Pike Central High Removes Prayer Locker

Emily Chaney, a Christian student at Pike Central High, created a “prayer locker,” where students can submit confidential requests for other students to pray for them. Based on Facebook posts from the school’s art department and other students, it appears that a faculty member at the high school gave Chaney this idea to create a prayer locker. However, someone in their community sent a complaint letter to a group called Americans United for Separation of Church and State, a nonprofit organization that advocates the separation of church and state, which included an image of the now-deleted Facebook post from the school’s art department. The organization argued the prayer locker is “likely a violation of the Establishment Clause of the First Amendment.” Americans United staff attorney Ian Smith signed the letter to the school district, which describes various legal precedents that uphold the separation of church and state in schools. “It is pretty straightforward that public schools cannot display religious messages, and they can’t encourage their students to pray or engage in religious activity,” Smith said in an interview.

In addition, there have been other cases in Kentucky that question the separation between church and state. Just starting this year, Kentucky schools are required by state law to display the national motto, “In God We Trust,” in a prominent place. This raises the question of how a prayer locker differs from a religious national motto. Smith weighed in on behalf of Americans United, saying that the two are essentially the same. Smith later went on to explain the fact that the federal courts permit symbolic gestures like the national motto under the doctrine of “ceremonial deism,” a legal term used to designate governmental religious references to be only ritual and non-religious through long customary usage. U.S. Supreme Court Justices William Brennan Jr. and Sandra Day O’Connor argued that even if “In God We Trust” has a religious origin, it has been used for government purposes for so long that the phrase has lost its religious meaning. 

In reference to the prayer locker, Smith said that the federal courts have been clear that students can organize and advertise religious activities that take place after school hours, however they can not use school resources or staff to communicate their religious messages. The school’s district attorney recommended that the school should remove the prayer locker. In response, Emily Chaney stated that maintaining this locker was “the biggest blessing” and she will continue to spread her prayers in person in the cafeteria as an exercise of her religious freedom. 

I found a connection between this case and the case we read in class, Board of Education of Westside Community Schools v. Mergens By and Through Mergens. The school administration at Westside High School denied permission to a group of students to form a Christian club due to the fact that the Equal Access Act was deemed constitutional because it served an overriding secular purpose by prohibiting discrimination on the basis of philosophical, political, and other types of speech. This case connected to this article on the basis that both focused on a student-run religious practice. In both instances, there was no faculty member directly involved, which creates a bigger distinction between the government and the religious act performed because the blame for the disruption of the division between religion and state fell solely on the students.

Another case that related to this article is Rosenberger v. Rector and Visitors of the University of Virginia. The Court concluded by stating that the University could not stop all funding of religious speech. There is no Establishment Clause violation for UVA honoring the duties under the Free Speech Clause, which violates freedom of speech. Similar to this article, Pike Central High has the ability to shut down the prayer locker, as UVA died funding to the publication titled Wide Awake. By regulating this content, Pike Central High adhere the viewpoint from the government aspect, which does not stop the communication of prayer, but only the government-owned locker promoting religion. 

In my opinion, I agree that the school has a right to stop the prayer locker due to it being government property, which is paid for by the community's taxes. Under the Establishment Clause, something that the government and community own cannot promote a specific religion. By keeping the locker up and running at Pike Central High, it creates a slippery slope between religion and state, deeming it unconstitutional. However, I also believe that Emily Chaney has a right to protect her freedoms of speech and religion by stating and promoting her religious beliefs outside of school hours and off school property. In the article, she states that she can and will keep spreading her Catholic beliefs throughout her community, promoting the Free Exercise Clause, and I believe that is well within her rights.

The Supreme Court and Religious Death Rites

Earlier this year on March 28th, A Buddhist man, Patrick Murphy, one of the last surviving members of the ‘Texas 7’ prison escapees, won a reprieve from his impending execution. In December 2000, Murphy was in prison serving a fifty year sentence for sexual assault, when he and 6 other men broke out of the Connally Unit of the Texas prison system on December 13th. Later that month on Christmas Eve, the seven men on the run decided to rob a sporting goods store in Irving and Murphy served as the lookout. This robbery resulted in officer Aubrey Hawkins, who responded to the store owner’s call, being shot eleven times and run over with a stolen car by the robbers. The conviction of this crime earned Murphy a penalty of death by lethal injection set to be performed on March 28th 2019.

