Trinity Law School Law Review - Fall 2017

TRINITY LAW REVIEW ____________________________________________________________________________________________________________________________________________________________________________________

VOLUME 23

FALL 2017

NUMBER 1

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ARTICLES JUVENILE SOLITARY CONFINEMENT: A BREACH OF INTERNATIONAL LAW AND DOMESTIC PUBLIC POLICY Karen DeSoto ........................................................................................ 1 FREEDOM OF RELIGION: CAN IT STAND UP BEHIND BARS? Heidi Cerneka .............................................................................................. 100 ARE CHURCHES FREE TO TEACH BIBLICAL SEXUALITY? NOT IN IOWA OR MASSACHUSETTS, WHERE GOVERNMENT INVADES SERMONS, BULLETIN BOARDS, AND POLICIES. Elizabeth W. Paillere .............................................................................. 130

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TRINITY LAW REVIEW ____________________________________________________________________________________________________________________________________________________________________________________

VOLUME 23

FALL 2017

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FALL 2017 EDITORIAL BOARD EMILY A. FERNANDEZ EDITOR-IN-CHIEF KATYA ZAVALA EXECUTIVE EDITOR LAURA THERIAULT SENIOR RESEARCH EDITOR MEMBERS AT LARGE JOHN AJAYI KATHERINE DANNA SADIE DANIELS

JADE KOSCHE LIZETH PERALES ROCKY TINDAGE

KATELIN M. TOOMA FACULTY ADVISOR

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TRINITY LAW REVIEW ____________________________________________________________________________________________________________________________________________________________________________________

VOLUME 23

FALL 2017

NUMBER 1

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TRINITY LAW SCHOOL FACULTY ERIC H. HALVORSON DEAN DANA C. CLARK ASSOCIATE DEAN

KATELIN M. TOOMA ASSISTANT DEAN

PROFESSORS STEVEN ADAMIAN

RYUL KIM

DANIEL AHN

RONALD LARSON

MARK ALLEN III

DANIELE LE

ADELINE ALLEN

PETER LEE

GISELLE AMINI

TIMOTHY LICKNESS

GEORGE BASELUOS

ERIC MACKEY-FITZGERALD

MATTHEW BATEZEL

ANDREW MCCARRON

KRISTIN BENGFORT

KEN MCDONALD

WILLIAM CAMPBELL

ERIN MORIARTY

TONY CAPITELLI

BRITTNEY MUUS

TRINITY LAW REVIEW ____________________________________________________________________________________________________________________________________________________________________________________

VOLUME 23

FALL 2017

NUMBER 1

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TRINITY LAW SCHOOL FACULTY (CONT.) DANA C. CLARK

MICHAEL PEFFER

ROY COMER

HAROLD POTTER

TRICIA D’AMBROSIO-WOODWARD

CHESTER PUCHALSKI

ANDREW DELOACH

JESSE RANDOLPH

JEFFREY ERSKINE

R. NEIL RODGERS

WILLIAM EVANS

LISA RUNQUIST

LOYST FLETCHER

BRADLEY SCHOENLEBEN

LORA S. FRIEDMAN

STEPHEN SHEPARD

ROBERT GRANT

JOY STATLER

VENUS GRIFFITH TRUNNEL

MELISSA STEELE

R. CASEY HANNEGAN

MYRON STEEVES

BRUCE HARBIN

BRETT STROUD

CRAIG HAWKINS

SARAH SUMNER

MARK HILLER

RACHEL TOBERTY

KEVIN HOLSCLAW

LLOYD TOOKS

TRINITY LAW REVIEW ____________________________________________________________________________________________________________________________________________________________________________________

VOLUME 23

FALL 2017

NUMBER 1

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TRINITY LAW SCHOOL FACULTY (CONT.) MICHELE IRONCASTLE

KATELIN M. TOOMA

CHRISTOPHER KALL

BRIAN VAN MARTER

BRYAN KAZARIAN

ANDREW WESTOVER

STEPHEN KENNEDY

THADDEUS WILLIAMS

MICHAEL PARKER

JUVENILE SOLITARY CONFINEMENT: A BREACH OF INTERNATIONAL LAW AND DOMESTIC PUBLIC POLICY Karen DeSoto* The story of Kalief Browder is a strong illustration of the harm and damage caused by the solitary confinement of juveniles. Kalief, a sixteenyear-old, spent two of his three years in solitary confinement at Rikers Island, leading to numerous suicide attempts and his eventual suicide. His negative behavior and actions demonstrate the dangers of isolation, the reason to reduce or ban juvenile solitary confinement, and the necessity in upholding humanity standards.

