Should Prison Rules Be Banned if They Inhibit Religious Practice?

 Jan Gawlik, 56, is serving a 60 year prison sentence for murdering and dismembering his 90 year old father, Jozef Gawlik, in New Britain in 2011. Gawlik says he was possessed by Satan at the time of the murder, in addition to being on cocaine, but has repented, and seeks to change his life. He says he is now studying to be a Roman Catholic priest, stating he wants to give the rest of his life to serving God. However, Gawlik has faced some roadblocks in this quest, as he recently lost a legal fight against state prison officials. He accused these officials of violating his first amendment constitutional rights by blocking his orders of religious materials he needed to practice priesthood, which mainly consisted of used religious books. The U.S. Supreme Court has declined to hear Gawlik’s appeal of this ruling, which stated that the blocking of this order did not violate his rights that are protected under the first amendment. The main issue at hand is whether or not Gawlik should be allowed to put in these orders of used books and materials, as Connecticut prisons have a rule that bans prison inmates from acquiring used books. The reasoning behind this law is that this decreases the chance of the smuggling of any contraband, or any hidden messages. This is especially easy to do with worn books. The prison officials testified that the law did not directly hinder Gawlik’s right to practice religion, as he could simply put in the orders for new materials and books. However, Gawlik sought to end this ban of used books, as some of his desired books are no longer in print from a certain publisher, and are nearly impossible to find new, while they can easily be acquired used. In response to this, the prison officials stated that he could still find other books to study that could be ordered new, and that the ban did not ban these materials because of their religious use, but simply because of the used book ban that applies to all people of all religions. Because of the neutrality of this ban, Gawlik was unsuccessful in obtaining these unique used books. This issue relates to our previous discussions of the free exercise clause when applied to circumstances regarding prison rules, and generally neutral laws that happen to restrict one's practices. In regards to people who feel that their religious rights are violated while in prison, it is important to understand that prisoners are expected to follow many rules and bans that are put in place not only to protect the citizens of the state from the prisoners, but the prisoners from each other. This ban was clearly found to decrease the probability of an inmate being able to smuggle in contraband, and is solely in place for that reason. This is a neutral ban, and although in this circumstance it inhibits a prisoners ability to study a certain religious text, it is important to realize that when one is incarcerated they are subject to certain rules. As long as these rules do not directly infringe upon one's first amendment rights by design, they should be followed, and it is up to the inmate to adapt to the situation that they have put themselves in. There are a few implications for this legal debate, depending on if this ruling stands or is reversed in the near future. One bad implication that could come into fruition of this ruling staying as it is is that just because prisoners have made mistakes, that they are not entitled to equal constitutional rights. The only reason a rule should infringe upon one's constitutional rights is if it is neutral at its base. A reversal of this ruling, however, would bring forth the implication that one can cite their religious views as being anything, and get their way simply because it is their “religious right.” It is important that we understand this slippery slope, and when a rule, ban, or law is generally for the better, and when it is an outright infringement disfavoring a minority. This is a very important issue, and I feel that it was handled correctly. I truly believe this ban was neutral, and that there are ways this inmate can still learn to become a priest and practice his religion, possibly with different, new books.  

Archdiocese of Galveston-Houston v. HHS

    Currently there are 25,000 children waiting to be placed with foster families in the Texas foster care system.  The Archdiocese of Galveston-Houston is a Catholic ministry in the state that currently does a great deal of charity work with the poor, the widowed, and immigrants in Texas.  All this work they do is motivated by compassion and their Catholic faith.  The Archdiocese of Galveston-Houston would like to expand their charitable efforts by caring for the foster children of Texas and helping to place them with their 'forever families'.  As of now, the Church argues this is not possible.   A 2016 Department of Health and Human Services (HHS) regulation "requires religious foster care agencies to place children with same-sex couples even if doing so would go against their religious beliefs."  The diocese is arguing that this violates existing Texas law that allows foster care agencies to refer couples to other agencies if they cannot work with them due to religious reason.  Clearly, the federal regulation is being enforced over the Texas law in this case.

    The Archdiocese makes a good case for why they would like to help, and more importantly why they are capable of helping.  They have a tremendous amount of resources and in 2018 gave over "25,000 meals to seniors, provided over $10 million in disaster-recovery aid, and filed nearly 4,000 immigrant petitions on behalf of refugees and immigrants."  Given the breadth of their aid, they do not discriminate against most groups.  However, they are admittedly in violation of the HHS regulation regarding foster children and same-sex couples.  They argues however that the HHS is discriminating against religious groups by forcing them to place children with same-sex couples if they were to operate as a foster care service.  Catholic institutions have historically been able to hire and fire people who do or do not follow the beliefs of the church and there is currently a large legal gray area given various religious exemptions.  This often leaves state law to decide such cases, and Texas has limited protections for gay couples.  While the HHS under the Trump administration said they would adjust to rule to allow more religious freedom the Archdiocese of Galveston-Houston is currently taking their case to the Supreme Court to ensure the protection of their free
exercise of religion.

    This case is quite similar to the yet undecided case of Fulton v. Philadelphia  where the city barred Catholic Social Services from placing children in foster homes because they refused to license same-sex couples to be foster parents.

    The key question in this case is whether or not the Catholic Church has a right to discriminate against same-sex couples under the First Amendment's Free Exercise Clause.  In many instances we see the Supreme Court uphold neutral laws that may have an incidental, but not direct, burden on religious action.  In Braunfeld v. Brown (1961) the court ruled against Orthodox Jews who believed that a Sunday closure law limited their free exercise of religion.  In that case the court found that a neutral laws that serves a valid secular purpose was constitutional even if it placed such an incidental burden on religion.  Likewise, in Bob Jones University v. United States (1983) the Supreme Court ruled against certain actions justified as free exercise of religion.  In the Bob Jones case the court ruled that the IRS was constitutionally within its rights to remove a federal tax exemption for the school because of its religiously based discriminatory policies against interracial relationships.  Just like the case of Bob Jones University, the Catholic Church is seeking to discriminate who it provides services to based on sincerely held religious beliefs.  

