Texas Judge Rules Coverage of HIV Medicine Violates Religious Freedom

On this past Wednesday, September 7, a Texas federal judge ruled that businesses are not required to cover, through their insurance plan, a medication known as PrEP that prevents HIV infection. The lawsuit was brought by Braidwood Management Inc., a Christian for-profit corporation owned by Steven Hotze, on the grounds that compulsory coverage under the Affordable Care Act substantially burdens his religious freedoms. 

The Affordable Care Act requires that health insurance group plans provided by employers must pay for coverage of PrEP drugs for HIV, HPV vaccination, screenings for STDs, and behavioral counseling for drug use. Hotze objects to providing coverage for PrEP drugs because he believes that the Bible condemns sexual activity outside marriage between one man and one woman, as well as homosexual conduct; therefore, providing coverage for PrEP drugs violates his religious beliefs by making him complicit in encouraging homosexual behaviors, drug use, and sexual promiscuity, and infringing on his free exercise rights under the First Amendment. With this claim, Braidwood Management Inc. challenged the legality of the preventive-care mandates of the Affordable Care Act, under the Constitution and the Religious Freedom Restoration Act, with the desire to lawfully provide health insurance for employees that excludes the coverage of HIV drugs. 

To expound on the facts of this case, the Religious Freedom Restoration Act of 1993 put into law the Sherbert test, which was a Supreme Court precedent set in the ruling of Sherbert v. Verner (1963). The Sherbert test and the RFRA, respectively, deem that the government can burden an individual’s free exercise of religion only if there is a demonstrated compelling state interest and the application is the least restrictive means of achieving this government interest. Judge O’Connor of the Texas District Court used this test to rule in favor of Hotze. 

In my initial reading of the case brief, I was opposed to the court’s decision. If PrEP drugs reduce the spread of HIV, a potentially fatal infectious disease, then it seems obvious that the government has a compelling interest in public health and under the ACA, can require employers to cover this drug in group insurance plans. However, the real question lies in the contention of a substantial burden. Hotze believes it is a burden to his religious beliefs to cover PrEP in employee insurance plans because it facilitates homosexual behavior. But is providing this drug endorsing sexual conduct or simply allowing it? 

Hotze claims that covering the PrEP endorses or facilitates homosexual and sexual behavior in his employees. This drug is preventive, meaning it is taken pre-exposure to reduce the risk of future exposure to HIV, so the employer providing PrEP insurance coverage is not influencing employees to take that action but allowing the health of the employee to be protected if they so choose to. The substantial burden placed on Hotze’s religious beliefs is sincerely a moral burden in that there is ongoing dignitary harm; providing coverage in Braidwood’s self-insurance plan would make him feel as though he were complicit in behaviors that directly violate his religious beliefs and would place a burden on his conscience. These beliefs are absolute and protected under the free exercise clause, regardless of the fact that providing PrEP may not be directly endorsing sexual behavior. An employee has the choice, dependent on their religious views, to take the preventive drug or not use the coverage in the policy, but Hotze was not given that choice, as the coverage is compulsory. Does that infringe on his free exercise of religion, while allowing employees the free exercise of theirs?

Furthermore, while there is a compelling government interest in public health–controlling the transmission of HIV–requiring employers to achieve this interest through the ACA’s compulsory coverage places the government’s interest on the shoulders of the employer rather than the state. In a very similar Supreme Court case, Burwell v. Hobby Lobby, the Court ruled that a less restrictive means of achieving the government interest of the Affordable Care Act would be for the government to assume the cost of providing the service to employees due to the employer’s religious objections against contraceptives. The Sherbert test provided a clean-cut decision to that case, and led to the same conclusion that Judge O’Connor reached: Hotze should receive an exemption from coverage of PrEP under the ACA because of his sincere religious beliefs. 

A reasonable question to pose, following this decision is: Could this jeopardize access to many other preventive health services that the Affordable Care Act requires employers to cover? Although it is unclear what the impact of this ruling will be outside of the plaintiff company, I feel that it will not affect employee access to preventive care, but rather protect the employer’s free exercise of their religious beliefs by not requiring them to provide coverage of medication that they deem morally c​​orrupt to their employees. 

https://www.oyez.org/cases/2013/13-354

https://mail-attachment.go

https://news.bloomberglaw.com/daily-labor-report/judge-says-hiv-drug-coverage-violates-religious-freedom

https://www.bbc.com/news/world-us-canada-62827615

Is the US Government unconstitutionally undermining Apache holy lands?

