Is the Fairness for All Act Constitutional?

 Is the Fairness for All Act Constitutional?

There is a stark conflict between freedom of religion and freedom from discrimination based on sexuality. These two freedoms are huge priorities and it makes it difficult constitutionally when one’s religion requires one to discriminate. In order to protect one’s freedoms, you have to restrict another’s. In an attempt to legislate grounds around the conflict between these two freedoms, a republican senator has proposed a bill. The Fairness for All Act has been proposed by Chris Stewart and makes sexual orientation and gender identity protected from discrimination like race, sex, or religion. However, it gives certain religious groups an exemption from non-discrimination against sexuality and gender identity. This would give religious organizations the right to not serve or employ those that they do not agree with. It also would allow adoption groups to disqualify applicants on basis of religious grounds. The Human Rights Campaign has come out against the proposed bill saying that it is a, “double whammy of dangerous rollbacks and discriminatory carve-outs”. Stewart states he knows how controversial the bill is but it is a compromise between these two freedoms, however most of its supporters are religious groups. The ACLU has also come out against the bill saying it lowers protections for LGBTQ individuals and puts their sexuality below other characteristics such as race, gender, and religion. 

The Supreme Court has continuously been hearing cases around LGBTQ rights and has set some precedents to follow. In 2018, the Supreme Court heard a LGBTQ discrimination

case, Masterpiece Cakeshop, Ltd vs Colorado Civil Rights Commission, and ruled by a 7-2 decision that private businesses can discriminate against sexuality because of sincere religious beliefs when a man was allowed to refuse service to a gay couple for a cake. This case prioritized religious freedom over LGBTQ protections.

In 1996, Boy Scouts of America v Dale, the Supreme Court ruled that private organizations could single out LGBTQ individuals when they ruled it was constitutional for Boy Scouts to fire an assistant scout master based on his sexuality. But last June the Court ruled that LGBTQ rights are protected under the Civil Rights Act, meaning that you can not fire someone for being LGBTQ. However, the majority opinion from Justice Gorsuch argued this right was because it would be discrimination based on sex not sexuality. Justice Alito and Thomas dissented in this opinion stating that you should not interpret the constitution to reflect modern ideals. The precedents the Supreme Court has placed around LGBTQ rights at times contradict but generally show that LGBTQ cannot be fired because of their sexuality but they do not have to be served. The Fairness for All Act would lower these rights to allow religious organizations to not hire or serve individuals based on their sexuality or gender identity, including adoption. Going off the Masterpiece Cakeshop ruling, this Act would most likely be constitutional, but going of last June's decision, this Act would most likely be unconstitutional. The Religious Freedom Restoration Act of 1993 also states that the government cannot burden one's freedom of religion except for a compelling governmental interest and that it is the least restrictive means. Religious groups would argue that their freedom of religion is being burdened through the protections given to LGBTQ individuals, however I would argue that the compelling governmental interest of protecting LGBTQ individuals, who have historically faced violent discrimination, is a justified burden.

What has to be decided is what is more important, an LGBTQ individual’s rights to not be discriminated against, or a religious person’s rights to discriminate against LGBTQ individuals. Personally, I believe that freedom from discrimination on the basis of sexuality should have priority over freedom to discriminate based on religious beliefs. Your own rights of sexuality are more important than another’s right that would directly harm or lower another's well being and place in society. It is hard to say one person's rights are more important than another's and the religious groups in question feel as though they are being discriminated against when they are forced to go against their religious beliefs and serve or hire LGBTQ individuals. It is a matter of which discrimination is more protected by the constitution. The First Amendment clearly states that individual's freedom of religion is protected, but the Ninth Amendment says that there are rights that people have that are not specifically articulated in the constitution. The founders recognized that the constitution could not specifically address all rights and problems that would occur in the future. Further, the 2020 decision states that LGBTQ rights are protected by the Civil Rights Act. Fairness in society is supposed to mean that each person is free from the same obstructions and inhibitions. Discrimination against LGBTQ by the right to not hire or serve obstructs their lives socially and economically. But not allowing someone to discriminate still puts them on the same playing field economically and socially, it does not actively hinder their person in a concrete way in society. If you are deciding between two freedoms and one freedom actively, tangibly hurts a group of people by decreasing their opportunities, while the other does not, the one that does the least harm should be prioritized. Sexuality, just like race, religion, and gender is a protected right, free from discrimination, and this right is a justified burden against free exercise of religion.

Ingersoll & Freed v. Arlene's Flowers

Shortly after the State of Washington began to recognize gay marriage in December 2012, Curt Freed and Robert Ingersoll became engaged after being a couple since 2004. After scheduling their wedding ceremony for September of 2013 and during the planning process, the couple decided to take their business to Arlene’s Flowers for their floral arrangements since they have purchased from them multiple times in the past. On March 1, 2013, Robert went to Arlene’s Flowers to place his order when he was told that his order could not be fulfilled because of the owner’s religious beliefs. Barronelle Stutzman, the owner of Arlene’s Flowers and a member of the Southern Baptist Church, cited her Christian beliefs and claimed that she believed a marriage is between a man and a woman as stated in the Bible. Stutzman also stated that she believes that participating or allowing an employee of hers to create a custom floral arrangement for same-sex couples would therefore be the same as a direct endorsement of religion. When finding out that Arlene’s Flowers denied their business, the two stated, “We were very disappointed to be denied service by Arlene’s Flowers after doing business with them for so many years. Planning our wedding should have been a joyful time in our lives, but instead, we were hurt and saddened by being rejected for who we are” (Ingersoll & Freed v. Arlene's Flowers). Following the disheartening news, the couple decided to stop planning a large wedding and to have a smaller wedding at their home due to fear of further discrimination from others and other businesses. 