    However, more recently the Supreme Court has ruled in favor of religion based discrimination based on free exercise.  In Masterpiece Cakeshop, Ltd.  v. Colorado Civil Rights Commission (2017) the court ruled that the Masterpiece Cakeshop owner did have protection under the Free Exercise Clause of the First Amendment to refuse to make a wedding cake for a same-sex couple.

    This case has serious implications for the way the religious organizations including the Catholic Church will be allowed to operate in the United States.  Historically, they have been able to make a wide array of service and employment decisions based on their religious beliefs.  Recent and expanding protections for LGBTQ people in the United States will affect how they may operate going forward.  I believe that the Archdiocese of Galveston-Houston should be allowed to follow Texas law where they can deny their services to same-sex couples on the basis of the Free Exercise Clause, while still being made to refer those couples to other foster care agencies.  As the Archdiocese of Galveston-Houston argues, allowing them to provide foster care will not limit the options of foster parents and foster children, but will instead expand the amount of assistance both will receive.  Forcing the Catholic foster care agencies to violate their sincerely held religious beliefs or not operate at all is a violation of their free exercise of religion.  While the Supreme Court has held neutral laws valid, this regulation is not neutral towards religious groups.  It forces them to operate against their beliefs and therefore violates the Free Exercise Clause.

Chung v. Washington Interscholastic Activities Association

Joelle and Joseph Chung are both passionate tennis players who are also members of the Seventh-day Adventist Church in Chehalis, Washington. Specifically, Joelle was a top tennis player for her high-school and could compete at a high level. However, her senior year she was not able to finish her season because she was disqualified from the state postseason competition of the Washington Interscholastic Activities Association's (WIAA) due to her religious commitments. The last day of the State Championships was scheduled on a Saturday, which also happened to be the last day of the tournament, and this day is the Sabbath day for members of the Seventh-day Adventist Church. The only exception that was given to athletes to miss the tournament was for injury, illness, or unforeseen events. The Chung family asked the WIAA for an exception for religious beliefs and were denied. Even though Joelle has graduated, they still want Joseph, a sophomore at the time, to be able to participate in all competitions in the future without fear of disqualification due to religious commitments on Saturdays. After this denial, the Chung's sued in August 2019 on the grounds that the WIAA was discriminating by making exceptions for secular reasons but not for religion. They argued that this was a violation of the Free Exercise clause of the First Amendment. After the lawsuit, on August 27, 2019, the WIAA added religious observance as an acceptable exemption for missing the tournament. While a small victory, the Chung's were not satisfied because the WIAA still refuses to accommodate religious observance and adjust the schedule of the tournament. Even with religious observance being added to the list of exemptions, the Chung's are arguing that the WIAA is still violating the Free Exercise clause of the First Amendment. They are still waiting on a hearing in the United States District Court for the Western District of Washington.   

The original rule for exemptions was not facially neutral because it provided exemptions for secular reasons and not religious reasons. By changing the exceptions to allow secular and religious exemptions, the WIAA is making the rule and its enforcement facially neutral. The main issue that is still present is that the dates of the tournament are causing a substantial burden on the Chung's and other players' ability to freely exercise their religion. They will still have to make a choice between asking for an exemption, forfeiting, or going against their religious beliefs to play. The WIAA does not schedule any state championship tournaments to be played on Sundays, and specific to this case, they have the 2A boys' and girls' state tennis championship tournaments conclude on a Saturday. This allows other religions who practice their religion on Sunday to still be able to freely do this, while those who celebrate the Sabbath will have a conflict and choice to make.

One case that is important to look at for the decision of this case is Braunfeld v. Brown. In this case Abraham Braunfeld, an Orthodox Jew, is prohibited by his faith from working on Saturday. He owned a retail clothing and home furnishing store in PA, and under PA blue law he cannot be open on Sunday's. This meant that he would have to be closed on Saturday due to his faith and Sunday due to the blue law. He filed a lawsuit saying that he needed to be open six days a week in order to make enough money, so he wanted to be permitted to be open on Sundays. The Supreme Court ruled that the PA blue law did not violate the Free Exercise Clause and Braunfeld is not permitted to be open on a Sunday. They reasoned that there was a secular basis to the law and it didn't make any religious practice unlawful. It is an indirect burden for Braunfeld's religious observance, and while unfortunate for Braunfeld, it does not cause it to be unconstitutional. The same reasoning can be applied to Chung v. Washington Interscholastic Activities Association. 

With the change to the exemption rules to include religious observation, they have done a good job at making it so there is not a substantial burden placed on their free exercise of religion. The days this tournament is played now just places an indirect burden on the Chung's, however if they choose to not play on the Saturday they will be granted an exemption. While everyone has the right to participate in sports, there is no way for everyone's personal schedules and commitments to be accommodated. It is not possible for there to be total freedom from restrictions on the days it will be played. If the days were to be changed, it may also conflict with other religions days of observation. The tournament dates do not appear to have been picked to purposely conflict with the Seventh-day Adventists Church members day of worship, so it is not purposely excluding one religion. While being able to play sports is a great opportunity for everyone, it is not something that they all will be able to do at all times. There are plenty of things, whether secular or religious, that conflict with sporting events and at a certain point people need to make decisions. The WIAA has already adjusted their policies to allow for religious exemptions, so I do not think there is a need for further change because there is no longer a direct burden on the Chung's free exercise of religion rights. This is why I do not believe that the WIAA state championship tournament dates are a violation of the Chung's Free Exercise Clause of the First Amendment.