Oak Flat, a 6.7 square mile plot of land within the Tonto National Forest in the heart of Arizona, has been long recognized as a holy site for the San Carlos Apache Indians. Since 1852, the US federal government has promised to maintain the site for the Apache and protect it from desecration, a promise that was upheld by the Eisenhower administration in 1955, when they expressly banned ore mining anywhere in Oak Flats. This agreement, however, collapsed in 2014, when the National Defense Authorization Act of 2015 (NDAA) was signed into law by then-president Barack Obama, ceding Oak Flats and 2,400 acres of adjacent land to Resolution Copper, a foreign joint-venture mining project, to strip mine Oak Flats for its subterranean copper deposits. If completed, the mining efforts will annihilate the holy site, quite literally turning it into a giant pit in the ground, much to the devastation of both the San Carlos Apache People and local residents. As of September 2022, Oak Hill remains intact, as Resolution Copper is still in the process of completing federally required environmental impact research on the site before they can break ground. However, the mining group has already acquired nearly all of the other needed excavation permits, so time is running out for an injunction or other legal action to halt the land transfer.

Apache Stronghold, a special interest group formed to oppose the creation of Resolution Copper mine, sued the US Government in early 2021 (Apache Stronghold v United States), arguing that the consequences of the NDAA placed an unnecessary burden on the Apache faith and prevented worshipers from carrying out a number of special ceremonies tied to that specific parcel of land. During the hearing, Apache Stronghold passionately argued that Oak Flat was their religion’s “Rock of Masada,” and that the annihilation of the site would permanently and irreparable damage their ability to communicate with their Creator. In a split decision, however, the 9th-Circuit Court of Appeals denied Apache Stronghold’s appeal, maintaining that the transfer of this land did not pose a “substantial burden” to the Apache People’s ability to freely exercise their faith. Instead, the majority opinion held that the land transfer simply constituted the discontinuation of a privilege—worshiping on federally held land—that had been historically extended to the Apache People, and that this privilege could be discontinued with impunity, since it did not amount to a coercive action against the established Apache religion. Naturally, Apache Stronghold has vowed to appeal the case to the US Supreme Court and hoped to have their case added to the October 2022 docket, though it was not accepted.

While I will quite readily concede that it is in exceptionally poor taste to strip the Apache People, who have historically suffered considerable degradation by the hand of the US Federal Government, of access to the Oak Flat holy site, I am inclined to side with the majority opinion of the 9th-Circuit in saying that the Apache People’s right to freely exercise their religion is not being unduly burdened by the actions of the US Government. Therefore, the land transfer does not constitute a constitutional violation. While the First Amendment indelibly protects the San Carlos Apache from having their right to worship unreasonably constrained by legislation, the amendment cannot realistically be interpreted to protect all holy sites of all spiritual traditions in perpetuity, especially when said holy site is neither owned nor administered by the religious institution that venerates it. Additionally, the only thing explicitly authorized by the NDAA clause was the transfer of a tract of public land to private ownership, a transaction that would have occurred regardless of whether the Apache People revered the land being transferred or not. The wording of this clause is entirely neutral towards the Apache religious tradition and does not deprive the Apache People of any benefit or special privilege under the law on account of their faith. Also worth noting is the prevailing public interest in harvesting the subterranean copper deposit beneath Oak Flat, an endeavor that could create hundreds of jobs and substantially lessen the United States' need to import copper.

Public School Refuses to Recognize Religious Club in the Name of Non-Discrimination Policy

 The Fellowship of Christian Athletes (FCA) is a Christian non-profit organization that has chapters on over 7,000 college, high school, and middle school campuses worldwide.  The group’s focus is “serving local communities around the globe by engaging, equipping and empowering coaches and athletes to unite, inspire and change the world through the gospel.”   Membership and participation in FCA events are open to everyone, regardless of religion or sexual orientation.  However, those who desire to have leadership roles in FCA are required to affirm both FCA’s Statement of Faith and Sexual Purity Statement.  According to FCA, this process is vital because the actions of student leaders must align with the FCA’s beliefs in order to maintain the ministry’s effectiveness and credibility.  The Sexual Purity Statement includes the belief that sexual relations should be limited within the context of marriage between a man and a woman.  Those who do not affirm this belief are still welcome to be a part of the group, but are unable to assume roles of leadership. 

