Minton vs. Dignity Health

In August of 2016, Evan Minton was denied healthcare by Mercy San Juan Medical Center because he was transgender. Mercy San Juan Medical Center, located in Sacramento, California, is a branch of the Dignity Health Chain. Two day before his scheduled hysterectomy, Minton received a call from a nurse who appeared to be concerned about his transgender idenity. The following day, Dignity Health canceled the procedure and claimed that the hysterectomy was “part of a course of treatment for gender dysphoria, as opposed to any other medical diagnosis.” Minton was successfully able to schedule his hysterectomy three days later at Methodist Hospital, a non-Catholic Dignity hospital about 30 minutes away. Despite receiving treatment elsewhere, Minton filed a lawsuit against Dignity Health medical center for withholding medical care on the basis of gender identity. Although this incident occurred in 2016, this has been an ongoing battle which has steadily moved up the court ranks. As we have seen in various other cases, there is a great deal of controversy regarding reproductive health and free exercise of religion.

In the present case, we must assess the claim of discrimination against the claim of religious freedom. Is it constitutional under the First Amendment to allow Dignity Health to deny medical procedures that go against their religious convictions?  

On one side of this debate, there is a claim of discrimination against the LGBTQ community. In one statement, Minton says, “Trans people exist. And we have medical needs just like all other people.” Minton sued under the Unruh Civil Rights Act (Civil Code 51), which guarantees “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind.” Minton and his lawyers argue that he was selectively discriminated against because a hysterectomy is a normal procedure offered at Dignity Health. The selective discrimination that we see in this case is greenlighted under particular policies that the Trump administration attempted to pass. For example, the Refusal of Care Rule was brought up in the 2017 and 2019 sessions of Congress issued by the Department of Health and Human Services (HHS). This rule gave religiously affiliated health care institutions more power to deny abortion and sterilization care. Many argue that this rule is a tool used by doctors to impose their own beliefs and discriminate against patients (specifially women and LGBTQ members). Despite these arguments, this rule was intended to protect religious liberties. It appears that the Refusal of Care Rule tiptoes the line between protecting and abusing religious liberty. There are multiple perceived problems with the Refusal of Care Rule. First, it violates the provisions of the Health Care Rights Act which was established in March of 2010. This act attempts to alleviate discrimination based on race, ethnicity, sex, age, and disability. Although this rule was struck down, Minton and other members of his defense believe this is a clear illustration of the ways in which the government mediates discrimination under the disguise of religion. It is also important to note that Dignity Health claimed to have facial neutrality in their “Ethical and Religious Directives for Catholic Health Care Services,” however, we have learned in class that facial neutrality does not always eliminate discriminatory actions. In this case, we see disparate impact on LGBTQ members such as Evan Minton.

 

On the other side of the debate, we can view Dignity Health as practicing their constitutional right to freedom of religion. As a Catholic hospital, Dignity Health claimed to be bound to follow its facially neutral “Ethical and Religious Directives for Catholic Health Care Services.” This was issued by the U.S. Conference of Catholic Bishops (USCCB), which prohibits direct sterilization or alteration of bodily and functional integrity. Dignity Health is sworn by religious convictions. Another partner of Mercy Health, also sworn by the USCCB, faced a lawsuit in 2015 dealing with similar questions of religion. In Means V. United States Conference of Catholic Bishops, Tamesha Means was refused appropriate medical treatment (induction of labor) based on Catholic ethical guidelines resulting in the stillbirth of her fetus. The American Civil Liberties Union and the ACLU of Michigan filed on behalf of Means claiming that the directives written by the USCCB prohibited standards of care. This case was dismissed in the 6th circuit court in 2016 due to failure to state a claim of ordinary negligence, but it gives us some insight into understanding the present case. Another point to highlight is that Minton was successfully able to receive this procedure at a non-Catholic hospital. Due to the availability of other medical centers, some would consider it an unconstitutional act to force Dignity Health to conduct procedures that violate their ethical and religious directives.

This case is clearly related to the 'free establishment clause' as we see Dignity Health practicing this right. The controversy come to light when practicing free religion interferes with other people, especially other peoples access to medical care. This is a tough case considering we have not discussed the relationship between religion and reproductive health in class. We are facing two large moral issues: denying someone health services and forcing someone to break sacred bonds. Despite my struggles to make a decision, I would argue that Dignity Health should not be allowed to deny medical services based on religious sacrament. The facts from this case make it clear that Dignity Health has offered hysterectomies for women in the past, making their actions toward Minton overtly discriminatory. In addition, allowing Dignity Health to deny services is not neural toward the health and safety of everyone (specifically women and the LGBTQ community). This poses risk to public peace, good order, and safety. This issue is extremely important because allowing medical communities to practice their religious freedom can open the door to forms of discrimination. To a greater extreme, practicing religious freedom in the medical community may also lead to detrimental harm to humans, as briefly mentioned in the case of Means V. USCCB. As we learned from West Virginia Board of Education V. Barnette (1943) and other instances, we have an immunity for offending others when practicing our religion. But when do we draw the line? When is offending someone taken to the extreme of emotional or physical harm? 

