Adoption Provider Under Fire For Prioritizing Child Placement to Straight Couples

In the fall of 2018, a private New York based adoption agency called New Hope Family Services was given an ultimatum by the Office of Children and Family Services: either reform its adoption program or face a mandated phase-out of the program. The controversy at hand was the adoption agency’s commitment to placing children in homes with a mother and a father while at the same time refusing to place children with same-sex couples. The adoption agency, located in Syracuse, New York fired back, filing a lawsuit in December of 2018 claiming that the Office of Children and Family Services was violating its religious freedom.

The arguments set forth by New Hope Family Services are expansive. First, the service emphasized its commitment and success in placing children into long-term homes, having done this over 1,000 times since its doors opened. Second, the service is happy to refer same-sex couples to other adoption providers. New Hope Family Services has emphasized that there are over 130 licensed adoption providers in New York State, the vast majority of which will place children into families with same-sex couples. Third, the service says that “adoption providers exist to help children, not to affirm the desires of adults.” It’s important to consider how a phase-out could impact the lives of many children. Lastly, citing recent New York State legislation, the lawsuit says that when the legislature first authorized same-sex couples to adopt in 2010, Governor David Patterson made it clear in his approval statement that “the statute is permissive” rather than mandatory, and thus “would allow for such adoptions without compelling any agency to alter its present policies.” In general, New Hope Family Services is arguing that it is unconstitutional to force them to either violate their religious convictions or shut their doors.  

On May 16 of this year, the US District Court in Albany dismissed the lawsuit, saying that the Office of Children and Family Services holds firmly that adoption agencies such as New Hope must comply with anti-discriminatory policies. However, a US Court of Appeals for the 2nd Circuit issued an emergency order on November 4th that temporarily prohibits New York officials from targeting a faith-based adoption provider due to its religious beliefs and pursuing a shut down on that basis. Alliance Defending Freedom (ADF) attorneys representing New Hope Family Services asked the court to stop state officials from interrupting current adoption placements or mandating the phase-out of its adoption program. Last week’s order enforces the stoppage of this phase-out plan at least until the court has a chance to consider whether to reverse the May decision to dismiss New Hope’s lawsuit sometime after oral arguments are held on November 13th (two days after the writing of this blog post).

The main issue at stake here is: is it unconstitutional, based on the Free Exercise Clause of the First Amendment, to force the adoption agency to place children with same-sex parents if that goes against its religious beliefs? In my opinion, yes. While this case is yet to be decided, and it still has the potential to continue through the court system, I hold that private businesses are allowed to cite their Free Exercise rights if the requested services violate their religious beliefs. It’s significant to note that the intentions of the service do not seem hostile, as emphasized by ADF attorney Robert Brooks: “New Hope’s faith-based services do nothing to interfere with other adoption providers, but banishing it means fewer kids will find permanent homes, fewer adoptive parents will ever welcome their new child, and fewer birth parents will enjoy the exceptional support that New Hope has offered for decades.” While expressing its views against having adopted children go to same-sex couple families, New Hope has expressed willingness to provide references without shaming these other services.

The “substantial burden” of a complete shutdown of the operation is evident. The agency, at its core, is trying to place children with families that they believe can make both children and parents involved happy. A shutdown, on the contrary, would lead to lost jobs, more children without families, and a concerning precedent that goes against the religious freedom the agency is entitled to have. Rather than phase-out the program, the Office of Children and Family Services should instead require the agency to provide a list of adoption agency references to each family which it refuses. To me, the Office of Children and Family Services is enforcing a targeted attack against a sincerely held religious belief. This is unconstitutional considering that no harm is being done and the agency has expressed its willingness to provide other references. A shutdown could lead to financial distress for the employees and emotional distress for the children.

We reference this case often, but the precedent set in Masterpiece Cakeshop has a clear overlap here. Both involve a private business refusing to accommodate same-sex couples due to their Free Exercise rights. Neither business is harming anyone in its decision. Neither business is hostile in its rationale. In Masterpiece Cakeshop and New Hope Family Services, other products were offered, and references to other adoption agencies were provided, respectively. Both cases involve the protection of religious liberty that should stand due to no harm being involved and the business's willingness to cooperate with LGBTQ members in other aspects.

My final point is that this is about protecting and assisting kids. The goal of the adoption agency is to place children in homes which they see as a good fit. Threatening to shut down the agency, more than anything, impacts these children’s chances to find a supportive, loving environment for them. 

Overall, I support the emergency order given last week and believe that the adoption agency should be allowed to refuse services to same-sex couples due to the constitutional protections outlined in the Free Exercise Clause. I’m very interested to see where this case heads after oral arguments are made on Wednesday. 

