Faith and Fair Housing: Exploring Religious Discrimination in New York's Affordable Housing Lottery through the Lens of the Free Exercise Clause

Abstract 

An Orthodox Jewish family sued two New York City agencies that oversee the affordable housing lottery after being repeatedly denied, alleging that their family of eight have been religiously discriminated against. In the Manhattan federal court lawsuit, the couple, Chaim Katz and Chana Katz, argue that they were religiously discriminated against when they were denied two affordable housing opportunities in Manhattan’s Lower East Side in 2017. Their lawyer contends that the agencies rejected the family for having “too many members.” He argues the agencies should never have denied housing because the Katz’s desire is rooted to their deep-seated Orthodox Jewish beliefs. The plaintiffs implore the court to declare that they were unlawfully discriminated against, in addition to other damages. Along with several other companies, New York City Housing Preservation & Development and The New York City Housing Development Corporation, were named as the defendants. While the Constitution prioritizes civil liberty, we question whether or not the Katz family is protected by the 1st Amendment. This piece examines whether or not the Free Exercise Clause, along with other precedents, can be effectively applied in the defense of the family. 

Free Exercise Clause 

The origins of the Free Exercise Clause trace back to the drafting of the First Amendment to the United States Constitution, which was proposed by James Madison and adopted by Congress in 1789. The clause was influenced by a desire to safeguard religious freedom, stemming from experiences of religious persecution in Europe and early colonial America. Many of the early American settlers came seeking religious freedom, and the framers of the Constitution sought to protect this fundamental right. The exact wording of the Free Exercise Clause was influenced by various state declarations of rights and bills of rights, as well as philosophical ideas about individual rights and liberties. Over time, interpretations and applications of the Free Exercise Clause have evolved through court decisions. Today, there is a well-developed body of law and controlling legal precedent that defines the scope of this important cause in modern times. 

Trinity Lutheran Church of Columbia, Inc v. Comer 

In this recent case, the Supreme Court of the United States addressed whether a state could deny a church participation in a state program providing grants to resurface playgrounds based solely on its religious status. Trinity Lutheran Church applied for a grant to resurface its playground, but the state of Missouri denied the application citing a provision in the state constitution prohibiting public funds from going to religious organizations. The Court ruled in favor of Trinity Lutheran Church, holding that the state’s denial of the grant solely because of the church’s religious identity violated the Free Exercise Clause of the First Amendment. The Court found that the state’s policy discriminated against the church and its members based upon their religious status, and that this discrimination was not justified by a compelling governmental interest. The decision has significant implications for the application of the Establishment Clause and the Free Exercise Clause in cases involving public funding and religious institutions. 

Conclusion

The Supreme Court’s decision favoring Trinity Lutheran Church strongly reinforces the family’s stance. Despite its recent conclusion, Trinity Lutheran Church of Columbia, Inc. v. Comer marks a significant victory for religious freedom in the United States. This perspective aligns with an originalist interpretation of the Free Exercise Clause, which I find compelling. It reflects a brilliant understanding of the First Amendment, crafted by insightful individuals wary of centralized government power, from which they fought for their liberty. The Supreme Court’s position in favor of Trinity Lutheran Church, serves as an ample precedent in support of the family. While a counter-argument might suggest that Thomas Jefferson believed the government could restrict religion in certain circumstances, such as when it posed a threat to public safety, it is important to note that Jefferson only advocated for such restrictions when there was a genuine risk to public well-being. From my perspective, and I believe many would agree, an Orthodox Jewish family adhering to their faith poses no threat to public safety. Please feel free to share your thoughts on whether you agree or disagree with my analysis. I welcome all criticisms and feedback and look forward to hearing your perspectives. 

References 

https://www.nbcnewyork.com/news/local/orthodox-jewish-couple-alleges-nyc-housing-discrimin ation-over-size-of-their-family/2984907/ 

https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf

Are religious liberties at stake in times of crisis?