A month earlier in February, in Dunn v Ray the Supreme Court denied the request of Domineque Ray, an Islamic man in Alabama, to have his Imam present in the death chamber, holding that this request had come too late. When Murphy learned of Ray's decision, he quickly filed a request for permission to have his Buddhist Religious adviser present, thirty days before his scheduled execution date. This initial request was denied and his lawyers submitted a follow-up request for a state-appointed Buddhist adviser instead and received no response. In the days before his execution, his lawyers further took the issue to the courts, claiming the policy violated his constitutional rights. This repeal was initially rejected by both lower state and federal courts who claimed it was filed too late. However, much to even Murphy’s lawyers' surprise, The Supreme Court voted in a decision 7-2  to stay his execution while the issue was considered, unless a Buddhist spiritual adviser was allowed into the death chamber with him.

The First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Granting Murphy the right to have his religious adviser present completely supported his constitutional right to freedom of religious exercise.  This leads me to question what was the big difference between Murphy’s and Ray’s cases that granted only Murphy this right? In Ray, it was held that because he had filed the request only ten days before his execution date, it was too late. In Murphy’s case, he filed his request just thirty days before his execution and had his hearing on the actual day of his execution. Nevertheless, The Court deemed it unconstitutional to deny him his right to have his Buddhist spiritual adviser present in the death chamber.This leads one to inquire as to whether a difference of 20 days was really the only deciding factor in determining whether or not these men deserved their respective religious death rites.

In my opinion, there is not a significant difference between these two cases to result in such opposing verdicts. While the decision in Murphy acted in accordance with the Freedom of Religious Exercise Clause of the First Amendment, I think it flies very close to constituting a violation of the Establishment Clause in favoring one religion over another. In Ray, there was no consideration for compromise to satisfy his request. They gave him the option of having a Christian spiritual adviser, or none at all.  Nobody suggested the possibility of acquiring a state-sourced qualified Imam to be present in the chamber. In Murphy’s case, it was almost immediately determined that since they had no available Buddhist spiritual adviser on staff, one would have to be acquired or he could simply not be executed.

I think that The Court’s decision in this matter can be seen as either a retroactive acknowledgement of their error in judgement in Ray or an establishment of precedence of Buddhism over Islam. I agree with Justice Kavanaugh in his assertion that  “the state has to treat all denominations equally." Either all, regardless of faith, are given permission to have their respective religious advisers in their death chamber or no religious advisers whatsoever are allowed in the room. This, I believe would constitute true religious neutrality.

Cinematography Business Forced to Violate Religious Beliefs to Avoid Fines, Jail Time

Minnesota couple Carl and Angel Larsen claim that one of the deepest passions they share is marriage, and so they want to help others see how marriage strengthens bonds of love and commitment. On top of caring for their eight children and managing their involvement in their local church and community, the Larsens decided to establish their own family business, called Telescope Media Group, in 2016. Telescope Media Group is a wedding cinematography business that aims to express the beauty in marriage by filming and producing marriage stories. More specifically, the business’s mission is “to tell great stories through film that magnify Christ like a telescope” by promoting marriage as “a union between one man and one woman that mirrors Christ’s relationship with his Church."

However, Telescope Media Group has not yet publicly entered the wedding media industry. (Click here to see a teaser video of the services they plan to offer). The Minnesota Department of Human Rights claimed that by offering their services to the public, the Larsens would be violating the state’s Human Rights Act. The Act prohibits discrimination based on several protected classes, including religion, sex, marital status, and sexual orientation. The state has interpreted the Act to mean that if the Larsens choose to tell stories about marriage that are consistent with their religious beliefs, then they must also agree to tell stories about marriage that violate their religious beliefs – which would mean producing films about same-sex marriages. Possible fines for violating the Minnesota Human Rights Act include a criminal penalty of up to $1,000, punitive damages of up to $25,000, and up to 90 days in jail. Is it worth following your religious beliefs and placing yourself at risk of such punishments, or is it better to promote something that goes against your religious beliefs for the sake of keeping your business in good standing? Or, should you instead choose not to act on your passion at all and put an end to your business? These are the difficult questions the Larsens had to consider. 

The activist group Alliance Defending Freedom (ADF) filed a lawsuit on behalf of the Larsens in December 2016. ADF claimed that by complying with the Minnesota Human Rights Act, the Larsens’ free exercise rights would be violated, and that the message they want to spread about marriage would be contradicted by creating films about same-sex couples. A federal district court reviewed the case and ruled that Minnesota has the power to control the messages expressed in the Larsens’ films, and that the Act does not violate their free exercise or free speech. ADF appealed this ruling to the U.S. Court of Appeals for the Eighth Circuit in the case Telescope Media Group v. Lucero. 

On August 23, 2019, the Eighth Court reversed the decision of the lower court, stating that wedding and marriage videos are a form of speech. Therefore, in compliance with the First Amendment, the Larsens have the right to choose the messages their business spreads, and they are simply exercising their editorial judgment in doing so. 