Should Atheists Give Invocations?

Throughout the history of the United States, legislative sessions have been preceded by prayers and invocations. Since the inception of the First Amendment, this practice has been called into question many times, mostly resulting in no substantial changes to the tradition. In Pennsylvania, a new debate has been raised not only over the practice itself but also who specifically can be invited to lead the invocations. Currently the law states that “a member of a regularly established church or religious organization” must be the one leading the opening prayers. This means that atheists are not welcome to lead this practice. Multiple non-theists have filed suit against the state of Pennsylvania claiming that this is a clear example of the state favoring and establishing religious preference of those who have a belief in a God or higher power. The third circuit Court of Appeals in a two to one decision upheld the practice stating that the practice is an example of government speech and the practice is in accordance with historical legislative prayer traditions. While I do understand the logic utilized by the non-theist citizens, I am more sympathetic to the majority due to the precedent set in similar historical cases.

One of the most important factors in the justification of the practice of invocational prayers in legislative sessions is the explanation of government speech established in the Government SpeechDoctrine. In this document, government speech is defined in a way similar to that of speech of an individual citizen. The Government is permitted and entitled to say what it wants and to select the viewpoints it wants to express. Under this doctrine, the state legislature would thus be allowed to favor theistic religious groups in the prayer practice. While excluding certain groups was not the initial intent of the court, the practice would be protected under the First Amendment rights granted to the legislature under the Government Speech Doctrine. While the prayer practice does favor theists, the person giving the prayer is instructed to make the prayer generally applicable and respectful of all religious beliefs. This case is thus an example of the government attempting to be neutral to all religious groups, while utilizing its Government Speech for protection.

Although many atheists would like this practice stopped, historic cases show that the practice is likely to continue. In Marsh v. Chambers, A member of the Nebraska legislature named Ernest Chambers challenged the constitutionality of invocational prayers at the beginning of legislative sessions. The chaplain in Nebraska was being paid monthly for his time and was from a specific denomination of Protestant Christianity. In a 6-3 decision, the court held that the practice was not an infringement of the Establishment Clause and appealed to the historical importance of an opening prayer at the beginning of the legislative sessions. The majority also adopted an originalist opinion believing that because the men who wrote the first amendment tolerated the practice, there was no infringement of the traditionally interpreted establishment clause.  If the logic utilized in this case is applied directly to the Pennsylvania case, the court will clearly uphold the practice. Pennsylvania does not discriminate between religions or pay the chaplain, something that the dissent took issue with in the case of Marsh v. Chambers. The legislative prayers in Pennsylvania are less biased and have less direct influence from certain religious groups; therefore, utilizing the decision of Marsh v. Chambers, one must believe the current practice is constitutional.

Another case that may be applied to this situation is that of the Town of Greece v. Galloway. In this case, Greece, New York decided to have an invocation at the beginning of the town hall meetings. The prayers were given by local clergy members and religious leaders that were from many different religious denominations. Some citizens took issue with the practice and believed that this practice was an establishment of religion as certain religious groups were featured in the invocation more frequently than others. In a 5-4 decision, the court ruled that the practice was constitutional. The courts noted the historic importance of government invocations and the non-sectarian elements of the practice, making no clear establishment of religion. When comparing this to the case of that of the Pennsylvania state legislature, a similar conclusion will be reached. Multiple religious groups are featured in Pennsylvania and the religious leaders are never paid. Through this logic, I believe the courts should again uphold the practice and continue the disallowance of non-religious invocations as the non-religious invocation would not satisfy the traditional purposes of the prayer.

In my opinion, the third circuit court made the correct decision. Many previous rulings have noted the importance of prayer as a traditional practice that has both historical and religious value that can only be achieved through a theistic prayer. Additionally, the Government Speech Doctrine protects this practice and thus no changes should be forced upon Pennsylvania’s state legislature.

Facebook Posts as Free Speech… or Not

On July 7, Elizabeth Cox,a teacher at Bishop England High School, a private Catholic institution, had her contract terminated for various Facebook posts that supported pro-choice views. Cox had been teaching at the school for sixteen years and had been notified after the 2018/2019 school year that she would not be allowed to teach the following year. The posts included (but were not limited to) a feminist activist quote asserting gun purchases should go through as rigorous screenings as abortions and a link to a story with the headline “Leslie Jones leads the charge against Alabama’s abortion ban in the SNL season finale”. While Cox was a teacher, she taught both secular and religious courses daily to her students.

