Discrimination or Separation? Carson v. Makin

         In December 2021, Carson v. Makin was argued before the Supreme Court during the courts 2021-2022 term. Carson v. Makin addressed a lawsuit from a Maine family who applied for a state-funded scholarship in order to keep their children enrolled in Christian school. The family’s application for aid was denied by Maine’s Department of Education because Maine’s constitution prohibited direct or indirect aid to religiously affiliated educational programs. In response to their denial, the Carson family challenged the constitutionality of Maine’s law by claiming it violated their 1^st amendment right. The question of this case is: Does Maine’s law that prohibits using available student-aid program for religious education a violation of the Equal Protection Clause? 

            Maine’s education system is divided into local school administrative units (SAU) in order for the state to ensure every child has access to free education. However, because not every SAU operates its own public school, Maine implemented a system where parents can either (1) contact a secondary school in a different SAU for school privileges or (2) pay tuition for an “approved” private school. Maine’s Board of Education only approves aid for non-sectarian schools due to their obligation to the 1^st Amendment. The Carson’s live in an SAU that does not operate a public school which propelled them to enroll their children in private school. However, the Carson’s chose a school that was not approved by the Board of Education because it failed to meet the “nonsectarian” requirement for aid. The Carson’s filed suit claiming that the state discriminated against them on the basis of their religion and violates their free exercise rights. 

When evaluating this case, its essential to address the outcome of Espinoza v. Montana, a landmark case from 2020. Espinoza v. Montana addressed a lawsuit brought by low-income mothers in Montana whose request for state-credit was denied because their children attended a parochial school. The court ruled in favor of Espinoza, citing that Montana’s law excluded schools on the basis of their religious status. Justice Roberts argued that Montana’s state interest was to create a greater separation between church and state than the constitution requires and unjustifiably burdened the family’s free exercise. He reiterates arguments from Everson v. Ewing Township by affirming that the state acts hostile towards religion by limiting its accessibility based on religious affiliation. Concurring justice Gorsuch affirmed that Montana’s constitution failed to remain neutral and discriminated based on religious status instead of protecting free exercise. It’s important to note that the majority did not invoke the Lemon Test when evaluating the constitutionality of Montana’s law. The dissent; however, affirms the neutrality of the law that does not directly inhibit the petitioner’s religious exercise. 

Justice Breyer asserts that providing aid for parochial school results in excessive entanglement and an advancement of religion. He refers to Locke v. Davey, a case that disallowed the state to aid majors in theology to demonstrate how the court has previously sought to disallow any indirect aid to religious education. The dissent echoes sentiments from Lemon vs. Kurtzman that pointed out there is an inseparable relationship between religion and government. Therefore, the courts must limit the degree to which the two are “entangled”. The dissent affirmed that the law passed the Lemon test and therefore was constitutional.

As Espinoza v. Montana was decided less than two years ago, it is expected that the Supreme Court will rule in favor of the Carson family and uphold their accommodationist  precedent set by Espinoza. I struggled with evaluating Carson v. Making because I think one's opinion is highly contingent upon their interpretation of what the Equal Protection Clause allows for. The clause affirms that “any law that imposes special disabilities on the basis of religious status” is unconstitutional. The court saw Montana's law as discrimination against religious status and I disagree with their definition of status. I would define status as the Carson's religiosity and I don't think they were discriminated against because they are religious. The family is still free to practice their religion and the state is not coercing them to abandon their belief system. Additionally, I think there is a fine line between discrimination and maintaining the separation between church and state. To reiterate Justice Ginsburg, the law does not necessarily discriminate against religion just because it fails to advance it. Thus, I think Maine has the constitutional right to deny scholarship funds to religious schools.     

 Since the Carson's live in a SAU without a public school, they have the freedom to choose whatever “approved” school and receive aid from the state. It was their conscious choice to choose a school that was not approved by the state and since there are other public-school options, I do not think the state is burdening their religious convictions. When addressing the courts assertions of discrimination in Espinoza v Montana, I referred to the historical context in which the constitution was written. James Madison and the fellow founding fathers sought to establish a strict separation of religion and government affairs. Thus, I perceive Maine’s law that prohibits sectarian schools as a in line with the 1^st Amendments requirements. The Department of Education’s nonsecularism requirement speaks to the states constitutions commitment to separation especially in regards to government funds. 

