Lasche v. State of New Jersey

In Trenton, N.J., a couple filed suit against the State of New Jersey after the New Jersey’s Division of Child Protection and Permanency (DCPP) suspended their foster license and removed their foster children from their home due to their sincerely-held religious beliefs regarding sexual orientation. As members of the Christian faith, Michael and Jennifer Lasche possessed “traditional values and beliefs about family, marriage, and sex”, condemning ‘same-sex’ conduct as sinful. In September of 2017, DCPP caseworker, Kyle Higgins, and her supervisor, Katie Epperly, agreed to let the Lasches foster two sisters, one who was thirteen (Foster Child 1) and another who was ten (Foster Child 2). By November of 2017, the biological parents had lost all parental rights over the children and the Lasches were being considered for the adoption of the two sisters by October of that same year. During that time, the Lasches were informed by their caseworker that there was another prospective couple, comprised of “two wealthy gay men with lots of family around to support them and the adoption” from Illinois, that were willing to adopt the two sisters and their three other siblings. After a few days, the caseworker returned to the Lasches’ home to question Foster Child 1 about her willingness to change her religious beliefs surrounding the nature of homosexual conduct if she were to be placed with the other adoptive family. Afterwards, Foster Child 2 was removed from the Lasche’s home without explicit reasoning for DCPP’s course of action. 

At the upcoming court hearing, the DCPP was required to decide whether the children were to be adopted by the current foster parents, the Lasches, or transferred to the Illinois couple.

After the hearing in June of 2018, the Illinois couple decided to withdraw from the adoption process of the five siblings, prompting inquiries by DCPP regarding the Lasches’ religious beliefs. One of these inquiries occurred at one of Foster Child 1’s therapy sessions, where the child returned home crying after being confronted by the therapist, at the request of Higgins, regarding questions about her views surrounding ‘same-sex’ conduct. Additionally, Foster Child 1was approached by Higgins and another unnamed woman at Dunkin’ Donuts, where she was further questioned regarding her religious beliefs. Despite the adoption withdraw of the Illinois couple, Higgins called the Lasches to discuss the transfer of Foster Child 1 to the home of one of her other siblings. Shortly after this call, DCPP scheduled a meeting with the Lasches to express their concerns regarding the Lasches’ religious beliefs, their influence on the children’s views on ‘same-sex’ conduct, and the child’s best interests. After the meeting, DCPP representatives sought the removal of Foster Child 1 from the Lasche’s home, resulting in her alternative placement with Foster Child 2. Additionally, without prior notice, DCPP suspended the Lasche’s foster license. In assessing the background of this case, the primary constitutional question at hand lies in whether or not the New Jersey’s Division of Child Protection and Permanency (DCPP) violated the Lasches’ right to Free Exercise, by revoking their foster license and removing the foster children from their home.

In deciding whether or not New Jersey’s Division of Child Protection and Permanency (DCPP) violated the Lasches’ right to Free Exercise, it is important to consider whether DCPP’s treatment of the Lasches was conducted in a manner that was consistent with a law that is neutral and of general applicability. As established in the case Church of Lukumi Babalu Aye, Inc  v. Hialeah, the Supreme Court established that a law is not considered neutral if it intends “to infringe upon or restrict practices because of their religious motivation”. According to the opinion of the U.S. Court of Appeals for the 3^rd Circuit, the treatment of the Lasches was not consistent with any pre-existing neutral and generally applicable law enforced by the DCPP that was taken with other prospective adoptive families. Additionally, this line of reasoning was applied in the case Fulton v. City of Philadelphia, where the City of Philadelphia barred Catholic Social Services from conducting adoption placements due to their strict policy against providing adoption licensing to same-sex couples. In deciding Futon v. City of Philadelphia, the Justices unanimously agreed that prohibiting CSS from providing adoption services or forcing them to certify same-sex licensing violated their First Amendment right to Free Exercise. In accordance with the precedent established in Employment Division v. Smith, it was decided that the discriminatory policy was neither neutral nor generally applicable, as it allowed for exemptions to the requirement based on the discretion of the Commissioner. As a result, the government was required to demonstrate that the given statue was necessary in achieving a compelling government interest. With regards to the DCPP, there was a compelling state interest in serving the best interests of the children in terms of guaranteeing the most suitable foster placement. However, the Lasche family had been foster parents for over 10 years without any concern or doubt expressed by the DCPP regarding their ability to serve the best interests of their foster children. Moreover, the attorney of Foster Child 1 argued that the child should remain with the Lasches in the court proceeding that discussed the potential placement transfer of the child. Furthermore, in analyzing the opinion of the U.S. Court of Appeals for the 3^rd Circuit, there was no cited event of endangerment that was undertaken by the Lasches that sought to threaten the best interests of the foster children, thereby, requiring the removal of their of foster license. As a result, I believe the Lasches did not subvert the state’s compelling state interest by merely expressing their views regarding marriage to their foster children, as this religious action has been historically protected by the Court seen in the case of Wisconsin v. Yonder. In this case, the Court decided that compulsory school attendance laws requiring children’s attendance past the eighth grade violated the parent’s constitutional right to direct the religious upbringing of their children. Due to the lack of parental rights by the biological parents of these foster children, I believe the Lasches’ sharing of religious beliefs is constitutionally protected, does not subvert the state’s compelling interest, nor requires the violation of their Free Exercise, seen in the  removal of their foster license and the custody of the children. 