            Teachers at Bishop England are required to sign a contract agreeing to speak publicly in accordance with Catholic beliefs, regardless of whether they identify as Catholics. The principle, Patrick Finneran, was quoted saying “Parents send their children to [Bishop England] expressly because they want a Catholic teaching and upbringing. Your public expression of disagreement with Catholic values undermines that." In her lawsuit, Cox claims that her firing “violates political rights and privileges of free speech guaranteed by the United States Constitution and/or the Constitution of the State of South Carolina." Cox wishes to be granted a monetary award and reinstatement to the school in her same position.

            The question faced in this case has been disputed in other cases recently observed on this blog (see Teacher fired for her pregnancy at a Tennessee Christian School and Should misgendering lead to termination?). The case asks whether or not a teacher’s public posts can lead to a termination if those posts are against the contractual beliefs of a private educational institution. The Supreme Court has set precedent in relation to the lawful firing of religious institutions. In 2012, the Court ruled unanimously in Hossana-Tabor Evangelical Church andSchool v. EEOC in favor of religious private institutions. In this case, a teacher, Cheryl Perich, was terminated from a private religious school after returning from several months of sickness and taking out disability.  The school argued that the “ministerial exemption” should apply for this case. This exemption gives all religious institutions the right to control employment matters for ministerial positions without the court’s interference. The Supreme Court decided unanimously in favor of the school, stating that the teacher was a ministerial position because she taught daily religious classes to the students. Part of the reasoning for the court’s decision was the fact that the teacher accepted the “formal call to religion”. in her position through her commitment to the school.

            Although this case has not been decided in court yet, the precedent set by the Hossana case helps us to predict the likely outcome. Although Elizabeth Cox was fired for very different reasons than the Cheryl Perich, they both represent ministerial positions within a private institution. Cox signed a contract at the beginning of her employment that stated she had to act and speak according to Catholic beliefs, which can be compared to the Supreme Court’s interpretation of Perich’s acceptance of the “formal call to religion.” The main difference between this set precedent and the Cox lawsuit is the infringement on free speech. Cox believed that even though she signed a contract, her free speech rights on an online social media cite should not be restricted by her employer. I believe that the court will not even dispute the issue of free speech or what was posted. They will focus solely on the fact that the private employee is viewed as a ministerial position in court, and therefore can be fired and hired at the discretion of the private institution. The wide definition set by the Supreme Court in Hosanna of an employee being in a ministerial position removes many valid cases from the court simply due to the set precedent.

            The court’s decision here and in many other cases cannot be simply thrown out due to the employee’s status. Although private religious institutions should not be held up to the same standards of nonreligious private or public organizations, they should not be allowed to discriminate in hiring or restrict the free speech of their employees. The Establishment Clause protects every individual’s religious beliefs but does not protect those actions which conflict with a compelling state interest. In the case of hiring and firing of employees, the religious institutions should be allowed to express their beliefs, but not to discriminate in all employment and termination instances. Even if the employee represents the religious beliefs within their workday, religious organizations should not be able to restrict their personal beliefs and speech during their free time. The court set unconstitutional precedent in Hossana-Tabor Evangelical Church and School v. EEOC, and this precedent continues to make waves within the various courts of the nation.

           

Teacher fired for her pregnancy at a Tennessee Christian School

Tabatha Hutson, a school teacher has recently lost her job at a Tennessee Christian School for becoming pregnant out of wedlock. Hutson decided to take legal acton and sue Concord Christian School for sex and pregnancy discrimination. Hutson began her career at the school in 2011, when she was hired for the position to teach kindergarten. After five years of teaching kindergarten, she then became a second grade teacher at the school in 2015 and has remained as the second grade teacher up until her recent dismissal from the school. At the time of her pregnancy, which was in the 2016 to 2017 academic year, Hutson was not married to her child’s father. 

The principal of Concord Christian School requested to meet with Ms. Hutson after her pregnancy became externally obvious to the students and other faculty members. The meeting was made primarily to discuss her pregnancy. At the time of the meeting held with the Principal and other administrative faculty members, Hutson was 11 months pregnant. Ms. Hutson had stated that she wished to wait until the end of the first trimester and view the heath of the child, before breaking the news to the school board. In the crux of the meeting, Ms. Hutson was informed that her contract would not be renewed by the school for the 2017-2018 academic year due to her “out-of-wedlock” pregnancy. The sole reason for her dismissal was her pregnancy, not for any performance issues or anything related to her conduct within the class room. Hutson is seeking around 2 million dollars in compensatory and punitive damages. The suit was purposed as one discriminating against her pregnancy which runs under 

Title VII as amended by the Pregnancy Discrimination Act; as well as against her sex, as Hutson stated that if she was male and could hide her out-of-wedlock sexual activity, then she would have kept her job. The father of the child also worked at the school as a voluntary Sunday School teacher, but was not relived of his duties from that position. 