I leave this blog post with the all-encompassing question of whether Dignity Health should be forced to violate its long standing, deep religious convictions?

Apache Stronghold v. United States-- Religious Tribal Land and the Mining Industry as Supported by the U.S. Government

Oak Flat has been the location of Apache civilization “since before recorded history.” This tribe resides and worships on this Arizonian land, it is a central aspect to their daily life. Apaches hold strong religious beliefs, including the idea that the “Creator has given life to the plants, to the animals, to the land, to the air, to the water.” Hence, their religious convictions are intertwined with Oak Flat. Such land has high significance for both prayer and sacred ceremonies. Apaches consider Oak Flat the “direct corridor” to their religion, similar to the significance of Mount Sinai for the Jewish community. Oak Flat is also recognized in the National Register of Historic Places.

    Similar to historical Apache land, Oak Flat is coveted for its mining prospects. For this reason, the U.S. government has seized many of their properties. One such instance occurred in 1870, when the government removed the Apaches from their land to allow miners to utilize the property. From this point on, mining companies have lobbied Congress petitioning for control of Apache land. However, in 1955 President Eisenhower stated that due to its cultural and ecological values, Oak Flat is protected from mining. Therefore, Congress protected the land just as it would for a historic site such as an old mosque. Nevertheless, lobbyists eventually succeeded, as a rider was attached to the National Defense Authorization Act in 2014, giving Oak Flat to Resolution Copper (a foreign-owned mining company). Such mining will destroy Oak Flat in a way that is, “immediate, permanent, and large in scale,” rendering Apache religious practice impossible.

    Apache Stronghold, a nonprofit organization, filed a lawsuit on the grounds that Congress’ motion—and the consequential destruction of such religious site—violates the Religious Freedom Restoration Act (RFRA), the Constitution, and an 1852 treaty which promised the safety and protection of Apache land. The RFRA, passed in 1993, necessitates the government “to show a compelling interest and use the least restrictive means possible” when imposing burdens on religious freedom. So, the court must decide if the government’s action violates the First Amendment, or if seizing Apache land is a compelling interest of the government which uses the least restrictive means.

    This case clearly invokes questions involving the Free Exercise Clause of the First Amendment. Such clause protects citizens’ right to practice religion with the exception that it does not interfere with public morals or government interest. One plausible argument is that the government is denying Apaches’ religious liberty through destroying their sacred place of worship. Since Oak Flat is essential to Apache rituals, government infringement, and perhaps, destruction, of this site is an impediment to free exercise. On the other hand, the Free Exercise Clause applies strict scrutiny to laws “that substantially burden the exercise of religion if they lack neutrality and general applicability.” So, it is up to question whether the rider allowing the mining company to seize Apache land is neutral. Its facial intention is not to target free exercise of religion but acquisition of resources. Therefore, United States v. Navajo Nation is relevant to the decision of this case. In 2009, the Supreme Court of the United States denied the “substantial burden” claim to the Navajo tribe. The court stated that the government use of their land did not burden their exercise of religion. The harm imposed by the government did not meet the standard of burden, and hence the Navajo tribe lost. Though this case presents an applicable precedent, a great portion of this argument was due to the fact that the burden did not affect environmental factors that were significant to Navajo religious ceremonies. This is not the case for the Apache community, as the mining would destroy the religious land of the tribe.
   As argued by Apache Stronghold, the government is infringing upon the religious liberties of the Apache tribe and thus violating the First Amendment. Native Americans are often a targeted minority group, and the U.S. government has a long history of transgressions against this community, particularly in relation to seizing land. Furthermore, the means being used by the government have been deemed as completely destructive to Apache religious practices. Hence, the actions by the government are in violation of the “least restrictive means” clause in the RFRA. According to Employment Division v. Smith, government actions burdening religion are protected only if it is a “neutral law of general applicability.” In this case, the government’s policy is directly targeted at the Apache community and its land. It may be facially neutral, but clearly applies to the Apache group in particular. 

    Having presented the facts of the case and relevant court precedent, I leave the audience with an imperative question. Did the National Defense Authorization Act violate the Free Exercise Clause in a manner that imposes restrictive means on the religious liberty of the Apache tribe? I encourage readers to watch the short clip below.

