its students present and past.

Equal Employment Opportunity Commission v Kroger Company

In spring of 2019, Brenda Lawson, 72, and Trudy Rickerd, 57, were fired from their positions as employees of a Kroger Grocery Store in Arkansas for refusing to abide by the company dress code due to their religious beliefs. The Kroger grocery store mandated that their employees wear an apron with an embroidered rainbow heart on them. Though the rainbow flag has long been recognized as a symbol for LGBTQ community, there is no evidence that Kroger intended to show solidarity for the LGTBQ movement through the use of the rainbow heart on its uniforms. Both Lawson and Rickerd believe in a literal interpretation of the Bible, viewing homosexuality as a sin and saw the Kroger uniform as “an endorsement for the LGBTQ community.” Lawson and Rickerd offered to cover up the embroidery with a name-tag, or purchase a new apron from the company to avoid wearing the rainbow heart. This was made as a religious request for an accommodation to the dress code. Kroger denied the request and later fired the women from the store. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Kroger on behalf of Lawson and Rickerd, claiming that their religious rights protected in both the First Amendment and Title VII of the Civil Rights Act, were being violated. The lawsuit also argues that other employees who refused to wear the apron for non-religious reasons were “treated more favorably” than the women who claimed religious beliefs behind their refusal to abide by the dress code. Lawson and Rickerd are seeking financial compensation for “emotional pain and suffering, humiliation, inconvenience, and loss of enjoyment of life” as well as reform of store policies.

 

The salient issue in this case is that Lawson and Rickerd believe they were fired solely because of their religious beliefs, a violation of their right to free exercise protected under the First Amendment as well as Title VII of the Civil Rights Act which “protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin.” However, the Kroger company chain recently experienced a management overhaul, and many employees across the country have been fired from their positions. With no explicit evidence of the intent of the embroidered rainbow heart from Kroger, is it constitutional for Kroger to mandate these aprons as their dress code, regardless of whether employees object due to religious reasons? Lawson and Rickerd believe their firings were directly related to their religious beliefs and their request for accommodation. Since other Kroger employees who refused to wear the apron for non-religious reasons were not fired, Kroger appeared to target Lawson and Rickerd personally. The First Amendment states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In the case of Lawson and Rickerd, refusing to wear the aprons embroidered with a rainbow heart was an action of their right to free exercise of religion. The mandate from the store to wear the aprons was seen as an infringement of their rights, and their firing was seen as discrimination against their religious beliefs. 

As the lawsuit against Kroger continues, I believe the denial of accommodation and the eventual firing of Lawson and Rickerd is unconstitutional because of the infringement of the right to free exercise under the First Amendment and Title VII of the Civil Rights Act. Although the Kroger company is a private business, the Civil Rights Act applies to any place of “public accommodation” in the United States, including private owned grocery stores. The Civil Rights Act of 1964 ensures that employees are not discriminated against in the workplace because of their religious beliefs. In the 2015 case of Equal Employment Opportunity Commission v Abercrombie & Fitch Stores Inc, the court ruled that employers should be liable under Title VII of the Civil Rights Act “for refusing to hire an applicant based on a religious observance or practice” even if the employer did not have direct knowledge that a religious accommodation was required. In this case, the court held that Title VII creates an affirmative duty to ensure that religious practices are accommodated in the workplace, whether the employer is made aware of an employee's religious beliefs or not. This applies to hiring processes as well as already hired employees. Based on this case, Lawson and Rickerd should have had their religious beliefs accommodated, no matter what they disapprove of or support. 

           

The accommodation refusal leading to the firing of Lawson and Rickerd was not a neutral action. Other employees who refused to wear the apron for non-religious reasons were not fired by Kroger management, demonstrating that religious beliefs were directly targeted and suppressed. Intolerance of a person’s religious beliefs is not an overriding or compelling enough interest of the state or a business to infringe upon the guaranteed freedoms granted by the First Amendment. In the 1986 United States Supreme Court Case, Goldman v Weinberger, the Air Force prohibited head gear from being worn, even by those who requested accommodation for religious purposes, such as an Orthodox Jew who would typically wear a yarmulke. The court first ruled that it was constitutional for the Air Force to regulate such religious apparel because the military was supposed to "foster instinctive obedience, unity, commitment, and esprit de corps." However, in 1987 Congress passed legislation allowing members of the military to wear religious apparel based on their First Amendment right to free exercise, effectively reversing the 1986 decision. In the case of Lawson and Rickerd, having the freedom to not wear apparel mandated by the grocery store because of religious beliefs is similar to Goldman wanting the freedom to wear religious apparel in the military. The Kroger grocery store also does not have a compelling interest close to that of the United States military in terms of making sure all employees are dressed uniformly. If the military must be accommodating to religious beliefs, it does not seem like a burden on the Kroger company to accommodate such requests. The rationale between these two issues is virtually the same, which is why I believe any court would side in favor of Lawson and Rickerd, as their right to free exercise of religion is clearly being impeded upon. 