The Sanctity of the Body after death: Smith v. Li

    Oscar Smith, a Tennessee inmate convicted of killing his estranged wife and her two children in 1989, petitioned the state to prevent a post mortem autopsy be performed on his body, as he had been scheduled to be executed a week before he filed his suit on April 14, 2022. It must also be noted that days before, an appeal for a retrial hearing due to "unknown DNA" being detected on one of the murder weapons was dismissed by a County Court due to overwhelming evidence presented towards Smith being guilty. Nevertheless, Smith maintains both his innocence and the practice of his faith, being in his words a "lifelong christian". 

    He believes that as the body is the "temple of God" and that while it is "OK to accept medical treatment to prolong life but...it is not OK to alter the body in any other way". For that reason, he requested that he not be embalmed for funeral and, relating to this case, that he not undergo autopsy as to defile and cut "God’s creation and plan" would be anathema to his belief. Meanwhile, Dr. Li, the County Medical Examiner, remains determined to, while not perform a full autopsy, collect the fluids and blood of Mr. Smith that Tennessee State Code grants his "investigating and performing the autopsies upon the body of any person [who] dies of unnatural causes within the boundaries of Davidson County, including executed prisoners" as well as being authorized to do so to any body involved in execution. He stated had there not been a religious objection he would have autopsied Mr. Smith. However, to collect these fluids Dr. Li must inject Smith with a needle, which does hinder his belief against puncture or other obtrusive acts.

    Due to Smith being able to show that the act substantially burdened his faith, Dr. Li instead found himself required to argue that the government had a compelling interest in his refusal to accommodate Smith's request as well as the refusal being the least restrictive means in keeping the government's interest. Dr. Li noted that the government maintains “a compelling interest in assessing the effects of the lethal injection protocol” to ensure that the execution remains humane and non-torturous, a claim commonly levied at lethal injection. He did not however demonstrate that the government's interest is upheld through the law's application, a necessary add-on through Holt v. Hobbs (2014)—which dealt with the religious rights of inmates to their bodies as applied to their faith—to the oft used compelling interest argument and test, but rather "point[ed] to 'broadly formulated interests'" that did not fit within Holt. Li's argument fell apart in the Court's eyes as requiring fluid collection was proven to not be the least restrictive way to investigate its effects. Nevertheless, to me Dr. Li's arguments appear to be more sound than the Court gives credit towards, as learning the direct effects of lethal injection on the body through testing of its fluids further allows assessments as to how humans react. Simple observation and 'monitoring' of his diet and wellbeing prior to execution does not give concrete, scientific data as to how the drug effects him to which can be cited for later cases. I personally disagree with the death penalty, even more so to death by lethal injection for precisely the reason Li wants to be informed as to its effects, as it can vary drastically and prove torturous to the victim in many cases. However, Smith does have religious rights to his body from the Religious Land Use and Institutionalized Persons Act that Holt affirmed and other, less concrete alternatives that could provide the state a less restrictive means to accomplish its goal. I agree that from an initial stance the Court and Smith are correct in his right to not be drawn from, but I personally disagree with the choice to utilize the less restrictive observational options in testing the drugs' effects as it would not be fully acceptable data in my mind and the mind of the expert Dr. Li.

    The Tennessee Court, citing the sincere devotion Smith demonstrated in his argument as well as how long it dates back to, including his grandmother refusing amputation, sided with Smith on the issue as breaching Smith's beliefs would necessitate an undue burden upon his free exercise of religion. This ruling is somewhat in contrast to the prior case of Billy Ray Irick who, while also receiving a stay of autopsy, did not receive the same level of religious deference as he was given a more limited examination that constituted the fluid collection. While still an important case as to bodily autonomy and the state's interest in autopsy, Smith's execution was stayed last minute due to a 'technical oversight' to which they did not inform the public of further. Given the issues with lethal injection, I find it highly possible to be a result of some complication with it that could have led to a torturous, violent death for Smith.