A.H v. French

Many high school students around the country participate in dual enrollment college programs to prepare for life after high school as they proceed on their journey of higher education. In the State of Vermont, the dual enrollment program was open to all students who attended a public high school, secular private high school, or were homeschooled to attend college classes at the public expense, but restricted any student who went to a private religious school from taking part in the program to get ahead on their college course work. The purpose of this program was to, "promote opportunities for Vermont students to achieve postsecondary readiness through high-quality educational experiences that acknowledge individual goals, learning styles, and abilities". The provision of the law required that each student must prove that their high school tuition is publicly funded to be eligible for the program. The reason for the restriction comes from the Vermont Constitution that states no funding may go to any form of religious education which was interpreted by the the town tuition program to bar students who went to religious high schools from accessing public funds of the dual enrollment program. The Alliance Defending freedom filed a lawsuit against the State of Vermont in January of 2019. In May of 2019, the Department of Justice filed interest the case and deemed it wrong to discriminate against religious high school students. The case was then brought to the US Court of Appeals for the 2nd Circuit and they stopped the program from excluding from private religious high school students as the case moved forward. This case has not been heard by the Supreme Court but there are precedents that closely identify with the questions in this case.

    The constitutional issue that this law presents is whether or not the restriction of private religious high school students from the Vermont dual enrollment program breaches the free exercise clause of the First Amendment of the Constitution. The free exercise clause, "protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status". In Trinity Lutheran Church of Columbia v. Comer, the Supreme Court struck down a provision in the Missouri Constitution that restricted any organization owned by a church or religious organization from receiving funding to to resurface a playground. In addition, in Espinoza v. Montana Department of Revenue, the Supreme Court reversed a Montana State Supreme Court ruling that prohibited scholarship money from going to students who attend private or religious schools. The basis of the Supreme Court argument was that the state cannot discriminate on the basis of religion when determining the allocation of public benefits. Religious individuals must be treated equally and be protected from discriminatory treatment. The question that this case brings up is whether or not the state can restrict students from public funds based on a religious affiliation? Does practicing religion actually incur a cost on the petitioners' free exercise in this circumstance to attend college courses?

    I agree with the ruling of the 2nd Circuit because this dual enrollment program clearly inhibits the free exercise of religious beliefs on the students who attend religious schools. The publicly funded dollars in this case are going towards the student themselves to advance their opportunity at a state university, not the religious school itself. This program is to benefit individual students and should not be allowed to exclude any individual on the basis of religious status. I do not believe that this provision of the dual enrollment program possesses neutrality in any sense as those who wish to exercise their religious education are directly discriminated against. This law provides the the families with a choice to either practice their religious beliefs or experience a negative economic impact and miss out on a general public benefit. Religious individuals and organizations are permitted to benefit from general governmental services. The law must not advance or inhibit religion in its effect which is clearly in contradiction with the premise of the dual enrollment program. This is a pure example of the government imposing unequal treatment on those practicing religion which the Constitution is clearly set out to protect. One of the attorneys on the case said, “As the U.S. Supreme Court held just the year before last, a state cannot discriminate against students by excluding them from generally available public benefits simply because they attend a religious school.” This case has precedence in the Supreme Court which has ruled multiple times that state funding cannot be exempt on the basis of religion which this program does.

Florida Law Allowing Prayers Before A Game

On March 17th, the Florida House Secondary Education & Career Development Subcommittee voted 13-4 to approve a bill that would require the Florida High School Athletic Association to give each competing team an opportunity to address the crowd over a public announcement system before each game. This would be for no more than two minutes each, but according to Republican Rep. Webster Barnaby this address could include prayer. This law would apply to public and private schools. 

 

The two main sponsors for this bill are Republican Rep. Webster Barnaby and Republican Rep. Clay Yarborough. Rep. Barnaby’s main argument in support of this bill centers around the fact that in many other governmental institutions, such as the House of Representatives, prayers are commonplace. He is even quoted saying “I recall the first day that when all of us sat in that House, we opened the House of Representatives with what? Prayer. No one objected to the prayer that was said in the House of Representatives. If it's good enough for us as representatives it ought to be good enough for our children.” Rep. Yarborough, in agreement with Rep. Barnaby, said the bill “was filed because several years ago two Christian schools faced each other in a football championship game were told by the state athletic association that they couldn't deliver a prayer to the crowd before the game”. The language of the bill is such that the Florida High School Athletic Association “may not control, monitor, or review the content of the opening remarks and may not control the school’s choice of speaker”. This was done to show that the association was not responsible and that whatever was said during this period of free speech was not reflective of the views of the state, as to not excessively entangle the state with religion if this time was used for prayer.

 

Many who oppose this bill have raised concerns about the lack of control over the student’s messages and claim this would inevitably lead to issues such as teams delivering negative messages about other teams and the entanglement of state and religion if employees of the state, such as teachers, were delivering these messages. Additionally, they claim that if this message was allowed to include prayers this would lead to students of different faiths competing for the time and their message. Democratic Rep. Susan Valdes, a former Hillsborough County School Board member, said “I’m concerned that maybe these freedoms might be taken to a different level and create a problem. The intent of the bill, I get it. I’m concerned more about the practicality and the processes of how these policies would be taken into effect.” This bill still needs approval from one more committee before being passed.

 

The key issue in this case is whether or not the speech given by the team would be considered private speech, during which they could choose to say a prayer, or public speech where what they say would be representative of the government. If the students choose to pray, this raises the issue of if this speech means that the government is simply allowing individuals the choice to exercise their free speech rights. Additionally, this would also raise concerns regarding if this can be considered indirect aid to religion.

 

Two cases that deal with similar issues are Marsh v. Chambers and Sante Fe Independent School District v. Doe. In the Marsh case, a Nebraska lawmaker challenged the states chaplaincy practice in federal court. This practice involved the offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds. The court ruled 6-3 to uphold the chaplaincy practice because of the “historical custom” of this practice, and Justice Burger went on to say that because this practice was “part of the fabric of our society” it is not an establishment of religion. This is important to this case because it shows the court has a history of upholding prayers as not an establishment of religion, and that the historical precedent and significance of these sorts of prayers weighs heavily in the court’s decision. However, it is also important to point out that the court ignored the Lemon test in reaching their decision in this case. The Sante Fe Independent School District case was a challenge against the practice of an elected student delivering a prayer of the schools PA system before each home varsity football game. In this case, the court ruled 6-3 that student-initiated prayers at a football game violated the Establishment clause. They reached this decision because they decided that the policy involved both perceived and actual government endorsement of the delivery of prayer at important school events, due to the prayer being part of a government policy and taking place on government property at government-sponsored school-related events. 

