Recent Articles
Sunday, December 1, 2013
Sunday, December 1, 2013
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The Jaros Family of Oneida County in Wisconsin have been planning to open up Eagle Cove Camp, a Christian affiliated Bible study camp, for over ten years. However, the previous zoning standards put forth by the town prohibit them from building the camp in the location they want. After many attempts at negotiating some type of construction, the Jaros family has brought the case to federal court claiming that this zoning law prohibits their free exercise.
In 1998, the area surrounding Squash Lake was legally zoned for low density families and single parent families. The reason for this was to limit the residents on these water front properties and maintain the quaint and rustic feel that the town was known for. Since 2001, the County Ordinance has allowed for 60% of the county’s property and 40% of the towns property for religious schools and churches. In addition, the Ordinance allows 72% of the County land for recreational camp use, 36% of that for bible study camps. However, in the zoned properties surrounding Squash Lake, no recreational camps were permitted.
But the Jaros family believed that Eagle Cove Camp was an exception, their religion required the camp to be built on 34 acres of land specifically on Squash Lake property. The land that they desired was partially zoned for the single parent families and partially zoned for residential farming, and they filed to petition against the zoning laws in 2005. The county denied their request, stating that the presence of a camp on Squash Lake would interfere with the quaint and rustic feel that the area was known and loved for.
In 2010, Eagle Cove sued the County, town and US District Court for the Western district of Wisconsin claiming that denying them an exemption from the previously established permit application was a serious burden on their free exercise.
“In the Seventh Circuit, a substantial burden “is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable. The burden must be truly substantial, to hold otherwise would permit religious organizations to supplant even facially-neutral zoning restrictions under the auspices of religious freedom.” Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7thCir. 2007).”
According to the Seventh Circuit, keeping the previous zoning law was not a substantial burden to Eagle Cove because they could very well build the camp grounds on nearby property. They were allowed to practice religious assembly in public but not on property that had to be rezoned against previous conditions set forth by the town.
Eagle Cove has continued to appeal their case and bring it to higher courts claiming that the zoning law violates the RLUIPA (Religious Land Use and Institutionalized Persons Act) and ArthurJaros claims that he will not hesitate to bring the case to the US Supreme Court if necessary. The RLUIPA protects religious groups from being excluded or favored by their governments in terms of land use and is neutral in terms of who can build where in terms of civil laws already in place. In response to Eagle Cove, the RLUIPA has not served as a ‘get out of jail free card’ for religious groups to override the law because they have first amendment rights. It is a valid method of analyzing these entangled situations and and in turn, notes the value that the Squash Lake property zoning has for the reputation and tradition of the town.
Even though this case has been going on for three years, I do not think Eagle Cove will get the exemption from the zoning laws and be able to build exactly where they wanted to. I understand that the waterfront property is important to their religious message but there are many other properties nearby that can work just as well, especially since the Jaros family has provided little evidence to the religious meaning of the property. Additionally, the RLUIPA protects religious freedom and the zoning laws set in place but does not guarantee that all religious groups get exemption from these laws that had been set years ago.
I empathize with the Jaros Family and Eagle Cove Camp because they can not get the location that they originally wanted but there goal shouldn’t be shattered there! I don’t think the various courts in Wisconsin are targeting their religion, they just see more value in the traditional landscape around Squash Lake and the RLUIPA makes that totally okay.
Do you think this case will ultimately make it to the Supreme Court?
In October 2012 Victoria Milewski was pulled over for speeding by the Greenwood police. Once she was pulled over, the officer smelled marijuana coming from her car but she claimed that someone else had smoked marijuana in her car earlier. She even presented him with a small container of marijuana from under her front seat that she said also belonged to the person who smoked in her car. Ultimately the officer did not believe her story and arrested Milewski for operating while impaired. He then asked her to submit to a blood test under the state’s implied consent law, which claims that any person arrested for a DUI must submit to a blood, breath, or urine test in Wisconsin. The law states that if the officer has probable clause to believe that the driver was under the influence, he or she must consent to taking one or more of these chemical tests. Milewski declined a blood test claiming that as a Christian Scientist, allowing a needle to enter her body was against her religion. She asked to take a urine test instead, which the officers declined because the Greenwood police policy only allowed breath and blood tests for intoxication. In the end, two officers held her shoulders down while a phlebotomist drew her blood.