In the first lawsuit involving Barronelle Stutzman, Robert Ingersoll and Curt Freed formulated a lawsuit against Arlene’s Flowers, and they were represented by the American Civil Liberties Union. They claimed that the business violated the anti-discrimination laws of the Washington state government. Elizabeth Gill, a senior attorney at the ACLU, argued that “Religious freedom is a fundamental part of America. But religious beliefs do not give any of us a right to ignore the law or to harm others because of who they are. When people, gay or straight, black, brown, or white go to a business, they should be treated equally and not be discriminated against” (Ingersoll & Freed v. Arlene's Flowers). To be more specific, the ACLU claimed that Arlene’s Flowers had violated the Washington Law Against Discrimination (RCW 49.60.030). The law bars discrimination due to one’s sexual orientation. “It prohibits businesses from refusing to sell goods, merchandise, and services to any person because of their sexual orientation. The courts have found that businesses open to the general public may not violate anti-discrimination laws, even on the basis of sincerely held religious beliefs” (Ingersoll & Freed v. Arlene's Flowers). 

The American Civil Liberties Union took the lawsuit the whole way to the Washington Supreme Court. After hearing the case, the Washington Supreme Court ruled that the refusal on the part of Arlene’s Flowers to sell to Robert Ingersoll and Curt Freed flowers for their same-sex wedding ceremony violated the Washington Law Against Discrimination and the Consumer Protection Act. They then went on to claim Washington Law Against Discrimination’s public accommodations provision did not violate Stutzman’s First Amendment rights. 

Once this ruling was decided upon, Stutzman and her attorneys filed a petition for a writ of certiorari in the Supreme Court of the United States and asked them to hear the case. During this time, Masterpiece Cakeshop v. Colorado Civil Rights Commission made its way to the United States Supreme Court and was ruled on in June 2018. A similar situation occurred in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Charlie Craig and David Mullins decided to purchase their custom wedding cake through Masterpiece Cakeshop run by Jack C. Phillips. Phillips denied their business because he decided that he will not create wedding cakes for same-sex weddings due to his religious beliefs. Charlie Craig and David Mullins decided to file charges of discrimination with the support of the Colorado Civil Rights Division. Once the case reached the Supreme Court in 2018, they ruled that the Colorado Civil Rights Commission’s evaluation of Phillip's reasoning for declining to make the wedding cake for a same-sex couple violated the Free Exercise Clause. With this ruling, the Supreme Court advised the Washington Supreme Court to re-evaluate their ruling in Ingersoll & Freed v. Arlene’s Flowers by granting the petition for a writ of certiorari, told them to vacate the judgment, and remanded the case back to the Washington Supreme Court. In June of 2019, after revisiting the case, the Washington Supreme Court again ruled against Stutzman and claimed that they found no evidence of religious amicus. This ruling has resulted in Stutzman’s attorneys again requesting the United States Supreme Court to hear her case. 

After reading the above information, I find myself agreeing with both rulings in the Washington Supreme Court because by discriminating against Ingersoll and Freed, Stutzman violated the Washington Law Against Discrimination and the Consumer Protection Act. Stutzman had sold floral arrangements to Ingersoll numerous times prior to the knowledge of their sexual orientation. Once she had gained this knowledge, she made it clear that this time, due to the wedding, it violated her religious beliefs. At no other point of sale did her religious beliefs impede on their business transactions. With this in mind, Stutzman clearly discriminated on the basis of sexual orientation, which violated the Washington Law Against Discrimination and the Consumer Protection Act. If this case were to be taken to the United States Supreme Court today, I think that they would rule in favor of Barronelle Stutzman. This is due to the precedent set in the Masterpiece Cakeshop v. Colorado Civil Rights Commission. 

Alleged 'Religious Discrimination' at Oklahoma Gun Range

Fatihah v. Neal

In this week's blog assignment, the establishment clause within the First Amendment and is once again the focal point of the case I will discuss. The case I will assess is Fatihah vs Neal and took place in rural Oklahoma in Oktaha. The suit was filed on February 26, 2016, but was later dropped in mid 2019 when the establishment in question had replaced the controversial sign which was at the focal point of this case. I decide to go forward with viewing and assessing the case because I believe there are important lessons which can be learned from the suit in question. 

In Fatihah vs Neal, a practicing Muslim named Raja’ee Fatihah was asked to leave a gun range and store owned by Chad and Nicole Neal in Okatah, Oklahoma. Chad and Nicole Neal have owned this establishment, named ‘Save Yourself Survival and Tactical Gun Range’ for over 15 years and had never had any problem with members of the gun club or customers in their store. On October 23, 2015, Fatihah entered into their  gun range to shoot and practice his aim with a military style pistol and a military style assault rifle, with over 200 rounds of ammunition combined for both weapons.  In addition to this, Fatihah had entered dressed in what some have called military style clothing.  While many details in this case are unclear, it was reported that this gun range and store had a small sign positioned in the front window of their store that read “Muslim  Free Establishment”.  This sign was used in the ACLU brief which stated the disproval of the treatment given towards Fatihah. After Fatihah was removed from the gun store and range, he had contacted the ACLU of Oklahoma and filed suit against the ‘Save Yourself Survival and Tactical Gun Range’ for discrimination and the violation of Oklahoma’s non-discrimination law in conjunction to the Civil Rights Act of 1964. 

The case will be defended by the ACLU of Oklahoma for Fatihah and the American Freedom Law Center on behalf of Nicole and Chad Neal. The AFLC defends the accusations of discrimination and the violation of the Civil Rights Act of 1964 by stating that Fatihah was an individual of question and his presence at the gun range was very unsettling. The AFLC stated that his dismissal was because he had been an individual of suspicion and he had made employees scared with his presence. He had showed up on a rainy day, which is not ideal for shooting outdoors when the weather is inclement. As stated previously, he entered the range with two loaded military style weapons with over 200 rounds of ammo, but he also had a small recording device with him in his pocket. Along with these facts, Fatihah had never been to this gun range before, and his home was in Tulsa Oklahoma which is over an hour and a half from his home. Something else noted in the case details was there were many gun ranges on the way from Tulsa to Okatah, so employees had wondered why he chose this range over others closer to his home. 

The ACLU of Oklahoma is heading the suit against the Neals and their establishment. According to the ACLU, Fatihah identified himself as a muslim on the liability forms, and after this was seen, the staff had drawn their weapons and asked Fatihah to leave. If this fact holds water in court, it would be incredibly evident that Fatihah was discriminated against because of his religion which is unconstitutional according to the First Amendment.  Furthermore, the ACLU claims that the sign on the front of their store was discriminatory and in violation of the Civil Rights Act of 1964. Their lawsuit expresses their anger and disappointment with the treatment towards Fatihah after he had admitted that he was a muslim, and further they express that this treatment is unconstituttional and cannot be overlooked. 