 

In regard to Florida Bill, I believe that this law should not be passed or at least upheld if challenged in the courts. This is primarily because I believe this law is an establishment of religion. It can be seen from the ruling in the Sante Fe Independent School District case that governmental policies, even if they only allow religious speech, violate the Establishment clause if this speech is on governmental property during a governmental sponsored school event, which is exactly what the proposed law would allow to happen. Furthermore, I disagree with the part of the law that prevents this speech from being regulated because it could open an opportunity for hate speech and could lead to issues where students of various faiths compete for the ability to have their prayer heard. I specifically see this as an issue for minority religions that may be coerced or prevented from speaking by the majority. Lastly, while it is important to recognize that prayer is well integrated into our governmental practices and its historical significance should be acknowledged, as shown in the Marsh case, I do not think it should be used as justification for this law as Rep. Webster Barnaby suggests. Just because something is an accepted practice in a legislature does not mean that in a different context it should still be upheld. Specifically, to this case because this prayer is being delivered at a school during a school sponsored activity and this can be viewed as an establishment of religion because it utilizes the state’s compulsory education system and finances a religious exercise, which were shown to be unconstitutional in cases such as McCollum v. Board of Education and Engel v. Vitale.

Michigan State Prison v. Female Muslim Prisoners

Individuals give up certain rights when they commit a crime and become incarcerated. However, prisoners are not stripped of all of their rights, and thus there is a slippery slope defining what rights prisoners are still guaranteed while in prison. In the Michigan Prison, Huron Valley Correctional Facility in Pittsfield Township, four Muslim Women filed a Federal Law Suit against the prison stating that the prison violated their Free Exercise Clause by forcing the removal of their religious headwear for mugshot photos. The lawsuit also requests that the Michigan Mugshot law that “prisoners shall wear state-issued clothing for the photograph of their face and headgear shall not be worn” (Gus Burns) be revoked. This law was established by the Michigan Department of Corrections Policy and was created to have uniformity across all prisoner mugshot identification photos. The underlying issue of this lawsuit was that the mugshot policy was ultimately degrading to those in religious minorities, specifically those of the Islamic faith.  

The hijab is an essential accessory and obligation for women of the Islamic faith. It resembles the idea that Muslim women must wear the hijab to prove their loyalty to the Allah. Allah is the Islamic God, and if a Muslim women is seen outside of the household not wearing her hijab, she is believed to be impure. The hijab embodies the modesty of a woman’s figure and represents the privacy of her household. It is required to be worn in public and around those not in a woman’s immediate family. If not worn, a woman is considered exposed to society and is viewed as vulnerable. Ultimately, if a woman is seen without her hijab it is as if she is presenting her naked body for all of society to see. 

The four Muslim women prisoners involved in the Michigan State lawsuit are identified as: Jamia N. Robinson, Semeria Greene, Julia Catlett, and Tracy M. White. All four of these women committed both second degree murder, and or first/second degree child abuse. They have been sentenced to 18+ years of prison. Under the lawsuit, the women demand financial compensation from the government for the prison's unlawful actions and the emotional degradation they faced when forced to remove their headwear for mugshot photos (Gus Burns). Ultimately, the court has to evaluate the circumstances of this case by determining “whether government officials in prisons, police booking rooms or ID issuance offices can legally require the removal of religious headwear, including head scarves or turbans'' (Gus Burns) and comparing it to other precedents. The four female prisoners believe the Prison’s policy violates their Free Exercise of Religion because since wearing their religious headgear does not place a harm on others, the headgear policy should not apply to their religiuos headgear. The women further argue that the headgear policy for mugshots is discriminatory against the Muslim religion and other minority religions in general.

One side could argue that if prisoners wanted protection of their First Amendment rights, then they should not have broken the law. However, Individuals do not forfeit all rights when they become incarcerated, so the question becomes where does one draw the line? The Michigan State Prison has this policy in place because it is most convenient in recognizing & identifying prisoners due to the want for uniformity across all mugshot photos. A precedent in Goldman v. Weinberger (1986) originally ruled that the Air force policy, requiring the dress code and the restriction of wearing religious headgear along with the uniform, was constitutional and not in violation of the Free Exercise clause. This originally was concluded because of the idea of national security & representation of a nation. Thus, it was considered Constitutional for the Air force to restrict Goldman from wearing his Yarmulke on air force base. 

However, this case was later overturned and a new policy was established that religious headgear could now be allowed on the Air Force base, as long as it matched military uniform & did not give other Air Force soldiers the idea that this individual was higher in rank. It is the duty of the court to protect religious minorities against quiet erosions, which explains why this case was overturned. Given the similarity between this case and the lawsuit regarding Michigan State Prison v. Female Muslim Prisoners, the court should rule the Michigan State prison mugshot policy unconstitutional and redefine it.  Religious minorities should be allowed to keep on their religious headgear when required to take a mugshot due to the degradation that results if this headgear is removed in public. Even though these individuals shouldn’t have committed a crime in the first place to avoid facing this policy, it should still be considered unconstitutional as it is discriminatory to minority religions that are obligated to wear headgear in public settings. Requiring the removal of religious headgear ultimately is in violation of the Free Exercise clause because even though the rights of prisoners are limited, the Free Exercise clause is still applicable to prisoners.