Three high schools in the San José Unified School District have had District-approved chapters of FCA since the early 2000s.  During this period, no complaints were ever received from individuals who felt excluded or discouraged from seeking a leadership position due to FCA’s Sexual Purity Statement.  In May of 2019, FCA became the first club in San José Unified School District history to ever lose official recognition and the privileges that came along with it.  According to the District, the FCA’s Sexual Purity Statement conflicts with the District’s Non-Discrimination Policy, specifically in that homosexual students are not permitted to serve as FCA leaders.

 

The District’s Non-Discrimination Policy is as follows: 

“All district programs and activities within a school under the jurisdiction of the superintendent of the school district shall be free from discrimination, including harassment, with respect to the actual or perceived ethnic group, religion, gender, gender identity, gender expression, color, race, ancestry, national origin, and physical or mental disability, age or sexual orientation.”

 

The First Amendment provides that Congress shall make no law respecting the establishment of or prohibiting the free exercise of religion.  In this case, the free exercise clause is particularly relevant.  The question here is as follows: Does the District's refusal to recognize FCA as an official club infringe upon the students' free exercise of religion?

 

According to the courts, yes.  In 2021, FCA National, Pioneer FCA, and two of the FCA student leaders filed a complaint alleging that the District violated their right to equal access, free speech, and free exercise of religion.  On August 29th, 2022, the U.S. 9th Circuit Courts of Appeals ordered the District to officially reinstate FCA as an approved club.

 

I believe that by derecognizing the religious group as an official club, FCA lost access to the privileges and opportunities that other (namely, secular) groups have access to.  While the group was permitted to continue meeting, FCA was no longer included on official club lists, allowed space in the yearbook, or permitted to organize fundraisers on-campus... the main methods of recruitment.  They also lost the ability to have an official faculty advisor, as well as priority access to meeting spaces.  Thus, the District did not show neutrality between religion and secularism, but instead favored secularism.  The evidence for this favoritism is that other clubs in the district receive recognition and continued administrative support, yet violate the Non-Discrimination Policy.  Such organizations include Girls Who Code, Senior Women Club, South Asian Club, Persian Club, and Big Sisters/Little Sisters.  These clubs determine membership on the basis of both gender identity and national origin, yet are not held to the same standards as FCA. 

 

It is also worthwhile to consider the purpose and intended effect of the Non-Discrimination Policy.  This policy is in place to ensure the well-being and acceptance of all students.  Thus, the policy itself is not the issue, but rather its application.  The District’s Non-Discrimination Policy has historically been selectively enforced.  As mentioned previously, there are numerous other student organizations that actively contradict the policy, yet continue to receive approval and support from the District.  In this case, based on the actions of the District, it could be argued that the Non-Discrimination Policy was invoked in order to target FCA for its religious views on marriage and sexuality, rather than to truly create an inclusive space in which all students are welcomed and supported.

 

This case parallels another involving the University of Iowa (UI) and an on-campus student group called Business Leaders in Christ.  Similarly, the group initially received recognition and approval from the university, but lost that support in 2017 once they were accused of discrimination.  UI first accepted the club's leadership selection process, but later claimed that the group violated the school’s Human Rights Policy for selecting leaders who embraced the group’s faith.  The 8th U.S. Court of Appeals ruled in favor of Business Leaders in Christ, stating that UI discriminated against the religious student group, as the university “deliberately exempted some groups from its Human Rights Policy.”  The ruling read that “state organizations can’t target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious.”

 

What are your thoughts?  Do you believe that a public school's refusal to recognize a religious student club based on an inclusion policy is a limitation of the rights protected by the First Amendment?

Does San Jose Unified School District's Non-Discrimination Policy Discriminate Against Religious Organizations?

    The Fellowship of Christian Athletes (FCA) is “a national organization which supports student-athletes committed to living out their faith on and off the playing field.” Like other clubs and organizations, the FCA allows students with similar interests and beliefs to gather together. And just like other student groups, the FCA has certain expectations for those who choose to participate. While any student can join the FCA and attend meetings, student leaders are required to abide by the organization’s statement of faith, which includes the belief that sexual relations are allowed only between husband and wife. This FCA chapter functioned without any issues for over ten years in the San Jose Unified School District, until April of 2019 when a teacher raised concern about the group’s views against same sex marriage. Shortly thereafter, the school district revoked its recognition of the Fellowship of Christian Athletes, stating that the organization’s requirement of the statement of faith for student leaders went against the district’s non-discrimination policy. 