Furthermore, I believe that it is also relevant to consider the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in deciding the outcome of this case. In Masterpiece Cakeshop v. Civil Rights Commission, Jack Phillips, the owner, denied the creation of a wedding cake for a same-sex wedding because of his religious beliefs regarding the sanctity of marriage. During the case proceedings, the Court identified that the Commission had exhibited hostility towards Phillip’s religious beliefs, seen in the disparaging comments made about Phillip’s beliefs by the Commission. At several points during the Commission’s formal public hearings, the commissioners promoted the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain. Furthermore, the Court found that the Commission’s dismissive comments demonstrated a lack of consideration for Phillip’s free exercise rights and even implied that his beliefs were “insubstantial or insincere”. More specifically, one of the commissioners declared the Philip’s faith was “one of the most despicable pieces of rhetoric that people can use”. As a result, the Court decided that the Commission’s actions towards Phillip violated the State’s duty under the First Amendment not to use hostility towards religious beliefs as a basis for laws or regulations. Therefore, the precedent was established that any state action based on “hostility to a religion or religious viewpoint’ violates the state’s obligations under the Free Exercise to ‘proceed in a manner that is neutral to religion’. With regards to the Lasches, it is clear that the DCPP displayed hostility towards the family’s religious beliefs, as they explicitly declared in a meeting with the family that their “religious beliefs were a problem” and that Foster Child 1 would need “therapy to deal with her belief that homosexual conduct is a sin”. Similarly, to the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, these dismissive comments demonstrated a lack of consideration of the family’s beliefs, when deciding to remove their foster license and Foster Child 1 from their custody. Furthermore, the family were never provided the statutorily required notice regarding the DCPP’s pursuance of a court hearing that sought to discuss the transition of Foster Child 1 to another foster home, as they were under the impression that Foster Child 1 would remain in their custody due to the withdraw of the Illinois couple. In addition, the Lasches were left unaware by DCPP that their license had been removed until much later after it had already happened. Lastly, the Lasches and their foster children were incessantly interrogated regarding their religious beliefs surrounding the subject matter of ‘same-sex’ conduct, seen in Foster Child 1’s therapy session and encounter with Higgins at Dunkin’ Donuts, and the scheduled meeting to discuss DCPP’s concerns over the Lasches’ religious beliefs. As a result, I believe DCPP’s hostility, seen in the aforementioned instances, towards the Lasches’ were the basis for the removal of their license and Foster Child 1. In other words, religious hostility clearly constituted the basis for the regulations enforced by DCPP on the Lasches and demonstrated a lack of fair and neutral treatment towards the Lasches.  

Overall, I agree with the outcome of the case, Lasche v. State of New Jersey, as the treatment of the Lasches, seen in the removal of the foster license and foster children, clearly proceeded in a manner that was intolerant towards religion. Seen in the comparison to the Fulton v. City of Philadelphia and Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission cases, the DCPP’s conduct was not consistent with a law of neutral and general applicability and demonstrated ‘hostility’ towards the Lasches’ religious beliefs, seen in the repeated interrogation of the family, unpronounced court hearings, and the removal of Foster Child 1. In the U.S. Court of Appeals for the 3^rd Circuit, the New Jersey couple won, sending the case back down for judgement by the lower courts. Furthermore, the appellate court affirmed that the removal of the Lasches’ foster license because of sharing their religious beliefs with the foster children was unconstitutional. 

 

Sources:

https://adfmedia.org/case/lasche-v-state-new-jersey

https://adfmedialegalfiles.blob.core.windows.net/files/LascheOpinion.pdf

https://www.oyez.org/cases/2020/19-123

https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf

https://www.oyez.org/cases/1971/70-110

Religious Discrimination or Company Uniform?

 In recent news there has been a lawsuit involving the famous supermarket chain, Kroger, and two former employees. This lawsuit was filed in 2020, but in recent weeks has been settled. The specific grocery store in the suit was located in Conway, Arkansa. The two former employees argued that their job termination violated their civil rights and was discriminatory towards their religion. The employees were fired because they refused to wear their uniform, which had a heart design that they thought to resemble a pride flag. The supermarket argued that they did not fire the employees on the basis of their religious beliefs. The supermarket believed that the logos on their uniforms are not meant to resemble or express support for the LGBTQ community. The lawsuit was filed by the Equal Employment Opportunity Commission, whose main purpose is to investigate discrimination in a working environment. The Equal Employment Opportunity Commission argued that the two employees were unlawfully fired and discriminated against on a basis of their religious beliefs. The two employees, Trudy Rickerd and Brenda Lawson, have strong religious belief that homosexual relationships are sinful. When the supermarket had originally made the change to the uniform, about ten employees disapproved of it because of the logo's similarities to the pride flag. The supermarket, back in 2012, had made the logo as a way to rebrand the company. The company had four new commitments oriented around customer service, none of which were related to support for the LGBTQ community, and the heart was meant to express the supermarket's new commitments. The disapproval from the employees, according to court documents, could also have stemmed from a press release that went out from Kroger which indicated the company was a great place to work for LGBTQ people. However in Conway the employees had a culture of hate for the LGBTQ community. The plaintiffs argued that they were significantly affected because they wanted to retire after Kroger, and that the decision not to wear the uniform was not judgment, but rather them choosing not to endorse the LGBTQ community. Kroger settled in the case and is set to pay both employees about $70,000 in the settlement. 

The main issue at stake here is whether the decision of Kroger to fire the two employees because of their refusal to wear company uniform, with alleged LGBTQ support detail, violates the individuals First Amendment rights? 