In my assessment of this case, I look upon the recently ruled and highly controversial case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In this case, the owners of a cake shop in Colorado decided not to make a cake for a gay couple. This denial was brought to the Supreme Court and was later proved to be constitutional and not in violation of the First Amendment and its establishment clause.  The defense of the cake shop owners was that making this cake for a homosexual couple was against their religion and this was held to be permissible by the Supreme Court. Given what I am aware of in this case, my opinion would coincide with the opinion made in the Supreme Court in the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission in supporting the business and its right to turn away customers.  I wholeheartedly disagree with the anti-muslim sign which was adorned at the front of the store, but I believe that the evidence against Fatihah in this case was enough to justify his dismissal. Another point in my support of the store and the Neals was that this establishment has existed for over a decade, and it would be foolish to assume that Fatihah was the first muslim this store had seen, regardless of the sign or not. Because of this, I believe that the evidence referenced by the AFLC was enough to deem this individual a suspicious person that could be asked to leave the premises of the store without violating the First Amendment. 

Calvary v. Herring: The Legal Defense of Discrimination

This past July, Governor Ralph Northam of Virginia signed the Virginia Values Act into law. The bill prevents accommodation, employment, and housing discrimination on the basis of gender identity or sexual orientation. The governor's press release affirms that the pandemic is to blame for increased discrimination but offers no evidence of such a phenomenon. The law rather, at least according to the Alliance Defending Freedom (ADF), is a direct attack on individuals' freedom to exercise their religion in making hiring decisions and the like. Should a Christian photographer choose not to work for a gay couple's wedding, he or she will receive a fine of $100,000. Such steep penalties all but stop discrimination on the basis of gender identity or sexual orientation except for the richest individuals willing to repeatedly pay six-figure sums for each infraction. The ADF filed a suit last month, Calvary v. Herring, arguing that the Virginia Values Act forces citizens to abandon their core beliefs in violation of the Virginia Religious Freedom Restoration Act, of the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment to the Constitution, and of due process.

The ADF puts forth that the Virginia Values Act forces individuals whose religious convictions maintain 1) that marriage is between a man and a woman and 2) that homosexuality and other sexual deviancy is immoral to not only abstain from acting in line with these beliefs but to act in the exact opposite manner. As determined as early as Reynolds v. United States (1879), the government may indeed prevent certain objectionable religious practices such as child sacrifice. How far legislatures may go in preventing behavior, however, depends on the issue at hand. Both federal and state statutes prevent discrimination based on race, religion, sex, etc. but generally not gender identity or sexual orientation. It is evident that objections to these lifestyles by religiously inclined individuals has played a role in developing this precedent.

The more progressive tend to find such objections to be archaic, offensive, and prejudiced as they believe that being non-heterosexual, for example, is not a choice but rather a natural occurrence; discriminating on such grounds is tantamount to discriminating on the basis of any other immutable characteristic. A Christian, Jew, or other person with anti-LGBTQ+ religious beliefs may counter that point by contending that all individuals have sinful desires but that we need not—and should not—act upon each one. It is for that same reason that many religious folks believe that one should not have sexual intercourse before marriage. They indeed would maintain that their discrimination does not constitute contempt prior to investigation but rather compliance with clear-cut instructions from God himself. The question, then, is who has the legal right-of-way?

The U.S. Constitution is the bedrock document that jurists often fall back upon for guidance in cases like these. While federal laws such as the various Civil Rights Acts prevent discrimination based on certain characteristics, the Constitution itself only prevents discrimination on the basis of one's religion. The Free Exercise Clause is particularly of interest in the Calvary v. Herring case as the ADF holds that the ability to exclusively hire individuals who comport with the employers' religious beliefs, for example, is protected by this clause. Their argument is sound. Additionally considering that Virginia is an at-will employment state, nobody is being forced to work for a certain employer. At-will employment typically involves reciprocity in that an employer is not forced to retain any employee, but in passing the Virginia Values Act, that has been metaphorically defenestrated. Per the Establishment Clause, as well as the other laws the ADF suggests that Virginia has violated such as the Virginia Religious Freedom Restoration Act, regardless of any secular complaints individuals may discriminate against whomever they wish on religious grounds. It is not up to the government to determine either the strength or the validity of those convictions.

It is rather audacious of any legal body to affirm what the values of its communities are, especially when there is evidence to the contrary such as in this situation. There is a case to be made that the Virginia Values Act, in its repudiation of religion, establishes its own anti-religion. Imagine a bill that was written in a similar manner but whose content promoted plainly religious values as those of the state. By defining the state's values in contrast to those of followers of Abrahamic religions—not explicitly but in effect—Virginia has established an anti-religion, violating the Establishment Clause. Furthermore, in jurisprudence the two dominant interpretations of that clause are accommodationist and neutral. That is to say that the government may either accommodate all religions in cases where there may be a secular interest to do so, such as in Everson v. Board of Education (1947), or it must treat all religions equally in their observance of laws. Once more, it is Christians, Jews, and Muslims who are largely targeted by this legislation as Buddhists, Sikhs, etc. do not take issue with LGBTQ+ behavior. The law thus is neither accommodationist nor neutral and therefore violates the Establishment Clause in a second sense.