    It may very well be a common opinion that the topics of COVID and its impact on the religious liberties granted by the U.S. Constitution have been exhausted in spheres of debate. However, recent events have made it necessary to resurface these topics to the forefront. The U.S. Court of Appeals recently heard the appeal of Rachel Spivack, a former Philadelphia Assistant District Attorney who was fired after refusing to receive the COVID vaccination on the basis of her Orthodox Jewish faith prohibiting it. The issue at hand is not her refusal to receive the vaccine but rather the refusal of the Philadelphia District Attorney, Lawrence Krasner, to grant Spivack a religious accommodation. After waiting for almost seven months for a response to her exemption request after the implementation of the vaccine mandate, her request was denied by Krasner, and she was fired. Meanwhile, ten unionized employees and one medically exempt non-unionized employee were permitted to continue working without being vaccinated. Krasner denied all religious exemption or accommodation requests because he believed he was not legally required to grant them but allowed others, on separate grounds, to work in the office unvaccinated.

    Thus, does the denial of a religious accommodation for exemption from the District Attorney Office’s COVID-19 vaccine mandate violate the constitutional rights of Rachel Spivack under the Free Exercise Clause of the First Amendment and discriminate against her religious beliefs?

    The Free Exercise Clause of the First Amendment protects citizens’ right to practice their religion as they please, so long as the practice does not run afoul of “public morals” or a “compelling” governmental interest. Many will argue that in times of crisis, such as the COVID pandemic, there is a compelling state interest to mandate vaccines or other efforts in cases of extraordinary threats to public health. Refer to Jacobson v. Massachusetts for such a precedent, in which the Court held that a law to require residents of Massachusetts to be vaccinated against smallpox was a legitimate exercise of the state’s police power to protect the public health and safety of its citizens. Opinions stand to question the severity of the COVID pandemic and whether or not it warranted such measures – but that is content worthy of a separate blog post! More relevant to the case of Rachel Spivack, the accommodations granted by Krasner to other individuals demonstrate that the District Attorney’s Office vaccine mandate was not narrowly tailored to serve a compelling interest as was the mandate in Jacobson v. Massachusetts. It is also important to note that the aforementioned case did not account for or set a precedent for religious liberties as in later cases. As stated by Lea Patterson, Senior Counsel for the First Liberty Institute, a non-profit legal organization dedicated to defending religious liberty for all Americans, “The District Attorney disregarded the law by treating those like Rachel who requested religious accommodation less favorably than those who requested accommodation for other reasons. As the Supreme Court has already made clear, the government is not free to disregard the First Amendment’s protection of religious liberty in times of crisis.”

    More pointedly, under the traditional analysis of free exercise, the vaccine mandate enforced by the District Attorney’s Office, in this case, breaches the U.S. Constitution by providing the opportunity for discretionary exemptions, exempting comparable employees to Rachel for medical reasons, and not applying the mandate to other comparable unionized employees, who received religious exemptions. In more plain language, if a government employer offers any exemptions to a mandatory vaccine requirement, then the Constitution may require that it also offer an exemption for religious reasons. Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, also prohibits many private and government employers from discriminating against their employees on the basis of religion. Title VII entitles an employee to request religious accommodations from an employer’s directives that would violate the employee’s sincerely held religious beliefs unless doing so would impose an undue hardship on the employer. I would argue that because of the less invasive measures that an individual such as Rachel Spivack can take to achieve the common good in this situation, the ‘undue hardship’ on the District Attorney’s Office is not extremely dire, considering other unvaccinated individuals remained free to hold their positions in the office.