The school fought the lawsuit and stated that it had the right to terminate Hutson, as evidenced by a Supreme Court ruling in 2012 (Hosanna-Tabor Evangelical Lutheran

Church and School v. Equal Employment Opportunity Commission). The ruling recognized “ministerial exception” to employment discrimination laws. Hutson’s claim would not stand, as the case in 2012 made it clear that an employee can be discriminated against for religious purposes. Hutson argued that she is not a minister but a teacher, however the case in 2012 did not define what it means to be a minister. The doctrinal beliefs held by the school are stated to all new hires and in part of it is stated that the school “makes no apologies for or compromises to our convictions”… the convictions being upheld by the Christian doctrinal belief-system. The case was dismissed by the court. 

I think the court got this case wrong, due to fact that Hutson made a valid point in her sex playing a factor in the case. The child of the father worked at the school too, but he was able to keep his position. Although he was a volunteer, the father of the child still is subject to the same doctrinal-christian belief system as Tabatha. If she was a male it would have been much easier for her to hide this notion and if ever discovered, I doubt the school would have removed a male from the position. Although, she may have violated Christian beliefs as it relates to child-birth out of marriage; the school itself violated Christian-doctrinal values such as those relating to mercy and forgiveness. Jesus himself was faced with a similar case when the teachers of the law and the Pharisees brought in a women caught in the act of adultery. The law says to condemn the woman, but Jesus responded “Let any one of you who is without sin be the first to throw a stone at her”. Adultery and having a child out-of-wedlock are two situations which can either end in condemnation or forgiveness. The school chose to act in opposition of their faith’s leader. There should be joy and support for a woman giving birth to a child. The meeting could have discussed future plans of marriage and a reminder of the Christian values taught with grace, but instead the school chose to violate Christian-doctrine and leave a woman with no job knowing the cost of care for a child. 

Should You Be Arrested For Voicing Your Religious Belief?

Spokane Public Library in Spokane, Washington hosted a drag queen story hour inside its library on June 15, 2019.  This event was open to the public, and it primary focused on children to expose them to drag.  A drag queen story hour is where performers, typically a man dressed in flamboyant woman clothing, read to children.  Spokane Public Library is located in a fairly small, quiet residential neighborhood in Spokane, and yet this event drew about 600 protestors outside the public library.  Some of the protestors raised issues of immorality of transgender ideology, whereas others protested the drag costume itself saying it was misogynistic and they compared it to white people wearing blackface.  One protestor who was interviewed said she was standing up for “truth and righteousness.”  Those who were there supporting the event said the story hour supported diversity in education, and they said this while carrying signs showing Jesus in a dress and saying “more glitter, less bitter.  Because the event was so controversial and attracted so many protestors, 40 police officers were present at the event to divide protestors from supports.

An issue arose when Afshin Yaghtin, a Baptist pastor at New Covenant Baptist Church was arrested.  Yaghit said that he wanted access to the library to observe the drag queen story hour event, but the police denied him access based on his support for the protesters.  He was then asked to remain on the protesters’ side of the street.  Video evidence shows Yaghtin interacting with the police multiple times trying to explain to them his belief.  The police told Yaghtin that they would arrest him if he continued, and he refused to move.  He was then arrested and put into the back of a police patrol car until the event ended, and was ultimately jailed on charges of obstructing a police officer and was later released on a $1,000 bond.  

Afshin Yaghtin and his lawyers said Yaghtin was being discriminated against by the police department and his First Amendment rights were violated, in particular, his freedom of speech and his free exercise of religion.  Within the First Amendment of the Constitution, the phrase reads “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof…”  Yaghtin and his lawyers believed it was clear the police department gave preferential treatment to the pro-drag queen protesters.  Yaghtin was simply trying O observe the story hour.  He was not holding a sign or shouting anything that would have gotten himself labeled as a protestor, yet he was not allowed in due to his beliefs.  It is important to remember that this event was open to the public, which means anyone was invited to attend as long as they were not deemed a threat to the event.  

The president of the legal group defending Yaghtin said, “If someone is not creating a disturbance, there’s no reason that they should be removed from a public place simply because of their perceived religious beliefs or convictions.”  The police said they felt Yaghtin’s sudden decision to distance himself from the other protestors was a security threat.  They gave him multiple warnings to stay in the public area, and when he resisted, they arrested him for the safety of the event.  An officer interviewed was quoted saying, “the law says that while we are trying to protect everybody’s liberty and ensure their rights to exercise their First Amendment rights or Second Amendment rights, we are allowed to put restrictions on that in order to keep participants away from each other that have the potential to…cause harm.”