In terms of free exercise, the Virginia Values Act damages religion in placing an undue financial burden on individuals who act in accordance with their faith. In Sherbert v. Verner (1963), the Supreme Court created a test to determine whether an individual's free exercise has been infringed. In the case of a violation of religious practice, such as in Calvary v. Herring, the state must both demonstrate a compelling interest for the infringement and that there is no alternative solution that would not affect the exercise of religion. By passing the Virginia Values Act, the state purported that it had a compelling interest to stop discrimination in employment, housing, etc. against people based on their gender identity or sexual orientation. Was it necessary, however, to besiege religious individuals with six-figure fines every time they violate this law? Often it would seem that these cases are brought up against religious people not because someone cannot find an alternative after being refused a particular service, but to spite those they perceive to be bigoted. A baker in Colorado, for example, was repeatedly harassed for refusing to make cakes for gay weddings. The problem was not that the customers were unable to find a baker who would fulfill their request—it was that they wanted to ruin a man for his religious convictions. Although in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) the Supreme Court ruled in the baker's favor, the assault on his values continues. In our case, it is quite possible that the state of Virginia has enacted this legislation in bad faith, not to prevent discrimination against certain individuals but rather to discriminate against the religious. Given that the Virginia state legislature is Democrat-run and that fervently religious people tend to lean Republican, it may even be probable. Slamming people with an $100,000 penalty, however, seems to be overkill to say the least. Regardless of the legislators' true intent, however, a strong case can be made that the state's interest is not compelling enough to constitute a violation of religious free exercise, ergo, the financial burden.

Ultimately, the Circuit Court handling Calvary v. Herring should rule in favor of the plaintiffs. The evidence that the Virginia Values Act violates the Establishment Clause is solid, and a reasonable argument could also be made that it violates the Free Exercise Clause. Despite any moral opposition to these religious beliefs, the law is clear in its protection of them.

"Homosexuality Is A Sin" Shirt in Public School

“Homosexuality is a sin -- 1 Corinthians 6:9-10.” In late August of 2020, a Tennessee student wore a shirt with this statement on it to her public high school and was immediately sent to the principal’s office. The student was told she needed to change because her shirt violated the dress code, which states, “clothing with offensive messages, including advertisements for drugs, alcohol, tobacco, sexual connotations or double meanings is unacceptable”; the school cited her shirt’s reference to “sex."  Her parents chose to take her home instead of having her change shirts, and they are now suing the Overton County School District. The suit claims that the school district is violating the student’s rights to free speech and free exercise of religion: “By forcing Plaintiff B.A.P. to choose between abandoning her religious beliefs in order to receive an education and, alternatively, abiding by her religious beliefs only to be demerited and disciplined, the school district has imposed a substantial burden on plaintiff B.A.P.’s sincerely-held religious beliefs and the exercise of her religion.”

The student’s father, a preacher who frequently speaks out against the LGBTQ community, has been very active on social media. On August 26, he tweeted, “My 15 year old was thrown out of school for the day for wearing this shirt. #lgbt wants to trample on your #freespeech rights while they cry for special rights.” Their lawsuit claims that student B.A.P. is trying to “spread awareness” of her political, religious, and social views, and she believes her shirt expresses a “political viewpoint founded upon her religious belief." The school district has not responded to the lawsuit yet.

This case involves the intersecting rights of free speech and free exercise of religion with the rights of the school to regulate the educational environment. Her rights must be balanced with the educational interests of the school, but where do we draw the line? In the 1969 decision in Tinker v. Des Moines, the Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This decision established that school officials could not censor student speech or behavior unless it “disrupted the educational process.” While school students are quite protected in their speech and expression, there are limits.

In a similar case to B.A.P. v Overton County Board of Education, a group of religious students in Gainesville, Florida in 2009 wore t-shirts to their public school that said “Islam is of the Devil.” The school district informed the students that they could not wear the shirts because they violated the dress code, as they were “offensive” and disruptive of the educational process. The district judge sided with the school and said that they had a “reasonable fear” that the t-shirts would disrupt the school process. The Supreme Court has consistently held that the First Amendment rights of school students are “not as broad” as those of adults in public spaces because public schools are not public forums and, therefore, may be regulated. This decision is consistent with Tinker, and a similar ruling should be made in regards to B.A.P.

The Overton County student’s shirt was offensive and disruptive. It is fully within the student’s rights to wear that shirt out in public, but a public school is not a completely open platform to express religious beliefs. It is consistent with Tinker, and Wayne SAP , et al. v School Board of Alachua County, Florida which dealt with the “Islam is of the Devil” shirts, for the school to limit student speech or expression when it actively disrupts the educational process. Walking around in a shirt that declares that “homosexuality is a sin” would be disruptive and viewed as hostile by students who are members of or allies to the LGBTQ community. Public schools have a compelling interest in maintaining a safe and effective learning environment, and that trumps the potential violation of the student’s right to free exercise. Public school students are largely protected in their speech and free exercise, but students do not have the right to wear clothing that actively disrupts the educational process. 

I disagree, however, with the school’s decision to cite the reference to the word “sex” as the reasoning for the shirt violating the dress code. The school’s dress code, as are most dress codes, is vague and does not define what it means by “sexual connotations.” The shirt is offensive and should not be permitted, but not because it includes the word “sex.” Regardless, the court should side with the school and their right to safeguarding the learning environment from offensive or disruptive clothing.

Teton Therapy v. Rohrbacher

 Julie A. Rohrbacher filed a lawsuit in 2018 against the Teton Therapy company, a physical and occupational therapy company based in Wyoming. Rohrbacher filed a suit against the company on the grounds of religious discrimination. The Wyoming firm made company workers enroll in and attend Church of Scientology courses in order to complete training for the company. Rohrbacher claimed that the owner of the company, Jeff McMenamy, refused to promote her for a management position in 2013, unless she completed a training course in Clearwater, Florida, where the headquarters of the Church of Scientology are located. After declining to attend the Church of Scientology training courses in Florida, Rohrbacher was denied a promotion then fired from the company. Owner, Jeff McMenamy, claims he does not practice Scientology, but believes that the training drawn from the Church was, “effective for business purposes.” Rohrbacher expressed her discomfort with attending a training course associated with the Church of Scientology because it not only forced a certain religion on her, but did not align with her own religious beliefs. Rohrbacher sued the company under Title VII of the Civil Rights act of 1964 for both religious harassment and religious discrimination. The suit was recently settled in January of 2020. 

This case not only exhibits the issue of religious harassment and discrimination, but also demonstrates the issue of free exercise of religion. Under Title VII of the Civil Rights Act, employees are protected, “from employment discrimination based on race, color, religion, sex and national origin.” The salient question of this case is whether it was constitutional for the Teton Therapy company to fire Rohrbacher because she would not take the company mandated courses due to religious objections to the Church of Scientology. Although the lawsuit itself did not include the free exercise clause in the argument, Rohrbacher’s own religious beliefs were suppressed when she expressed her disagreement with the teachings of the Church of Scientology because of the way they did not align with her own, and she was dismissed from her job. This case not only deals with the rights of Julie Rohrbacher, but it is important to consider the rights of the Teton Therapy Company as well, and whether or not they can institute religious practices as a part of their business and employee training. 