Maxon v. Fuller Theological Seminary

Fuller Theological Seminary is a globally leading Christian graduate institution, training its students to eventually become Christian leaders in communities across the world. As part of their religious obligation, Fuller has strict conduct rules that align with Christian moral understandings. One of these moral expectations is based upon the stated Christian understanding that, according to God, marriage must be between a man and a woman and that sexual relations must be saved for this heterosexual, marital union. Fuller requires all potential students to acknowledge and physically write consent to abide by these explicitly stated conduct rules. Two students at Fuller, Joanna Maxon and Nathan Brittsan, took legal action against the seminary after they were both dismissed from the program when each student entered a same-sex marriage. While Maxon and Brittsan argue that Fuller is unconstitutionally discriminating against them based on sexual orientation, Fuller claims that a court forcing Maxon and Brittsan to remain enrolled in Fuller, despite their clear violation of required conduct, would be an unconstitutional violation of Fuller's right to free exercise.

The question here is one of deciding if religious reasoning can constitutionally justify discriminatory acts such as the one against Maxon and Brittsan in this case. In class, we have often discussed that free exercise must have some sort of limit - organizations cannot be permitted to practice their religion any way they want, as it may lead to a slippery slope of defending any and all potentially disruptive or dangerous action with the excuse of religion. Does this clear discrimination against sexual orientation justify a disruption of social good that the courts would need to intervene and protect? In a similar case, Bob Jones University v. United States, the court did ultimately decide that the university's clear discrimination against potential students of color was so disruptive to social justice that it disqualified them from receiving previously granted tax benefits. Can the same sort of thought process be applied here - is the dismissal of these students so disruptive to the greater good that the court can force Fuller to abandon their religious viewpoint and maintain the enrollment of students who blatantly disregard their strict Christian moral code? Or, as the legal team for Fuller argues, would the court's support of Maxon and Brittsan be an act of coercion, forcing religious organizations to abandon their religious beliefs and limit their free exercise by requiring enrollment of all students, despite clear violations of the religious organization's standards. According to Fuller's legal team, this would promote excessive entanglement between church and state due to the state's insertion of their own standards into the ways in which religious groups choose to train their leaders. 

I agree with the argument of Fuller's legal team and believe that, as discriminatory and unjust as I personally believe their moral code to be, Fuller is constitutionally protected in their right to train their religious leaders how they want, and that insertion of the state's standards into this process would be coercive, a violation of free exercise, and would lead to excessive entanglement - a violation of the third prong of the Lemon Test. Additionally, requiring Maxon and Brittsan to remain enrolled would be a violation of ministerial exception, a concept that allows churches to choose their own leaders. The case EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School set a precedent to the concept of ministerial exception, holding that churches have the right to dismiss a minister who violates church teachings, unanimously ruling that religious organizations have the freedom to select their own leaders and ministers. Because Fuller is a graduate institution training future Christian leaders, I believe the same applies here. While a connection to the Bob Jones University case could be argued, I don't believe it is relevant. The court's ruling in that case did not pertain to the ways in which the university operated, as the Fuller case does, but instead the government funding that they were eligible to receive. Additionally in this case, intent is important to focus on. Both Maxon and Brittsan had physically written consent to moral expectations that they were made fully aware of prior to joining the seminary. They admitted to knowingly breaking the rules. While I may have felt differently if these expectations had been hidden to students, the intent of knowingly breaking Fuller's explicitly stated rules further points to the fact that the students' actions should not be protected by the court. This case does not assess whether Fuller's policies are morally sound and should remain unchanged,  but rather assesses if Maxon and Brittsan's actions should be protected by law. Due to the concept of ministerial exception, the intent of the students in question to knowingly break rules, and in the interest of preventing religious coercion as a result of excessive entanglement between church and state, I do not believe that Maxon and Brittsan's should be legally protected. This ruling is important as it points to the necessity of separating personal morality and an understanding of religion and constitutional law. Though I believe Fuller's moral code and discrimination be abhorrent, it is important to separate the two according to constitutional protections in order to preserve individuals' and organizations' rights to exercise their religion, free of government coercion and intervention.

Exemptions for Religious Organizations

The Free Exercise Clause of the First Amendment guarantees the right for religious groups to operate without fear of interference by the government. Ordinarily thought of as a measure to protect minority religions and to prevent any prioritizing of a singular religion, some groups have recently proposed their differing interpretation of the amendment. Recently in Arizona, Montana, and South Carolina, there have been bills proposed that would grant “religious exemptions on steroids.” (ACLU) These exemptions would grant religious organizations “blanket immunity” from liability if the illegal activity occurs while exercising their religion. The bills, HB 2648 in Arizona,  HB3105 in South Carolina, and SB172 in Montana, are hoping to prohibit the government from taking “discriminatory” actions defined as: “imposing any monetary fine, fee, criminal or civil penalty, damages award, or injunction against a religious organization; withholding or denying state contracts, grants, licenses, certifications, etc. for religious organizations; and altering the tax treatment of religious organizations.” (ACLU)

 

In a joint letter written by faith communities, civil liberties organizations, and other community groups located in Arizona, several issues are pointed out as well as potential scenarios that may come from the passing of the bill. These advocates voiced their deep concern for the “incredible dangers” posed by the bill and even stated that “the bill is disguised as religious liberty legislation protecting the right to worship during public emergencies, yet whether intentionally or unintentionally, the bill as written would give religious organizations immunity from all criminal and civil liability for any behavior connected to that organization’s religious exercise.” (Secular AZ) They included examples of situations that could occur and concluded their statement acknowledging the importance of religious freedom while highlighting the importance of government regulation to protect communities.

 

For a deeper look into the controversy and the question behind these three bills, I am going to focus on HB 2648 in Arizona. During the time of the COVID-19 pandemic, regulations were imposed that prevented religious organizations from fully participating in the ways that they wanted to. When this happened, there were people who argued that the Free Exercise Clause should allow them to be exempt from regulations and the liability they come with.

 

When it comes to Arizona HB 2648, the central question is: does the Free Exercise Clause warrant establishing religious services as essential operations during a public emergency and exempting them from neutral health and safety requirements imposed on essential businesses if rules substantially burden the ability of a religious service to exercise its faith? (AZ Policy)

 

In this case, I believe that the Free Exercise Clause should not allow religious organizations to be exempt from health and safety requirements imposed on essential businesses. I do, however, believe that the Free Exercise Clause should allow religious organizations to operate in comparable ways to secular businesses. To understand why the Free Exercise Clause should not fully grant religious groups immunity, the case Reynolds v. United States can be used. In this case, the court concluded that while the Free Exercise Clause guarantees freedom of religion, it does not protect religious actions, like polygamy, if those actions are knowingly breaking the law.