Should One Be Exempt from the COVID-19 Vaccine Due to Religious Beliefs? Air Force Officer v. Austin

 

On August, 24, 2021, Secretary Austin issued the “DoD Military Mandate” in which all service members of the Armed Forces under Department of Defense authority on active duty, or in the Ready Reserve, must receive a COVID-19 vaccine. The “DoD Military Mandate” states, “Military Departments should use policies and procedure to manage mandatory vaccination of Service members to the extent practicable.” The case involves a Plaintiff in which she wishes to go unnamed due to a privacy right that can only remain intact if she goes unnamed. The Plaintiff, an Officer in the United States Air Force, proceeded to sue Defendant Lloyd J. Austin III, the Secretary of the United States Department of Defense, Defendant Frank Kendall III, the Secretary of the United States Air Force, and Defendant Robert I. Miller, the Surgeon General of the United States Air Force for impeding upon the Plaintiff’s First Amendment rights of free exercise of her religion. With this, on September 3, 2021, Secretary Kendall issued a mandate for all service members of the Air Force to be fully vaccinated by November 2, 2021, unless exempted. The Plaintiff involved has served in the United States Air Force for more than 25 years along with being rewarded multiple medals including the Air Force Commendation Medal and Meritorious Service Medals, to name two. The Plaintiff also held an administrative position within the Air Force that did not ask her to deploy. Going into the heart of the case, Plaintiff decided to submit a Religious Accommodation Request for Immunization Waiver, or the “Military Request Form”, in order to be exempt from the COVID-19 vaccine due to religious beliefs. Plaintiff received a denial to her request for religious accommodation shortly after. Plaintiff then submitted a form named, Request for Religious Exemption to the COVID-19 Vaccine Requirement, or the “Civilian Request Form”, and received a final denial by Surgeon General Robert I. Miller. Due to the denial, Plaintiff was forced into early retirement and ultimately will lose her Air Force Position, in which she would suffer from a loss of more than a million dollars in salary and benefits. In the background lies the main issue of the case, did Air Force authorities impede Plaintiff's First Amendment rights of free exercise of her religion by denying her from being exempt from the COVID-19 vaccine because of religious beliefs?

Plaintiff describes her religious affiliation to be Christian. With this Christian belief, Plaintiff believes that receiving the vaccine would disagree with her faith due to the fact that the vaccine was tested on aborted fetal tissue in its development and that she believes abortion is a grave evil. Secondly, the Plaintiff believes that her “body is the temple of the Holy Spirit” therefore, injecting it with the vaccine without knowing the long-term effects would also contradict her beliefs. It is important to state that, in addition, Plaintiff has natural immunity to COVID-19 since she has contradicted the illness and tested positive for its antibodies. Adding to Plaintiff’s case, she was willing to work to her full potential while taking regular scheduled COVID-19 tests, wear a mask, socially distance and work remotely if needed. Plaintiff’s early retirement is scheduled to commence in the spring of 2022, and until then, she is required to work on the base and perform her normal work while unvaccinated. With this, other service members with approved medical accommodations are permitted to work in person as long as these also go through other mandatory COVID-19 procedures: taking regular scheduled COVID-19 tests, wearing a mask, and socially distancing. Although Plaintiff’s Civilian request form is still pending, she believes there will be a denial due to the fact that Defendants have denied all COVID-19 vaccine exemptions for religious reasons. Plaintiff does state that remaining true to her religious beliefs is more important than keeping her career in the Air Force. With this being said, the Constitution prohibits Defendants from forcing her to choose between her religion and her career, therefore are their denials unconstitutional?

Going into the fact of whether these denials are unconstitutional, one main factor is that the Defendants were able to tolerate the risks of other members of the service being unvaccinated for reasoning other than religious, like being in a clinical trial. Due to these denials, Plaintiff has suffered from irreparable standings in the Air Force, therefore leading to an economic downfall. Defendants have violated Plaintiff’s rights as well as the rights of others in the Air Force under The Religious Freedom Restoration Act (RFRA). Under the RFRA, Defendants have violated her free exercise of religion by denying Plaintiff’s request for religious accommodations and forcing her into early retirement based on her religious beliefs.  By doing this, Defendants are not remaining neutral in the law due to the fact that they are surpassing others’ vaccine accommodations, and more importantly, allowing them to still serve in the Air Force at their full capacity. Based on the denial in this case, I believe that the Defendants did, in fact, impede on Plaintiffs’ religious beliefs. Due to the fact that under the constitution, Defendants cannot allow Plaintiff to choose between her career and her religious beliefs, their denial was unconstitutional. Pleading the other side of the case, if Defendants did grant Plaintiff an exemption, that would open up a bigger door; people could potentially use unjust reasoning and name it as a “religious exemption”, this is where the slippery slope takes place. But otherwise, this case is relevant and important due to its recency in our lives today. With new vaccines and a potential future for more variants of the virus, vaccine mandates will need to be neutral and equal, and this case proves they are neither of those things.

With the facts listed above, what do you think? Did Defendants impede on Plaintiff’s First Amendment rights of free exercise of her religion by denying her COVID-19 vaccine exemption due to her Christian beliefs?

Does Banning Religious Visits in Prisons Violate Their 1st Amendment Rights?

 In response to the Covid 19 pandemic, in March of 2020 the Department of Corrections for the state of Wisconsin adopted a policy that banned volunteer visits inside their prison system.  This policy effectively banned any visits from religious institutions to inmates.  Since the adoption of the policy in 2020, attorneys and other Department of Corrections employees have been allowed in person visits provided that they follow all health and safety protocols put in place inside the prisons.  