When the case was reviewed, the Assistant District Attorney dropped the misdemeanor THC possession charges against her and she pleaded no contest to a noncriminal traffic offense (operating with a restricted controlled substance). The Clark County Circuit Judge also revoked her driver’s license for six months. During the case’s review, Milewki’s attorney argued that her objection to the blood draw was based on her constitutionally protected religious beliefs. Additionally, her refusal seemed reasonable because she was willing to submit to a urine test instead of the blood draw. The Assistant District Attorney shot down this argument first by claiming that the attorney did not notify the state attorney general about the constitutional challenge to the implied consent law (protocol set forth by a state statute), so the Counsell could not consider this argument. The District IV Court also agreed that the Counsell could not rule on her constitutional rights because it hadn’t been addressed in the Wisconsin courts. Additionally in the majority opinion, the Judge wrote that the police officer was not required to comply with Milewski’s request to have a urine test instead. Apparently the type of test used is completely up to the officer making the arrest.
So ultimately, the case was only reviewed by the District IV Court of Appeals, where it was ruled that the arguments presented by Milewski were “misframed and underdeveloped,” especially because she did not choose to further argue the constitutionality issue. The state appeals court in Wisconsin refused to view the case at all on November 27thbecause of the aforementioned issues. In the end, Milewski was forced to have her blood drawn against her will and had her license revoked for sixth months for minor offense.
In reviewing her case, it is clear that there are some discrepancies in how Wisconsin legislative and law enforcement officials interpret the implied consent law. Sometimes there is a discrepancy between how a law is supposed to work in theory and how it is actually practiced, as we have seen in multiple cases throughout this semester. But even more important than the flaws of this particular statute is that the state forced this woman to do something that she believed was against her religion and prevented her from freely exercising her religious rights. There have been many Supreme Court cases in the past that have granted religious exceptions to people who sincerely believed that participating in a particular act would violate their religious beliefs. For example, in West Virginia State Board of Education v. Barnette (1943), the Gobitis decision was finally overturned and students in public schools were no longer required to salute the flag and say the Pledge of Allegiance in school if those actions conflicted with their religious beliefs.
I think Milewski’s First Amendment rights to freely exercise her religion were explicitly violated in this case. The implied consent law of Wisconsin clearly states three different tests to determine intoxication levels and even though Milewski did not want to give a blood sample, she was very willing to give another type of sample. I feel like this situation could have been handled better in that the police officers could have given her more options and been slightly more accommodating. The only reason for her refusal to cooperate was because she felt that her rights to practice her religion freely were being violated in that moment, but shouldn’t that be enough?
What do you think? Were Milewski’s First Amendment rights violated or did the police do the right thing in getting the information they needed to keep the roads and their county safe from drivers under the influence?
Monday, November 18, 2013
Monday, November 18, 2013
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Walk into any mall clothing outlet and you’ll notice that employees often conform to a distinct and often narrow style of dress. While some store employees might find the dress code annoying, what happens when some find it a strain on their religious free exercise? Two such cases were decided recently, both involving Abercrombie & Fitch. In one case, Umme-Hani Khan was fired from her position in an Abercrombie stockroom for refusing to remove her hijab, a religious headscarf worn by women in the Islamic tradition. The second case also dealt with a hijab, where Halla Banafa alleged she was not hired because of it. A third case is also cycling through the court of appeals and is identical to the latter case above.
Abercrombie has defended itself by arguing that its employees must follow its “look policy”, a strict dress code that perpetuates the company’s brand and image. It is considered an important component of their marketing strategy, and they justify its enforcement because it is constituted as “commercial free speech”.