    The Christian Legal Society filed suit in 2020 against the San Jose Unified School District, claiming that the district’s policies violated the Equal Access Act and the First Amendment rights to association, free speech and free exercise of religion. The FCA believed they were targeted because of their religious views about sexuality and not because if their violation of the non-discrimination policy. Additionally, they pointed out how secular groups in the same district were not held to the same standards as the FCA and were allowed to discriminate against potential members. Other clubs and organizations’ constitutions limited membership based on gender identity or ethnicity, yet were not subject to the same punishment as the FCA.  One such group, the Leland High School’s Senior Women Club, was granted recognition despite its constitution clearly stating that only women are allowed membership. This case asks the following question: does San Jose Unified School District’s selective enforcement of its non-discrimination policy violate the  students’ first amendment rights to free exercise of religion?

    Ten years prior, in the Supreme Court Case Christian Legal Society Chapter v. Martinez, the court was asked to determine if Hastings College of Law did not have to recognize the Christian Legal Society. Hastings College required that all groups on campus allow “any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs,” which the Christian Legal Society did not do as it required a written statement from each member affirming their religion and relationship with God. The Supreme Court ruled that as the school’s conditions for recognition were neutral and reasonable, it was not a violation of the first amendment. Had the San Jose School District held all organizations to the same standards, this precedent would hold up and nullify the FCA’s argument. As a result of the selective enforcement and double standard of the policy, this precedent is not relevant to the matters of this case. 

    It is my opinion that the school district’s ban of the Fellowship of Christian Athletes does violate the student’s right to free exercise of religion. The district’s non-discrimination policy is neutral in writing, as it ensures that every club must allow any student, regardless of belief or status, to join. What is not neutral, however, is when they choose to enforce this policy. The Senior Women Club “explicitly stated its intention to exclude males from membership,” yet they faced no punishment from the district. There cannot be a double standard for who has to follow this non-discrimination policy.  Either all clubs must be held to the same standards, or any club can limit membership to certain individuals, be it by gender identity, ethnicity or religion. The district chose who does and does not have to follow the policy, and the groups that did not have to follow it are secular. As such, the district was not neutral between religion and secularism. It is concerning that the Fellowship of Christian Athletes’ violation of the non-discrimation policy was only brought to the district’s attention by a teacher who found offense to the club’s leadership requirement. The activities director of the high school shared that the other organization’s, who had clear violations of the non-discrimination policy, were able to keep their recognition from the district because there had been no grievances from students or faculty. 

    I think it is reasonable for the FCA to require its student leaders to share the organization’s beliefs and values, as they are the ones leading the worship, bible study, and representing their schools chapter of the organization. It is also important to note that this statement of faith is only necessary for student leaders, as any student in the school is welcome to attend meetings and does not need to share any common belief or value to do so. 

    On August 29, 2022, the Ninth Circuit Court of Appeals ruled that “FCA students must be treated fairly and equally and that the District could not discriminate against their religious leadership standards under the First Amendment to the U.S. Constitution and the Equal Access Act.” This ruling will ensure that even in a public school setting, students are guaranteed their first amendment rights, as well as the right to participate in non-school sponsored religious organizations, as afforded to them by the Equal Access Act.

Tennessee Couple Prevented from Adopting Child due to their Religion

Imagine you are hard at work with your partner looking for the proper agency to help you adopt a child and bring them into your home when suddenly your state prohibits you from adopting a child because you practice the "wrong religion." For Gabe and Liz Rutan-Ram this nightmare come to life was the case. The couple from Tennessee was looking to adopt a child from out-of-state; as a result of this they were searching for a foster-care agency that would provide them with the proper training and certification that was required by the state of Tennessee. When Gabe and Liz finally found one of the only agencies that matched their needs, Holston United Methodist Home for Children, they immediately reached out to work with the agency. It seemed like a perfect fit for the couple, but what they weren’t aware of was House Bill 836, a bill that was signed into law by the Governor of Tennessee earlier that year. This bill allowed taxpayer-funded foster care agencies to decide whether or not the family they were working with was the “right religion” or not. According to Holston United Methodist Home for Children, they did not want to work with the couple because the couple’s Jewish faith did not align with the beliefs of the Christian foster care agency. 

Not only did Gabe and Liz feel as if they were being discriminated against, but they also believed that their constitutional rights as American citizens were being violated. As a result, the couple decided to reach out to Americans United and filed a lawsuit against the Tennessee Department of Children’s Services. In this lawsuit the couple argued that the Department of Children’s Services disregarded the Tennessee Constitution’s religious freedom and equal protection guarantee by using tax dollars to fund an agency partaking in religious discrimination. The main and most important question in this case is whether or not this action performed by the adoption agency is an act of religious discrimination and a violation of the 1st Amendment. Unfortunately for the couple, their case was dismissed by a panel of judges in which the couple alleged adoption bias.