I agree with the Court’s decision that anti-discrimination laws serve compelling state interests, yet they should not force certain speech upon businesses as a means to publicly accommodate everyone. Similar to how it is impossible to pass laws that accommodate everyone, it is just as difficult to speak in a way that is favorable to each person or group. In delivering its opinion, the Court did not directly address violations of free exercise since “[free exercise] is intertwined with the free speech claim.”  While I think it is difficult to analyze free exercise of religion independently of free speech, I do think we should further emphasize the issue of whether forcing business owners to serve same-sex couples when it goes against their religious beliefs violates the Free Exercise Clause of the First Amendment. This issue is motivated by the Obergefell v. Hodges (2015) case, in which the U.S. Supreme Court ruled that same-sex couples have a right to marriage by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. 

Overall, I believe that the Larsens’ free exercise rights are violated by the Minnesota Human Rights Act and its penalties; this stance is primarily supported by the precedent set forth in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). Masterpiece Cakeshop owner Jack Phillips claimed that decorating cakes is an art form through which he can honor God, and so God would disapprove of Phillips making a cake for a same-sex marriage because this implies that Phillips would be celebrating a same-sex marriage. In a 7-2 decision , the Court ruled that the government must respect a person’s religious belief that marriage is between a man and a woman, and that Phillip’s right to free exercise was violated. We can make a similar argument for Telescope Media Group. Wedding cinematography is indeed an art form, and the Larsens seek to promote marriage “as God designed it,” and so filming about same-sex marriage would be a dishonor to their church since they would be indirectly celebrating a same-sex marriage. This conflicts with Telescope Media Group’s entire purpose and mission.

A key difference between these two situations, however, is that Phillips does not only offer wedding cakes; he offered the same-sex couple other baked goods that did not symbolize their marriage, and so he claimed the business did not discriminate against the same-sex couple. In this context, I do not see there being a way in which Telescope Media Group can offer alternative services to a same-sex couple when the only product being offered is films about opposite-sex marriages. Would this be considered blatant discrimination? While the business may seem to be acting discriminatory, the business owners are not discriminating against the same-sex couples. The decisions regarding what films the business makes pertains to the film’s message, not who is requesting the film. The business owners themselves are not discriminatory; in fact, the Larsens have a 12-foot-long dinner table at which they host dinners with people of all backgrounds and beliefs, and over 1000 people have signed the underside of the table. Although we are talking about the business owners and not the business itself, as was the case with Masterpiece Cakeshop, this case is still supposed by the Masterpiece Cakeshop case since the issue at hand is the owners’ right to free exercise, and not the business’s right.

I cannot deny that a burden is placed upon the denied customers, since they cannot receive a film about their marriage from the business. However, the burden placed upon the Larsens’ free exercise (and free speech) is substantial, as well as the burden to the wedding industry if Telescope Media Group decides not to offer any services at all. I think that the threat of such hefty fines and jail time is an unjust punishment for expressing one’s beliefs through art. In the case Sherbert v. Verner, Seventh-Day Adventist Adeil Sherbert was denied unemployment compensation because she could not work on Saturdays, her day of Sabbath. She was essentially forced to choose between working on Saturdays, which would go against her religious beliefs, or to follow her beliefs and face the substantial burden of unemployment. In this case, the Larsens also face the unjust burden of choosing between their religion and their work, which clearly violates their right to freely exercise their religious beliefs through film.

Democratic Candidates Against Religious Tax-Exemptions

Democratic Candidate Beto O'Rourke 2019

Democratic presidential candidate Beto O’Rourke has recently advertised in his campaign that if he were to be elected, he would end tax-exemption for religious institutions and non-profits that define marriage as being solely between one man and one woman. The Supreme Court in 2015 redefined marriage in federal law by requiring that same-sex couples be allowed to marry (Obergefell v Hodges). In CNN’s LGBTQ Townhall Debate last Thursday, O’Rourke said it would be a priority for his administration to “stop those who are infringing upon the human rights of our fellow Americans” by eliminating any reward, benefit, or tax break for such groups. Not only does this present a fatal risk to churches and nonprofit organizations’ ability to keep their doors open, but it also could infringe upon their free exercise, protected by the First Amendment.

Along with O’Rourke, multiple Democratic candidates have supported the proposed Equality Act which would regulate nonprofits, significantly rescind religious exemptions, and essentially render the Religious Freedom Restoration Act (RFRA) as non-applicable to claims under the Equality Act. New York magazine has commented on the extremity of the Act saying: “According to British Columbia’s definition of human rights... female-only salons have to accept every woman, including those with balls. And according to the proposed Equality Act, the gay lobby’s chief legislative goal, backed by every Democratic candidate, it would be a human right in America as well.” Refusal of service could be seen as a hate crime through the Act. The Act’s intention is to close loopholes that religious groups have found through RFRA and protect the LGBTQ community; however, in doing this it takes away certain religious freedom protections.