The question at heart here is two-parted. For one, does “commercial free speech” trump individual free speech, and secondly do the religious overtones of the case indicate that a violation of the free exercise clause has occurred? To address the former concern first, Abercrombie’s look policy dictates that no headgear may be worn by any employee. That is a generally applicable policy that appears neutral. However, as pointed out by the dissent in Oregon v. Smith, a generally applicable law does not protect the minority and does not automatically make it immune to amounting to religious discrimination. Banning headgear in general is acceptable commercial free speech, but not accommodating an individual because of their religion appears as a blatant violation of free exercise. Wearing the hijab is a fundamental religious practice to the plaintiffs, and thus this case more closely deals with free exercise and accommodation.
The ninth circuit court utilizes two tests in order to determine religious accommodation cases:
A plaintiff must first establish a prima facie case. If successful, the burden then shifts to the employer to show that it “initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.” (Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004).
The plaintiff accomplished the first facet by establishing that they would incur significant burden by complying with Abercrombie’s dress policies. Accommodation was not made as the employer fired the plaintiff for non-compliance. Abercrombie could only claim undue hardship, but ultimately that was found to be unsubstantiated. The court did not find the “look policy” to be so crucial to the company’s marketing success as they were unable to provide any evidence that the wearing of the hijab bore any detriment to the store’s sales. Abercrombie also argued that its employees are “living advertisements” and thus they have a right to force conformity amongst their employees’ dress. The court argued that since the plaintiffs in this case amounted to stockroom workers, they were not in the public eye and thus could not be classified as “living advertisements”. Subsequently, judgment was in favor of the plaintiffs.
Is this the correct decision? The argument that supports Abercrombie is that businesses are allowed to discriminate based on characteristics that would be considered “bona fide occupational qualifications”. This loophole in the employment discrimination law dictates that otherwise discriminatory practices can be overlooked if they would prove undermining to a particular business model. Companies such as Hooters or Catholic colleges utilize this practice when hiring female waitresses or Catholic faculty members, respectively. The latter example shows that religion can be used to legally filter employees. I ultimately agree with the Court in that both the “undue hardship” and “living advertisement” arguments seem weak. In Wilson v. Southwest Airlines, bona fide occupational qualifications were analyzed and it was determined that customer satisfaction alone cannot be a determination in cases utilizing the law as a defense. In essence, this is the core precept of Abercrombie’s argument and thus is invalid through precedent. The plaintiff, or rather anyone, should have an equal opportunity to work wherever they want, and by refusing to accommodate a hijab Abercrombie is practicing religious discrimination under the free exercise clause. Looking at the broader implications of these cases, do you think a private business has a right to tailor their policies to this extent, even if it excludes certain religious groups? Keep in mind that they only believe they are doing what is best for their economic success and survival (although I personally disagree with that belief).
Here is the full complaint.
Sunday, November 17, 2013
Sunday, November 17, 2013
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A charter school by definition is an alternative education system in which the school itself receives public funding, but operates independently. This article from the New York Times deals with a charter school in San Antonio, Texas called the Eleanor Kolitz Hebrew Language Academy. The classes are taught entirely in Hebrew in addition to classes on Israeli culture.
The school is on the campus of the San Antonio Jewish Community Center, is the first Texas charter to offer Hebrew, and one of two charters awarded by the state to open in a Jewish center. The school officials take issue with some of the leasing arrangements and the specific population that they serve, but the schools continue to ensure the state that religion is being kept out of the class room, and they are focused on diversifying the student body. 
Much of the criticism is rooted in the number of religious schools that are converting to charter schools. The process is legal, but it forces the state to question how students are getting accepted into the school, and the involvement of the state and state funding. Interestingly, charter schools receive the same state funding that traditional public schools do. This means that schools can adopt their own philosophies, while being funded by tax payers. The principal of Kolitz Academy, Kathryn Davis, claims that Hebrew is a modern language and is spoken secularly, just like any other language in the world.