In my opinion I agree with the former employees and the Equal Employment Opportunity Commission . Both the plaintiffs have strong religious beliefs. They had strong religious beliefs that homosexuality is sinful, and they feel that the uniform was directly promoting and supporting the LGBTQ community, which directly went against the individual's religious beliefs. In Holt v. Hobbs the court ruled that prison officials violated the First Amendment by refusing to let an inmate grow his beard for religious reasons. In this instance the free exercise and religious liberty of the inmate is protected under the First Amendment. The court argued in this decision that the prison did not have a compelling interest in restricting beards for religious reasons. In the case presented there is not a compelling state interest in making everyone wear the uniform. The grocery store can take less restrictive means in distinguishing between employees and customers, that does not require the employees to go against their religion. In addition, the store can take less restrictive means in presenting their customer service campaign and commitments. The plaintiffs feel by wearing the Kroger uniform they are directly endorsing the LGBTQ community. The grocery store argued that the purpose of the logo was not to endorse support for the LBGTQ community, however there were several employees who felt the opposite when the design was presented and eventually put onto the uniform. In addition the argument in this case is not wether the symbol itself is representative of the pride flag, but rather if the firing of the employees because of their perspective of the uniform is discriminatory. I would agree that firing the employees for not wearing the uniform when they believe the uniform directly contradicts their religious beliefs is not constitutional and does not respect an individual's free exercise. It is clear the reason for firing the employees is because of their decision to not wear the uniform, and this decision from the employees has religious motivation. Therefore, the decision to fire the employees is directly discriminatory towards the employees religious views and clearly violates the individuals civil rights.

Woman Faces 12 Years in Prison for Wire Fraud and Forced Labor. Does Her Right to Freedom of Exercise Acquit Her?

In 2019 Tracie Dickey was found guilty and sentenced to 12 years in prison for forced labor of church members and defrauding hotels. Dickey appointed herself as bishop of Deliverance Tabernacle Ministries, which has branches in Pennsylvania, Florida, and North Carolina, and is attempting to use her religious beliefs as a defense for her actions. According to the Justice Department press release, Dickey ran a hotel scheme in which she forced church members to work at various hotels, gaining over 66,000 dollars in fraudulent earnings and collecting hundreds of thousands of dollars that were earned by her church members. According to the DOJ, Dickey emotionally and physically abused her members and forced them to follow her rules. Several of her victims testified that Tracie Dickey starved them, humiliated them, threatened their families, and even sent them into homelessness if they didn't abide by her rules. 

Tracie Dickey was arrested on counts of wire fraud and forced labor and argued that these charges should be dropped as her actions were protected under the First Amendment and "ministerial exception." Her argument is based on the foundation that because she is a leader of a religious organization that her treatment and management are protected under her First Amendment right to freedom of exercise. 

An important precedent for this is the case of United States v. Ballard. This case involves a religious organization that allegedly used false pretenses to convince people to join and fund their organization. They were indicted on counts of mail fraud but argued that due to their religious beliefs, which include payment in turn for religious acts, they couldn't be charged due to their First Amendment right. The crucial aspect of this case is that the Court can't determine the validity or rationality of their beliefs but whether or not the alleged actions were committed in good faith. They also make the important distinction between the freedom to act and the freedom to believe. Because there is no way to prove one's religious beliefs, the Court took into account the manner that their actions were committed. Relating to the case of Tracie Dickey, the Court can't determine whether the beliefs she held were rational or valid but can evaluate the intention behind her actions. In other words, the Court can't judge or question her beliefs but whether or not the intention behind them was sincere. Dickey also tried to cite "ministerial exception" as part of her defense, but it doesn't apply to this case. Ministerial exception refers to the protection surrounding religious organizations hiring and firing process and the way they manage their employees. In this case, the terms of employment were not called into question, nor were the guidelines she used to retain and dismiss members. She is being indicted on forced labor and wire fraud, both allegations that have nothing to do with membership standards. 

This begs the question, does Tracie Dicky's First Amendment right to freedom of exercise protect her from being criminally charged for the manner she chose to run her congregation? 

I believe that it does not. Tracie Dicky was not acting in good faith. She was forcing the people of her congregation to work for her and defraud hotels while she reaped the benefits. She coerced members into these acts by threatening their livelihood and safety so she could make a profit. She may hold that it is her belief to exercise her religion in this manner, and while that can't be questioned, according to United States v. Ballard, the intention behind her actions can be questioned. There is no doubt that her intention was to make money, as proven by the testimony of her past members and the continued physical and mental abuse. No person acting in good faith threatens their members' families, forces them into homeless, starves them, and takes their money against their will. Her freedom to exercise allows her to believe and practice her beliefs as long as those actions are acted out in good faith. Here her beliefs aren't being restricted; instead, the manner that she conducted her religious organization was fraudulent and harmful. 

In other cases, we have looked at where religious freedom of exercise conflicts with the law; often, a compelling state interest overrides that right. In this case, there is a state interest in preventing fraud, forced labor, forced homelessness, starvation, and coercion which is more compelling than Ms. Dicky's beliefs. The harmful intention of her actions and the compelling state interest to prevent fraud provide sufficient proof that Tracie Dicky's first amendment right to freedom of exercise does not protect her against these crimes. 

'9-1-1' Actor Faces Religious Discrimination From Disney

Rockmond Dunbar, a former actor in the show ‘9-1-1’, was forced to resign due to noncompliance with Disney’s COVID-19 vaccination mandate. Disney required certain employees to get vaccinated to protect the safety of the whole cast and crew, but Dunbar claimed that being vaccinated was against his religious beliefs. He is a member of the Church of Universal Wisdom and has been since 2014. This church’s main ideals include promoting purity of the mind and spirit and the physical body. Thus, it is sacrilegious to ingest any medicine or chemicals into the body, including vaccines. Dunbar put in a request to receive an exemption from the vaccine mandate but his request was denied. He has claimed that since the Church of Universal Wisdom is small and unknown, Disney did not take his request seriously, and asserts that his religious group is being discriminated against.