In response, the Archdiocese of Milwaukee filed a suit on May 7th, 2021 arguing that this policy violates a state law that grants leaders from all faiths weekly visits to inmates.  The archdiocese also allege that the policy violates the inmate’s 1st Amendment right to freedom of religion.  In June of 2021, Wisconsin prison officials announced that they would be lifting the ban on volunteer visits to prisons, meaning that clergy members were now free to resume their weekly visits.  However, the announcement made no mention of the lawsuit and the department spokesperson said the suit did not spur the return to in person visitations.  

The key constitutional question that arises from this lawsuit is if Wisconsin’s Department of Corrections policy that banned volunteer visits to prisons violated the prisoner’s 1st Amendment right to freedom of religion.  Because the state runs the prison system, they are required to remain neutral when it comes to the prisoner’s rights.  During normal circumstances, the obvious answer would be that this is an obvious violation of the 1st Amendment, but because this policy was put into place during a global pandemic, the answer becomes a lot more grey.  The main question becomes if there is a compelling state interest in regulating the action.  I would argue that there is.

Prisons have a large population of people living in close proximity to one another, making them an extremely vulnerable population to a widespread outbreak of Covid.  Especially during the early days of the pandemic when no one was completely sure about how deadly the virus was going to be, it became necessary to take serious action to prevent the spread.  Banning volunteer visits to prisoners definitely represents a reasonable and neutral action to keep the prison population safe, especially considering the policy did not target religion specifically but focused on the entirety of volunteer visits.  

The cases that best support my argument are the two concerning flag saluting.  In Minersville School District v. Gobitis, the court ruled in favor of the school because they believed that there was a compelling state interest to regulate the action.  In the opinion of the court, when describing the main constitutional question, Justice Frankfurter poses the question:  “When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good?”  In this case, the question is whether a student not participating in a class flag salute would cause significant harm to society to justify state regulation of the action.  While I agree with the decision in West Virginia State Board of Education v. Barnette to overturn the ruling in Minersville, I believe the logic from the ladder case still applies here.

In the Wisconsin case, the “great common end” that society is promoting is the safety and well-being of the population of Wisconsin’s prisons.  During the course of the pandemic, the entire country had to give up certain rights in the face of an uncertain future, and as Justice Frankfurter stated in his dissenting opinion in West Virginia State board of Education v. Barnette, “The constitutional protection of religious freedom terminated disabilities, it did not create new privileges.”  People all across the country faced restrictions on how and where they could practice their faith as we all adapted to the changing landscape of the pandemic.  Wisconsin’s prison population should not be granted an exemption from this practice.

One might be quick to point out that, while volunteer visits were banned, state employees and attorneys continued to be allowed to visit inmates.  Someone might argue that there is no reason that the exemptions granted to these individuals should not be extended to religious visits, to which I would argue that state employees and attorneys are vital to the continued operation of the prison, while religious visits are not.  These people are “essential workers” and clergy members are not.

https://apnews.com/article/wisconsin-religion-prisons-coronavirus-pandemic-government-and-politics-094226c14fe4283c59ac55bad3f0364e

Did a Supreme Court’s Decision in the 70s Cause Present Discrimination? Hedican v. Walmart

In 2016, Walmart offered Ed Hedican the job of assistant manager. He asked for a religious exemption from work on the Seventh-day Adventist Sabbath, which is from sundown on Friday until sundown on Saturday. He also expressed his willingness to work any other day in the week as well as 12 hour shifts. In response to Hedican's religious accommodation request, Walmart rescinded the job offer and recommended that he should perhaps apply to a lower rank, hourly position. 

The U.S. Equal Employment Opportunity Commission (EEOC) has sued the company, arguing that Hedican’s civil rights were violated under Title VII of the Civil Rights Act. Within these rights it is required for employers to “reasonably accommodate” employees' religious practices. Walmart, however, claimed allowing Hedican the job with these accommodations would cause “undue hardship” to the company. Under Title VII, falling victim “undue hardship” is when such accommodations are no longer considered reasonable. 

The Seventh Circuit sided with Walmart, which is the largest private employer in the nation, due to the “slight burden” that “trade shifts with other assistant managers” causes to the company, as well as other employees. 

The court based their decision upon a preceding Supreme Court case, Transworld Airlines v. Hardison, where an employee of the airline company was let go due to his request to not work on the Sabbath day of his religion, Worldwide Church of God, when he was transferred to another building. Because of his transfer, he was no longer provided with seniority status and privileges in his previous place of work. The court sided with Transworld Airlines due to the fact that the company had made a negotiation with the union for the seniority system to exist. Bypassing the system was not an option. The judge of this case, Justice Byron R. White, did address that within Title VII, the terms “undue hardship” as well as “reasonable accommodations” are not defined. 

Despite this vague wording of the title, the court sided with Walmart based upon the conclusion of the Transworld case. White had interpreted Transworld meeting with Hardison but not agreeing to pay others for overtime on the shifts he would have missed as “reasonable,” and that bypassing the agreement made with the union regarding the seniority system would result in “undue hardship” of the company. It was expressed by the Seventh Circuit in the Hedican v. Walmart case that defining the potential accommodation of Hedican’s work schedule as an “undue hardship” seems extreme (due to the wealth of the company), but that their hands are tied based upon previous cases like Transworld Airlines v. Hardison. The Supreme Court’s review of the case was not asked for. 