The Kolitz Academy opened as a K-8 public charter school was funded through an educational grant worth $600,000. Additionally, the academy shares a building with the Jewish community center, a Holocaust museum and is located in in a affluent area, which the state feels may limit the diversity of the student body. The school, like all charter schools, is publicly funded but privately run.
I think that this was a particularly interesting article because it raises the question of whether or not these state supported schools, that were previously religiously affiliated, are changing just so they can be considered for state funding. I would have to question whether or not this would be considered an establishment of religion. To me this seems like a legal loophole to attain funding.
Prior to becoming the Eleanor Kolitz Acamemy, the same campus housed a private Jewish day school. After the transition from Jewish day school to Hebrew charter school, the majority of students, staff members, and head of school remained the same. This makes me question the why these changes are occurring, and the morals behind these changes. I feel that this is a case of religious entanglement. I think that in the state funding these converted schools, in essence tare supporting a religiously affiliated education. However, on the other hand, denying these converted schools could be considered discriminatory towards religion.
I question that amount of changes that are occurring in the curriculum, considering the staff and student body from the Jewish day school remain the same. The article also references another charter school eight miles from Kolitz Academy that is located on the property of Temple Beth-El, which is San Antonio's largest Jewish congregation. Next year, the temple will lease part of their building to start the Great Hearts Academies. The superintendent of the Great Hearts Academies claims that there will be no affiliation between the school and the temple aside from landlord and tenant. This is a school that will be using space in a Temple, in one of the largest Jewish congregations and Jewish populated areas in Texas; seems a little fishy to me.
I think that this is an issue of establishment of religion because the funding is coming from the state. I think that many of these converted schools are still religiously grounded, and that state funding should not be provided.
NYPD Sued Over a Beard: Litzman v. New York City Police Department
Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish community, has passed required tests to be accepted into the NYPD Police Academy
The NYPD Police Academy
The NYPD’s position is that it cannot accommodate Plaintiff’s one-inch beard because newly graduated police officers must shave at least once each year to be certified to use an MSA Millennium model respirator, providing the NYPD a health argument to the beard length limit. For this process the officer must go through a fit-test which is a series of seven one-minute tests to determine whether the respirator properly seals the officer’s face. Proper sealing can not be capable with facial hair, a test that is giving to all police officers on the force. The NYPD use one example in case of an emergency when officers must apply a gas mask, the respirator, to their face and having a long beard would make that process difficult leading to injuries. This example that could lead to the injuries of others as well it carried a burden of showing that an accommodation would create "undue hardship." The New York City Human Rights Law similarly requires accommodation, but has a definition of "undue hardship" that creates a much higher hurdle for the employer.
"Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The ... NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals.... Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards.... Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate."
The federal court ended up siding with Litzman on the NYPD infringing on his Free Exercise. I agree with the court and the defendant on this issue. Even though Litzman knew what he was getting into from the very beginning the NYPD did not present a very good case. One issue I saw that gave the defendant the right to fight against this is the exception the NYPD gives. Making it neutral to all religions making the guideline Constitutional, the issue arrived when they provided a length limit. By having a limit will give the NYPD the right to discriminate against certain people and religion practices. Such as Muslims and Orthodox Jews that has a history and practice of growing out long intensive beards.
Reverend Andrew Hamblin, the pastor of the church featured on National Geographic’s TV Series “Snake Salvation” will be charged with 53 counts of possession of a venomous snake. Ironically, his recent fame and his church enjoyed through the TV show alerted the authorities of his criminal action which prompted a raid of his church and the confiscation of his 53 venomous snakes. The maximum sentence for each count of possessing a venomous snake is one year in prison.
Though this may sound strange, a passage in the Gospel of Mark supports the practice of incorporating snakes in worship as performed by Hamblin's Tabernacle Church of God in LaFollette, Tennessee. Mark 16:18 reads:
“And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; they shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover.”