Had this case not been settled by the Teton Therapy company, I believe, and would agree,  the court would have ruled in favor of Rohrbacher on the grounds of Title VII that prohibits employers from discriminating against their employees on the basis of religion. In this case, the rights of Rohrbacher were clearly infringed upon since the only way she was eligible for a promotion was if she forfeited her own beliefs and participated in Church of Scientology courses mandated by the company. 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, although Rohrbacher was already an employee, the opportunity to be hired into a higher level position within the company was unattainable unless she took the company mandated Scientology courses. Though the case of Rohrbacher did not present religious accommodations, this case still upholds Title VII and reaffirms that a company cannot discriminate against an employee who does not agree with a company policy due to religious reasons. This case was also extremely important for future issues of protecting employees from religious discrimination or harassment from employers, whether it involved an accomodation or not. 

I think this case would be very different if the Teton Therapy Company fired Rohrbacher and objected to her lack of compliance because of their own sincere religious beliefs. For example, in the 2014 case of Burwell v Hobby Lobby Stores, the court ruled in a 5-4 decision that it was constitutional for a for-profit corporation to deny its employees health coverage of contraception “to which the employees would otherwise be entitled based on the religious objections of the company's owners.” This landmark decision is beneficial for companies by the way it gives them the right to use their religion as a reason to object to or deny their employees certain benefits. This case establishes and ensures that companies’ religious rights are protected and not burdened significantly. However, in the case of Teton Therapy, the company and the owner Jeff McMenamy did not demonstrate any sincere beliefs or even affiliation with the Church of Scientology, like the Green family did with principles of the Christian faith in the Hobby Lobby case. It is important to recognize that there are competing interests between the internal affairs of religious groups or companies, and protecting the groups’ employees from discrimination. These interests can easily conflict and become a problem, but that does not appear to be the case in regard to Teton Therapy and Rhorbacher. McMenamy outwardly stated that he did not practice the religion himself, and therefore has no valid reason to force his employees, like Rohrbacher, to participate in Church of Scientology courses, and punish them if they do not comply due to religious reasons or disagreement. The Teton Therapy company mandated Church of Scientology training courses are unconstitutional because they violate Title VII of the Civil Rights Act by religious discrimination, and infringe upon Julie Rohrbacher’s guaranteed First Amendment right to free exercise of religion.

Oregon Discriminates Against Private Schools

Hermiston Christian School in Oregon is suing Governor Kate Brown and other public officials for religious discrimination.  The school is claiming that the state violated the free exercise clause by mandating the closing of private schools while allowing public schools to reopen.  

The Alliance Defending Freedom opened the lawsuit on October 16 on behalf of the school.  They are an American, Conservative, Christian, non-profit which advocates for religious freedom.  In the lawsuit they issued the statement, “After 41 years of faithful service, Hermiston Christian School (‘HCS’) could be forced to shut its doors for good unless the Court stops an obvious case of discrimination: Defendants’ COVID-19 orders and guidance generally prohibit in- person instruction but grant a ‘small school’ exception to public schools while denying the same exception to private religious schools (‘Religious School Closure’) in Umatilla County.”.  

Months prior to the fall semester the government told the school it could reopen if it followed the health guidelines.  In order to prepare for this the school used resources and money to assure that they could hold in person classes.  The school thought they could open, because they were below the state’s 75 student body threshold.  However, governor Kate Brown used her power in order to change the requirements for which schools could meet in person and which ones had to stay closed.  The new guidelines made the requirement for reopening based on the health of the overall county.  This might have been acceptable if it was applied properly; which it was not.  The government instead gave exemptions to some small, public schools and did not give exemptions to any private schools. A violation of the state’s order could result in 30 days of jail and a $1250 fine.  

In Sherbert v. Verner the Supreme Court ruled that the government can limit religious freedoms if there exists a compelling state interest.  In this case an advisor for the governor argued that there was a fear of a ‘mass exodus’ from public schools.  This was the only argument that she made because while they prevented small, private schools from opening; they allowed small public schools from the same county to open.  

The Senior Counsel for the Alliance Defending Freedom wrote in a statement “Hermiston Christian School operates in the same county as a public school that is open, and it operates with the same number of students, who are performing the same type of activity, working in an even larger physical environment, and complying with the same health and safety protocols. Gov. Brown’s refusal to extend the same treatment to Hermiston Christian School as she does to small public schools violates the U.S. Constitution and discriminates against parents who choose to provide a religious education for their children.”.  

We know from Yoder v. Wisconsin that there is no compelling state interest to force kids to attend public school nor can the state mandate that children attend public school.  If the only argument for the state to discriminate against private schools is to prevent a decrease in public school attendance then I do not see the state winning in court.  The only argument that could be made is that indirect religious discrimination is not unconstitutional.  It would be very difficult to find definitive evidence for direct religious discrimination in this case, but the compelling state interest does not seem strong enough to gain the state a victory in court.  The argument that one could make is that the U.S private school system is 78 percent religious and in Oregon it is 51 percent religious.  Although lower than the nationwide average, the private school system of the anti-religion state of Oregon would still be classified as a majority or religious.  One could then argue that secularism is a religion and that the government has made laws respecting the establishment of such religion.  

What About Everyone Else?

     Last Tuesday, on October 15^th, the United States District Court for the District of Colorado issued a decision regarding whether or not it was within the power of “both the federal government and Colorado leaders” to restrict religious gatherings and regulate their conduct. Two churches, the Denver Bible Church and the Community Baptist Church, filed suit against their local government for violating their right to freely exercise their religion. The conclusion reached by the Colorado District Court was in favor of the plaintiffs. The ruling stated that, despite the reasonable concern of the state for the health and safety of its citizens, “government officials, whether in the executive or judicial branch” may not “treat religious worship as any less critical or essential than other human endeavors.” However, even though this instance seems like a breakthrough for those who feel they are being unreasonably burdened by government constraints, there is a limitation to the decision. This limitation is that the freedom from restrictions, those having to do with “occupancy… and face mask requirements,” is only applied to the two churches involved in the case. All other religious groups are still subject to the state and federal restrictions.