O’Rourke’s platform is leading the way with democratic candidates that, if elected, would take extra measures to punish religious institutions for their orthodox views on marriage and sexuality. It also validates evangelical concerns about marriage equality creating a slippery slope for religious freedom as a whole. So the question that is raised is how far can human rights and equality be protected before they are infringing on free exercise of religion, and vice-versa?

If using the Lemon test of Lemon v Kurtzman, this policy agenda would have the primary effect of inhibiting religion. The purpose of this policy agenda would be to punish religious groups for their religiously-based discrimination of LGBTQ persons. In 1970, Walz v Tax Commission of the City of New York found that tax exemptions for religious institutions did not violate the Establishment Clause. It went even further and ruled that government taxing churches could create excessive entanglement, violating the third prong of the Lemon test. However in 1983 Bob Jones University v United States ruled that the school’s tax exempt status could be revoked on the grounds of racial discrimination based on their refusal to allow interracial dating. Bob Jones dropped its anti-interracial dating policy in 2000 and was given its federal tax-exempt status back in 2017.

Giving the government the power to punish religious institutions for certain beliefs could present a dangerously slippery slope. Nick Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty said of O’Rourke’s comments: “Stripping the tax-exempt status of religious groups simply because they hold beliefs that the government dislikes is blatantly unconstitutional. It’s also foolish because those groups provide billions of dollars in essential social services to their communities. Churches and ministries should be allowed to hold centuries-old beliefs without fear of government retribution.”

If a candidate that holds these views were to be elected as president, I think we could expect to see many more judicial cases pushed through about free-exercise of religion in relation to discrimination of the LGBTQ community. I do not think that we will see many changes legislatively given the very delicate balance of human rights and free-exercise of religion present. Ultimately, I think that sectarian institutions should be allowed to make rules and decisions based on their own belief systems. We have spoken on how the government cannot judge the truth of a religious belief, only the sincerity of it. I think society’s evolving view of marriage does not negate the orthodox beliefs of a religion if they do not agree with the government. As society changes, the Constitutional protections of religion become even more important.

Supreme Court Won't Hear Case on Church Repairs Using Tax Money

In 2015, The Freedom From Religion Foundation (FFRF) filed suit against Morris County challenging public grants of tax dollars to repair or maintain churches. The Historic Preservation Trust Fund is a publicly funded trust that gives money to places of historical significance in order to address preservation needs of the property. 55% of the fund, or over 4.6 million dollars, went to 12 churches in the northern New Jersey area. The money was used to fix facades, stain-glassed windows and aging roofs. New Jersey State Constitution states: “nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right.” The Superior Court of New Jersey ruled in 2017 that contending the controlling case involved educational grants rather than historic preservation grants. This ruling was in Morris County’s favor and made it so that the grants going to the churches was constitutional. Immediately following this ruling, the FFRA appealed the case to the New Jersey Supreme Court. The New Jersey Supreme Court accepted the case on direct appeal and in 2018 they ruled in favor of the FFRA. They stated: “We find that the plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and that Morris County’s program ran afoul of that longstanding provision…” The court also ruled that the clause in the State Constitutional did not run afoul of the Free Exercise clause in the federal Constitution. Upon this ruling, Morris County submitted an appeal to the United States Supreme Court.

However, in 2019, the Supreme Courtdecided to not hear the case. Its brief order gave no reasons for turning down appeals from a country board and a church. Newly appointed justice, Justice Kavanaugh, agreed with the Court’s decision to not hear the case but gave a caveat: “the decision of the New Jersey Supreme Court is in serious tension with this court’s religious equality precedents.” Justice Alito and Justice Gorsuch joined in Justice Kavanaugh’s opinion. Some of the justices that reside on the Supreme Court seem uneasy at the New Jersey Court’s decision. This is the tension left over from the 2017 ruling of Trinity Lutheran Church v. Comer. The Supreme Court ruled that Missouri could not exclude religious institutions from a state program to make playgrounds safer even though the state’s Constitution called for strict separation of church and state. Recalling Morris County v. FFRA up to the Supreme Court would allow some of the justices to clarify and justify their reasoning in Trinity Lutheran Church v. Comer. Justice Kavanaugh wrote “In this case, New Jersey’s ‘No religious organizations need apply’ for historic preservation grants appears similar to, for example, Missouri’s ‘No religious schools need apply’ for school playground grants,” when comparing the two cases. Justice Kavanaugh also stated that “At some point, this court will need to decide whether governments that distribute historic preservation funds may deny funds to religious organizations just because they are religious.”