Title VII of the Civil Rights Act and the First Amendment protect against religious discrimination and the infringment of free exercise. The declination for accommodation and the eventual firing of Brenda Lawson and Trudy Rickerd, both long time employees of Kroger, violated their constitutional right to free exercise of religion and Title VII of the Civil Rights Act.

Are Christians Equal Under The Law?

            Over 1,000 Catholics marched together yesterday to protest laws restricting the amount of people allowed to attend mass in San Francisco, California. The march was lead by Archbishop Salvatore Cordileone and spanned from the City Hall, all the way to the local Cathedral of St. Mary of the Assumption, about one mile away. During their procession, they “sang hymns” and shouted “We are Essential, Free the Mass.” Local Catholics believe their government representatives have failed to treat them equally to other businesses. Churches in California allow 50 people to attend outdoor services and up to 25% of their maximum occupancy to gather inside. Where they believe they are being discriminated against is because of the fact that supermarkets can have as much as 50% of their maximum capacity filled at any one time. Due to this discrepancy, they believe that churches are not being looked upon as “equal under the law” when compared to other organizations. Even “despite the mockery to which we are being subject,” Cordileone urged his fellow Catholics to abide by the law as it stands.

The salient issue that is being called to everyone’s attention with regard to this instance is the free exercise clause of the First Amendment. It states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” People have a right, in this great country, to practice their religion uninhibited, provided that their customs and traditions are not in violation of the law. We know from cases like Sherbert v. Verner and Braunfeld v. Brown that the First Amendment is subject to restriction when considering issues of compelling state interests and public goods. What then constitutes a compelling state interest? The establishment of strict criteria for this phrase has remained elusive in the many cases in which it has been invoked. However, it may be helpful to view this idea within the context of laws that assist in the maintenance of the general wellbeing of the public. In the case of Adell Sherbert, the South Carolina Employment Security Commission discriminated against her for her religious views. It was her duty to keep the Sabbath according to her beliefs as a Seventh Day Adventist and because of this, could not find an employer willing to make an exception for her. She was left without a job and not permitted to collect unemployment benefits. The Supreme Court ultimately ruled that the denial of benefits, for Ms. Sherbert, hindered her ability to freely exercise her religion. 

The two questions that came of this case and are pertinent to the current issue of constraints on social gatherings are: Is there a compelling state interest to restrict attendance to mass? If so, what are the least restrictive means to achieve this interest? Is the government being neutral with regard to these restrictions? 

A government has an obligation to protect its people from foreign threats. One could certainly argue that an ongoing global pandemic that has resulted in the deaths of nearly one million people should serve as sufficient reasoning for a government to restrict its citizens rights in order to preserve their health. I do not think that there is any question of the fact that the federal government has a compelling interest to protect its people. However, this begs the questions of what constitutes the least restrictive means of doing so. Should people be allowed to meet at all? Should churches only operate at 25% capacity? Why not 10% or 30% or 70%? Are all of these percentages just arbitrary? How about if everyone just wore masks? Why not also make everyone wear gloves? Should you track everyone and mandate testing before they participate in public activities? Where is the line? It does not seem apparent where the buck needs to stop, but what might be helpful is evaluating whether or not everyone is subject to the same laws.