    The primary concern that requires attention in this matter has to do with the application of the free exercise clause of the First Amendment. For those unfamiliar, or lacking in knowledge of the constitution, it states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In the United States, citizens enjoy the right to practice their religion, free of restriction, given that its rituals do not conflict with the law. However, there have been notable exceptions to this idea, such as the Church of the Lukumi Babalu v. City of Hialeah. As we are all aware, there is, unfortunately, no uniform and consistent stance on the function and meaning of this Amendment; and because of this, we must draw on the prior reasoning of the court in its interpretation of the clause, as well as the historical context in which it was written.

    We know from the case of Reynolds v. United States that there must be quite a compelling state interest in order to restrict the rights of citizens. In the case of Mr. Reynolds, he was a Mormon who thought it was his religious duty to practice polygamy. The court ruled that this would pose a threat to the social condition of monogamous society and therefor could not be allowed. We also know that there does exist room for religious exemptions to established law. This is made clear in the case of Sherbert v. Verner. Mrs. Sherbert was a Seventh Day Adventist who was denied government unemployment benefits because she refused to work on Saturdays. The lower courts agreed with the South Carolina Employment and Security Commission’s decision, but the Supreme Court eventually overruled them and made an exception for Mrs. Sherbert. From these cases, we can gather that it isn’t inconsistent or unreasonable to grant the Denver Bible Church and the Community Baptist Church an exception to the government’s current restrictions. The question however, is whether or not this is a neutral application of the First Amendment to all religious organizations, which I cannot say that it is. 

    In the case of Rosenberger v. Rector and Visitors of the University of Virginia, it was ruled that all federally funded university programs should receive funding, given that they met the institutions criteria. The case followed a religious publication group who wanted school funding for their program, the same as all the secular programs. The takeaway from this case was that if one organization was to receive funding, than they all had to receive funding. The same rule should carry over to the issue of which religious institutions deserve to be exempt from the state and federal laws restricting the amount people and conduct of those people in attendance at religious ceremonies. In my previous post, I wrote about why churches should be treated no different than supermarkets with regard to the maximum allowable occupancy of other businesses; if the supermarkets are allowed to be open and at 50% capacity, than so should churches. The same rule should apply across the board. If one church or religious institution is allowed to be open and does not have to comply with the laws regarding distancing and masks, than neither should any other. 
 

Religious Rights vs. Public Health

 The introduction of the COVID-19 pandemic into our day-to-day lives has been a challenge for people all over the world. Throughout the course of this semester, we have especially examined the way that restrictions on gatherings have translated into restrictions on religious activities. On October 8th, 2020, New York Governor Andrew Cuomo announced new COVID-19 regulations that reinstated restrictions to gatherings in what he called “clusters”. This cluster action initiative is designed to target areas in New York that have become COVID hotspots. These areas are identified by a high density of COVID cases, these areas are then identified as a “Red Zone” “Orange Zone” or “Yellow Zone”. Based on the danger presented in each cluster, different restrictions are applied, which limit mass gatherings, occupancy in houses of worship, and whether or not businesses and schools will be open. Many of the neighborhoods identified in these clusters are Hasidic communities which are a sub-group within the Orthodox Jewish tradition. Governor Cuomo even told CNN “The cluster is a primarily Orthodox cluster”. 

These restrictions were introduced the day before Shemini Atzeret, a Jewish holiday celebrating the end of the week-long celebration of Sukkot, which “commemorates the dwelling of the Israelites in temporary booths (sukkot in Hebrew) during their 40-year sojourn in the Sinai desert”. Many Hasidim have protested the new restrictions and even argued that they were specifically targeted at their own religious celebrations. The celebration of this specific holiday requires a prayer group of at least 10 people, and depending on which zone the Temple is located in, different Jewish communities would not be able to celebrate this holiday. Susannah Heschel, chair of the Jewish Studies Department at Dartmouth College spoke about the laws saying “These regulations come at a moment as if they are taking away everything — Rosh Hashana, Yom Kippur, Sukkos, Simchas Torah,” (Religion News Service). Hasidim in the neighborhoods targeted by these new regulations have protested arguing that they are an obvious attempt to suppress their religious exercise. 

We must acknowledge that any restriction on mass gatherings will place a burden on religious practices, as well as many other facets of life including concerts and parties. The major difference between this and another type of large social gathering The question, in this case, is less about whether or not the regulations place a burden on the free exercise of religion in general, and more about whether or not the regulations specifically target the religious exercise of the Jewish community. There is a very clear motivation for these regulations: to curb the spread of COVID-19 in a state that has had more cases than some entire countries. It is this motivation that speaks directly to the question of neutrality. However, the question of neutrality is multifaceted. The first question is whether or not the laws/policies/regulations are neutral on their face and the second is whether or not they are neutral in practice. If the neighborhoods were identified simply by the number of police reports citing large gatherings, the case could be made that the policies were designed to target the religious expression of the Orthodox Jewish community. In reality, the high-risk clusters were identified using empirical data about the number of  COVID cases per capita, meaning there was no way to specifically target any one group of people over the other. The question of whether or not these regulations are neutral in practice is more complex. Governor Cuomo’s comments about how the “...issue is with that ultra-Orthodox [Jewish] community” acknowledges that on some level, he was attempting to target the group because of their issues with his regulations. This then begs the question, is the state of New York’s interest in public health more important than the religious exercise of the Hasidim? 

 In cases such as Employment Division of Oregon v. Smith,  O’lone v. Estate of Shabazz, and Reynolds v. United States, the Court has decided that the government's interest in maintaining security and safety is second to none, even when the pursuit of this interest involves infringing on the religious rights of citizens. Governor Cuomo and the state of New York benefit from this legal precedent because it reinforces the idea that when the government has to infringe on the religious rights of some citizens in service of the greater good, they are not violating the rights outlined in the Constitution. In Smith, the court was dealing specifically with the state’s public health concerns and reinforced the distinction between belief and conduct. Members of the Orthodox Jewish community maintain the right to believe in all the principles of their religion, but the state reserves the right to regulate their actual conduct. Do you believe that there is a substantial difference between religious belief and religious conduct? Should exceptions be made for religious conduct during a global pandemic? 