 Not only did the couple fear for their own freedoms but for the freedoms of others as well. This agency is not only partaking in religious discrimination, but this religious discrimination is actually being funded by our taxpayer dollars and is approved by the state of Tennessee. A person or a couple should be neither discouraged nor prevented from adopting a child and bringing them into their home solely based off of the person or couple's religion. Not only does this law prevent Jewish couples like Gabe and Liz from adopting from this agency, but it also prevents all members of the LGBTQ+ community and other religions that aren’t Christian from being able to adopt from these types of agencies. Although this law might appear to be facially neutral, it ultimately disparately affects certain groups of people. If the state can approve and influence things like this by using taxpayer dollars we must also question what else can they do by using our money. If the state is able to prevent people from adopting a child because they are the “wrong religion,” we must in-turn question where we can draw the line and where this ends. If the state can religiously discriminate in adoption as we see in this case, then they can surely use this reasoning in other sectors of life as well. 

A couple should not be prevented from giving a child in need a loving home solely based off of the fact that they practice a different religion than the agency that they are trying to go through. It should not matter what religion the person or the couple is, but what should matter is that they are a good person/people and that they are qualified to be a parent and to provide a loving and nurturing home for the child or children. People of all religions and religious denominations can be great parents, and a specific religion or set of beliefs should never be forced upon a person and their family. It is ultimately the parent's or parents’ choice to decide whether or not they even want to raise their kid under a religion, and the agency shouldn’t have any say or influence on what the parent or parents decide to do. In this case, we truly see a violation of one’s 1st Amendment rights by the adoption agency refusing to work with the couple due to the differing religious beliefs. 

Tampa Judge Grants 2 Military Members COVID-19 Exemption for Religious Purposes

     In February 2022, a federal judge in Tampa, Florida provided two military members with religious exemptions from President Biden's COVID-19 vaccine mandates for military personnel. One man being a Navy warship commander, while another being a Marine Lieutenant Colonel were provided the exemption by the judge explaining in forty-eight pages as to why the requirement places a burden on their religious exercise as the two men were said to be devout Christians. What makes this particular case unique is that the Navy and Marines have denied over 90% of 7,500 requests for religious exemptions of vaccinations. The question of this case is: is denying a religious exemption for a vaccination a violation of the free exercise clause?

    In order to properly evaluate this debate, a couple of facts should be provided in regards to the military and vaccinations. In addition to the COVID-19 vaccine, military members regardless of locations are required to have the following vaccines, adenovirus, hepatitis B, hepatitis C, influenza, measles, meningococcal, poliovirus, tetanus-diphtheria, and varicella. Vaccinations have been a part of the military lifestyle in order to protect members from dying of diseases. Those who argue in favor of not giving religious exemptions for vaccinations could argue that there is no one making these men serve in the military, just as no one is making Bucknell students attend Bucknell, thus allowing for a vaccine mandate. On the other hand, those in favor of granting religious exemptions of vaccinations could then argue that they are being denied certain job opportunities, college admissions, and different forms of travel based on their religious ideologies. 

  When looking at the case of the two men being granted their religious exemptions for the government mandated COVID-19 vaccination for military personnel, it is helpful to examine a previous court case in looking at the free exercise clause, Jacobson v. Massachusetts. This case was set in 1905, around the time in which smallpox was very common, the state of Massachusetts required citizens to be vaccinated, only when, in the opinion of the board of health, that was necessary for the public health or public safety. In this case, it was stated that there was an exemption for children that had received a signature from a physician stating that they were unfit for vaccination. However, in regards to religion, this case did state that, "We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the state" (FindLaw). 

    In regards to the Jacobson v. Massachusetts case, America has changed greatly since 1905. However, does the principle of the government doing what is necessary for the public health and safety change? I believe that the concept of the government being able to decide what is and is not necessary for the public health and safety can lead to a slippery slope. One then might ask when is a disease enough to be considered public health and safety? Would it be measured by the number of deaths? Would it be measured by the mortality rate? The free exercise clause protects citizens' rights to practice religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" government interest. The ultimate question is thus whether or not one believes that government-mandated vaccines for military personnel aligns with a "compelling" government interest. 