    The issue at stake here is; Is Disney discriminating against Dunbar and the Church of Universal Wisdom, and is firing Dunbar against his right to Free Exercise?  The Central District of California court dismissed this case and ruled that not accepting Dunbar’s accommodation request was not a matter of religious discrimination. The vaccine mandate is a neutral policy that does not target any one religion and there is a compelling state interest to keep the cast and crew safe from COVID-19. Dunbar could not prove that any other member of the Church of Universal Wisdom was affected by this vaccine policy so Disney could not be targeting this church specifically. He also argued that many other employees who held similar beliefs have experienced the same type of discrimination, but he was unable to prove this as well. The court ends by saying that accepting this type of accommodation can lead to a slippery slope. If there is a church for every sort of mandate put in place, there would be “limitless” possibilities for exemptions. Overall, this mandate is a neutral policy that does not discriminate against Dunbar’s beliefs and thus does not violate his right to Free Exercise. 

Dunbar’s case is similar to that of Employment Division v. Smith. In this case, Smith, an employee at a drug rehabilitation center, was fired for religiously ingesting peyote, a hallucinogenic drug. Smith was denied unemployment benefits by the state and claimed that this was against his right to Free Exercise. The Supreme Court ruled that this is not a violation of Smith’s Free Exercise, since the prohibition against ingesting peyote is a neutral generally applicable law. This is similar to Dubar v. Disney because the policy that both religions go against are neutral. Neither religion is being targeted by either policy put in place and they both serve a compelling state interest. 

I agree with the court in this case and I do not think that denying Dunbar’s request is a matter of discrimination. The vaccine mandate is a neutral generally applicable law that does not target Dunbar’s religion. Since the Universal Church of Wisdom is relatively small and new, it can be difficult to tell if discrimination is occurring. However, it is important to think about the court’s slippery slope argument and the fact that no one else with similar beliefs has proved to be discriminated against. Although it was not used in Employment Division v. Smith, I would apply the Sherbert Test in this case. First, I would say that this mandate is a burden on Dunbar’s religious freedom since it is explicitly sacrilegious to get vaccinated according to his beliefs. However, I do think that the vaccine mandate is a compelling state interest and there are no restrictions in the mandate that specifically target the Universal Church of Wisdom. All in all, I think that Dunbar’s religion is far too niche to be making these sorts of discriminatory claims in court. It is impossible to address every employee's beliefs while also protecting the greater good of the company. I do not think Dunbar’s religion is being targeted or discriminated against.

What do you think? Is not accepting Dunbar’s accommodation a violation of his Free Exercise, as well as discrimination against his religion?

Congregation of Universal Wisdom. “Home.” Accessed November 8, 2022. https://seekwisdom.life/.

Justia Law. “Employment Division v. Smith, 494 U.S. 872 (1990).” Accessed November 8, 2022. https://supreme.justia.com/cases/federal/us/494/872/.

Peoplemag. “Former ‘9-1-1’ Actor Rockmond Dunbar Sues Disney Over Vaccine Mandate, Claims Racial

        Discrimination.” Accessed November 8, 2022. https://people.com/tv/9-1-1-rockmond-dunbar-sues-disney-20th-television-for-racial-discrimination/

Scribd. “Dunbar v. Disney | PDF | Disparate Impact | Civil Rights Act Of 1964.” Accessed November 8, 2022. https://www.scribd.com/document/605195031/Dunbar-v-Disney.

Pastor Loses His Fight Against the City of St. Louis to Feed the Homeless

Pastor Raymond Redlich, of the New Life Evangelistic Center, has passed out food for the homeless in the city of St. Louis for nearly four decades, following his faith and the Bible’s dictation to feed the hungry. With his formerly homeless assistant, Christopher Ohnimus, he gave water in the summer, coffee in the winter, and prayed with those who wanted to pray; he did this for four to five days a week, around 225 nights a year. On Halloween night in 2018, a St. Louis police officer observed Redlich distributing bologna sandwiches and issued both Redlich and Ohnimus a citation for violating the city ordinance which required a temporary food permit for the distribution of “potentially dangerous” food.

        Both Pastor Redlich and Mr. Ohnimus in their Christian faith believe it is their religious duty to provide food, drink, and spiritual support to the homeless population of St. Louis, and feel that this citation and requirement for a permit is a violation of their First Amendment rights to free exercise. They filed suit and in July 2021, the case went before the District Court, where the judge ruled in favor of the city. This was appealed to the Eighth Circuit Court of Appeals, and in a recent decision, the Court of Appeals affirmed the prior judgment, deciding that the actions of the City of St. Louis did not violate Pastor Redlich’s free exercise under the First Amendment.  