Despite being a sincere belief, acting upon such beliefs is illegal in Tennessee. After a series of deaths at churches that incorporated snakes into worship services, the state passed a law in 1947 forbidding the practice to take place. The state’s reasoning in passing the law was that the compelling state interest of not having people be killed by snakes outweighed all concerns for free exercise. In the 1975 case Swann v. Pack, the law was challenged but upheld in the Tennessee State Supreme Court. No exemption was given as the court reiterated the desire of the state to protect citizens, even willing citizens, from the harm that serpents could deliver. The court took the measure a step further, calling all public snake handlers a nuisance to society.
Hamblin plans to plead not guilty to the charges, and despite being in clear violation of the law, he may have a chance to avoid punishment on the basis of the free exercise clause. The Swann decision will certainly be working against him in court, but a more recent case contradicts Swann and supports Hamblin’s argument. In the 2003 Blackhawk v. Commonwealth of Pennsylvania case, the Pennsylvania State Supreme Court granted a Native American man an exemption to a law forbidding the ownership of black bears. While the state and dangerous animal in question are different in the Blackhawk case, this decision sets the precedent for allowing religious exemptions to laws that forbid ownership of dangerous animals.
Furthermore, Hamblin will be the beneficiary of a recent Tennessee statute, the Tennessee Religious Freedom Restoration Act, which is directed to limit the restrictions that the state can place on the free exercise of individuals. This act requires the state to have a compelling interest to intervene and use the least restrictive means possible upon intervention. Though some disagree, I find that the state has a compelling interest in not having people being killed by snakes, but it is unclear what the least restrictive means avoid such tragedy would be.
The no-harm principle is relevant to this case but not in the traditional way. Since the church attendance is strictly voluntary, harm could befall only those who choose to put themselves in harm’s way. Barring an escape of Hamblin’s snakes in a Planet of the Apes type of way, anyone not associated with the church will not be harmed. Voluntarily putting oneself in harm’s way does not necessarily mean that one will be granted a religious exemption. Since human sacrifice will never be legalized there is a barometer for which to gauge group inflicted harm. The question is where to draw the line.
What about the kids? Hamblin’s church and other snake handling churches like it do not allow children under 18 years old to be near the snakes. While danger is still present by having the children in the same building as the snakes, the greatest danger is to Hamblin himself and other adult members of the congregation.
I believe that the Hamblin should be granted an exemption and acquitted on all charges. While an accident may happen due to the nature of these creatures, I believe that on the basis of the free exercise clause, Hamblin has the right to freely exercise his religion.
The first point in his favor is sincerity of his belief. Although I generally do not believe in judging sincerity, I find it useful in free exercise cases that are seemingly unusual, such as handling snakes, ingesting peyote, or hypothetically, Rob Ford’s church of crack. Hamblin’s sincerity is proven by justification in a holy book, his own statements about devotion to God through snake handling, and the 3,000 signatures that he collected following the raid of his church.
The next point in his favor is that willing, non-coerced, members of his congregation are the only ones with the potential to be harmed. The no-harm principle is generally designed to apply to individuals not associated with the church, none of which will be harmed by allowing Hamblin to continue his practice. For the members of the church who willingly put themselves in harm’s way, it is imperative that they continue to participate in a strictly voluntary basis, but since they understand the risk I believe that they should be allowed to continue handling the snakes.
Finally, Hamblin should be allowed to continue his practice because he takes good care of the kids. My first reaction to this case was to make sure that no child ever gets near a snake but I was pleased read that Hamblin already had that restriction in place. Hamblin seems to be aware of the ever-present danger in his practice but he has shown responsibility in trying to balance safety and adherence to his practice. The only lack of responsibility demonstrated thus far by Hamblin is through allowing National Geographic to film a TV Series of his church participating in illegal activities.