 

 The recent case RomanCatholic Diocese of Brooklyn v. Cuomo can be used to understand why the Free Exercise Clause should cause the government to maintain neutral restrictions on religious and secular businesses. In this case, the Supreme Court issued an opinion that “held that the plaintiffs’ rights to free exercise were most likely violated because the governor’s orders ‘single out houses of worship for especially harsh treatment’ that was not imposed on stores, factories, and schools.” (NEJM) The court also acknowledged that COVID-19 is a compelling state interest, but the orders were not narrowly tailored because they were stricter than rules in other states and because no outbreaks had occurred within the religious group. The Court even added, “Even in a pandemic, the Constitution cannot be put away and forgotten.” (NEJM) This recent decision should be used to defend the claim that the Free Exercise Clause should allow religious groups to operate under similar ways as secular groups and should not subject them to harsher treatment.

 

In the case of Arizona HB 2648, I agree with the concerns of the advocates that wrote the joint letter discussed earlier. These advocates hinted at the slippery slope that could occur if the bill passes. Supporters of the bill claim a substantial burden on their free exercise, but I think that religious groups could potentially have a “get out of jail free card” and find themselves to be protected from certain liability. It is uncertain whether this would happen in practice, but the possibility is there. As seen in Reynolds v. United States, the Free Exercise Clause cannot protect someone’s actions if they knowingly break the law, even if they claim it occurred for religious reasons. I do agree with the opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, and I think that in times of distress religious groups should be shown the same governmental oversight as secular groups.

Wheaton College v. Azar

Wheaton College is a small evangelical liberal arts school in Wheaton Illinois. Students and faculty are strongly committed to their faith and church. Being a predominantly religious institution, they make decisions for the university with their religious beliefs and practices in the forefront of their mind. A conflict developed with Wheaton College in 2010 where the federal government issued a mandate, regulated by the Department of Health and Human Services (HHS), that required the college to include services at the school such as emergency contraception as part of its insurance plans. Given Wheaton’s religious manner, this was deeply against their beliefs, and therefore attempted to reject this mandate through a religious exemption. The government refused to consider the college a religious exemption, which led Wheaton College to sue the government to protect its right to operate as they wished without the risk of government fines.
        Wheaton College officially filed a lawsuit in July of 2012 suggesting that the mandate violated their First Amendment rights. The government promised religious accommodation for the time being even though they refused to consider the college as a religious employer. With this accommodation, the federal government rewrote their one year “safe-harbor” to include Wheaton so that they had one more year to comply with this mandate until the fines would begin rolling in. After a granted motion for expedited appeal, in September of 2012 the court ruled that the mandate was unconstitutional and was to be fixed by the HHS. Although the government now allowed this accommodation, the college was looking at large government fines. Wheaton was still being forced to choose between their religious beliefs and avoiding millions of dollars worth of fines. May of 2016 allowed the tables to turn when the court decided to look at this case similar to the way they did Zubik v. Burwell. Finally on February 22, 2018, Wheaton’s five-year legal battle finally came to an end when the district court ruled in Wheaton College’s favor, protecting the school from any current or future application of the mandate.

It was important that the case was viewed in the eyes of Zubik v. Burwell, a similar case that was going on at the time. In 2010 the Affordable Care Act (ACA) was passed by congress which required group health plans and insurance. When considering contraceptive methods a regulation was put into place that included an exemption from contraceptive coverage for the group health plan of a religious employer. The exemption states that they are not covered through a cost-sharing mechanism. The Supreme Court decided that insurance companies could provide contraceptive coverage to employees of organizations that object to such coverage on religious grounds without the organizations needing to provide notification, therefore they vacated the case for further consideration by the lower courts as this gave opportunity to determine how to proceed in a manner that grants employees full contraceptive coverage while also respecting the organizations’ religious exercise. Considering that outcome, the case with Wheaton College was looked at similarly in the sense that this mandate was in fact disrespecting the organizations’ religious exercise. The choices of the Supreme Court here allowed for Wheaton College to have a fighting chance at supporting their own religious beliefs without breaking the law. 

Regarding the Wheaton College case, the salient issue regarding religion and constitutional law is deciding whether or not forcing religious educational organizations to participate in insurance that provides emergency contraceptives to students as part of the health plan, even if it goes against their religious beliefs, is a violation of one’s First Amendment rights. This is a matter that concerns one’s right to freely exercise their religion. Forcing an institution to provide emergency contraception and other similar matters that go against their religion imposes a debatable issue on his free exercise of religion. There is also an entanglement issue here as judges debated where to draw the line between church and state. Can the government force all organizations to participate in all forms of health care even if it is strictly against their beliefs? The main points of consideration here are both  individual freedom and religious community freedom free of government interference, and religious protection. 

 I do agree with the ruled decision here, and I think it is a violation of one’s first Amendment rights to require these religious institutions to include aspects of health care that are against their beliefs. In terms of the court’s considerations, I think that requiring religious groups to follow this mandate imposes on one’s individual religious freedom. The government cannot force individuals to comply with rules that strictly defy their religious beliefs. Nor can the government control this faith based organization, as they have the right to operate according to their religious mission free of government interference. Additionally I don’t think that this creates any establishment by rejecting these aspects either. Wheaton College is a private institution in which one must apply to attend and then approve of their acceptance into the school. A majority of students applying to this school are 18 years old or will be by the time they enter the school, and are fully capable of making decisions for themselves. In that case, it is the choice of the student to attend this school and live under their regulations. No one forced students to attend this school, they chose to come here knowing that they have beliefs that contradict the current health care systems. This exemption from the law also does not establish anything nationwide considering all other institutions are still free to act as they wish. 