https://www.wkrn.com/news/local-news/nashville/tennessee-court-rejects-dna-evidence-petition-by-inmate/

https://www.nbcnews.com/news/us-news/tennessee-governor-calls-execution-oscar-smith-citing-oversight-plan-rcna25527

https://www.tennessean.com/story/news/crime/2022/04/26/oscar-franklin-smith-execution-tennessee-officials-release-no-details/7438692001/

https://www.tennessean.com/story/news/crime/2022/04/19/oscar-smith-execution-tennessee-death-row-inmate-lawsuit-first-amendment/9461514002/

https://cases.justia.com/federal/district-courts/tennessee/tnmdce/3:2022cv00270/90140/20/0.pdf?ts=1650535317

Christian Medical and Dental Association v. Bonta (2022)

The Christian Medical and Dental Association (CMDA) is the United States affiliate of the International Christian Medical and Dental Association, with over 19,000 members nationwide, and over 20 locations in the state of California. The mission of the CMDA is to bring the hope and healing of Christ to the world through healthcare professionals and “change hearts in healthcare”. The CMDA is open about its mission, values, ethics, and commitment to defending its beliefs.

                                   

On January 1, 2022, the state of California implemented SB-380, legislation that forces physicians to participate in the process of assisted suicide, even when they have conscientious objections. The law mandates that doctors follow steps to help their patients commit suicide and removes all safeguards protecting physicians from involuntary involvement in assisted suicide. This legislation is an amendment to the existing End of Life Act and has several changes that would go into effect until January 1, 2026. Some of the changes include reducing the waiting period between the first and second oral requests from 15 days to only 48 hours, a final attestation is no longer required, the physician must document the requests by the patient and forward their medical records to a physician willing to do the procedure if they do not. Further, the law would result in requiring a physician to participate in 75% of the assisted suicide process despite firm conscientious objections, both religious and ethical.

On February 22, 2021, Alliance Defending Freedom filed a federal lawsuit against the California Attorney General Rob Bonta on behalf of CMDA to prevent the government from forcing health care professionals to violate their conscience, both with their personal religious convictions and professional ethics. Essentially, this case asks the constitutional question: Does the state of California’s legislation SB-380 violate the free exercise clause of the First Amendment by requiring physicians to participate in the process of assisted suicide?

I do believe that California’s SB-380 violates the free exercise clause of the First Amendment. The American Medical Association’s Code of Ethics says that physician-assisted suicide is “incompatible with the physician’s role as healer…” and would not reflect the values that they promote. The Affordable Care Act says that health care professionals must not be forced to participate in causing assisted suicide. Additionally, SB-380 would violate the Due Process Clause of the Fourteenth Amendment because it would allow the government to deny American citizens their unalienable right to life.

The legislation, SB-380, is not neutral or generally applicable because it is not neutral between religions and between religion and non-religion. Further, it is not generally applicable because respect for rights of consciousness is rooted in religious clauses and the law results in a disparate impact on physicians with religious beliefs. Further, there is a substantial burden on healthcare professionals with religious convictions because it forces them to participate in a process that ultimately ends someone’s life.

In Vacco v. Quill (1997), the Court said that New York’s ban on assisted suicide was constitutional because it was rationally related to the state’s legitimate interest in protecting medical ethics, preventing euthanasia, shielding disabled and terminally ill people from prejudice that may encourage them to end their lives, and the preservation of human life. In this unanimous ruling, the Court also made a distinction between refusing life-saving treatment and assisted suicide. Due to the fact that assisted suicide has the criminal elements of causation and intent, the Court said that no matter how noble a physician’s motive may be, he may not deliberately cause, hasten, or aid a patient’s death. In the same year, the Court had another unanimous ruling in Washington v. Glucksburg (1997) that Washington’s ban on physician-assisted suicide did not violate the Due Process Clause of the Fourteenth Amendment by denying terminally ill adults the liberty to choose life over death. In addition to the same legitimate state interest as Vacco v. Quill, the Court held that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause because its practice has been and continues to be offensive to our national traditions and practices.

Essentially, I believe that cases involving physician-assisted suicide fall into the same category as free exercise cases involving abortion. Religious convictions and one’s commitment to ethics and conscience should not be compromised because they chose a profession that faces tough challenges and situations every day. The physicians have the support of the American Medical Association’s Code of Ethics, the Affordable Care Act, the First and Fourteenth Amendments, and the precedents of the Court. As a result, healthcare professionals should not be put in a position where they have to choose between their ethics and their jobs.