        At the time of the citation, the St. Louis Ordinance placed restrictions on the distribution of “potentially hazardous food,” specifically “the preparation or service of…sandwiches containing meat, poultry, eggs, or fish.” Those who wanted to distribute these potentially hazardous foods would need to apply for a temporary permit which costs $50 a day and must be applied for 48 hours before the event. The operation must have “a hand-washing station for employees; several food-grade washtubs; and enough potable water available for food preparation, cleaning of utensils and other equipment, and for hand washing” (Redlich v. City of St. Louis, 3). The city did not pursue the citations and introduced a Charitable Feeding Temporary Food Permit in April 2020, at a reduced cost, as well as a Temporary Food Safety Training Program. The city of St. Louis pushes back against Redlich and argues that the ordinance does not infringe upon the free exercise of his religious beliefs, it just protects the safety of the city residents. Redlich asserts that the city’s enforcement of the Ordinance, in other words, the requirement of a permit, not only disrupts and burdens their feeding of the homeless but in addition is a substantial burden to their free exercise as it interferes with their ability to communicate God’s message of charitable deeds. 
        In my initial reading of the case, I found it difficult to draw the line between providing protection for the city residents and over-regulation of religious actions. If these bologna sandwiches had given those who ate them food poisoning, would this case result in a public outcry for more efficient regulation? I, therefore, base my opinion on the precedent of Cantwell v. Connecticut, decided by the Supreme Court in 1940. In this case, Newton Cantwell and his sons, all Jehovah’s Witnesses, were proselytizing in a Catholic neighborhood and were arrested and charged with violation of a Connecticut statute requiring solicitors to obtain a certificate–similar to the temporary permit that Redlich needed to acquire. Justice Roberts, in the majority opinion, reasoned that although the statute was neutrally applicable and there was a compelling interest by local officials, the maintenance of public order could not justify the suppression of free religious speech and therefore exercise. 
        In Pastor Redlich’s case, a bologna sandwich made by God’s will to feed the homeless seems trivial in comparison to the proselytizing of views in Cantwell v. Connecticut, in which the Court ruled in favor of the solicitors. The St. Louis Ordinance, similarly, is a facially neutral statute but is there a less restrictive means to achieve safe food preparation for the homeless that does not restrict Pastor Redlich’s free exercise and religious belief in charitable actions? It seems that even with a reduced cost Charitable Feeding Temporary Food Permit, Pastor Redlich would have to apply for a temporary permit two days prior to each time he goes to hand out food–this means almost every day of the week he would apply and reapply for the same permit. Additionally, with only him and his assistant, he would need to buy almost a full kitchen on wheels to ensure the operation is within the ordinance restrictions. This, to me, is a substantial burden on his food donation and therefore a substantial burden on his religion, since his Evangelist faith rests on the belief that he must feed the hungry. Is a bologna sandwich really a “hazardous food” when the people consuming them might not have eaten anything in days?

 

Sources: 

- https://www.riverfronttimes.com/news/pastor-fights-st-louis-city-to-feed-homeless-37923903 

- https://www.abajournal.com/web/article/8th-circuit-upholds-food-safety-law-in-suit-by-pastor-who-gave-bologna-sandwiches-to-homeless

            - https://casetext.com/case/redlich-v-city-of-st-louis 

HR 8373: A "Right to Contraception" or a Substantial Burden on the US Religious Community?

Over the summer, a controversial bill sponsored by Representative Kathy Manning, A Democrat representing North Carolina’s 6th Congressional District, passed through the US House of Representatives, with the overwhelming majority of Democrats supporting the bill and most Republicans opposing the proposed legislation. In fact, only 8 Republicans voted in the bill’s favor. The bill, HR 8373, would require all healthcare providers, from the largest hospitals to the smallest clinics, to provide contraceptives upon request to patients. The bill, importantly, does not incorporate a provision allowing religiously affiliated medical facilities or individual practitioners to receive an exemption to the statute upon request. Accordingly, many religious groups that do not approve of the use of contraceptives have publicly expressed their concern that the rigid wording of the statute undermines their constitutional right to free exercise, and have vowed to take legal action if the bill passes in the Senate. In particular, the Susan B. Anthony Pro-Life Americans organization penned an open letter expressing their concern that the bill would pave the way for subsequent legislation requiring religiously-affiliated practices to perform abortion services, even in cases of vehement spiritual opposition, and that the family-planning industry is already heavily subsidized, meaning that contraceptives are already available, even without the support of a select few institutions.

Proponents of the bill, on the other hand, argue that access to contraceptives is a fundamental element of properly administered healthcare, so it stands to reason that all medical providers should be required to have such medications on hand if one of the pateints requests it. Although this provision may burden the religious exercise of a relatively small number of medical practitioners, the bill’s advocates argue that a very compelling government interest, promoting public health and well-being, exists to abridge these rights.

In keeping with surviving precedent set by Sherbert v Verner, if a statute is established that places a substantial burden on an individual’s free religious exercise, it must have a compelling state interest and take on the least restrictive form possible. In this case, I do not believe that HR 8373 is taking the least restrictive means possible, though the compelling state interest does exist. As it stands today, contraceptives are widely available and already receive federal funding. Even if someone looking to obtain a contraceptive cannot obtain it from their regular medical care provider due to a religious objection, they can turn to many other sources to fulfill their need. As such, allowing organizations and individuals to receive religious exemptions would not significantly hamper the public health or undermine the objectives of the bill. More importantly, however, the bill in its current form would set a very dangerous precedent if enacted into law, demonstrating that legislation burdensome to religion does not need to take the least restrictive means possible. Although no right is absolute, the ability for US citizens to exercise their religious beliefs while still participating in society is among the most foundational entitlements of the American experiment. This bill puts that right in jeopardy by valuing the mere notion of “public health and safety” over the assurances of religious liberty with no opportunity for exemption or special dispensation. In this case, I would argue that the bill is unconstitutional unless a clause is added allowing for religious-belief-based exemptions.

Do Jewish Laws on Abortion Reign Over Kentucky's Abortion Ban?