As this is a public health emergency unlike anything else we’ve seen in the last century, I think it is reasonable to expect that everyone will have to make sacrifices to ensure the health and safety of the most number of people. If this means that the government reserves the right to restrict all conduct, including religious conduct, until this disease can be controlled then I’m comfortable giving them that authority. I can also understand how it's extremely difficult to ask people to put their lives and values on hold indefinitely waiting for a solution to a problem we still know very little about. Overall, I think these regulations are justified, but I am curious to hear other thoughts about whether or not they are justified and how far the authority given to the government can stretch.

Free Exercise: A Right or Reward?

Alfonza Greenhill, a practicing Sufi Muslim, is a prisoner held in isolation at a Richmond jail who claims that his First Amendment right of free exercise has been violated. He argues that the Red Onion State Prison is withholding him from observing his faith’s weekly mandatory jummah prayer services both in-person or through live television. The prison officials have stated that if Greenhill improves his behavior, he will be able to observe the service via television. Greenhill’s attorney states that using the ability to participate in religious services to motivate and correct Greenhill’s behavior is a blatant violation of the Free Exercise Clause arguing that the Free Exercise of religion is a constitutional right and cannot be conditional with his behavior. Greenhill first sued the prison officers in 2016 but before he was presented to trial, the lawsuit was revoked by the U.S. District Judge in Roanoke. He then appealed his case to the 4th U.S. Circuit Court of Appeals. The Virginia Department of Corrections has responded to the appeal by stating that Greenhill cannot attend prayer service only because his behavior has him placed in “administrative segregation”. The judge agreed that the restrictions were reflective of the Department of Corrections’ compelling interest in security, stating “only religious rationing could compel compliant behavior”. The main question posed in the case is if Greenhill has the absolute right to observe jummah prayer services via television even though his violent behavior has placed him in administrative segregation, where television is an earned privilege. Within confinement, Greenhill has been classified as the most restrictive status. However, prisoners are provided the opportunity to earn less grave assignments by participating in the Step-Down Program, which motivates corrected behavior through a reward system. In 2014, Greenhill was reclassified and rewarded certain privileges, including television. However, he has since been classified to the most grave status. Prison officials contend that if Greenhill is presented with television access, which is considered a reward to high-security prisoners, the purpose of the program will be defeated and he will not be incentivized to improve his behavior. He filed this lawsuit stating that the actions of the prison breached the First Amendment and Religious Land Use and Institutionalized Persons Act, which prohibits jails from placing religious restrictions on prisoners without a compelling interest. Greenhill’s attorneys argue that the prison does not hold a valid compelling interest in security as a justification for preventing Greenhill from observing service.

I foresee O’Lone v. The Estate of Shabazz (1987) being applied as precedent because both cases involve the free exercise rights of prisoners and debate the question of to what extent do prisoners hold the same constitutional rights as non-prisoners. O’Lone established the antecedent that while prisoners do retain constitutional protection, prisons are entitled to place limitations on them if necessary. Furthermore, O’Lone settled that the court should defer to prison officials on their operations, and are typically ruled as valid as long as there is a penological objective. Because of the verdict of O’Lone, I believe that the Court will rule that the prison did not encroach Greenhill’s First Amendment protections. In my personal opinion, I disagree with the expected outcome of the court. Although I agree with the notion that certain rights should be curtailed within a prison, given a compelling interest, I do not believe that in this instance the prison’s restrictive access to provide television service is justified with a penological objective. For instance, I agree that Greenhill should not be able to attend in-person prayer sessions considering his status in solitary confinement because his removal raises security concerns. Yet, I do not believe the withholding of a televised prayer holds the same concern. The prison argues that providing television access to Greenhill will not incentivize him to correct his behavior. However, this is not a sufficient claim because it is based on speculation. Greenhill, if presented with this privilege, will only have access to the religious program and not other television programs. Therefore, he is not enjoying the privilege. I believe the prison’s policy is an infringement on his Free Exercise rights because the prison through their justification of the Step-Down program acts as if the right to practice religion is a reward and not a constitutional right. Although Greenhill is considered a maximum security inmate, I do not agree with the argument that his inability to watch the jummah is a precautionary measure against violent behavior. I do not see the correlation between acts of violence and disobedience with the ability to observe the prayer service. As Greenhill’s attorneys contend, I also believe that exposure to religious content would promote better behavior. As stated before, I believe the prison’s justification is based on false speculation; therefore, I believe that Greenhill should be able to observe the jummah through television because he is constitutionally protected under the Free Exercise Clause. 

Are you really Restricting a Holiday?

A little over a week ago in New York City, a federal judge allowed the restrictions that Governor Cuomo implanted on Synagogues and Worship houses to move forward. As what appears to be a second wave of the COVID- 19 virus infects cities in the United States, Governor Cuomo put out an executive order that placed restrictions on large gatherings. These restrictions were put on neighborhoods that were predominantly Orthodox Jews. This ban on gatherings is so controversial as it appeared right before the celebration of three major Jewish Holidays, which is restricting many of the services that are planned to take place. Among the executive order, was restrictions that prohibited any more than 25% capacity or 10 people within a house of worship, school closures, and a shutdown of nonessential businesses. Members of the Jewish Orthodox Community feel especially upset because they think their neighborhood is disproportionately affected. The neighboring communities have not experienced the same implementation of restrictions, because the infection rate was not as high. A fine of $15,000 will be given to any person who violates the large gathering restrictions. In a similar lawsuit, the Roman Catholic Diocese of Brooklyn argued that it was unfair that almost two dozen churches would have to close due the restrictions. A different judge also declined to prohibit the restrictions. 