On May 15, 2010, sixteen-year-old Kalief Browder was walking home with a friend in the Bronx, New York when police stopped the pair. 1 The police officers informed the two that someone had accused them of robbery. Despite Kalief’s insistence that they had not done anything, the two were taken to the police precinct for questioning. 2 One day later, Kalief was charged with robbery, grand larceny, and assault. 3 Because his family could not afford bail, Kalief was held at Rikers Island. 4 As punishment for fighting, Kalief spent two of his three years at Rikers Island in solitary confinement. 5 While there, Kalief was permitted to leave his cell for only recreation, showering, the visit room, the medical clinic, one six-minute phone call per day, and court appearances. 6 Over time, Kalief’s mental state deteriorated while in solitary confinement, causing him to attempt suicide on two separate occasions: Once by trying *

Karen DeSoto received her B.A. from Rutger University School of Environmental and Biological Science. She went on to receive her J.D. from Temple University Beasley School of Law, as well as her L.L.M. Ms. DeSoto is currently an Assistant Professor and Co-Director at the Institute for Dispute Resolution at the New Jersey City University School of Business.

1 Jennifer Gonnerman, Before the Law, NEW YORKER, (Oct. 6, 2014), https://www.new yorker.com/magazine/2014/10/06/before-the-law.

2 Id. 3 Id. 4 Id. 5 Id. 6 Id.

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to hang himself with his sheet, and once by shattering a bucket and cutting his wrist. 7 On May 29, 2013, Kalief was released from custody when the District Attorney indicated it was not in a position to proceed with the prosecution. 8 The charges against Kalief dropped the following week. 9 The damaging effects of Kalief’s solitary confinement lasted long after he returned home. 10 As a result of his depreciating mental state, Kalief attempted to commit suicide twice on the last day of November in 2013, resulting in his admission to a psychiatric ward. 11 Kalief told a reporter, “in my mind right now I feel like I’m still in jail, because I’m still feeling the side effects from what happened in there.” 12 Plagued by depression and paranoia, Kalief told his mother on June 5, 2014, “Ma, I can’t take it anymore.” 13 Two days later, Kalief Browder committed suicide. 14 Part I of this paper explores the history and development of solitary confinement. Part II discusses existing efforts to curb or ban juvenile solitary confinement. Part III reviews the international human rights standards for the treatment of juvenile criminal offenders. Part IV explores the detrimental effects of solitary confinement, and why President Obama recognized juvenile solitary confinement as an “affront to common humanity.” The essay concludes, in Part V, that juvenile solitary confinement practices in the United States violate the basic rules of conduct both domestically and internationally.

I. HISTORY OF SOLITARY CONFINEMENT Solitary confinement first began in the United States at Eastern State Penitentiary in 1829. 15 Its initial implementation stemmed from the assumption that prisoners would use the time in solitude to reflect and

7

See id.

Id. 9 Id. 10 Id. 11 Id. 12 Id. 13 Jennifer Gonnerman, Kalief Browder, 1993–2015, NEW YORKER (June, 7, 2015), https://www.newyorker.com/news/news-desk/kalief-browder-1993-2015.

14 Id. 15 Laura Sullivan, Timeline: Solitary Confinement in U.S. Prisons, NPR (July 26, 2016, 7:52 PM), http://www.npr.org/templates/story/story.php?storyId=5579901.