    We toe a fine line in allowing the government power enough to supersede our constitutional liberties, especially with respect to religion. Though I am not arguing against COVID-19 vaccine mandates in general. I believe that the circumstance surrounding the case of Rachel Spivack specifically supports a violation of her right to freely exercise her religion without discrimination. The Supreme Court has upheld laws in the face of a First Amendment challenge when the law was neutrally applied, served a compelling state interest, and was the least restrictive means of achieving the state interest (for example, Bowen v. Roy). It is my belief that the decision of Lawrence Krasner to deny Rachel Spivack a religious accommodation for the COVID-19 vaccine mandate breached her constitutional liberties just as the District Attorney’s Office disproved all three of the Court’s requirements for mandates that can trump the U.S. Constitution. Rachel Spivack’s religious liberties can be automatically assumed on the basis of Krasner allowing other exemptions on differing grounds than religion, proving a lack of neutrality and an inconsistent state interest. Additionally, vaccine mandates prove to be one of the most restrictive means to curb the effects of the COVID pandemic, and since Krasner allowed unvaccinated individuals the liberty to take less restrictive measures and still keep their jobs, it is my opinion that Rachel Spivack is rightfully appealing the decision of her case as her religious liberties were jeopardized under the cloak of crisis.

Sources: 

https://firstliberty.org/media/court-hears-appeal-of-former-philadelphia-assistant-da-fired-after-religious-accommodation-rejected/

https://adflegal.org/article/religious-exemptions-covid-19-vaccine-mandates

https://firstamendment.mtsu.edu/article/coronavirus-and-the-first-amendment/

Religion in the Workplace?

In 2022, Gudrun “Gunna” Kristofersdottir, a nurse practitioner at a CVS MinuteClinic in Tequesta, Florida, believed she was left with the option of choosing between her job and her faith. Given she was a devout Catholic with beliefs in the sanctity of life and the moral evils associated with devices that subvert it, she had been granted a religious exemption, for the previous seven years, from having to personally prescribe contraceptives while working at the MinuteClinic. If a request to prescribe one of these drugs would arise, she would refer the patient to another CVS MinuteClinic nurse practitioner who would be able to complete the request. Referral of patients to other practitioners was not an uncommon practice in CVS MinuteClinics, regardless of religion. The exemption had posed no barrier to Kristofersdottir’s ability to perform her job, and throughout her many years of employment at the MinuteClinic, Kristofersdottir consistently received “High Performer” ratings. In August of 2021, CVS announced a new policy that revoked all previously existing religious accommodations without considering the individual circumstances of its employees, or whether an alternative to firing could be found. A year later, CVS terminated Kristofersdottir’s employment claiming she would not fulfill her job obligations. CVS believed sexual health counseling and treatment to be essential practices for the MinuteClinic. Kristoferdottir failed to compromise her religious beliefs.

This past week, First Liberty filed a federal lawsuit on behalf of Kristofersdottir. This is just one of the recent lawsuits against CVS by a former nurse practitioner over the company’s sudden refusal to continue granting any religious accommodations to their MinuteClinic nurse practitioners. The basis of this case pertains to whether the revoking by CVS of all religious accommodations, that gave employees the ability to refuse the prescribing of contraceptives, violates its employees’ rights to religious free exercise. The most salient issue present in the case centers around the relationship between granting religious exemptions, and the impact this might have on creating an “undue hardship” for CVS. 

Determining what qualifies as an “undue hardship” is an additional relevant question in this discussion. In the recent Supreme Court Case of Groff v. DeJoy (2023), the court provided greater clarification on this murky issue. The court ruled that when an accommodation request is made, a business must consider all potential ways to accommodate the employee, as well as the impact these new accommodations will have on the business. Additionally, if the employer chooses to deny an employee a religious accommodation, it is required to show evidence of the undue hardships that the proposed accommodations would cause. Although the outcome of Groff v Dejoy still fails to provide clear-cut guidelines as to how to quantify an “undue hardship,” much of the precedent set regarding the navigation of the accommodation process can directly apply to Kristofersdottir’s case in her pursuit of the ability to freely practice her religion.