This issue has been raised many times before us. That is, does allowing churches to receive public funding impede on the Establishment Clause of the Constitution? In Lemon v. Kurtzman, a Pennsylvania statute reimbursing religious schools with state funds for textbooks and teacher salaries was struct down. The reasoning behind this decision was that the law garnered an excessive entanglement of religion and state, and, therefore, violated the Establishment Clause. In Locke v. Davey, the Court decided that the state of Washington’s decision to withhold academic scholarship funds from students pursuing devotional divinity degrees was constitutional. Washington simply chose not to fund a particular category of instruction rather than imposing sanctions on any type of religious beliefs or forcing a student to choose between religion and receiving a government benefit. These two cases involve the same base: public/tax funding to benefit religion. Using these cases as precedents, it would seem that the court would rule that allowing churches to receive public funding for preservation does impede on the Establishment Clause of the Constitution.

In my opinion, I agree that churches taking public funding for preservation establishes religion which is a violation of the Constitution. This is funding that directly benefits several churches. Government directly benefitting religion has not held up in court very often. We have seen that indirect aid can be acceptable depending on the circumstances, but direct aid has been strictly forbidden. Around four million dollars was used that the churches would have otherwise had to raise themselves. This is a lot of money that some taxpayers would rather have going elsewhere. How do the taxpayers know if their money was used so that the churches could buy new flat-screen televisions so that the church could “preserve” itself? I think this case could provide us with a slippery slope if ruled otherwise. I also want to address Justice Kavanaugh’s concerns. The main problem that Kavanaugh had with Morris County v. FFRF is that it was similar to Trinity Lutheran Church v. Comer but the cases were ruled differently. In the Trinity Lutheran case, government funds went to maintaining playgrounds on church property, while in the Morris County case, public funds were denied to go to churches in the name of preservation. I think these cases are extremely distinct. Playgrounds have a secular purpose and have safety and health concerns geared towards children if not maintained well. This can be seen as indirect aid to the church because it was on church property, but it benefits the public more because mostly children in the area use the playground. Giving taxpayer funds directly to the church is direct funding. Different cases have different details and, therefore, have different rulings. The ruling of the Trinity Lutheran Church case was extremely narrow due to the details.

Is Mindfulness Religion or Relaxation?

Mindfulness practices, including meditation and yoga, have recently swept the American nation. These practices have been adopted by many schools as students and teachers are subjected to classroom led sessions. Although many Americans believe that yoga and mindfulness aren’t religious, not everyone accepts that the practices are completely secular.

The American Center for Law and Justice (ACLJ) has recently called attention to this matter upon creating their petition titled “Stop Forcing Buddhist Meditation on Kids in School.” They represent parents who want to ensure that their children are not subjected to these activities during school instruction since these mindfulness programs go beyond the boundaries of permissible cultural education and constitute the endorsement of eastern religious practices. To them, having their child participate feels as if they are being trained in a religion other than their own. For example, some yoga poses have religious significance and are considered an acknowledgement and worship of Hindu deities, and thus conservative Christian parents feel as though there is a pressure for their student to commit idolatry.  

Having roots in both Buddhism and Hinduism, integrating yoga and mindfulness into public schools could violate laws against government establishment of religion. Proponents of holding these practices in schools maintain that mindfulness is a secular practice that  leads practitioners to a conscious quality or state of being. Yet, others argue that even when used as a physical warm-up or as a way to reduce stress, these practices are still fundamentally religious. Mindfulness has been even been coined as a “Buddhist Trojan Horse” as well as the “NewAmerican Religion.”

The Supreme court has ruled that public schools may not endorse religious practices such as prayer (Engel v. Vitale) and Bible readings (Abington Township v. Schempp) even if students are allowed to opt out. Additionally, in the past, the court has ruled that practicing religion in the classroom is coercive (Edwards v. Aguillard) due to the compulsory nature of education as well as teacher authority and peer pressure.

As well as the perception of religious coercion by schools created by facilitating these practices, research has shown that yoga and mindfulness have spiritual effects even when they are presented secularly. One study found that over 62 percent of students who practiced “secular” yoga changed their primary reason for practicing from exercise and stress relief to spirituality.

The United States religious landscape is changing as the ratio identifying as spiritual is increasing. Since the First Amendment only prohibits the establishment of religion, and not of spirituality, spiritually must be constitutionally defined as either under the umbrella of religion and therefore religious, or a separate entity not pertaining to religion. Until this is defined, the debate will continue over whether mindfulness is religious or just relaxation.