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repent. 16 However, the practice was abandoned because of the deleterious effects on the mental states of prisoners. 17 Of this inaugural experiment with solitary confinement, Supreme Court Justice Samuel Freeman Miller commented: A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. 18 Solitary confinement was not employed again until Alcatraz opened, and housed several dozen inmates in solitary conditions some for years at a time. 19 Prison populations vastly expanded in the 1980s, thus, many prisons increased the use of solitary confinement in an effort to control the growing number of inmates. 20 The modern use of solitary confinement involves inmates spending twenty-two to twenty-four hours a day in a cell with little to no human interaction, time outside the cell, or access to recreational or educational materials. 21 The practice is most commonly used as a punishment for rule-breaking or housing dangerous inmates. 22 Since the 1980s, government agencies and human rights organizations have investigated and reported on the harmful effects of solitary confinement. 23 In 2014, after Kalief Browder’s suicide, the United States Department of Justice (DOJ) commissioned a detailed review of

16

Id. Id.; (it should be noted, upon release from solitary confinement in prison, some prisoners went insane, committed suicide, or had difficulty integrating back into society).

18 Id. 19 Id. 20 US: Look Critically at Widespread Use of Solitary Confinement: Senate Hearing Should Mark End of Era of Indifference to This Harsh Form of Confinement, HUMAN RIGHTS WATCH (June 18, 2012, 12:00 PM), https://www.hrw.org/news/2012/06/18/uslook-critically-widespread-use-solitary-confinement.

21 Id. 22 Id. 23 See generally id.

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conditions for juveniles at Rikers Island. 24 The DOJ found, in part, that the, “DOC relies far too heavily on punitive segregation as a disciplinary measure, placing adolescent inmates—many of whom are mentally ill—in what amounts to solitary confinement at an alarming rate and for excessive periods of time.” 25 The DOJ concluded that the use of solitary confinement at Rikers Island “created a vicious cycle that serves to perpetuate rather than curb adolescent violence.” 26 II. EXECUTIVE ORDER AND DOMESTIC EFFORTS TO END JUVENILE SOLITARY CONFINEMENT President Obama was prompted by Kalief’s story to reflect on solitary confinement, commenting, “[t]oday, it’s increasingly overused on people like Kalief, with heartbreaking results—which is why my administration is taking steps to address this problem . . . [i]n America, we believe in redemption.” 27 On January 25, 2016, President Obama issued an executive order banning solitary confinement for juveniles. 28 In support of this action, President Obama further stated, “[h]ow can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people?”29 The executive order affects approximately 10,000 federal inmates serving time in solitary confinement. 30 Currently, approximately 80,000– 100,000 individuals are in solitary confinement in the United States. 31 Moreover, this figure becomes difficult to quantify because, “the United States prison system is not one body but a collection of fiefdoms that set their own administrative rules and definitions, the data does not fully 24

Letter from Preet Baharara, U.S. Att’y for the S. Dist. of N.Y., to Hon. Bill de Blasio, at 3 (Aug. 4, 2014), https://www.clearinghouse.net/chDocs/public/JC-NY-0062-0001.pdf.

25 Id. 26 Id. 27 Juliet Eilperin, Obama Bans Solitary Confinement for Juveniles in Federal Prisons, WASH. POST (Jan. 26, 2016), https://www.washingtonpost.com/politics/obama-banssolitary-confinement-for-juveniles-in-federal-prisons/2016/01/25/056e14b2-c3a2-11e59693-933a4d31bcc8_story.html?utm_term=.c600117ccaf7.

28 Id. 29 Id. 30 Id. 31 Solitary Confinement: Excessive Use of Solitary Confinement in Prisons Around the World, PENAL REFORM INT’L, https://www.penalreform.org/priorities/prisonconditions/key-facts/ solitary-confinement/.

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capture the reality of solitary confinement in the country.” 32 However, as of the end of 2015, only seventy-one juveniles were incarcerated in the federal system. 33 Essentially, juveniles in state, local, and private detention facilities are unprotected by the Executive Order’s solitary confinement ban.