Title VII of the Civil Rights Act of 1964 states, “It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's…religion…” I believe CVS directly violated this law, as it did not reasonably attempt to grant her an accommodation that would not cause an undue hardship while respecting her religious free exercise rights. Title VII also notes the concept of “undue hardships” by stating that if an employee requests an accommodation for a work requirement that conflicts with a sincerely held religious belief, the employer should reasonably accommodate the request unless it poses an undue hardship. There are numerous reasons as to why the continuation of religious exemptions from the prescribing of contraceptives would not produce an undue hardship for CVS. Kristofersdottir’s religious accommodation had caused no issues over the course of the seven years she had worked in the MinuteClinic. Each year, Kristofersdottir experienced between five to ten patients, out of the thousands she served, who requested access to contraceptives. In these cases, Kristofersdottir simply referred the patients to another nurse practitioner at either that same MinuteClinic, or at another nearby. Also, CVS’s new policy still allows religious accommodation requests by pharmacists and pharmacy technicians, just not for nurse practitioners. If Kristofersdottir’s religious accommodation was truly an “undue burden” and these exemptions substantially increased the costs of operation for CVS, then should this policy not apply to all employees within the MinuteClinic? 

The precedent set in the Groff v. DeJoy case requires that employers must consider all potential ways to accommodate the religious beliefs of their employees. This did not happen in Kristofersdottir’s case, as CVS would not even discuss possible alternatives, such as switching her to a virtual position, a Covid-specific location, or an education or training position, despite her being qualified for each of these alternatives. The Director of Human Resources conveyed that no religious accommodation would be given to any CVS employee, if the accommodation exempted the employee from performing an essential function of the MinuteClinic. This illustrates the larger issue of the case regarding an employee’s ability to practice his constitutionally-guaranteed right to free exercise of religion. 

In my opinion, Kristofersdottir was denied her right to free exercise of religion under federal law. Her previous religious accommodation had not placed an undue hardship on CVS,  and the pharmacy had dismissed any discussions of possible ways to allow for her religious beliefs . The removal of religion from the list of categories protected from discrimination on CVS’s 2021 diversity statement and the company’s firing of Kristofersdottir unless she abandoned her religious beliefs reveal CVS’s discrimination against individuals holding certain religious beliefs. I believe the actions taken by CVS are dangerous, as pressure to conform to imposed regulations that are in opposition to one’s core values places tremendous stress on an individual. Also, other competitors, like Walgreens, could soon take similar measures in order to keep pace with the competition, thus harming religious freedoms further.

Sources

http://religionclause.blogspot.com/2024/01/nurse-sues-clinic-for-refusing-to.html

https://firstliberty.org/media/another-nurse-practitioner-sues-cvs-health-for-denying-religious-accommodation-for-prescribing-contraception/

https://firstliberty.org/wp-content/uploads/2024/01/2024-01-18-Complaint-Gunna-Kristofersdottir.pdf

How Far is Too Far When Teaching Religion in Public School?

Yosuf Chaudhry and Amena Alvi

In the case of Chaudhry et al v. Community Unit School District 300 Board of Education et al, plaintiffs Yosuf Chaudhry and Amena Alvi filed a lawsuit against Pierre Thorsen, a former teacher, and School District 300, alleging violations of their free-exercise.  The plaintiffs asserted that Thorsen, a history and world religion teacher, sponsored a club called “Uprising”, in which students were taught Christian values and beliefs. Thorsen was claimed to have hosted movie showings during lunch breaks, sharing Christian testimonies, and engaging in confrontational discussions about religion during and after class, promoting Christianity throughout his long tenure, and denigrating other religions, including Islam, the religion of this family. According to the complaint, Thorsen influenced Aliya Chaudhry (15), the plaintiffs' daughter, to convert from Islam to Christianity. The parents claimed that Thorsen referred Aliya to members of his church and sought help for her emancipation from her parents, whom he characterized as dangerous.

    Upon discovering these events, the parents informed the District, leading to Thorsen's suspension, investigation, and subsequent transfer to another school. The plaintiffs focused on Monell claims, asserting that the District allowed a custom that violated the Establishment Clause and substantive due process (A Monell claim is seeking payment for damages after violations of constitutional rights). As the court writes “Under Monell, the plaintiff may hold a municipality liable under section 1983—not vicariously, but in itself—for “its own violations of the federal Constitution.” … One valid theory of such liability—which the Parents attempt to establish in this case—is that of a widespread practice “so permanent and well-settled” that it constitutes a custom of the municipality” (Johnston).