I believe deeming mindfulness practices secular and not under the jurisdiction of the First Amendment will lead the previous held separation of church and state down a slippery slope. By allowing this historical practice to be made secular through rebranding, other religions will highlight the moral and ethical secular value found in their religious texts such as the Bible, Torah, or Quran and claim that they should be allowed in schools as well.

Therefore, due to the historical and modern religious ties of mindfulness to Buddhism and Hinduism, the religious and/or spiritual dimensions of programs must be acknowledged. If these practices are to be held during school hours, students and parents should be given the choice to participate. Using Candy Guther Brown’s proposition, an opt-in model of informed consent showed be used, giving parents and their student the choice of whether or not to enroll in a mindfulness program or class, rather than having to take steps and receive approval to opt out. Once given information about mindfulness and its history as well as how it will be used in the program or class, I believe parents can make an informed choice thus making it a constitutional practice in schools.

https://aclj.org/religious-liberty/how-teachers-can-be-protected-from-being-forced-to-participate-in-buddhist-based-mindfulness-programs-in-school

https://www.washingtonpost.com/politics/2019/07/10/conservative-legal-groups-are-suing-public-school-yoga-mindfulness-programs-this-explains-why/

https://religionnews.com/2019/05/13/are-yoga-and-mindfulness-in-schools-religious/

https://www.sbs.com.au/topics/life/health/article/2016/09/28/meditation-kids-how-quieting-mind-helps-children-behave (image)

Ethics and Religious Expression

A Catholic healthcare network in Colorado, Centura Health, terminated a doctor’s employment after she attempted to provide euthanasia for a man with an incurable cancer. In 2016, Colorado adopted Proposition 106, also known as the “End-of-Life Options Act” which “allows a physician to prescribe medical aid-in-dying medication to a terminally ill individual under certain conditions.” According to CBS, Dr. Morris “looked into referring him to a doctor affiliated with another hospital, but he [the patient] would have had to repeat tests as part of a re-diagnosis, which he said he did not want to do.” The doctor, Barbara Morris, and her patient, Neil Mahoney, filed a preemptive lawsuit against Centura Health “asking a state court to declare that she could not be sanctioned for attempting to help her patient end his life,” and was fired shortly thereafter. 

Centura Health believes it is justified to have terminated Dr. Morris’s employment because she had violated their guidelines as prescribed by the Ethical and Religious Directives for Catholic Health Care Services (ERDCHCS). The guidelines state: “Euthanasia is an action or omission that of itself or by intention causes death in order to alleviate suffering. Catholic health care institutions may never condone or participate in euthanasia or assisted suicide in any way…” Centura Health’s position, from a Constitutional standpoint, is that “the state cannot prevent religious organizations from disciplining employees who disagree with their belief systems.” Dr. Morris argues that Centura Health’s policies were in violation of state law in the first place, and that the hospital network has directly interfered with her doctor-patient privileges. 

This case is about free exercise. The first salient issue is how individual speech can be differentiated from speaking as an agent or extension of a larger entity (whether that be the state or private). Another issue is to what extent the Constitution protects religious expression when it comes to action (not just belief). I argue that with regards to the first issue, the First Amendment should protect an individual from government-compelled speech, but these protections should not extend into the private realm. Additionally, I believe that the hospital’s actions were not Constitutionally justifiable. 

The Supreme Court set a precedent in the case West Virginia State Board of Education v. Barnette for the government’s (in)ability to compel students in public school to salute the Amerincan flag. This decision, which overturned the precedent set in an earlier SCOTUS case Minersville School District v. Gobitis, recognized more broadly that the government cannot Constitutionally compel individuals’ speech in a public setting (i.e., public schools). There is even a caveat to this, which is whether the government can compel its employees (i.e., agents of the state) to violate their religious expression (see Miller v. Davis). There isn’t as strict a precedent, however, for privately-compelled speech. I personally believe that it is Constitutional  for a private entity to regulate speech. This already happens all the time, whether an employer asks a professor not to share their political views on Twitter or if a sorority mandates that its members not post photos of themselves on social media with their “letters” on. The reason I find privately-compelled speech more acceptable than government-compelled speech is because individuals always have an alternative (whether that be finding another employer or choosing not to participate in Greek life). However, the government cannot compel speech (religious or otherwise) because they are the ones with the power to take speech away. This is dangerous, especially when taking into consideration the Founding Fathers’ concerns about tyrannical government. In the case of Centura Health, I think that the hospital was justified to compel the speech of its employee and take action if she does not comply. The health network’s values (including those expressed against practicing euthanasia) were evident prior to Dr. Morris’s decision to consult patients about end-of-life treatment. 