Grocery stores are allowed to operate at 50% capacity. The maximum occupancy of a Walmart is roughly 3,500 people. That would mean that a typical Walmart could have up to 1,750 people in a store at one time, not including employees. They are also open for business every day, including Sunday and have stayed open for up to 24hrs at a time in some locations. The maximum seating of the Cathedral of Saint Mary of the Assumption is 2,400 people. When operating at 25% capacity, they can have around 600 people present in the church. I presume they are open every day to the public and for confession. They likely hold a Vigil on Saturday, and regular mass once or twice on Sunday. From this, we gather that the church is open less often and to less people. Is the government being neutral in its application of the law? Are these restrictions fair? I don’t think so. The only argument left it seems is to propose that church attendance isn’t essential, to which I would offer two rebuttals. The first is that Catholics have an obligation to mass, meaning it is required of all the faithful to attend, given they are able. The second is that violent crime and deaths of despair have seen an acute increase during the countrywide lockdown for COVID-19. Opening up churches is a small provision that may prove helpful in preserving the spiritual and emotional wellbeing of the public.

Dalberiste v. GLE Associates

Mitche Dalberiste, an environmental technician, is a practicing Seventh-Day Adventist and he participates in the Sabbath. The Sabbath is a religious process that requires participants to spend time with family, worship God, and volunteer in the community. For Seventh-Day Adventists, the Sabbath runs from sundown on Friday to sundown on Saturday.

Dalberiste was hired in April 2016 by GLE Associates, an integrated architecture, engineering, and environmental consulting firm. During the onboarding process, Dalberiste made it abundantly clear to his supervisor that he was unable to work from sundown Friday to sundown Saturday as he observed the Seventh-Day Adventist’s Sabbath. Besides sundown Friday to sundown Saturday, Dalberiste was available to work all other times of the week. With his request in mind, GLE Associates rescinded their job offer, even though they lacked any inquiry into whether his request for the religious accommodation was reasonable forcing Dalberiste to choose between the GLE Associates position or his religious values. GLE Associates also never mentioned during the hiring process that working during the weekends were required.

Following the news, Mitche Dalberiste formulated a lawsuit against the company under Title VII of the Civil Rights Act. Title VII requires employers to reasonably accommodate acts of religious practice with the only exception being if the accommodation causes financial harm to the company. The Act also bars employers of significant size from “discriminating on a number of bases, such as race, sex, and religious practice” (Dalberiste v. GLE Associates). The company violated Title VII of the Civil Rights Act and the free exercise clause of the First Amendment.

GLE Associates did not accept Dalberiste’s request due to the precedent set forth in the 1977 Supreme Court ruling of Trans World Airlines v. Hardison. In a 7 to 2 decision, the Court ruled in favor of Trans World Airlines claiming that an employer, of any size, can deny an employee's request for religious accommodations if it displays the potential for even the slightest negative effect on the company. This Supreme Court ruling greatly imposes on the free exercise clause of the First Amendment, especially for those who practice minority religions and in the case of Dalberiste, those whose Sabbath day does not land on the majorities. Many have called on the Supreme Court to revisit this decision, including the Department of Justice who claimed that Hardison’s ruling is both “incorrect and irreconcilable” (Dalberiste v. GLE Associates).

Mitche Dalberiste filed the lawsuit against GLE Associates in Flordia federal district court. His goal was to defend his right to free exercise of religion and his right to earn a living while maintaining his religious practices. At the conclusion of the suit, the district court ruled in favor of GLE Associates as they based their ruling in the results of Trans World Airlines v. Hardison. The district court’s decision did not stop Dalberiste as he is now requesting the Supreme Court to review the district court ruling. Dalberiste and his associates are now asking for the Supreme Court to “restore religious liberty to its proper place in employment law. No American should have to choose between providing for his family and practicing a central tenet of his faith” (Dalberiste v. GLE Associates).

After reviewing the details of the Dalberiste v. GLE Associates case, I believe that it is clear that Dalberiste’s right to free exercise of religion and his right to earn a living while maintaining his religious practices was violated by GLE Associates. Their decision to rescind their job offer after he made note of his religious accommodations infringes on his first amendment rights. As the Trans World Airlines v. Hardison case has come into question, it is important to examine another Supreme Court case that shares some similarities. The Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores case details how Abercrombie & Fitch did not hire Samantha Elauf, a practicing Muslim, due to her not meeting the companies look policy since she wore a hijab. The Court ruled that to hold the employer liable under Title VII of the Civil Rights Act of 1964, in which the “applicant for a position must only show that her need for an accommodation was a motivating factor in the employer’s decision not to hire her.” (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores). This decision demonstrates a new precedent that should have been followed by the district court in Dalberiste v. GLE Associates. After examining the outcomes of both Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores and Trans World Airlines v. Hardison, it becomes clear that GLE Associates violated Title VII of the Civil Rights Act and Dalberiste’s right to free exercise of religion.