I think this is a difficult case to decide who is right and who is in the wrong.  From the police viewpoint, they were doing their jobs by keeping the event safe.  They deemed Yaghtin a threat to the event, and thus had the right to not allow him access to the library.  As we examine this situation from Yaghtin’s viewpoint, however, we see that he had no intention to harm anyone or any part of the event, he was simply there to observe.  The police deemed him a threat based on his views and his support for the protesters.  I believe Yaghtin’s First Amendment rights given by the Free Exercise Clause were violated here because the police did not have probable cause to take those rights away from him in order to protect the event.  He was not shown as being hostile or aggressive with any signs, he simply stated he wanted to observe the event.

Forcing Practice of Islam in Public Schools

During the 2014-2015 school year, a world history class in a public high school, La Plata High School in Maryland, was forced to recite the Islamic conversion creed, the Shahada. This creed states ‘There is no god but Allah, and Muhammad is the messenger of Allah’.  A person recites this in order to convert to Islam and repeats it to pray. A Christian student, Caleigh Wood in the 11th grade, in the class take part in this because it went against her religious freedom.  She believed that it is a sin to profess this, believing that there is only one god, the Christian God. The students were deducted points if they did not recite these prayers, and the world history class was mandatory by the Maryland State Department of Education. They were also taught that ‘Most Muslims’ faith is stronger than the average Christian.’  They were instructed as well that the Islamic religion is a fact while Christian and Judaism were just beliefs. Their teacher told the students that ‘the Qur’an is the word of Allah as revealed to Muhammad in the same way that Jews and Christian believe the Torah and the Gospels were revealed to Moses and the New Testament writers and that Muhammad was visited by the Angel Gabriel who proclaimed that there is only one true god'.

Thomas More Law Center (TMLC) sued the school and the Fourth Circuit Court of Appeals ruled with the school, believing that it was okay to teach these religious values. TMLC appealed to the Supreme Court and filed a Writ of Certiorari. Fourth Circuit Court argued that this teaching did not pass the Lemon Test, from Lemon v, Kurtzman, for the establishment of religion because the teaching of Islam does have a secular purpose. It also did not advance or inhibit religion or did not cause an entanglement between church and state.  Since the Fourth Circuit had previously ruled for not allowing Bible readings in public schools, then the teaching of the Islamic religion would also be unconstitutional. Caleigh’s parents, John and Melissa Wood sued the public school, the county board of education, and the principal and vice-principal of the high school.  This became known as Wood v. Arnold.

The court mentioned Abington School District v. Schempp, which was when the Supreme Court ruled that school-sponsored reading of the Bible was unconstitutional.  Using this case as a resource, if the reading of the Bible was unconstitutional, then the reciting of the Islamic religion should also be.

Looking at this case, it really all comes down to whether or not teaching this religion to students in a public school is for historical reasons or not.  All religions have historical value and are all important in their own ways and I do think it is very important for students to learn it, but if schools are forcing students to recite prayers, then no teachings should be allowed.  I do not think that these lessons should be allowed to be taught in this public school. It is not neutral between all religions, only teaching the Islamic religion. It also discriminates against all other religions. This also was not an optional lesson.  These students were forced to recite these readings, and if they did not, they were penalized. Because of this, it would be considered coercion. All religions need to be taught or none of them can be. This case reminds me of the case we have discussed in class, Lynch v. Donnelly, in the sense of how if one religious decoration is displayed in the center of a town, then it should either be accompanied by other religious decorations or be taken down completely.  For cases like these to work, there needs to be equality between all religions, or between religion and non-religon. There cannot be bias. There also cannot be times where children or students are forced to practice a religion that they do not wish to practice.  They have freedom of religion and should be able to deny practicing a certain religion that is not one they support.

A North Carolina Teacher Segregates Her Students Based on Belief

Julia Lopp, a Spanish teacher at South Johnston High School in Four Oaks, North Carolina, was suspended with pay this past week for being accused of segregating students based on their religious and political beliefs. According to the Johnston County Report, Lopp segregated students in her classroom by “forcing them to line up on opposite sides of the classroom based on whether they did or did not believe in God.” After Lopp segregated the students based on their belief in God, she purportedly asked for their stances on abortion and LGBTQ rights. According to the New York Post, Lopp then allegedly told her students that if they reported her actions, she would “not recommend them for a job or even entrance to college.”

Johnston County Public Schools is currently investigating “whether or not [Lopp] asked students about their beliefs in God.”  Superintendent Jim Causby asserts, “It is never appropriate for a teacher to segregate students based upon religious, political, or personal beliefs.”

One question at hand is: Is Johnston County Public Schools required by the constitution to pay Lopp while she is suspended from teaching at South Johnston High School?