The court, in its memorandum opinion, dismissed these Monell claims, emphasizing the lack of specificity in identifying other teachers involved in similar activities and the District's prompt actions in response to the parents' concerns. The court concluded that the complaint did not plead enough factual matter to support the inference of a widespread unconstitutional practice or the District's knowledge of it. As a result, the claims against the District were dismissed with prejudice on December 29, 2023.

I believe that two questions remain after this decision, obviously was the court right, should the school board be forced to pay Monell damages? And, in addition, did Thorsen deserve to be fired for his actions? Did he disallow Yosuf Chaudhry and Amena Alvi the ability to freely-exercise their religion with their child specifically?

   I find that the answers are yes the court is correct, and yes, Thorsen did deserve to be fired. The court states that the evidence presented by the school shows swift action taken once these claims were made, and that their inability to name any other instructors limited their ability to find the school liable. If Yosuf Chaudhry and Amena Alvi were able to name more instructors who committed such acts, or if they had evidence they had contacted the school about this issue and nothing had changed, then I believe the court would have found it differently.

     While this is not the exact case in question, Thorsen himself has made a claim against the school for essentially wrongful termination. Do you believe the courts should side with him? I believe they should not, as he allegedly made claims against the family's religious practices, with the couple claiming “‘they have implied in their communications (with our daughter) that we would disown, mistreat or even kill our own child because of her conversion to Christianity” (Krishnamurthy). If Thorsen had simply been describing the history of Christianity in the classroom, and running a Christian club, then this seems like his valid exercise. However, when it involves denouncing the religion of the family through manipulation, then this seems like another story. If educators promote their own religious views in the classroom, this directly normalizes the fusion of church and state. Children learn norms from both their schools and their families, and if the school is promoting a religion, parents do not have the proper ability to exercise their religion.

    Lastly, an interesting point presented by Yosuf Chadhry was that “there would be clear outrage if the situation were reversed and a Muslim teacher were found to be converting students to Islam at a public school under the guise of education” (Krishnamurthy) and I wholeheartedly agree. Many default to Christian values and norms being the standard in the United States, and Madison in his Memorial and Remonstrance seemed to directly hope against this. Any normalization of one religion in society leads to persecution of minority practice, and I find this example to be a key example of this. Therefore, if these allegations are true, which they appear to be based on the actions of the school board, then Thorsen should not win his suit. 

Sources:  

Johnston, Iain. “Chaudhry et al v. Community Unit School District 300 Board of Education et al, No. 3:2020cv50381 -    

 Document 209 (N.D. Ill. 2023).” Justia Law, https://cases.justia.com/federal/district-courts/illinois/ilndce/3:2020cv50381/392015/209/0.pdf?ts=1703953811  Accessed 28 January 2024.

 

Krishnamurthy, Madhu, and Mark Welsh. “'Our entire world was shattered': Parents say ex-teacher 'brainwashed' 

daughter to convert to Christianity.” Southern Illinoisan, 5 July 2021, https://thesouthern.com/news/state-regional/our-entire-world-was-shattered-parents-say-ex-teacher-brainwashed-daughter-to-convert-to-christianity/article_d35cba72-9f21-5684-8df0-68731791f2cf.html  Accessed 28 January 2024.

 Smietana, Bob. “Judge dismisses Muslim couple's lawsuit against school where daughter converted to Christianity.”  

Religion News Service, 4 January 2024, https://religionnews.com/2024/01/04/a-muslim-couple-sued-a-public-school-after-their-daughter-converted-to-christianity-a-judge-dismissed-the-case/ Accessed 28 January 2024.

https://dockets.justia.com/docket/illinois/ilndce/3:2020cv50381/392015