    In the case in regards to the two military men, the judge ruled in favor of religious exemption for vaccination. This ruling is in the minority, as 90% of 7,500 requests for religious exemptions for vaccinations have been denied by the Navy or Marines. The military over time has tended to be more liberal on its policies with different groups such as women, LGTBQ, and other minorities. Regardless of my personal beliefs on vaccination mandates, I see the "compelling" government interest aspect of vaccinations as a factor that would prevent courts from granting religious vaccinations. I am surprised that the Tampa judge allowed the exemption. A couple of closing questions that I would pose is how are courts going to rule moving forward? Would every religion get their own exemption from mandatory military vaccinations? Will the government keep requiring military personnel to be vaccinated knowing of the religious exemptions?

https://www.fox13news.com/news/tampa-judge-grants-2-military-members-exemption-from-vaccine-mandate-on-religious-grounds

https://www.newsweek.com/list-vaccines-mandated-us-military-covid-1641228

https://caselaw.findlaw.com/us-supreme-court/197/11.html

https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion

Freedom From Religion Foundation, Inc. et al v. New Kensington-Arnold School District

In 2012 a mother and her daughter filed a lawsuit against the Kensington-Arnold school district in Western Pennsylvania, arguing that the presence of a monument depicting the 10 Commandments violated the establishment clause of the First Amendment. Even though her daughter did not yet attend the high school, the mother, Schaub, first saw the monument while attending her daughter's karate tournament at the school. Schaub believed the display was "commanding" that students and visitors worship "thy God." The monument in question was donated to the school in 1956 by the Fraternal Order of the Eagles. In 2015, the district won the lawsuit in federal court because the judge decided that the girl did not have much contact with the monument because she was not a student at the school. Then the 3rd U.S. Circuit Court of Appeals reversed the ruling. Eventually, in 2017, the district and the appellants reached a settlement that would see the monument's removal and the school pay $164,000 in legal fees.  

The 3rd Circuit made the incorrect decision when they reversed the previous one, as precedent exists supporting the first decision. The 2005 case, Van Orden v. Perry, provides the precedent. In this case, the Supreme Court determined that a monument depicting the 10 Commandments in a Texas public park did not violate the establishment clause. This monument was donated in 1961, also by the Fraternal Order of the Eagles. The court voted 5-4 in favor of Texas, arguing there is an “unbroken history of official acknowledgments by all three branches of government of the role of religion in American life.” The Supreme Court's opinion continued, arguing that this history gives the 10 Commandments a secular meaning in the United States. In his concurring opinion, Justice Breyer echoes a similar sentiment, asserting that the 10 Commandments can represent a "secular moral message." He also argued that the government must be cautious about acting against religion and should realize that it is impossible to remove all religious symbols from public spaces. 

The similarities between this case and the New Kensington case run deep. Both involved monuments that had stood for over 50 years, they had been donated by the secular group the Fraternal Order of the Eagles and also included secular symbols such as the eye of providence, the American flag, and eagle. I believe that these facts and the arguments presented by the justices in Van Orden v. Perry prove that the 10 Commandments monument did not violate the establishment clause. 

The 10 Commandments monument stood for over 50 years on the high school grounds. Initially donated to the school by a secular group, as one of 10,000 similar plaques, the monument had the purpose of "encouraging citizens to use the Commandments as a guideline for treating others and building a stronger community." The original meaning and context surrounding the monument need consideration when contemplating its removal. I do not believe the monument violated the establishment clause. The establishment and free exercise clauses prevent the government from actively promoting or dissuading religious practice. The display did not represent the promotion of religion due to its context. It did not encourage people to practice religion but instead to live up to a moral code that is, for the most part, pretty widely accepted in the United States. When viewed historically, this becomes clearer as when the order donated the monument, the nation was even more religious than today and most likely believed that the 10 Commandments were even more representative of the requirements for a united and just community than today. It is also necessary to understand that because the monument stood for over 50 years and was part of a nationwide effort by the Fraternal Order of the Eagles, it became a historical monument to the organization and what they stand for and surpassed the realm of religion. 

The district also should not have removed the monument because the role of government is not to be against religion but instead neutral towards both religion and irreligious causes. When the school removed the monument it represented a violation of this principle and made a statement that the government does not allow any display with religious influence to be in the public sphere. This action not only violates the First Amendment but also sets a precedent that would be almost impossible to follow, as there are thousands of monuments at risk of being torn down. 

The 10 Commandments Monument at the New-Kensington- Arnold high school did not violate the establishment clause as it also had secular and historical significance. 

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