The case begs the question should Title VII be modified regarding its lack of specificity? Hedican worked hard and had all the qualifications to be an assistant manager. According to the Becket analysis of this case, revoking his job offer presents a much more extreme hardship towards him than Walmart, who in 2020 alone accumulated over half a trillion dollars. They are rejecting a man a $50,000 salary. Why is the burden of slightly modifying a work schedule a justification to reject a job offer? The shuffling of the schedule is simply not an “undue hardship” for Walmart, as they certainly have the funds to accommodate Hedican’s request. 

The modification of Title VII could involve the addition of a definition of these vague phrases, and could specify that an “undue hardship” is more than a slight chance of any type of burden. The size and income of the company should be taken into consideration, as well as, in the case of the Sabbath days, the number of hours missing (though Hedican proposed that he could make up the time lost by picking up extra shifts to make up for the lost time). 

However, where is the line? If there is a religion, for instance, that requires four days a week to practice Sabbath, would that be considered an “undue hardship” even to a company as big as Walmart? It would certainly be a more solid argument in their favor, but, again, at this point, due to the results of  Transworld Airlines v. Hardison, any argument Walmart can come up with is a solid one that will earn them a victory. 

As of 1977, when the Supreme Court ruled the airline victorious, cases involving accomodations for the exemption of work on a Sabbath day have been skewed, favoring the employer. Basically anything can be interpreted as some sort of “undue hardship” based upon Judge White’s relaxed interpretation. In fact, there was not even a willingness to try to accommodate Hedican's needs and Walmart still managed to win. Employers are required by law to not be discriminatory based upon religion, but the results of this case seem to say otherwise. What do you think the solution is to make big companies like Walmart to stop discrimination? 

https://becketnewsite.s3.amazonaws.com/Petition-for-Writ-of-Certiorari-in-Hedican-v-Walmart-SCOTUS.pdf

https://www.becketlaw.org/case/hedican-v-walmart/

https://www.mtsu.edu/first-amendment/article/758/trans-world-airlines-v-hardison\

Christian Employers Alliance v. Equal Employment Opportunity Commission

 In October toward the latter half of the first year of Joe Biden's presidency, President Biden signed two executive orders. Enacted by and enforced through the U.S. Department of Health and Human Services. These orders mandate both religious nonprofit, and for-profit employers. Compelling these religious employers to fund, provide gender transitioning surgeries, counseling, insurance, and all other medical costs and benefits associated with transgender issues, all of which go against their core tenants and beliefs. 

Due to these mandates, attorneys from the Alliance Defending Freedom(ADF) are representing the Christian Employers Alliance (CEA) in a suit against the Equal Employment Opportunity Commission (EEOC). In the lawsuit it is claimed that the Equal Employment Opportunity Commission is improperly misinterpreting sex-based discrimination in Title VII, forcing religious institutions to provide healthcare services that go against their beliefs and moral/religious practices. Specifically, these employers are being coerced into paying for or providing the funds to individuals necessary for the expenses required for gender transition surgery, etc. The main challenge in the case is establishing the proper interpretation of "sex" under federal law, and if the law also includes gender identity. However, because of the nature of the mandate, it calls into question the obligation employers have in taking part in an act or process that goes against their beliefs. Further does the state have the right to burden, and or coerce private organizations to take part in said processes and acts?

It is further claimed that through this mandate President Biden is overreaching his constitutional authority, and violating people's religious freedom through their businesses and organizations. Effectually these two executive orders override any religious objections to transgenderism because the EEOC and HHC offer no religious exemptions. Because there are no religious exemptions for employers, they are being forced, by fear of fines and possible termination, to take part in a system that directly goes against their faith and beliefs. Even though there are anti-discrimination laws, gender identity is not a listed or outlined category under existing law. this is one of the major points of contention in this lawsuit, how the HHC and EEOC are redefining and superimposing gender identity into the law through the enactment of President Biden's despotic mandates. Constitutionally, the right to not be compelled by the state in a religious manner is inherent in the First Amendment's free exercise clause. 

The free exercise clause protects citizens' right to practice their religion as they please, so long as the practice does not go against public morals or government interests. The hard part is defining what are the accepted public morals, in regards to the issue of transgenderism. No one disagrees that any and all persons should live how they see fit doing whatever brings them peace and happiness, in regards to their own sexuality, if it does not harm or affect other people. But the same also extends to an individual's religious beliefs and practices. Thus the court must strike a decision to determine whether or not one's religious rights constitute a legitimate cause to "discriminate" against one's gender identity. 