            The question at hand here is, are the Orthodox Jews being directly targeted? Is there a compelling state interest to go forward with the closures? Lawyers of the Synagogue found that these rulings were unconstitutional because they targeted these predominantly Jewish neighborhoods. Because the Jewish Orthodox are prohibited from driving during the three holidays this past weekend, the only synagogues they can go to are the ones within walking distance. This is an issue because the ones located close by are closed. Therefore, they could not travel to places with fewer restrictions even if they wanted to. Whereas the other religious ceremonies would be able to travel out of the hot spot restricted area, the Orthodox Jews are trapped inside a restricted bubble. 

            The compelling state interest here is that if they lift the restrictions for the holiday weekend, there is a major health risk. Large gatherings have been proven to spread the COVID- 19 virus. If the restrictions are lifted, it puts not only the well-being of the Orthodox Jews in danger, but also those who are not affiliated with the religion in that area, and the surrounding areas. Also, the members of the Jewish Orthodox community believe that they are being directly targeted because they are one of the only neighborhoods that are getting the restrictions placed upon them. They also feel targeted that these restrictions are placed right before three major holidays within their faith. 

            I agree with Governor Cuomo and the federal judge in this instance. As we have all said many times this year, we are in an unprecedented time. Because of that, some decisions made in this time may seem unfair, but have to be made with the state’s best interests in mind. While it may seem that the Orthodox Jewish community was targeted because of their religious views, they are actually just residing in an area that has a higher infection rate. Inside that area were other churches as well, not just the Orthodox synagogues. If this case were to go to the Supreme Court, I think that the Justices would use the Sherbert test to determine that it is not unconstitutional to prohibit these large gatherings. The health and safety of the nation being laid on the line is enough compelling state interest. The restrictions were made solely to limit the spread of the virus, and it was applied to everybody, not just the Orthodox Jews. Similar to the rulings in the in Goldman v. Weinberger andO’Lone v. Estate of Shabazz,where the court had to rule in favor of the professionals inside the Air Force and the prison, the professionals in this case are the scientists. In this case if the scientists say that it is in the best interests of the nation to put the restrictions up, then we need to trust them. 

            Another reason that I side with the Governor and the judge in this case is that this decision is not going to set a precedent to continuously restrict religious practices. We are in the midst of a pandemic. Pandemics are rare and cause stress from every angle. With so much uncertainty, I cannot disagree with the scientists. With so much uncertainty about the future, legislators must listen to the science, which tells us that we need to stop gathering in large groups. To conquer a virus like this, the nation needs to work together as a cohesive unit with a common goal to stop the spread. 

Is Religious Discrimination Justified?

Earlier this month, New York Governor Andrew Cuomo implemented new coronavirus restrictions, but only for certain sections of the city. These new regulations are a response to an increase in positive cases in the city, and include shutdowns of schools and nonessential business, along with limitations on places of worship and the occupancy allowance dependent upon the area.

The areas with the most significant restrictions have a test positivity rate of five percent, making these “hot spots” considerably higher than other areas of the state with one percent positivity rates. Many of these areas also happen to have substantial Orthodox Jewish communities, and Governor Cuomo has no qualms about noting this as he uses photos of maskless crowds of Orthodox Jews as evidence of the new restrictions being necessary. 

Residents of impacted communities took such issue with the new restrictions that destruction and violence ensued following Cuomo’s announcement. However, amidst the scene of protests turning chaotic, a question of constitutionality emerged. Many public figures from the Orthodox Jewish community, from religious leaders to lawmakers, expressed discontent towards Cuomo and deemed the restrictions as an unconstitutional infringement upon their freedom to exercise their religion. An Orthodox organization, Agudath Israel of America, even released a statement claiming that the idea of limiting a religious service to only ten people is “appalling is all people of religion and good faith.” Another individual, City Council member Kalman Yeger, directly identified the restrictions as an infringement of their freedoms and held Cuomo directly responsible while urging other members of his faith to refuse to be “deprived” of a right that is afforded to everyone else. Others have even claimed this is a war.

As swaths of people took to the streets in protest of Cuomo’s restrictions, and thus breaking the rules he implemented as there were few masks in sight among the hoards of people, they all had one common theme motivating them: they felt as though their freedom to practice their religion was being infringed upon by limiting the amount of people allowed in a building. Not only was the Orthodox Jewish community outraged by this decision, but members of the Roman Catholic faith also voiced displeasure as the restrictions took them by surprise.

With all of these emotions, concerns, and debates coming from both sides, there are a couple of questions that arise. Is there a legitimate State interest that justifies the government in infringing upon the rights of people to practice their religion in ways they see fit? Is the Orthodox Jewish community being directly discriminated against?

First, it is important to establish that the government is absolutely limiting the rights of the people. They are being made to put restrictions on their worshipping practices, and the limit on the number of people allowed to worship at a time will inherently make it practically impossible for some people to worship on their holy days. However, we know that no right is absolute, which brings us to the question of the presence of a legitimate State interest that would necessitate this infringement. In this case, I do believe that Governor Cuomo is making the best decision. While it is unfortunate that there are restrictions put in place and the feelings of the people affected are definitely justified, ultimately we are in the midst of a pandemic, and the restrictions come after spikes in cases. Because the restrictions were in response to specific outbreaks and there are different levels of severity based on the number of cases, the government is showing they are doing everything in their power to prevent these restrictions and are only implementing them when absolutely necessary. While the people impacted are adults that are free to make their own decisions, large gatherings and a lack of caution puts entire communities at risk.

The next—and arguably most pressing—question, is of specific discrimination. Again, it is true that many areas affected had large Orthodox Jewish communities and it appeared as though Governor Cuomo was targeting them, and the truth is, he was, but not for religious purposes . Ultimately, Cuomo was targeting the areas with the highest testing positivity rates, and communities with large Orthodox Jewish populations happened to be the ones impacted. Cuomo blamed this on the fact that they were large, maskless gatherings that were allowed to happen due to lack of enforcement. Therefore, the angered citizens are both right and wrong. Yes, they are being discriminated against, but not on the basis of their religion, but rather for health and public safety reasons, making the restrictions constitutionally justifiable. 

Finally, as unfortunate as it is, this is not a random act. Governor Cuomo is not an evil tyrant who hates religion. Instead, he is trying to work with the people in order to keep them safe but also allow them to still practice their religion by allowing small gatherings and situational restrictions based on severity of the virus in a given area, which affects one demographic more than others.