Although the school is currently paying Lopp during her suspension, the constitution does not require Johnston County Public Schools to pay her while she is suspended for violating her students’ constitutional rights.

The case at hand is what Justice Scalia would deem a “hybrid situation.” Separating students based on their religious and political opinions violates more than one constitutional right. Lopp burdened her students’ free exercise by segregating them in the classroom based on their religious beliefs. Her questions undoubtedly intended to intimidate a religious group by first asking her students whether or not they believed in God. The government has compelling interest to be involved in this case because Lopp’s beliefs could heavily influence those of her young and impressionable students. 

In addition to free exercise, Lopp also violated her students’ free speech by threatening to punish them for divulging her actions. Furthermore, Lopp violated her students’ rights outlined in the Equal Protection Clause of the Fourteenth Amendment, stating that no state can “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This Clause was the basis of Brown v. Board of Education in which it was ruled unconstitutional to segregate public education solely on race. Due to Lopp burdening the constitutional rights of her students through segregation, I believe that Johnston County Public Schools does not have to provide Lopp with pay during the investigation period, and would be within its right to terminate her from the institution for the aforementioned accusations.

However, it is important to note that a few months ago, an English teacher at Heritage High School in Wake Forest, North Carolina was suspended without pay for five days in September after asking her students personal questions regarding their “gender, race/ethnicity, sexuality, religion and socioeconomic status.” Although the English teacher did not allegedly segregate her students as Lopp did, questioning these students about their identities is unconstitutional. Considering the fact that both South Johnston High School and Heritage High School are public schools in North Carolina, there should have been consistency in deciding whether or not a teacher should receive pay during suspension. 

Another question follows: If Lopp were found guilty of the accusations, would it be unconstitutional for the state of North Carolina to deny her unemployment benefits?

Based on the evidence provided, it would not be unconstitutional for North Carolina to deny Lopp unemployment benefits upon being terminated from South Johnston High School for segregating the children in her classroom. One precedent for this case is Employment Division of Oregon v. Smith, in which Alfred Smith and Galen Black were denied unemployment benefits after being terminated from their jobs for ingesting peyote, an illegal drug, for sacramental purposes. While it remains unknown whether or not Lopp thought it was her religious duty to separate students based on their beliefs, her segregation of students would remain unconstitutional. In Sherbert v. Verner, the Court ruled that the government could not set “unemployment eligibility requirements such that a person cannot properly observe key religious principles.” No such religious principle exists where the case at hand is concerned, and even if it did, the state should not make an exemption for Lopp, due to the fact that she violated her students’ rights. South Johnston High School is entitled to deny Lopp pay during her suspension, and the state of North Carolina is within its right to deny her unemployment benefits.

If Lopp were teaching at a private school, the state of North Carolina would still be within its right to deny her unemployment benefits for violating the constitution. Providing Lopp with unemployment benefits means that she would be rewarded for denying her students their constitutional rights. In this case, she cannot plead ignorance: she threatened to interfere with her students’ future if they were to divulge her actions. Therefore, granting Lopp unemployment benefits would reward her actions and suggest that every conscience is a law unto itself, which is thankfully not the case.

Is it Constitutional to Give Scholarships to Students to Attend Private Religious Schools?

In early September, the case of Espinoza v. MontanaDepartment of Revenue was brought to the Montana Supreme Court. The issue in this case was a voucher-type program that Montana designed to divert government dollars to private schools. This program was enacted in 2015 and allows taxpayers to receive tax credits for donations to Student Scholarship Organizations (SSO). This tax credits were received on an equal dollar-to-dollar basis. This means that if a taxpayer owes the state, they can send the money directly to an SSO and not have to pay the state. The SSO awards scholarships to students attending private elementary and secondary schools. However, this program brought up the big issue of separation of church and state because the SSO supported 13 private schools, and 12 of those private schools were religiously affiliated. Over 94 percent of the scholarships given were to students attending religiously affiliated schools. This funding was giving indirect aid to furthering religious education, especially with such little of the SSO money going to secular private schools.

This program was brought to the supreme court because it directly violates Montana’s Constitution. Montana’s Constitution includes extra protections against government-funded religious practices to avoid excessive entanglement. The state adopted a “no-aid provision” in order to promote the separation of church and state and to ensure that enough taxpayer money would go towards the public-school program. Montana also explicitly prohibits any “direct or indirect” aid to religious education from government money.

The case was brought to Montana’s Supreme Court where they ruled the SSO program to be unconstitutional because of the no-aid provision within the constitution. However, parents with children that received scholarships from SSO to attend the religious private school included in the program claimed that getting rid of the program was a form of unconstitutional discrimination against them by excluding religious schools from the tax-credit program. Excluding only religious schools from the program would be neutral among all religions, however, it would not be neutral between religious and non-religious schools. Montana’s Supreme Court realized that the program conflicted with the state’s constitution and could cause neutrality problems by limiting the funding to only secular private schools, so justices struck down the program in its entirety.