Creationism

    On March, 11, 2021, Arkansas House Bill 1701 was filed that permitted teachers in public and charter schools to teach creationism to students ranging from kindergarten to twelfth grade. Creationism is understood as “a theory of how the earth came to exist" (National Science Association). Creationism is a highly contested theory because of its lack of scientific reasoning, and it is a religious belief that credits God as the absolute creator. The theory rejects the ideology of natural processes such as evolution. This bill is permissive, meaning that it is up to the teacher’s discretion to either teach creationism or not. Mary Bentley sponsored the bill, who previously made an attempt to pass similar legislation about creationism, but the bill did not receive a hearing as it died when the legislature recessed. Senator Garry Stumblefield joined forces with Bentley in sponsoring House Bill 1701. 

    Prior to the introduction to Arkansas House Bill 1701, there were court cases that created precedents involving the establishment of religion in conjunction with these contentious teachings. The case, Epperson v. Arkansas decided that an Arkansas law violated the establishment clause because it prohibited teachers in public schools from teaching evolution. The establishment clause states that the government will make no law “respecting an establishment of religion.” The basis for this law reflected the values of fundamentalist Christians who opposed the theory of evolution which violates the establishment clause. The case Edwards v. Aguillard also serves as an important precedent which decided that a Louisiana law which allowed the theory of evolution to be taught only in conjunction to creation-science was a violation of the constitution. The court utilized the Lemon Test introduced during Lemon v. Kurtzman to assert that this law violated the establishment clause. This Arkansas House Bill 1701 is a salient issue regarding religion because the objection to teaching creationism is one of establishment. In terms of constitutional and religious law, the question at stake is if the teaching of creationism is a violation of the establishment of religion.

    I believe that teaching of creationism in public and charter schools is a violation of the establishment clause of the first amendment. Due to the fact that creationism reflects the values of Fundamentalist Christians without scientific reasoning, it is enough evidence to suggest that it is an establishment of religion. In a 1971 court case, Lemon v. Kurtzman, the Lemon Test was enacted to evaluate the potential violations of the establishment clause. In terms of evaluating the constitutionality of the teaching of creationism in public schools, I will utilize the Lemon Test in my argument. The Lemon test is a three pronged test, and the first provision focuses that the law has a secular legislative purpose. Clearly, the introduction to this bill is not secular because of its direct religious implications which violates the establishment clause. The second provision is that its primary effect cannot advance any religion. Again, this bill does advance the beliefs of Christian fundamentalism because creationism credits the biblical account of the creation of the universe. Not only does this bill fail to have a secular purpose, but also it promotes and advances a specific religion. It is also imperative to note that these school children are impressionable, and it is possible that this teaching of creationism could be interpreted as means of coercion. The last provision of the Lemon Test is that legislation cannot have excessive government entanglement with religion. The teaching of creationism within public schools clearly entangles the religious sphere with the government sphere. Additionally, these teachings would require funding, which would only entangle religion and government more. The wall separating church and state will be under attack by the introduction of creationism within the public school. In terms of precedent, this bill should be deemed unconstitutional because of the findings from both Epperson v. Arkansas and Edwards v. Aguillard. The introduction of this bill would ignore the rulings of these previous court cases. If this bill is passed and creationism is introduced into public schools, this will create a slippery slope, enabling other religious facets to potentially interfere with government. This house bill is a violation of the establishment of religion because it lacks a secular purpose, advances a certain religion, and entangles the religious sphere and public sphere. The introduction of this bill would have dangerous ramifications to the wall separating church and state. 

https://ncse.ngo/creationism-bill-introduced-arkansas.

Choosing Between Religious Beliefs and Public Health Vaccinations

Although NY State previously allowed religious exemptions from mandated vaccinations, in June 2019, the state overturned these exemptions for the measles vaccination because of the outbreak nationwide. In 2019, there was the greatest amount of cases reported since 1994 in the US and since it was declared as eliminated in 2000. Most of these new cases were concentrated in Orthodox and Hasidic Jewish communities and have been somewhat attributed to unvaccinated travelers who often move back and forth between Israel and the US. After the measles outbreak in 2019, in order for a child between the ages of 6 months and 18 years to enter any place of public assembly, NY declared they had to be vaccinated against measles unless they had a medical exemption. In W.D. v. Rockland County, the plaintiffs included adult residents of Rockland County, a suburb of New York City, whose children were enrolled in two private schools in the county. This group of plaintiffs filed this complaint because their children were excluded from attending school because they had not been vaccinated for religious reasons. The children are members of Orthodox communities who have a history of opposing vaccinations. These communities are often suspicious of outsiders, often including non-Jewish health officials, and many often lack access to the internet to do research on their own. Furthermore, these communities have been influenced by their rabbis who impose fear and danger of vaccines. Since these families have religious justifications against vaccinations, their children are unprotected from measles. Once they were excluded from schools, the plaintiffs argued that the mandate “substantially burdened their religious beliefs by forcing them “to either engage in acts prohibited by their faith, that is, vaccinate, or lose state-created rights,” including the right to a public education.” However, the NY federal district court dismissed the challenges because it served the legitimate purpose of protecting the community from the measles outbreak. 

In regards to religion and constitutional law, this case ought to be looked at if the vaccination mandate imposes a burden on the free exercise of the plaintiffs religion and if so, is there a compelling state interest that justifies the substantial infringement of their constitutional rights Sherbert v. Verner (1963). It is clear that requiring the families to vaccinate their children even though it is against their religion is a substantial burden. Families are then forced to choose between going against their religious beliefs or restricting their children from attending school and other public places. However, the freedom of religion does not relieve an individual to not comply with a “valid and neutral law of general applicability on the ground that the law prescribes (or proscribes) conduct that his religion prescribes (or proscribes)” United States v. Lee (1982). This mandate is generally applicable because it imposes a burden on both religious and non-religious groups to be vaccinated for measles. This law does not solely impose a burden on religious groups alone. Furthermore this law is content neutral because it is not directed at a religious practice specifically. Although it may impact the Orthodox and Hasicidic Jewish communities more than others because more members of that community are not vaccinated, the law is applicable to all members of New York and is content neutral in its application.