This issue is important for the future of religious liberty in the United States because the evolving state of our society is further distancing itself from God. As our society furthers itself from religion and religious institutions, the secular elements of our system will overcome and supersede the religious protections afforded to us in the Constitution. This slippery slope is more than just a fallacy. Power when it goes unchecked has a tendency to be abused, and be all-encompassing. These executive orders are the perfect example of that power being abused to achieve a political goal, while simultaneously undermining the religious liberties of individuals and private organizations. The fact that the First Amendment's free exercise clause explicitly protects from government coercion in how one is supposed to practice their faith, is proof enough for a cut and dry decision from the court to decide in favor of the Christian Employers Alliance and the Alliance Defending Freedom. 

Should Military Emblems be Allowed on Religious Jewelry? Shields of Strength v. U.S. Department of Defense

 Shields of Strength is a private company based out of Texas that specializes in creating faith-based jewelry and accessories. They are most known for their dog tag necklaces that have emblems of military branches along with Christian messages and bible verses. Shields of Strength has sold over 4 million dog tags with these emblems and has been very popular among members of the military. In 2011, the Department of Defense informed Shields of Strength that they would now need to obtain trademark licenses before continuing to sell the jewelry with military emblems. Shields of Strength complied and received trademark licenses from the Army, Marine Corps, and Air Force. In July 2019, the Military Religious Freedom Foundation submitted complaints to the DoD Trademark Licensing Offices demanding that the DoD prohibit Shields of Strength from using military emblems on the religious jewelry. The DoD complied and sent Shields of Strength cease-and-desist notices regarding the jewelry. Shields of Strength is choosing to fight back with the help of First Liberty Institute, a legal organization that specializes in defending religious liberty. 

The question that is raised is whether the military is violating the first amendment’s right to free speech and the free exercise and establishment of religion clauses. On one hand, it may seem like this is an establishment of religion because of the inclusion of the military branch trademark, but on the other hand this may impede on free exercise because the private company and private individuals are unable to sell and wear the jewelry they may want to. The first amendment intends to safeguard individuals’ free exercise of religion. This is also unconstitutional because individuals will no longer be able to purchase jewelry expressing their opinion of religion, while also having the military aspect. This issue concerns freedom of religion and free speech because Shields of Strength is unable to make or sell the jewelry they have been making. This case becomes tricky because the jewelry is being sold by a private company, which isn’t part of the government, but is using government emblems. However, no individual in the military is being forced to wear these pieces of jewelry. It becomes a slippery slope because it is not the government nor military’s intention to endorse a particular religion, which could be potentially interpreted through the jewelry. It goes further down the slippery slope if a harmful organization would want to use government logos. However, Shields of Strength is a private company that generally isn’t interpreted as being hurtful.

              Shields of Strength has been making these dog tags for many years without any impediments from the government or military. This demonstrates that there was no compelling interest previously until the Military Religious Freedom Foundation stepped in. This was not government speech that was being spread, but rather independent speech by a private company and then individuals. Additionally, this may be a personal sentiment that provides comfort to military members. This case could impact future cases that deal with the first amendment and military member’s religious ideologies or lack thereof.

              It may be argued that this would be an establishment of religion because Shields of Strength is using the real logos from the Air Force, Marine Corps, and Army, but none of those entities are forcing the members to purchase or wear the jewelry. Additionally, if there are other companies that represent different religions, besides Christianity, individuals should also be allowed to purchase and wear items of that nature because it is their personal choice to do so. This would also represent neutrality of the government and freedom of religion through allowing all religions to be represented. Another important area to analyze is the distinction between government and public speech. The government must be neutral in regulating private expression, which further shows that the private company, Shields of Strength, has freedom to use the bible verses with the military trademarks. Shields of Strength is not a government company nor a public institution like a public school, for example. They are a private company using their own freedom to express opinion through their products. From the perspective of the public, it can be argued that this may seem more like a representation of the company than the government. For instance, if you see an individual wearing the dog tag necklace it would most likely be associated with the company, not the military. This act is not causing harm to any individuals. Therefore, showing that there is minimal compelling state interest to be involved. Looking to history, in the “Bill for Establishing Religious Freedom”, by Thomas Jefferson, he writes about the importance of men having the ability to express their own opinion without repression. Taking away the ability for Shields of Strength to create and sell their products affects individuals, and especially individuals in the military who wish to own and wear that piece of jewelry.

Methodist or Motherhood: Can a state-funded organization deny services on the basis of religion?

           

        Who has the right to determine the fitness of a parent? Who has the right to adopt a child? Who has the right to assistance in adopting a child? Imagine that you are at a point in your life in which you are ready to adopt a child, and welcome another member into your family. You inquire and wait, testing your patience and your hope as time passes on. Eventually, a little boy is in need of a home, and you rush for aid in adopting him. However, when you finally find an out-of-state adoption agency in your area, you are denied the right to assistance because of your religious affiliation. This is the case of the Rutan-Ram family.