The facts of this case are somewhat similar to those of Everson v. Board of Education of Ewing Township, decided in 1947. Everson brought the Boards of Education of Ewing Township to court because he was upset that his tax dollars were going towards reimbursing parents for the cost of driving their students to and from private schools. Similarly to Espinoza v. Montana Department of Revenue, 96 percent of the private schools benefitting from the reimbursement were parochial Catholic schools. Everson claimed that this reimbursement violated the Establishment Clause of the Constitution by providing indirect aid to religion. The US Supreme Court ruled in favor the Board of Education in this case, unlike the case of Espinoza v. Montana Department of Revenue. I think I agree more with the decision of Espinoza v. Montana Department of Revenue because I believe that both programs, in fact, violated the US Establishment Clause. I also believe that it is neutral among religion and non-religion to not provide tax-payer funding to private schools because that money already goes to fund public schools. Public school is available to everyone; parents make the decision to take their children to a private school, whether it is religious or not, so they should be willing to take on the burden of doing so.

Should misgendering lead to termination?

Only one year ago in the summer of 2018, a transgender student had undergone transitioning from a woman to a man (For privacy purposes, the student’s name has not been disclosed). Because of this transition, the student asked all of his teachers to refer to him with masculine pronouns including: he, him, his. Peter Vlaming, his French teacher did not agree to call him by his changed pronouns, deeply upsetting the student. Mr. Vlaming cited his religious beliefs and stated that they did not allow him to call the student by his pronouns. Mr. Vlaming is a devout Christian. To avoid discipline, Mr. Vlaming promised to only use the student’s name and avoid pronouns entirely. Although Mr. Vlaming promised to do this, the school administrators of West Point High School (in West Point VA) gave him a final warning that he must use the student’s preferred pronouns or face disciplinary action.

Following this warning on Halloween of 2018, he held an activity for his sophomore class in which they all walked around the classroom using virtual reality goggles. The student was about to crash into a wall when the teacher yelled out to the other students, “Don’t let her hit the wall!” Following this incident, the student withdrew from Mr. Vlaming’s class because he felt disrespected after being called by the incorrect pronouns. The school officials proceeded to suspend the teacher because of the multiple warnings he had faced and failed to follow. The school board then decided to fire him altogether for ignoring the administrators orders.

Mr. Vlaming is suing the school district for violating his First Amendment right to freedom of speech and ability to exercise his religion. Vlaming’s lawsuit states, “and he sincerely believes that referring to a female as a male by an objectively male pronoun is telling a lie,” therefore Vlaming believes that if he were to address the student by his preferred pronouns, he would be telling a lie because his faith does not condone this behavior.

Cases regarding sex and gender are not new in the state of Virginia. In the case of Grimm v. Gloucester County School Board, Gavin Grimm, a transgender male student, was denied access to the men’s restrooms in his school because of parent and resident complaints. Although by the time he graduated he was not allowed to use the same restrooms as his peers, on August 9th, 2019, the U.S. District Court for the Eastern District of Virginia found that the school violated Gavin’s rights under Title IX and the 14th Amendment.

There is a lot to be considered in this case because it is a public school. When looking at Title IX, the U.S. Department states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In this particular case the student was discriminated against because their preferred pronouns were not being acknowledged after several warnings were given from the school administrators. Because West Point High School is a public school, it is receiving federal financial assistance, which means that the transgender student is directly benefiting from Title IX protection. Although the student himself is not filing a lawsuit, it is important to recognize the rights the student has a public student.

This case has not been settled yet but it was filed in the Circuit Court for the County of King William. Vlaming is suing the school board for violating his rights and for breach of contract. He is claiming that his freedom of speech rights were violated. This case is also similar to other cases we have read that look at beliefs versus actions. While Vlaming’s beliefs may prevent him from agreeing with the student’s pronouns, do his freedom of speech rights protect him from acting on this belief and misgendering a student? This case raises the issue of the relationship that exists between hate speech and freedom of speech. In the case of R.A.V. v. City of St. Paul (1992), teenagers burned a cross on a family's lawn. This action fell under a local bias-motivated ordinance that prohibited the display of a symbol that "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender." The question the courts answered was whether or not this ordinance was a violation of he First Amendment free speech clause. The courts found that the ordinance prohibited speech because of the subjects the speech addressed. Although dissimilar in actions, this case resembles that of Vlaming because they are both claiming that freedom of speech is being violated. However, when answering this question I think a discussion must be raised of how far freedom of speech can go until these protections are enabling cruelty.