While the mandate imposed a significant burden on the Orthodox and Hasidic Jewish community, the state’s interest justified the burden. In this area of constitutional area, “only the gravest abuses, endangering paramount interests, give occasions for permissible limitation” Thomas v. Collins (1945). In this present case, the mandate served a legitimate government purpose of keeping the state safe and protecting them from the measles outbreak. The outbreak was a clear and present danger because the disease can be deadly, cause other health complications, and is one of the most highly communicable infections. In order to mitigate the spreading of measles, the state had to act to prevent the outbreak. It is therefore in the state’s legitimate and substantial interest to prohibit those who are not vaccinated from attending school and other public forums. Furthermore, a “man has no right in opposition to his social duties...or subversive of good order” even if it opposes their religious beliefs Reynolds v. United States (1879). It is an individual’s social duty to be vaccinated to prevent disorder and necessary to protect public health and safety.

Although the Orthodox and Hasidic Jewish plaintiffs are substantially burdened by NYs vaccination declaration and they are being forced to choose between their religious beliefs or lose state created rights, I agree with the NY federal district court to dismiss the plaintiff’s challenges because the law was generally applicable, neutral, and the state had a substantial interest in requiring children to be vaccinated. This issue will likely soon become more relevant as the COVID vaccine becomes more available to a greater amount of the population and if it becomes a requirement for students to receive in order to attend school 

Carson v Makin

            Many parents across the country face the decision of sending their children to private versus public schools. For those who are pro-school choice, the decision is an essential one for parents, greatly influencing their children’s education and future. Maine’s town tuitioning program was started in 1873, being the 2nd oldest school choice program in the country. If a municipality neither maintains a public secondary school nor contracts for secondary school services, the Maine law requires the municipality to pay for the student’s tuition at a public or private secondary school. However, in 1980, Maine Attorney General Richard Cohen wrote an opinion that the State paying a student’s tuition to attend a religious private school of their choice violates the Establishment Clause of the 1st Amendment. Thus, in 1982, Maine Legislature passed a law to amend the school choice program: the tuition can not be used towards private religious schools, but rather secular private and public schools only qualify. Now, four Maine parents (David and Amy Carson, with Troy and Angela Nelson) are challenging this law, claiming the exclusion of private religious schools from the state’s school choice program violates the Free Exercise Clause, in that “all faith traditions should receive equal protection under the law — a central guarantee of the First Amendment’s Free Exercise Clause” (Brandon Winchel, UND). Pender Makin, the Commissioner of the Maine Department of Education, represents the State in this case.

On June 26, 2019, United States District Court Judge D. Brock Hornby ruled to uphold this Maine law. The U.S. Court of Appeals for the First Circuit again ruled in 2020 that this law is constitutional, reasoning that the use of tuition for religious instruction is unconstitutional. Further, Judge David J. Barron stated that this decision in effect shows “... no hostility toward religion,” given that the law was created “for the purpose of providing a substitute for the public educational instruction that is not otherwise offered.” Now, on Thursday, February 4th, 2021, a petition for certiorari was filed with the U.S. Supreme Court to reevaluate this ruling. Additionally, the University of Notre Dame Law School’s Religious Liberty Initiative has filed an amicus brief in support of the Maine families just last week, on March 11, 2021. 

The central question at hand is: does the state of Maine have the right to prohibit students qualifying for the tuition program to use the tuition to attend a religious private school?

In this case, I believe the concerns of the Establishment Clause far outweigh those of the Free Exercise Clause. As such, I agree with the State, that to allow the tuition towards the religious private schools would violate the Establishment Clause. Thus, I do think that Maine has the right to prohibit the tuition funding from this program to go towards a religious private school. This is following the precedent set in a very similar case in Maine, Eulitt v. State of Maine, Department of Education, with regards to the state’s choice program funding. In this case, Maine reasoned that while the State can not interfere with a parent’s right to choose a school, the State is not required to fund that choice. Also, they noted that there is no “substantial burden on religious beliefs or practices,” even though the religious school is being treated differently (it is important to remember that religions actually are treated differently in the Constitution). 

An essential part of cases with regards to government aid is indirect versus direct aid. We have seen arguments over whether funds towards a paper publication (Rosenberger v Rector) are too ‘direct’ towards funding a religion. In the case here of Carson v Makin, the funding money goes directly to the religious school in the form of tuition. From there, the school is allowed to do whatever they please with the money. This is a clear form of direct governmental aid to a religious organization, and thus should be prohibited at all costs by the State.

However, a heated (5-4) U.S. Supreme Court ruling from last year must be taken into account: Espinoza v. Montana Department of Revenue. The case in Montana concerned whether State scholarships may be used for religious education, and the Court ruled that prohibiting funding for religious schools would in fact violate the Equal Protection Clause, in putting religious schools at an unfair disadvantage. While I agree with the dissent in this case, who say that “neutral government action is not unconstitutional solely because it fails to benefit religious exercise,” this case can not be dismissed easily, as it sets a new precedent. In light of this ruling, I think it is important to now view Carson v Makin with respect to discrimination or unfair treatment towards religions. Thus, I recall earlier what Judge David J. Barron stated: this Maine law was created “for the purpose of providing a substitute for the public educational instruction that is not otherwise offered.” As such, with this law’s purpose in mind, I believe that the State is able to still prohibit aids going towards religious private schools; however, the State should also prohibit aids towards any private schools. This way, the State is truly ensuring the mission of the law, providing a suitable substitute for public education, without showing any discrimination towards religious organizations. I think this distinction is an important one, in that the State will not be violating the Establishment Clause, but also will not be calling into question any unfair treatment of religious private schools (say, over secular private schools). 

               Overall, I believe the State has the right to prohibit students qualifying for the tuition program to use the tuition to attend a religious private school. However, I add that the State should amend the law to only allow tuition going towards public schools, not private schools (religious or secular).