        In January 2021, Gabe and Liz Rutan-Ram, of Tennessee, began their journey to adopt a child. Eager to adopt a young boy from Florida, the Rutan-Ram family sought out the help of Holston United Methodist Home for Children, a state-funded organization. While the Rutan-Rams looked for other adoption agencies in the area, the United Methodist Home for Children was the only adoption agency that supported prospective parents with out-of-state adoptions. Since the Rutan-Rams were interested in adopting a boy from Florida, this seemed like the perfect organization to aid them in their process to become adoptive parents. However, the Rutan-Rams quickly learned that the Holston United Methodist Home for Children would not be able to assist them with the adoption process because they are Jewish. In the State of Tennessee, the Holston United Methodist Home for Children was legally allowed to turn away the Rutan-Ram family. In January of 2020, the Governor of Tennessee signed the HB0836 bill into effect, allowing privately licensed child-placement organizations to turn away their services to anyone whose belief systems contradicted or did not align with those of their organization.

(The Holston United Methodist Home for Children)

Thus, in this case, the constitutional question at hand is: Is the state of Tennessee impeding on the Rutan-Ram family's freedom of religion by denying them child placement services based on their Jewish faith? To answer this question, we will consult a similar case and ruling to examine the constitutional implications of the Rutan-Ram adoption. 

In the United States, there is much debate and contention surrounding the adoption process and parents' fitness. According to a study by UCLA, 10% of adopted children are raised by LGBTQ parents. As a result, many religious adoption agencies pressured their Congressional representatives to create legislation allowing them to only work with couples who align with their interests. However, for this case, we will only focus on the religious aspect and the impact that this has on one's freedom of religion. The case, Fulton v. City of Philadelphia, presents similar constitutional debates on religious freedom when the City of Philadelphia canceled their contract with a religious agency, Catholic Social Services, that refused to work with same-sex couples. In response, Catholic Social Services sued the city of Philadelphia for violating the Free Exercise Clause of the First Amendment. After a highly political and controversial trial, the Supreme Court ruled that the City of Philadelphia did, in fact, violate the Free Exercise of the Catholic Social Services. However, I believe that the constitutional difference between these cases lies in their affiliation with the state.

(A protest concerning Fulton v. City of PhiladelphiaI)

In the Rutan-Ram case, the Holston United Methodist Home for Children is a state-funded organization. In contrast, in the Fulton case, the Catholic Social Services was an independent organization that contracted with the state. Because the Holston United Methodist Home for Children is directly state-funded, I believe that it violates the Rutan-Ram family's freedom of religion. According to the constitution, "Congress shall make no law respecting an establishment of religion" (USA Constitution). This case discriminates against the Rutan-Rams as people and as parents. Due to the circumstances of this case, the Rutan-Rams were not able to adopt the young boy they hoped to adopt from Florida solely due to their religious beliefs. However, to be thorough and fair in my analysis, it is essential to consider both sides of the argument. The other constitutional question relating to this case is: would the state violate the Holston United Methodist Home for Children's freedom of religion by forcing them to work with people who have differing or contradicting belief systems from their organization? To answer this question, I must again return to the idea of affiliation with the state. Since the Holston United Methodist Home for Children receives government funding, it is thus a representative of the state. I do not believe that the state would be violating the Holston United Methodist Home for Children's freedom of religion. If the Holston United Methodist Home for Children were an independent and privately funded organization, I would feel differently. Still, due to their status and source of funding, I firmly believe that the State of Tennessee and the Holston United Method Home for Children prohibited the freedom of religion of the Rutan-Ram family. 

With the facts established, a similar case explored, and perspectives shared, what do you think? Did the Holston United Methodist Home for Children impede on the religious freedom of the Rutan-Ram family by choosing not to assist them with their adoption process due to their religious beliefs?

Rutan-Ram v. Tennessee Department of Children’s Services - Can a Government Funded Organization Discriminate on The Basis of Religion?

According to this bill signed by Tennesee Governor Bill Lee in January of 2020, they can. 

    Gabe and Liz Rutan-Ram are a Jewish couple from Knoxville Tennessee. They were unaware of the existence of this bill when they attempted to adopt a child. They wanted to adopt out of state and were pointed to the Holston United Methodist Home for Children as the only agency that could accommodate their preferences. Except they couldn't. They were denied based on the agency's policy of only providing adoption services to those that share their "Christian belief system." Americans United filed a case on the couple's behalf citing a violation of articles I and XI of the Tenessee constitution which promises all citizens religious freedom and equal protection. According to the bill signed in 2020, it is legal for a state-funded organization to deny adoption on the basis of religion. This is the crux of the problem. I would like to make the argument that this bill is unconstitutional, that it violates the "no establishment" and "free exercise" clauses. 

   First I would like to direct your attention to a supreme court case decided on in June of 2021. Fulton v. City of Philidelphia is a near-identical case to the one I bring up in this blog. The only difference is that rather than being denied based on their religion, this couple was denied for being the same sex. The Supreme Court found that denying state contracts with adoption agencies that discriminate based on their Christian beliefs is not a violation of free exercise. This sets some pretty significant precedent for our case in Tennessee. The supreme court has essentially ruled that the state does not need to fund an organization that discriminates even if it is founded on religious values. This begs the question, why would the state of Tennessee fund religious discrimination if according to the supreme court they are under no obligation to and have religious freedom clearly stated in their state constitution. 