Another Constitutional issue present in this case is whether the First Amendment protects religious action, as well as belief. The precedent set in Reynolds v. United States is that the First Amendment protects religious belief, but does not protect religious action. In this case, the hospital believes that its right to freely exercise their religious commitments (including the discouragement of euthanasia) extends to the action of firing Dr. Morris for failing to comply with the guidelines. This is not Constitutionally valid, I argue, because the hospital cannot act on its religious beliefs to do something unlawful (i.e., fire the doctor for the reasons provided).

Ultimately, in this specific case, I support Dr. Morris because the hospital’s ethical guidelines clearly did not comply with state law in the first place. Had this not been the case (i.e., euthanasia was illegal in Colorado) I still don’t agree that the hospital would be Constitutionally protected to compel its employees’ speech on religious grounds.

Anti-Islam Government or Pro-Islam University?

In September 2019, the Federal Department of Education, headed by Betsy DeVos, threatened to cut federal aid to a university consortium whose Middle East Studies program was not in line with the ideals of the Department. The Duke-UNC Consortium for Middle East Studies receives federal funding under Title VI of the Higher Education act, but the Department of Education is threatening to cut their funding if they do not remake the Consortium’s curriculum and program to the standards and satisfaction of the Department. Some of the criticisms posed by DeVos were that the Consortium views Islam too positively and does not want them to “promote the ideological priorities.” In addition to this motion to restructure the curriculum of the Consortium, DeVos also accused them of misusing their Title VI funds in June. She claimed that the Consortium used its federal funding to sponsor a conference about the Gaza conflict and a member of Congress claimed that the conference had a strong “anti-Israel bias”.

The government has certain expectations for institutions receiving Title VI funding, such as compliance with Constitutional expectations, however, the ACLU claims that it also takes pride in claiming that American universities are “free from the ideological micromanagement of the government censor”. And while federal funds were technically used for the organization of the conference about the Gaza conflict (less than $200 used was from federal funding), the problem the Department of Education had was not with the conference itself, but with its content. The ACLU’s overall argument is that the Trump Administration is trying to restrict freedom of speech and religion on college campuses by threatening to rescind funding if universities do not “conform to the Trump Administration’s ideological standards” and that universities are “under no obligation to further the administration’s anti-Muslim agenda."

While I can see how the use of federal funding for an “anti-Israel” conference may be considered a violation of the Establishment Clause, due to the fact that it was a use of government money to endorse a political and religious position, however that is not what I understand to be the complaint posed by the Department of Education. I find this confusing because it would have been a valid point, had the Department chosen to claim that the conference was a violation of the Establishment Clause, but to me, it seems that DeVos has perfectly set up the Department of Education for accusal that they have violated the Establishment Clause.

Although I argued that the Consortium could have been seen as violating the Establishment Clause for the convenience of the Department of Education, that is not what I actually believe. The Consortium did use a little less than $200 worth of federal funding but I would consider that money a negligible amount in the grand scheme of the money that is actually awarded to the Consortium via federal funding every year. In addition to this, the conference was completely optional and students were not required to go, therefore any benefits to Islam were indirect. In addition to this, we discussed in class the fact that college students are adults that can make up their own minds and their own opinions. So, anyone who went to the conference, even if it had taken a stance on religion, theoretically would have taken the information presented and done what they pleased with it -- which could indirectly both benefit and inhibit religion.

However, the federal fund usage for the Middle East Studies program in the Consortium could have been seen as an establishment of religion had there been no other programs for other religions. Unfortunately, that information was not presented in the complaints by DeVos, though I think it can be assumed that there are other religious studies programs in the Consortium and/or universities. This would then be considered religiously neutral because the universities/Consortium is not favoring one religion, or no religion, over another.

Complaints against the letter sent by the Department of Education include those that are accusing DeVos and the Trump Administration of attempting to limit the freedom of speech and religious expression of students at the university. By threatening to reduce federal funding in the Middle East Studies program, students argue that they should be able to learn about Islam, and other religions, in an objective manner, and that the program is not pro-Islam -- the government is anti-Islam. With this, I would agree. While I cannot form an opinion about the stance about Islam taken by the Consortium, as I have not attended a class there, I would agree that the US Government has decidedly taken an anti-Islam stance. Therefore, I would argue that the Department of Education is violating the Establishment Clause by censoring teaching about Islam and by promoting anti-Islam curriculum within the Duke-UNC Consortium for Middle East Studies.

Phoenix Art Studio Under Scrutiny For Denying Services to Same-Sex Couple

Joanna Duka and Breanna Koski are the owners of “Brush and Nib Studio” in Phoenix. They make custom artwork for a wide range of purposes, including weddings. Recently, these two women took quite a bit of backlash for refusing to make custom wedding invitations for a same-sex couple. In 2013, Phoenix passed an ordinance prohibiting discrimination on the basis of sexual orientation in public accommodations.  