Some states have made strides to curtail the use of juvenile solitary confinement. In 2014, ten states adopted regulations to limit the use of solitary confinement altogether, particularly for juvenile offenders, or limit the time juveniles can spend in solitary confinement. 34 In the wake of Kalief Browder’s suicide and resulting media coverage, the Mayor of New York City, Bill de Blasio, announced several measures to prevent similar tragedies in the future, such as ending solitary for juvenile offenders and expediting backlogged cases. 35 In December 2016, the Governor of New Jersey, Chris Christie, vetoed a bill in an effort to halt solitary confinement use on inmates under the age of twenty-one. 36 Governor Christie commented, “[t]he irresponsibility of this bill, and the resulting peril in which it could place both inmates and corrections officers every day, is truly breathtaking.” 37 The Governor defended the veto noting that the National Association of State Correctional Administrators must acknowledge “legitimate

32

Brian Sonenstein, Deconstructing Flaws in Important New Report on Solitary Confinement, SHADOWPROOF (Nov. 30, 2016), https://shadowproof.com/2016 /11/30/deconstructing-flaws-report-solitary-confinement/.

33 U.S. DEP’T OF JUSTICE, REPORT & RECOMMENDATIONS CONCERNING THE USE OF RESTRICTIVE HOUSING (2016).

34 Mark Berman, Kalief Browder and What We Do and Don’t Know About Solitary Confinement, WASH. POST (Jan. 26, 2014), https://www.washingtonpost.com/news/postnation/wp/2016/01/25/kalief-browder-and-what-we-do-and-dont-know-about-solitaryconfinement-in-the-u-s-2/; Eli Hader & Gerald Rich, Shifting Away from Solitary, MARSHALL PROJECT (Dec. 23, 2014), https://www.themarshallproject.org/2014/12/23/ shifting-away-from-solitary#.Gx8p70xdC. 35 Mark Berman, Kalief Browder and What We Do and Don’t Know About Solitary Confinement, WASH. POST (Jan. 26, 2014), https://www.washingtonpost.com/news/postnation/wp/2016/01/25/kalief-browder-and-what-we-do-and-dont-know-about-solitaryconfinement-in-the-u-s-2/.

36 Salvador Rizzo, Christie Vetoes New Limits on Solitary Confinement, N. JERSEY.COM (Dec. 5, 2016, 6:34 PM), http://www.northjersey.com/story/news/new-jersey /2016/12/05/christie-vetoes-new-limits-solitary-confinement/95004976/.

37 Id.

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penological, safety, and security reasons for placing certain restrictions on an inmate’s movement within a correctional institution.” 38 III. UNITED NATIONS INTERNATIONAL HUMAN RIGHTS STANDARDS The International Covenant on Civil and Political Rights (ICCPR) is an international human rights treaty adopted by the United Nations on December 16, 1966, and ratified by the United States on June 8, 1992. 39 The ICCPR mandates that, “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” 40 Particularly, the ICCPR requires that juvenile inmates must be “brought as speedily as possible for adjudication,” and “be accorded treatment appropriate to their age and legal status.” 41 The overarching aim of imprisonment, according to the ICCPR, must be “reformation and social rehabilitation.” 42 The United Nations Rule’s for the Protection of Juveniles Deprived of their Liberty establish minimum standards for the protection of juveniles in correctional facilities. 43 The U.N. resolution was approved by the General Assembly in December of 1990, and supported by the U.S. 44 The U.N. and the U.S. specifically prohibit the solitary confinement of juvenile offenders.

45 Section 67 of the Rules states, “[a]ll disciplinary measures constituting cruel, inhumane or degrading treatment shall be strictly prohibited, including corporal punishment that may compromise the physical or mental

38

Id. FAQ: The Covenant on Civil & Political Rights (ICCPR), ACLU, https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr; Brian Sonenstein, Deconstructing Flaws in Important New Report on Solitary Confinement, SHADOWPROOF (Nov. 30, 2016), https://shadowproof.com/2016/11/30/deconstructing -flaws-report-solitary-confinement/.

40 International Covenant on Civil and Political Rights, Afg.-Zim., Dec. 16, 1966, 99 U.N.T.S. 171.

41 Id. 42 Id. 43 Solitary Confinement of Juvenile Offenders. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY (Apr. 2012), http://www.aacap.org/aacap/Policy_Statements/2012/ Solitary_Confinement_of_Juvenile_Offenders.aspx.