I believe that the school board was right in firing Mr. Vlaming because of the many warnings that he received. In using freedom of speech as a protection for misgendering someone, he is justifying the maltreatment of members of the LGBTQ community. Had he not been fired, this could have left room for hate speech from other outlets on campus. One example of this is when Mr. Vlaming had been fired, many students protested by walking out with signs saying, "Men are men. Women are women." Examples of this are forms of hate speech to students that do not identify as such. Because of this and the outcomes that could have come from lack of disciplinary action, I believe he was rightfully fired and that his freedom of speech rights were not violated. 

The Constitutionality of Using Religion to Discriminate

Last week, U.S. District Judge William Alsup presided over a hearing regarding three lawsuits challenging the Department of Health and Human Services’Religious Conscience Rule. In President Trump's attempt to remain loyal to his pledge to “promote and protect the fundamental and unalienable rights of conscience and religious liberty,” The Conscience Rule protects health care workers who oppose medical procedures on religious moral grounds.

The rule, intended to take effect on November 22, invites any health care worker, including doctors, paramedics, receptionists or even the board members of hospitals to deny a patient’s medical care if it conflicts with their personal beliefs. The rule extends to allowing denial of care in life-threatening circumstances. Important to note is the provision under this Rule that not only allows providers to refuse care but does not require the referral of patients to alternate, available care. Refusal to comply with the administration’s rule would result in federal defunding of health care facilities.

Opponents of this rule have found this a misinterpretation of the fundamental principle of religious freedom. Critics allege the rule allows and encourages continued discrimination of at-risks populations such as women, LGBTQ people and religious minorities. There are at least six lawsuits including plaintiffs from 23 states around the nation that filed to block the rule due to its unconstitutional nature. The city of San Francisco filed its lawsuit almost immediately after the rule was realized, in the U.S. District Court for Northern California, claiming the new regulations are discriminatory and prioritize providers’ religious beliefs over the health and lives of socially vulnerable populations. San Francisco claims if they choose to not comply with the rule, it would lose $1 billion in federal funding that support critical services. The plaintiffs of the case argue the rule violates the constitutional Spending Clause because of the threat to withhold or terminate federal funds with failure to comply. Proponents of the regulation say if the rule is blocked, their constitutional rights of religious freedom will be infringed upon. I will focus solely on the proponents claim and argue that the court should block the rule and that doing so is not an infringement on freedom of religion. 

Embedded in the Free Exercise Clause is the absolute right to believe whatever religious doctrine one chooses. However, the precedent set in Reynolds v. United States determined “congress was left free to reach actions which were in violation of social duties or subversive of good order.” Therefore, the limitations of this clause allow for an infringement on religious freedom if there is a compelling state interest at hand that outweighs the burden of religious freedom. 

I argue that The Conscience Rule impedes on the compelling state interest of ensuring the health and safety of all citizens. The San Francisco lawsuit recognizes and supports the conscience rights of health care professions, but argues the exercise of these rights must be balanced against the fundamental obligations of the medical profession and the right of patients to receive quality care.

This argument is supported by the recent decision by the New York Supreme Court that upheld the ban of religious exemptions from vaccinations. Due to a measles outbreak directly correlated to religious communities, requiring vaccinations for school children was essential to the state interest of protecting the public health. The court found the compelling state interest of ensuring the health and safety of the citizens of New York to outweigh the burden on free exercise, which is synonymous to the facts of this case at hand. This case poses the reoccurring and relevant question about the constitutionality of using Religion as an excuse to violate anti-discrimination laws. 

I will outline the differences between a similar case of discrimination based on religious beliefs to support my argument. In Masterpiece Cake Shop v. Colorado Civil Rights Commission, Jack Phillips declined to create a cake for a same-sex couple because of his religious beliefs against gay marriage. The court found that although same-sex couples are afforded civil rights protection under the Constitution, religious and philosophical objections to same-sex marriage are also protected views by the constitution, ruling in favor with Masterpiece. The distinguishing factor between the two cases is the harm imposed by freely exercising religious beliefs. In Masterpiece, nobody was physically harmed by failing to make the cake, in contrast to denying necessary medical care to patients, a possible matter of life and death, which is allowed under this new regulation. 

The implications of this ruling cannot be understated for the future of religiously based discrimination in our nation. This regulation allows for an open invitation to discriminate against Americans who already face serious, systemic oppression. The outcome of this case will have implications for our future understanding of the intersections of religion and law. Allowing this law to go into effect would assume the court is placing the importance of religious rights above the civil rights of citizens. The health and safety of citizens must come before the absolute right to act on religious beliefs in order to maintain order in society.