The two women filed a lawsuit against the city of Phoenix, due to the fact that the Phoenix city ordinance threatened them with up to six months in jail and/or a fine of $2,500 each day they refused to make the artwork. The women filed in state court to overturn the ordinance, claiming that religious liberty allows you to refuse to create custom artwork for a same-sex wedding. Initially, they lost in a court of appeals. Feeling as though the decision wronged them, they decided to appeal to the state’s Supreme Court, which heard the case in November of 2018.

This past September, in a 4-3 ruling, the Arizona Supreme Court ruled in favor of the art studio, citing the right for a public accommodation to refuse services in accordance with the Free Exercise Clause of the First Amendment.

This case isn’t particularly unique. Since Obergefell v. Hodges (2015), which ruled that same-sex marriage is protected by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, we have seen a push by anti-LGBTQ business owners to deny services to members of the LGBTQ community citing their religious beliefs.

We have already briefly discussed a case of this nature in class, even though we will analyze it further later in the semester. Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) was a case involving the refusal to provide a wedding cake for a gay couple due to the religious beliefs of the cakeshop owner. Initially, the Colorado Civil Rights Commission, evaluating the case under the state's anti-discrimination law, the “Colorado Anti-Discrimination Act,” ordered the bakery to accommodate the same-sex couple after finding them guilty of discrimination. However, after appeals in the state of Colorado upheld the decision, the Supreme Court agreed to hear the case. In a 7–2 decision, the Court ruled that Masterpiece owner Jack Phillips’ Free Exercise was being violated since the Commission did not apply religious neutrality to the case, and therefore overturned the commission's decision.

This case clearly has some overlap to the Brush & Nib Studios, LC v. City of Phoenix case since one could argue that both pertain to the same question: Does coercing business owner’s to serve same-sex couples despite their religious beliefs violate the shop owner’s constitutional rights to the free exercise of religion?

The decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) cited discrimination against the owner himself for not being able to practice his religious beliefs. This “religious hostility” by the state was considered a violation of the "State’s obligation of religious neutrality" under the Free Exercise Clause of the First Amendment, according to Justice Kennedy. Evidently, this case set a precedent for the decision made in Brush & Nib Studios, LC v. City of Phoenix just over a year later. Considering the decision made in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Arizona Supreme Court held that the ordinance applied to the refusal to create custom wedding invitations for a same-sex couple “substantially burdens” the business owner’s right to the Free Exercise of religion.

I agree with the decision. First, the precedent set in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) shows a clear overlap to this one. I would argue that Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) was chosen correctly for basically the same Constitutional principles as Brush & Nib Studios, LC v. City of Phoenix, which I will describe more in the coming paragraphs. If the Arizona State Supreme Court ruled in favor of the city of Phoenix, there would be a clear contradiction to a federal precedent set a year prior. While the Supreme Court claimed the Cakeshop case was to be examined on "narrow grounds," or in other words, specific to the case itself, it's impossible to ignore the implications that this decision can and did hold.

Second, looking at United States v. Ballard (1944), the Court cannot question the legitimacy of the owner’s beliefs, meaning that the courts do not have the right to coerce the actions of a private business owner if his or her “sincerely held beliefs” go against serving same-sex couples. In this decision, Justice Douglas stated, “The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.” With that in mind, it would be unconstitutional to force business owners to serve same-sex couples if that goes against their religious beliefs. In Brush & Nib Studios, LC v. City of Phoenix, owner Breanna Koski specifically says that separating her beliefs from her distribution of artwork is impractical: "We cannot separate our art from our faith; they are deeply interwoven.” Furthermore, in my opinion, government intervention of this idea implies questioning the sincerity and applicability of both owner’s beliefs, which owner Joanna Duke sees as problematic: "Everyone should be free to live and work according to their beliefs,” she asserts.

I also think that there is an evident “substantial burden” in this case. Clearly, the two art studio owners were facing substantial pressure to violate their religion. The steep fines and/or jail sentence that could have been given to them forced them to choose between their religions, on the one hand, and life as they know it to be, on the other hand. At the very least, it could be argued that the state could have applied “less restrictive means” as opposed to the ordinance applied as it was originally. 

Lastly, applying the precedent of religious neutrality set in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), I would argue that not allowing the art studio owners to practice their religious beliefs goes against the principle of religious neutrality. The accommodationist perspective would say that this lack of religious neutrality towards the owner’s right to the free exercise of religion is unconstitutional.

Thanks in part to the Masterpiece case, the Arizona Supreme Court reached the right decision in preserving the religious liberty for Joanna Duka and Breanna Koski.