44 Id. 45 Id. 39

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health of the juvenile concerned.” 46 In this particular situation, cruel and unusual punishment is a violation of the Eighth Amendment of the Constitution of the United States. 47 Measurements to avoid confinement, including appropriate behavioral plans and other interventions should be implemented. 48 The American Academy of Child and Adolescent Psychiatry (AACAP) concurred with the U.N.’s position, and opposed the use of solitary confinement in correctional facilities for juveniles. 49 In addition, a mental health professional, such as a child and adolescent psychiatrist, must evaluate any youth confined for more than 24 hours when one is available. 50 IV. NEGATIVE EFFECTS OF SOLITARY CONFINEMENT According to the AACAP, juveniles are at an increased risk for depression, anxiety, and psychosis as a result of solitary confinement. 51 Suicide is a tragic consequence for some, with about half of juvenile offender suicides occurring during solitary confinement. 52 According to the Council of Juvenile Correction Administrators (CJCA), isolation causes “serious psychological, physical, and developmental harm, resulting in persistent mental health problems, or worse, suicide.” 53 Research has indicated, due to the continuous brain development of a child, psychological harm from isolation would greatly affect an adolescent’s development. The damage solitary confinement

46

Id. Id. 48 Id. 49 See id.

50 Id. 51 Mark Berman, Kalief Browder and What We Do and Don’t Know About Solitary Confinement, WASH. POST (Jan. 26, 2014), https://www.washingtonpost.com/news/postnation/wp/2016/01/25/kalief-browder-and-what-we-do-and-dont-know-about-solitaryconfinement-in-the-u-s-2/.

52 Id.; (62 % of those juveniles who committed suicide had a history of solitary confinement.).

53 Council of Juvenile Corr. Adm’rs, Toolkit: Reducing the Use of Isolation, COUNCIL OF JUVENILE CORRECTIONAL ADMINISTRATORS, (Mar. 2015), http://cjca.net/attachments /article/751/CJCA%20Toolkit%20Reducing%20the%20Use%20of%20Isolation.pdf.

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causes may include psychological damage, increased suicide rates, denial or education and rehabilitation, and stunted development. 54 The CJAC reasons because of the severity of the risks solitary confinement causes, isolation should, or ever, only occur for a short period.

Accordingly, isolation should be a last resort method to protect the individual and not to punish. 55 V. CONCLUSION Juvenile solitary confinement should be abolished because it constitutes cruel, inhumane, and degrading treatment. The act of isolating a youth as a form of punishment increases the likelihood the youth will suffer form psychological trauma and possibly commit suicide. Therefore, the U.N.’s standards to protect juveniles from solitary confinement must reflect the international view of the negative consequences of such isolation.

54 55

Id. Id.

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FREEDOM OF RELIGION: CAN IT STAND UP BEHIND BARS? Heidi Cerneka * “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 1 (Emphasis added.)

“No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.” 2 (Emphasis added.)

I. INTRODUCTION Religious liberty has been debated in the United States since the arrival of the first immigrants on the Mayflower. The First Amendment to the U.S. Constitution guarantees the freedom of religious expression, while prohibiting states from establishing or endorsing any one religion. In United States v. Ballard, Justice Douglas summarized the founders were well aware of the potential for religious divisiveness when they “fashioned a charter of government which envisaged the widest possible toleration of conflicting religious views. Man’s relation to his God was made no concern of the state.” 3 However, the right to freely express one’s religion when behind prison walls is one that must continually be defended at both the state and federal level. Furthermore, when prisoners seek to defend religious practices that fall outside the mainstream of accepted religious practices, such as Christianity, Judaism, and Islam, they encounter resistance not just *

Heidi Ann Cerneka (J.D. Loyola University Chicago) has dedicated more than twenty years as an international advocate for women's and prisoner's rights. In addition to her international human rights experience, she has her master’s degree from Loyola University Chicago Institute of Pastoral Studies. She is currently living and working in Kenya, collaborating with local entities for the continued promotion of justice-involved advocacy for woman's rights.