Uzuegbunam v. Preczewski- Appropriate restriction or ban on religious beliefs?

In July of 2016, Chike Uzuegbunam attended Georgia Gwinnett College (GGC) in Lawrenceville, Georgia. While attending GGC, Uzuegbunam began the process of disseminating information about his religious beliefs in the form of leaflets in a plaza on GGC’s campus. He was then stopped by one of the defendants, Shenna Perry, who was a Campus Safety and Security Officer for GGC, who informed him that he was not allowed to distribute his religious materials in that specific location. After being stopped and inquiring further about why he could not spread his materials, he was instructed by Catherine Downey, who served as the Head of Access Services and Information commons at GGC, that he was not allowed to distribute any written material outside of GGC’s speech areas. These speech areas required a reservation before use, represented less than 1% of campus, and was only open for 10% of the week.

After receiving this information, Uzuegbunam made three separate reservations for the speech areas in August of 2016. On one of the days that Uzuegbunam had reserved, he was stopped by Corey Hughes, a Lieutenant for the Campus Police, because they had received complaints about Uzuegbunam’s expression of his religious beliefs. Specifically, Uzuegbunam was told that his speech was considered disorderly conduct because it “he continued to speak, he would be subject to prosecution for knowingly breaking GGC was disturbing the peace and tranquility of individuals in the area” and in violation of GGC’s policy. He was informed that if policy. He then stopped speaking publicly, handing out literature, and left the area.

There were two specific policies in place when the event occurred. The first was the Prior Speech Zone Policy which confined public speech to the permitted speech areas on campus. As mentioned before, these areas required reservation and permission from university officials and were only open for a limited time during the week. The second policy was the Prior Speech Code Policy, which prohibited any behavior that could be construed as “disorderly” and disturbed the peace of individuals on campus.

Uzuegbunam filed a complaint against Georgia Gwinnett College arguing that both the Prior Speech Zone Policy and the Prior Speech code policies were both violations of his first amendment right to free speech and first amendment right to exercise his religious beliefs. After receiving the complaint, GGC amended their Prior Speech Zone and Prior Speech Zone policies. These changes included expanding access to speech zones with the creation of two new “public forums”, expand the times that these areas are available, as well as prohibit any GGC officials from denying a reservation request based on the “content or viewpoint of the expression”.

After reviewing the facts of the case, the district court in Georgia sided with the defendants in saying that GGCs policies did not violate Uzuegbunam’s rights to freedom of speech nor his right to freely exercise his religion. He appealed and the 11th circuit court of appeals affirmed the decision of the lower court. This case was granted a writ of certiorari is now pending oral arguments in front of the Supreme Court. More information about this case can be found here.

After reviewing the facts of the case on my own I have developed my own opinion on the case and will pose questions at the end of my analysis that may encourage you to develop your own opinion.
The fact that GGC has taken it upon themselves to implement their own version of time place and manner restrictions, as the Supreme Court has given states the power to do (see Cox v. New Hampshire), is not up for debate. It is reasonable to expect that an academic institution would take steps to ensure that any speech that happens on their campus, regardless of content, does not disrupt the primary purpose of that institution which is to educate their students. Once they amended their policies, GGC showed that they were making an attempt to expand access to public forums so that more people could share their beliefs in a public manner. Looking through this lens, the Prior Speech Zone policy is not a violation of the first amendment right to freedom of speech or free exercise of religion. The freedom to exercise your religion does not also give you the freedom to impose that exercise on others in a public setting.