Hamblin's practice may put his congregation and himself in danger every Sunday but is it the right of the state to intervene and forbid a sincere practice? Hamblin has said that his only desire is to be able to practice his religion in peace, yet in a country that was founded on the principle of religious liberty, he could be incarcerated for attempting to do so.
What do you think? Should Hamblin be allowed to continue his practice? Would your answer change if a member of his church was injured or even killed by a snake?
Saturday, November 16, 2013
Saturday, November 16, 2013
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Imagine yourself enjoying a nice leisurely day of shopping when all of a sudden you walk past a man who approaches you asking “will you go to heaven when you die?”You politely ignore him and keep walking, uninterested in his view of religion, but feel slightly annoyed that he is trying to impose his views on you. Maybe you make a comment while walking past a security officer, hoping that the situation will be taken care of. After all, why should you be subjected to someone else’s view point, you came to the mall to shop, not to listen to someone preach. The mall cops kindly ask the man to leave the premises, and to go through the proper procedure in order to be allowed to solicit on the property. When he refuses, they arrest him on a defiant trespassing charge.
David Wells, of Oakhurst, NJ was the man arrested in the Monmouth Mall. He is a born-again Christian, and a retired cop. A large part of his faith is to evangelize and spread the word of the Lord. While this may seem inconvenient to the passerby who holds a different religious view and is uninterested in hearing what he has to say, for Wells he would not be acting on his faith if he did not try to convert others. The best place to do this is in a public setting such as a shopping mall. However, the fact that this is a privately owned mall allows some restrictions on the assumed freedom of speech.
Wells himself cited the New Jersey Supreme Court ruling “New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corporation” as evidence that he should be allowed to distribute pamphlets in the mall. This case concerned a group of Persian Gulf War protestors who had requested permission to hand out pamphlets in a mall and were denied. In this case the Court ruled that their freedom of speech was being inhibited. However, what Wells failed to recognize was that even in this case the Court recognized that the privately owned mall could impose reasonable time, place, and manner restrictions. The Monmouth mall did in fact allow solicitation and offered to make a reasonable accommodation had Wells simply sought a permit. Wells admittedly did not take this extra step. He did not see reason to; in his own words, “I was just talking to people. I wasn’t amplified, I wasn’t street preaching on top of a soapbox. I was just approaching people one on one.”
What makes this case even more interesting is that not only is free speech a concern, but also Wells’ right to freely exercise his religion. Regardless of whether or not the mall owners have the right to censor his speech by requiring Wells to apply for a permit in order to “solicit” in the space, should they be able to hinder his free exercise of religion? This seems to resemble the 1940 Supreme Court case Cantwell v. Connecticut, in which Jehovah’s Witnesses were given an exemption from an anti-solicitation law because their evangelical practices were central to their religion and they were not harming anyone in a public sphere. There has not been a more recent case that would overturn this if the exact conditions occurred; in fact the Court has become even more sympathetic to religious freedom that overlaps with the freedom of speech. However, at what point is evangelizing not considered a central part of the religion and would protecting the right therefore be less important? Does the fact that a mall is technically a private sphere change the implications?
I do not think that the courts should be able to decide which religion evangelizing is important in, because that leaves the minority religions in a very vulnerable place to be judged harshly by the majority. However, I also think that even if the courts held the centrality of evangelizing in a religion to high importance in determining a case like this, born-again Christians would probably be recognized as valuing the evangelical ideals almost as much as Jehovah’s Witnesses. Therefore, I think that if this case makes it to a trial, the Court should go off of precedent in the Cantwell decision and rule that David Wells was wrongly arrested and that prohibiting him from spreading his evangelical message in a mall is violating his right to freely exercise his religion. I do not find the argument that a mall is a private setting compelling, because although that may technically be true, the atmosphere is one of a public space.
Although I do acknowledge the fact many shoppers may find the solicitation inconvenient, it is important to remember that even if they are the majority, the minority has a constitutional right to freely exercise his religion. The majority does not have a constitutional right to avoid any inconveniences. What do you think?