    All that being said the Rutan-Ram v. Tennessee is even more clear-cut than Fulton v. Phillidelphia was given that the discrimination is on the basis of religion. The Rutan-Ram family are citizens of Tenessee and thus should be afforded the same access to social programs as everyone else. If the state allows for them to be discriminated against, it is a clear violation of no establishment. Governor Bill Lee claimed that he signed the discrimination bill in order to protect religious freedom, but what about that of the Rutan-Ram family. They are supposed to be afforded the same religious freedom as everyone else and yet are being denied a state program as a result of their religious practice. The reality is that this bill allows the Tennessee government to form an establishment of religion by placing the values of the methodist church above that of any citizen who practices another religion. Simultaneously violating the free exercise of those non-christian citizens by denying them access to government-funded programs. 

    Another facet of this case is that it presents a unique challenge for the state of Tennessee. Both potential rulings are a violation of free exercise. This makes it impossible for the state to be neutral, which should be their goal. Unless of course, they cut funding to Holston United Methodist Home for Children. If the agency wanted to continue to discriminate being a privately owned business that would be a whole other case, but what we are talking about here is government-funded religious discrimination. Some might suggest that cutting funding to an organization because of its religious values is a violation of free exercise, but we know that is not the case. Due to supreme court precedent in the form of the Fulton V. Phillidelpia decision, it would not be a violation of the organization's free exercise to end their state contract, specifically in the case of discrimination. 

    Due to the unconstitutional nature of the bill allowing for the Rutan-Ram family to be discriminated against, I believe the court should rule in their favor and require that the agency provide them adoption services. If they are to comply with that request then they can continue to receive state funding. If, however, they would like to continue discriminating on the basis of religion then the state is well within the bounds of the constitution to discontinue funding. 

Carson v. Makin by Lena DiFazio

        In the state of Maine, a financial tuition assistance program for students to attend public or private schools within or beyond the state border, was implemented to ensure every student receives an education. However, schools labeled as “sectarian” by the state of Maine, were not approved to be part of this funding program. In 2018, three families filed a complaint against the state in a United States District Court, acting in opposition to the limits of this program. Such families believed the state of Maine should be held accountable for a violation of the First Amendment Right of the free exercise of religion. 

The question being presented essentially is whether or not the state is outlawing students from participating in the financial assistance program due to their desire to study at a religiously instructed institution that is outside of the state’s program requirements. We must examine the case from both sides, one of which being the parents who feel their child’s education is being limited, while the other being that funding is not inclusive of state labeled sectarian institutions.

Since the mid to late 1800’s, state courts have drifted away from the perception of America being predominantly a Christian Nation. With this, a secular perspective of Church and State relations had been strived towards and soon acquired. This idea of disestablishment aimed to separate the church and the state by means of limiting national preference to a religion. The “No Preference” provisions solidified the objective to ensure religious homogeneity no longer fostered any predominant religion in the United States nor can the government dictate one religion for all people. When evaluating the Carson v. Makin case, it must be known why providing funding to sectarian or religious institutions was prohibited. Government regulation over public funding should not and does not include religion as a factor. Therefore, spending done by the state should not act against the objectives that the Framers deeply instilled in the Constitution. Before the birth of this case back in 2011, Senator Miriam Defensor Santiago publicized a Press Release on the problems that public funding in religious sects has in accordance with the groundwork of the Constitution. She brings attention to the third provision of Article 6, section 29 which states “No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion. . . ." This can further be supported by the Establishment Clause, which prohibits the establishment of any religion by the government and ultimately projects the concept of neutrality. A very strong argument can be made that the inclusion of a public government-regulated funding program should not provide support to religious institutions, because it nearly further instills religion in a government-backed manner. It appears as though allocating public funding to sectarian schools would go against all efforts made to preserve neutrality and not congressionally bear or establish a religion. From this perspective, we can cross reference this argument to Shurtleff v. City of Boston, in which a private religious organization was denied access to fly a religiously motivated flag over the city of Boston. While this case is pending adjudication before the SCOTUS, previous efforts to display the flag were rejected as projecting the establishment of a religion by the state. Carson v. Makin arguably puts into question whether or not providing public funding to private religious institutions is an unconstitutional effort of religious establishment. 

On the other hand, a certainly valid argument can be made against the state, as it can be a violation of the free exercise of religion. The problem is not only the issue of public government spending on religious sects, but also that the government is essentially dictating where a child can and can not go to school. The funding program is geared towards providing financial support for children to receive a free public education, primarily because this particular district does not possess a school system. Parents who wish to send their children to Christian instructed schools are being infringed upon the right to such religious education, because the program conflicts with the state’s Constitutional provision. An oral argument was made that the state of Maine has violated the children’s Constitutional right to attend religious schools with an otherwise generally available financial aid program. 

Now that both sides of the argument have been explored… Do you think the state of Maine is infringing upon the children’s rights to religious expression and practice?

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Constitutional Interpretation of Public Funds & Religious Benefit

Carson v. Makin Case & Oral Argument

Carson v. Makin Case Overview

Shurtleff v. City of Boston

The Right to Religious Freedom