As it is within the purview of the university to establish time, place, and manner restrictions on speech, it is my position that as long as someone makes a good faith effort to make sure their speech fits within these restrictions, they should be allowed to express that speech. When reserving the speech-area, all applicants are required to also submit any written materials that they plan to distribute or read from. This gives the Campus Police, Access Services, and anyone else to vet the content of the speech to ensure it will not cause harm to the person speaking or anyone listening to the speech, a criterion listed in the Prior Speech Zone policy. Mere discomfort should not be enough to bar someone else from expressing their religious beliefs. If every time someone was uncomfortable or felt disrupted by the content of someone else's speech, there would be very little room for anyone to express their own personal beliefs, whether they have a religious nature or not. The Prior Speech code policy, and more specifically, the way it was enforced in this case is unconstitutional because it places an undue burden on the ability to exercise your religious beliefs. For many religious sects, evangelization is an integral part of being a steward of the faith. I would urge you to think of other displays of religious stewardship, the kippah, the hijab or burka, or the dastar are all displays of religious faith and commitment to the respective religions. If people who wore these items were told that they could only wear them in certain areas, at certain times, and only if it did not "disrupt" anyone else, the ability to express religious beliefs at all would be compromised.

Masks - Protection or Free Exercise Violation?

    On August 13th, in response to the growing Covid-19 pandemic, the Ohio Department of Health Interim Director Lance Himes signed into effect an order mandating that all children in educational settings from kindergarten to 12th grade must have on a face covering. In response, dozens of families have joined a suit against the Ohio Health Director stating that state-imposed mask wearing requirements infringes on their religious beliefs and ability as parents to raise their child as they desire. The order did provide exemptions to those with disabilities, mental health conditions or medical conditions and most relevant to this case was an exemption for students who by wearing a face mask it would go against an established requirement of their religion. However, one of the key parents in the case, Jennifer Miller, attempted to use this religious exemption but was denied with the state claiming that her complaint was not based on an "established religious requirement” rather it was simply a religious belief and that these are two separate entities. The plaintiffs are concerned that the state is acting as a "church court" deciding what is an established religious requirement versus a religious belief which is not the role of the government. Additionally, they are arguing that forcing a child to wear a mask is a violation of privacy that eradicates the child’s sense of identity and personality. Also, stating that masks have become symbolic of certain political messages and by wearing a mask these children are forced to support a political message that could be the opposite of their parent’s views and beliefs.

    The primary issue of this case, Miller v Hines, is whether or not this order infringes on the free exercise clause of the first amendment by forcing students to wear masks in school. Does the government have the right to define the difference between a religious belief versus a religious requirement? Is wearing a mask a religious/political statement that can contradict with families’ views and beliefs?

    One of my concerns with this case is the power the state government has granted itself with the religious exemption in this order allowing for the state to decide what constitutes a religious requirement and how it is different than a religious belief. The government, state or federal, is supposed to be neutral in affairs regarding religion which is asserted in numerous supreme court cases most importantly in McGowan v Maryland. By defining what an established religious requirement is and using it in the application of a law, the government is no longer neutral. Jennifer Miller, one of the plaintiffs, tried to utilize the religious exemption in the face covering mandate but was rejected with the government stating her complaint was a belief and not a requirement. What criteria was used to make this decision? Who made this decision- a single person or a council? Those making the decision between requirement and belief could also have bias towards certain religions and then we would have a case for violation of the establishment clause. This exemption while most likely made to avoid potential issues with the first amendment however it made everything worse.

    My next concern is the point where the plaintiffs argue that masks have become symbols for certain political ideas and that by enforcing the wearing of facial coverings you are forcing students to promote beliefs that are not theirs or their families. In the official complaint, to support their claim of the political nature of the mask the plaintiffs state that the Biden campaign has made a black mask a symbol of his campaign thus it can be assumed that anyone who wears a mask must be supporting Biden. The plaintiffs also believe that the masks are a symbol of the government’s poor response to the Covid-19 pandemic and supports the idea to panic rather than to remain calm. While wearing a mask may contradict your beliefs the government has the power to intervene when it is for peace and order. This has been suggested in numerous documents and decisions over the years most historical being Thomas Jefferson’s, Bill for Establishing Religious Freedom in Virginia, which states “the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order”. Attempting to contain a pandemic and protect U.S. citizens is the top priority right now in the government and wearing a mask is a key part of attempting to create a solution. Not wearing a mask could potentially expose hundreds of people to Covid-19 and contribute to the spread of the disease thus the government has the right in emergency situations to regulate your wearing of a mask.

    Overall, I believe the original intentions of this order were constitutional but failed in its execution. By creating an exemption that forces government officials to evaluate whether or not your religious complaint affects a religious requirement or a religious belief and essentially defining both concepts the school face covering mandate is unconstitutional under the free exercise clause of the first amendment.