 

In Sobel et al v. Cameron, Three Jewish women have sued the state of Kentucky over its laws which practically ban abortion. The suit is based on the claim that these laws infringe on the freedom to exercise their religion under jewish law (Halacha). According to Halacha, life begins once the fetus emerges from the womb (Midrash Bereishit Rabbah 34:10) which is directly opposed to the Kentucky legislation that contends that life begins at conception.

The suit was filed on behalf of Lisa Sobel, Jessica Kalb and Sarah Baron against Attorney General Daniel Cameron and Jefferson County Attorney Thomas Wine.

The health of the mother is supposed to take precedence over the fetus in Halacha, yet Kentucky’s abortion laws have no exceptions for the mental health of the mother. The only exceptions under Kentucky law prohibit abortion to save the life of the mother or prevent permanent damage to a life-sustaining organ. Jessica Kalb, one of the plaintiffs, stresses that her “greatest fear is that I become pregnant, and I go for a scan. And they say your baby is incompatible with life and we can’t help you; because that is the reality right now in our state”. Another plaintiff in the suit, Lisa Sobel says that she is no longer choosing to have kids at the moment because of her previous pregnancy which was tumultuous. During birth, she required life saving medical care. She stresses that, “I can not risk getting pregnant, because if I have a miscarriage, I could bleed out while a team of lawyers and doctors fight over whether or not I receive care”.

The plaintiffs note how the legislation on abortion violate’s Kentucky’s own Religious Freedom Restoration Act which states that government “shall not substantially burden a person’s freedom of religion” unless it proves a compelling interest and uses “the least restrictive means” to do so.

IVF also comes into play as a result of this lawsuit. Two plaintiffs have used the reproductive method to have children, which is now in limbo because of how Kentucky’s abortion justifies itself on the principle that life begins at conception. This lawsuit notes that fertilized eggs are often discarded during IVF, and the plaintiffs question whether discarding those eggs would be considered a capital offense in Kentucky.

In a statement to the press, Attorney General Cameron said that he will protect unborn life and Kentucky laws because they are an important part of the commonwealth. The salient Constitutional issue at stake: does the Kentucky law infringe on the rights of Jewish women under the First Amendment Free Exercise Clause?

I do believe that their right to freely exercise their religion is being infringed by Kentucky abortion laws. The jewish women have a sincere demonstrated belief that the abortion laws violate their own religious law, Halacha. By directly forcing these women to violate their religious law, they are creating a substantial burden on their freedom of religion by forcing these women to carry a child and give birth. While the state would argue that their compelling interest is the lives of these unborn fetuses, Jewish law would view life to begin at birth, thus the compelling interest does not begin until the fetus is born. Furthermore, the state is using a highly restrictive means of doing so by banning all abortions except in the cases where the life of the mother will be lost or to prevent damage to life sustaining organs. There are no exceptions for women who are victims of rape or incest, no matter how old they are. In the two years preceding this law, the youngest patients to receive an abortion were 9 years old. Now, under current legislation, these nine year olds would be forced to carry their pregnancy to term. Clearly, the state of Kentucky is using the most restrictive means possible.

However, if the court were to declare the law unconstitutional because it violates Jewish belief, other religions which do view life as beginning at conception, such as Evangelical Christians or Catholics, would then be discriminated against. In protecting the rights of one religion, they would effectively discriminate against another. Ever since Planned Parenthood v. Casey was effectively overturned in Dobbs v. Jackson Women’s Health Organization, states have been allowed to decide who does or does not get abortions. Yet the wall that Kentucky has created against abortion has created a salient religious issue. In a case that we previously reviewed, Wisconsin v. Yoder, the court found that forcing Amish children to attend school after the eighth grade violated Amish religious belief. Similarly, the religious beliefs of jewish women are being violated in today's case. However, I do still wonder if there is a way for the government to be neutral towards all religions in crafting abortion laws.

Suit Filed After Paramedics Fired for Not Shaving

    On September 30, 2022, America’s Equal Employment Opportunity Commission (EEOC) filed suit against two paramedic companies, Global Medical Response (GMR) and American Medical Response (AMR), for discriminatory facial hair rules. This lawsuit was filed in part by Ravinder Singh, a Sikh paramedic, who was fired for not shaving his beard, which he is required to grow due to his faith. GMR and AMR have a no facial hair policy due to the fact that the KN95 respirators all paramedics are required to wear would not properly fit over facial hair. After finishing his training, Singh requested that instead of the KN95 respirator, he wear a powered air purifying respirator (PAPR), which both fits over facial hair and is approved of by the Occupational Safety and Health Administration (OSHA). This request was denied, and Singh was let go. Several other paramedics of Sikh, Baptist, and Orthodox Jewish faiths were either fired or not hired by AMR or GMR for refusing to shave their facial hair.

    The plaintiffs were refused religious exemptions and were fired because their faiths did not allow them to shave their facial hair. For Singh, a practicing Sikh, cutting his hair means going against his religion. He explained this to the company, yet his exemption was still denied and his request to use a PAPR instead of a KN95 was refused. The EEOC accused the two companies of violating Title VII of the Civil Rights Act of 1964, which protects against religious discrimination. Free exercise is also a relevant issue as they were fired for following their religious beliefs. This case raises the question: does AMR and GMR’s no facial hair policy violate Singh’s Free Exercise of Religion?

     I believe that this case does violate Singh’s Free Exercise of Religion, as the policy places a direct burden on Singh and the other paramedics, and the companies refused to offer less restrictive means. The facial hair policy forces Singh and the other paramedics to choose between their career and their religious beliefs, which shows the significant burden placed upon them. While AMR and GMR do have the compelling interest of safety in requiring all of their paramedics to wear the KN95 respirators, there is the option for them instead to wear PAPR, which are approved by OSHA and are used by other paramedic companies. In fact, the PAPR was created for first responders and healthcare workers who are unable to shave their facial hair for medical reasons to still remain protected. GMR and AMR should have allowed religious exemptions for these paramedics, as there was clearly a less restrictive means of carrying out their compelling interest.