Sources:

SB-380 Bill Text

Christian Medical and Dental Association (2022) - Spring 2022

Christian Doctors sue California over forced participation in assisted suicide

Americans United vs. Nevada VA

Should the Pentacle be a "Symbol of Belief"?

    The sacrifices that members of the US military make for their country are and have always been held in high regard by Americans. The praise and respect that veterans receive have been earned. While those who return home safely to the US receive high honor and praise, those who do not earned this even moreso. Sgt. Patrick D. Stewart was one of these men who gave is life in Afghanistan in September of 2005. Sgt. Stewart's wife, Roberta Stewart, rightfully believed that her husband should be memorialized in a way that was meaningful for him and his family. However, she being denied the right to do so by the VA. 

    The Stewarts were practicing members of the pagan Wicca religion. Mrs. Stewart wanted to place the symbol of their religion (the pentacle, pictured below) on a memorial marker on the Wall of Heroes at the Northern Nevada Veterans Memorial Cemetery (pictured below). Her request was denied by the VA, who stated that the symbol was not on the list of "approved symbols." While Mrs. Stewart's request for the inclusion of the pentacle on her husbands memorial was denied, it should be noted that there were 38 symbols that were approved. These 38 symbols represented a wide variety of religions and non religions, popular and unpopular. Americans United argued against the VA's denial on behalf of Mrs. Stewart, and filed a case in federal court. 

        The denial by the VA raises multiple constitutional questions regarding the First Amendment, and specifically the "free exercise" clause. Mrs. Stewart felt as though in order to properly honor her husband and be true to their faith, she must include the symbol of their religion on her husbands plaque. When she was denied this, she stated, “I was in shock the day I ordered my husband’s memorial plaque and was told I could not put our emblem of faith, the pentacle, on that plaque,” Stewart said. “I cried for days.  I never thought my own government would take the freedoms my husband and I held so dear away from us." She never expected that she would be denied the practice of her religion like everyone else was allowed. Mrs. Stewart was only looking for equal treatment through the inclusion of the pentacle on her husband's memorial. Denying Mrs. Stewart the right to use symbol of Wicca would be extremely discriminatory, since there are 38 other symbols that are allowed. Not only this, but it would be discriminatory towards a minority religion that is entitled to the same protection and rights as majority religions like Christianity.  It is clear that in this case the VA has no compelling interest in denying Mrs. Stewart the right to place her religious symbol on her husbands plaque. The inclusion of the pentacle would be causing harm to nobody, and cannot possibly be understood as an establishment of religion, granted the allowance of 38 other symbols. 

    If the VA was to have its denial upheld, it would set dangerous precedents that have the potential to eat away at religious freedom, and more specifically, the common expression of religion on memorials. A court ruling in favor of the VA would encourage entanglement between the state and religious practices and expression that could get all to close to state interpretation of sincerity or validity. For example, the VA might have the capacity to deny another religious minorities from including their religious symbol on a memorial because they do not regard that religion or its practices to be valid or sincere.  The list of 38 is named, "symbols of belief." If the pentacle was to be barred from this list that would mean that that the practice is not deemed a symbol of belief by the state. While Wicca is not by any means a majority religion, it has a legitimate history that dates back to the early to mid 1900s, and an established structure. Wicca is widely recognized as a legitimate religion. While this should not matter in the eyes of the state, who should not be interpreting sincerity, it supports Mrs. Roberta's case. For the symbol of Wicca to not be included or allowed in the list of "symbols of belief" opens the door for many other  religions to be discriminated against, regardless of their status in society. 

Eventually, a settlement was reached between the two parties, which allowed the pentacle to be used, and to be added to the list of 38 approved symbols.  The article correctly states that, "The government treated Wiccans differently, like second-class citizens, because some people don’t like their faith or considered it illegitimate." State interpretation of religion, and discrimination against one religion, was rightfully struck down in this case. I agree with the settlement that was reached in this case. Wicca was being wrongfully discriminated against because of its status as a minority religion in the US, and thankfully this did not stand. It was very clear that the VA in this case was not treating all religions equally, and had created a direct burden on Mrs. Roberta and her desire to freely express her religious views on her husband's memorial. The outcome of this case is a clear victory for religious freedom.  

Sources: 

https://www.au.org/the-latest/articles/pentacle-symbol-victory/ 

https://www.nbcnews.com/id/wbna18274639 

https://en.wikipedia.org/wiki/Wicca