By: Rachel W

Protests to Emerge Amid ICE Neglecting Religious Requests

This weekend, a group of activists are to hold a rally to protest treatment of Muslim Detainees inside a Miami ICE detention center. Reports say that for months Muslim detainees have been forced to eat either pork or expired food. Because of the Coronavirus pandemic, the Krome Center in Miami switched their food services to a satellite- feeding program where all of the food is premade and given to the detainees already plated. Before the pandemic, detainees were able to choose what foods they wanted to eat, now that their food is pre plated, they can either starve, eat the pork, or eat spoiled Halal food. Many of the detainees have reported illnesses such as stomach pain, vomiting, and diarrhea.  Muslim Detainees apporached the Krome Center’s Chaplain to seek assisance, he replied, “It is what it it,” allegedly. Since then, many formal requests have been made to the center to have accommodations. There was no immediate response to the requests, other than two tweets that included the existing religious policies. Muslim advocates have filed suits for the detained men. The marches to take place this weekend are being held in hopes that Halal food will become available to the detainees and that the men withholding the Halal food are held responsible for their actions.

The ICE handbook, states that, “All facilities shall provide detainees requesting a religious diet a reasonable and equitable opportunity to observe their religious dietary practice, within the constraints of budget limitations and the security and orderly running of the facility, by offering a common fare menu.”(P. 237 Section 4.1) The question at stake here is, does a Global Pandemic give the Krome center in Miami the right to deny religious dietary requests from its Muslim detainees? It is in their part of their policy to acknowledge requests, but only if it is within the constraints of the budget. The First Amendment states that Congress shall make no law prohibiting the free exercise of religion. But if an institution is directly prohibiting a religious group from following their preferred diet, does that prohibit them from practicing their religion? The pandemic has created an obstacle in many institutions who have to provide food for their inhabitants. It has been deemed safer for places to pre package and pre plate food to limit touches between workers and food recipients. This new method makes it safer for everyone in terms of slowing the spread of the coronavirus, but creates new limitations for the options that are available. The advocates for the Muslim detainees are claiming that since the start of the pandemic, the religious rights of those incarcerated are being infringed upon and that change needs to initiate immediately. 

This issue is extremely important for all of those in the United States who have been detained by ICE, whether they are guilty or not. Instances like these can set a major precedent for the treatment of those detained by ICE and for those who are incarcerated in prisons. It is important that as long as you are in the United States, you can still reap the benefits outlined in the constitution. Just because a person has broken the law, does not mean that their religious rights should be stripped. In this case, I agree with the Muslim detainees and advocates. The ICE, Krome facility in Miami should be required to uphold their promises to provide religious food requests, even amid a pandemic. Those who are withholding the Halal food should be held accountable. The detention center is certainly prohibiting the free exercise of the Muslim religion. Because the food rules are so prominent in the Muslim faith, detainees are getting sick which could potentially lead to death. Since the facility already stated that they will complete requests for religious meals, they need to uphold that promise, despite the inconveniences from the pandemic. Prior to the Pandemic, the Krome center was very accessible to those who wished to consume a Halal diet. In a 1997 case Ashelman v. Wawrzaszek, was a case that ruled it was a violation of their free exercise rights to not provide Orthodox Jews non- Kosher Meals. The prisoners rights to practice their religion was found to outweigh the cost and inconvenience of the specially requested meals. It is a direct violation to the exercise of religion which causes a very prominent health risk to those detained. Even in an unprecedented time, religions still exist and deserve to be acknowledged. Though, this may cause a slippery slope effect and other detainees may start making absurd religious dietary requests, it is something that needs to be taken as a case by case basis. In this case, the Muslim detainees are having their rights violated and the Krome center in Miami needs change their behavior and take responsibility in obeying their own policies.

Mandatory Vaccinations v. Orthodox Free Exercise

In the Spring of 2019, Mayor De Blasio of New York City began addressing the recent outbreaks of measles, a highly contagious and sometimes deadly disease, by placing vaccination requirements in multiple neighborhoods. The outbreaks had resulted in 329 infections, 25 hospitalizations, and six patients in intensive care. Concerned for the health and safety of his city, Mayor De Blasio urged individuals to update their vaccinations against the disease, ultimately releasing a mandate requiring the MMR (Measles, Mumps, Rubella) vaccination. 