     In 1986, the Supreme Court decided Goldman v Weinberger, which said the Air Force’s ban of religious head coverings did not violate the Free Exercise Clause of the First Amendment. The reasoning behind this was that the Air Force was under no “constitutional mandate to abandon their considered professional judgment,” meaning that the military’s compelling interest in national security allows them to be held to a different standard than the average citizen (298). Essentially, the Air Force was allowed to violate their members’ First Amendment rights because of their overall mission of protecting United States citizens. However, this lawsuit does not involve the military, but rather private companies that hire civilians. First responders, while incredibly important for public health, are not the same as members of the military, and should not be treated as such. While soldiers may have to sacrifice their First Amendment rights in the name of national security, paramedics’ rights should continue to be secured and protected. AMR and GMR should not be allowed to create their own rules that have no regard for the United States Constitution.

    This case is important as it discusses the rights of first responders, a group of ordinary citizens that provide life-saving services. While there should be strict regulations for paramedics to follow in the name of preventing further spread of illness, it is important that their fundamental rights be protected in the process. If there is a way for all paramedics to wear a safe and effective respirator, yet still account for their religious beliefs, then such practices should be allowed.

https://www.firehouse.com/ems/news/21285409/nationwide-suit-filed-against-amr-gmr-claims-ban-of-facial-hair-discriminatory

Horn Lake Planning Decision strictly on Religious Beliefs.

  The town of Horn Lake contains 13 churches, and its surrounding county has 132 churches in total, with no mosques. Riyadh Elkhayyat, and Maher Abuirshaid applied to build the Abraham House of God in order to provide a place of worship for Muslims in the surrounding community. Despite the mosque’s plan having “met or exceeded” all requirements for approval.” receiving approval from the city’s planning commission, and being on land zoned for a house of worship, the Horn Lake alderman denied the request. In response, on behalf of the co-founders, the ACLU filed a lawsuit against the town of Horn Lake. The lawsuit alleged that the city discriminated against the mosque because of religion. The suit claimed that one alderman said the Muslim “religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” It also reported that another town official admitted that the application was denied “because they’re Muslims.” In a ruling in January 2022, a U.S. District Judge “has ordered that in no more than 14 days, the City of Horn Lake must grant approval for the site plan for a mosque located in the city.” In his decision regarding Horn Lake’s action the judge argued "its initial impression is that it presents very serious, and if proven factually accurate, strong allegations of religious discrimination." 

    Horn Lake violated the First Amendment’s Free Exercise Clause when they denied the zoning permit to the Abraham House of God. In the case Sherbert v. Verner, the Supreme Court created the Sherbert Test to determine if government action violates the Free Exercise Clause. The Sherbert Test is composed of three prongs. The first prong questions whether the governmental action imposed a burden on the appellants’ ability to exercise their religion. Horn Lake’s decision to deny the construction of the mosque did place a burden on the ability of the Muslim community to exercise their religion. There are no other mosques in the city of Horn Lake or the rest of the county. It is important for the Muslim community to have a place of worship, and by denying the application on purely discriminatory bases, the burden is even more substantial. Looking at the interpretation of the Sherbert test in Employment Division v. Smith, where it was determined that laws could burden free exercise if they were neutral and generally applicable, it is even more obvious that Horn Lake’s actions fail the Sherbert Test, as the project was denied purely because of its association with Islam. That leads to the second part of the Sherbert Test, determining if the burden on free exercise was justified because of a compelling interest. It is obvious in this case that there was compelling interest in denying the construction of the mosque. The planning commission recommended the project, it met all the requirements for construction. The only reason for the denial was because of blatant islamophobia and religious discrimination. The city aldermen specifically denied the project because it was for the Muslim community. Because the government does not have a compelling state interest in preventing the mosque’s construction, then the denial fails the Sherbert test, and is proven to be in violation of the Free Exercise Clause. 

The religion clauses in the Constitution state “Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The second part is the Free Exercise Clause. This clause is clearly violated by Lake Horn’s actions, as without reason, the city aldermen attempted to restrict the ability of their Muslim community from exercising their religion. This instance is similar to the Case Church of the Lukumi Babalu Aye v. City of Hialeah, as it consisted of the City of Hialeah creating laws in a direct effort to suppress the religious practices of the Church of the Lukumi Babalu. In the majority opinion, Kennedy writes that “a law targeting religious beliefs as such is never permissible.” This is almost exactly what happened in Horn Lake. The aldermen specifically rejected the planning permission because of the religious beliefs it represented. They even openly admitted that they denied the mosque because of the beliefs in Islam. Overall, the city of Camp Horn violated the Free Exercise Clause when they denied the Abraham House of God’s construction permit. Its decision failed the Sherbert Test, as there was no compelling state interest, as the proposal met all requirements. Lastly, the city officials in charge of giving permission openly discriminated against the mosque because of religion.

Teaching Transgender Topics to First-Graders: Restriction of Free Exercise?

    Megan Williams is a public school teacher currently employed by the Mt. Lebanon School District in Pennsylvania.  During the previous school year (2021-2022), Williams taught first grade.  During this same year, Williams’ transgender child was also in first grade.  Throughout the school year, Williams made a clear and consistent effort to educate the first graders on transgender and LGBTQ+ topics, despite the complete lack of this information within the district’s elementary curriculum. Williams received questions and complaints from parents throughout the year, but continued without regard for their concerns.  Instead, she responded by stating that she “ “has an agenda” and intends to teach “right on the edge.” Williams told one concerned parent, “as long as I am on this earth, I am going to teach children what I feel they need to learn”. 

    And that she did.  On March 31 (Transgender Day of Visibility), Williams devoted the majority of class instruction time to discussion of gender dysphoria and the transitioning process with the six- and seven-year-olds in her class.  However, this content was not contained to a single day.  Rather, throughout the school year, Williams brought up these topics and showed various transgender materials, including the video Jacob's New Dress and reading picture books such as When Aiden Became a Brother and Introducing Teddy.  These materials were intentionally designed to educate on transgender issues and were not a part of the curriculum.  No advance notice was given to parents.  

    Throughout the year, she became invested in one student in particular and had many one-on-one conversations in which she encouraged him to wear dresses and grow his hair long.  Williams continually mentioned similarities between this student and her son, and despite discomfort expressed by his parents, often told the boy that, “he could be like her transgender child”.  The boy’s parents claimed that Williams’ intent was to groom the student into acting and dressing like her own son.  In general, Williams prompted all of her students to question their gender identities, stating that, “sometimes “parents are wrong” and parents and doctors “make mistakes” when they bring a child home from the hospital”.  She also instructed her students not to tell their parents about their discussions.

    These behaviors are clearly inappropriate for a public school teacher to participate in.  However, for the purposes of this post, I will not be focusing on the individual instructor’s actions, but rather the district administrators’ response and role in this case. 

    The school administrators were well aware of the first-grade parents’ concerns.  Parents called the school, organized meetings, and expressed concerns throughout the year.  However, the administration supported Williams and gave her the authority to teach what she wanted.  The school adopted a ‘de facto’ policy involving the controversial material; parents were not made aware of the instruction in advance, and there was no choice for parents to opt their children out of these lessons.

    A group of parents from Williams’ 2021-2022 class filed suit against both Williams and multiple school administrators in Tatel v. Mt. Lebanon School District.  They asserted that both the ‘de facto’ policy and Williams’ resulting actions inhibit their religious free exercise and their right to raise their children as they see fit.  Specifically, it contradicted their sincerely-held religious beliefs that, “human beings are created male or female and that the natural created order regarding human sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with one’s identity, and biological reality, as either male or female”.  The parents’ religious beliefs also hold that they have a crucial role to “direct the upbringing and beliefs and religious training of their children”.  

    Therefore, the relevant question is as follows: does the Mt. Lebanon School District’s policy of denying parents the choice to ‘opt out’ their first-grade public school children from transgender instruction violate the parents’ free exercise of religion?

    On October 28th, 2022, Pennsylvania federal district court determined that yes, this was a violation of the First Amendment and allowed the case to proceed.  The school district refuted, arguing that the parents did not have any right to determine the material taught in a public school.  Nevertheless, the district court determined that the plaintiffs’ First Amendment claims were relevant. 

    By instilling the ‘de facto’ policy (which waived any requirement to notify parents of such instruction), the plaintiffs were restricted from fulfilling their religious parental roles – they were unaware of when this type of instruction would occur and had no power to stop their children from being exposed to it.  Despite claims that LGBTQ+ instruction is secular in nature, it is inherently religious to these parents because it directly contradicts the teachings of their church.  The district’s policy makes it so every child in Williams’ class will receive this instruction, regardless of the parents’ religious objections.  Thus, this policy limits the parents’ ability to raise their children as they see fit.  We can look back to the precedent set by Wisconsin v. Yoder.  In this case, the Supreme Court decided that Amish parents’ interest to internally educate their children after age sixteen took precedence over the state’s compulsory education laws.  Wisconsin v. Yoder demonstrated how the state’s compelling interest in education, though very important, can be subject to limitations when it restricts other fundamental rights; specifically, the rights “protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children”.  

    The effect on children in this case is another crucial element.  The first graders in this class were six and seven years old.  Introducing confusing subject matters and controversial topics at such a young age can be extremely disorienting and stressful, especially for children raised by religious families.  This type of instruction undoubtedly created many questions for children during a period in their lives when they should be focused on basic arithmetic, learning to read, and making friends.  The parents have a right to be concerned and they are justified in wanting to ensure the wellbeing of their children. 

    For these reasons, the district court decided that the plaintiffs’ claims were legitimate and allowed the suit to move forward.  Another primary reason for this was the lack of state interest in promoting the LGBTQ+ instruction.  Promoting equality and inclusion is important but was not deemed compelling enough in this case to justify the restriction of free exercise.  The court stated that, “Unless the school demonstrates that its conduct is narrowly tailored to achieve a compelling interest, a school’s interest in promoting tolerance, while laudable, cannot override a fundamental parental right about teaching sensitive topics that go to the heart of the parents’ relationship to their young children.”

    However, some might argue that by restricting the teacher from discussing her son with her students, Williams’ own right to free exercise and freedom of speech would be inhibited.  I would refute this by stating that while Williams occupies this role in a public school setting, she is mandated to abide by the school’s curriculum and complete her role as instructed while respecting the religious freedom of her students’ parents.  While Williams is guaranteed the right to belief, she is not guaranteed the right to act based on those beliefs in every situation – especially when she is working in a public school funded by the government.  

    What are your thoughts?  Do you think that the parents’ religious exercise was, in fact, restricted by the school district? Or do you think that Williams was simply exercising her own free exercise rights and freedom of speech by instructing her class in the way she deemed appropriate?