Many of the outbreaks in the NYC area seemed to stem from the large Orthodox Jewish community and their low levels of vaccination. The community had suffered disproportionately from outbreaks of other infectious, yet preventable, diseases like chickenpox and pertussis in the past, and was known to have lower vaccination rates among their young populations. While in the interest of health, the mandatory vaccination statute was problematic within the ultra-Orthodox community, as certain individuals claimed religious exemption to the requirement. Such individuals explained that it goes against the biblical teachings of their religion to endanger their children, and cited unsubstantiated accounts of side effects and a scientifically disproven link of the MMR vaccine to the development of autism as reasons why vaccinating their children would place them in harm’s way. 

An overwhelming portion of Orthodox leadership, however, supported and encouraged vaccinations, explaining that placing your children at risk to contract a deadly illness was the true endangerment. Rabbi David Niederman stated, “From a religious point of view, people have to vaccinate...Anything that causes harm— you have to do whatever you can to [avoid] that.” Consistent with the suggestions of religious leadership, most of the Orthodox community had no objections to vaccinating their children and had already met the state requirements prior to the mandate. 

Therefore the question arises from this case of whether mandatory vaccinations infringe upon the free exercise rights of certain members of the Orthodox faith given by the First Amendment despite the inconsistencies among the religious institution. 

It is clear that there is a compelling state interest in requiring all individuals to be vaccinated against measles. The disease has had detrimental effects on the community in the past, including death, and its highly contagious nature makes it a continual threat to the health and safety of New York City. However, despite such a compelling interest, the state is not entitled to permanently infringe upon the free exercise rights of those individuals who cite vaccinations as conflicting with their religious beliefs. The health and safety of society may be considered a strong justification for partial or temporary restriction of free exercise, but it is not sufficient to justify a complete and irreversible breach of religious liberty. Unlike the recent case heard by the Supreme Court, South Bay United Pentacostal Church et al. v. Gavin Newsom, Governor of California, et al, which decided that “although California’s [COVID-19] guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment”, the forced vaccination proposed by Mayor De Blasio is in direct conflict with certain individuals’ religious practice. The directly conflicting and irreversible nature of vaccinations therefore make the state mandate an unconstitutional infringement upon the free exercise clause. 

Though the portion of Orthodox individuals who have rejected vaccinations is very small compared to the rest of their community, and the fact that the Orthodox leaders have plainly stated that religion requires compliance with the city’s mandate suggest that the religious objections to vaccinations are false, the application of First Amendment religious liberties cannot be dependent on the supposed verity of religious beliefs. As established in United States v. Ballard, “when the triers of fact undertake [the task of finding the truth or falsity of religious doctrine], they enter a forbidden domain” (Muñoz). Thus, the difference in religious interpretation between those Orthodox individuals who refuse vaccinations and the rest of their religious community is insignificant to the question of whether or not free exercise is being encroached upon. 

All that considered, many individuals, including those of the Orthodox tradition, invoke a reasoning to object to the vaccine mandate that is not founded in religious principle. In these cases it does not follow that they should be granted exemption from the requirement. Similar to United States v. Seeger, in which the court upheld that “essentially political, sociological, or philosophical views or merely a personal moral code” (Muñoz) does not grant conscientious objector status from a program meant to benefit the safety of the common good, non-religious and personal beliefs about the potential dangers of vaccines cannot justify exemption from the mandate. While a religious objection to vaccinations is protected under the free exercise clause, the state interest in protecting the health and safety of the community is sufficient to overpower secular objections that are not specifically protected. 

Unfortunately, providing religious exemption could potentially allow for non-religiously motivated objectors to fraudulently use religion to receive exemption from the mandatory vaccinations. However, there is little evidence to suggest that such fraud would be likely to occur, as only 0.25 percent of students in New York public schools and 2 percent of students attending Orthodox private schools have claimed religious exemptions. To permanently and directly infringe upon the free exercise rights of members of a community only to avoid an unlikely misuse of religious exemptions is unjustifiable. While the vaccination mandate serves the interest of the state to maintain a safe and healthy community, it is within the free exercise rights of individuals with religious reasoning to receive exemption from such a requirement.