1 U.S. CONST. amend. I. 2 42 U.S.C.A. § 2000cc-1(a) (2015).

3 United States v. Ballard, 322 U.S. 78, 87 (1944).

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in relation to their right to practice, but also to whether their very beliefs are legitimately religious. The First Amendment’s Establishment and Free Exercise Clauses play a significant role in guaranteeing access to the practice of one’s faith in prison. Additionally, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has slowly begun contributing to positive case law, especially for members of non-traditional religions.

In the United States, according to data from the Religious Landscape Study in 2014, 70.6 % of the population identifies as Christian, 1.9 % as Jewish, 0.9 % as Muslim, and no other religious group comprises more than 1 % of the population. 4 Fifty percent of prisoners reported to participate in religious services on an average of six times per month.5 It is vital that the Constitution protects the rights of prisoners to practice their religions. Further, in a country that is over seventy percent Christian, it becomes even more important to guarantee the rights of those who do not identify as Christian. Not only does this suggest that approximately 70 % of inmates are Christian, if prison populations mirror the general population, it may be inferred that 70 % of those making decisions about a prisoner’s sincerity and true religiosity identify as Christian as well.

Historically, guaranteeing the right to free exercise of religion for those living in institutions, including prisons, has challenged the courts to: define “religion,” the limits of the right to practice “religion,” addressing whether a prisoner still retains all the rights of a citizen, and if not, which rights are restricted. Cases discuss whether the right is to believe or to actually practice, what qualifies a belief as a religion, where the line is drawn between right to free exercise and institutional security, and who gets to decide that.

As early as 1879, a California circuit court judge considered the free exercise of religion in a case where a Chinese citizen was arrested and shorn of his queue: a ponytail worn for both cultural and religious reasons. 6 The court declared the city ordinance requiring haircuts of all men in the penitentiary to be invalid. In his commentary on the case, Judge Cooley stated the, “[c]onstitutional protection for the incarcerated 4

Religious Landscape Study, PEW RESEARCH CTR. (2014), http://www.pewforum. org/religious-landscape-study/#religions.

5 Derek L. Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner Provisions, 28 Harv. J.L. & Pub. Pol’y 501, 506 (2005).

6 Ho Ah Kow v. Nunan, 12 F.Cas. 252, 253 (C.C.D. Cal. 1879).

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requires that ‘convicts have all the rights of other citizens, except as these are limited by the sentence of the law and proceedings for its proper execution.’” 7 The road to guaranteeing access to that right has been circuitous and much debated, although less difficult for more traditional religions such as Judaism, historical Christian religions, and more recently Islam.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) that was held to be unconstitutional as applied to state and local governments in 1997. 8 However, RLUIPA followed in 2000 as an attempt to correct the flaws in RFRA by expanding the rights of prisoners through the offering of a broad definition of religion. 9 Under RLUIPA, guaranteeing the right to religious practice requires a prisoner to prove first that she has a sincerely held religious belief that is substantially burdened by a state action. The state may justify its actions only if it can demonstrate a compelling government interest for the action, and that there is no less restrictive means of achieving that interest. Five specific cases involving non-traditional religions demonstrate how the First Amendment and RLUIPA can guarantee prisoners’ access to justice, and prevent the state from having to be the arbiter of evaluating sincere or legitimate beliefs.

II. FIRST AMENDMENT PROTECTION OF RELIGIOUS EXERCISE IN PRISONS It has been argued that courts should not define religion and that any attempt to do so could violate religious freedom because it would dictate to religions what they must be. On the other hand, it has also been said that failing to define religion could violate the principle of the Free Exercise Clause. Nonetheless, the plain language of the First Amendment requires a definition of “religion” specific enough to allow courts to distinguish between

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The Religious Rights of the Incarcerated, 125 U. Pa. L. Rev. 812, 813 (1977).

42 U.S.C.A. § 2000bb-1(a) (2015); (RFRA states,”[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.”).

9 42 U.S.C.A. § 2000cc-1(a)(b) (2015).

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religious belief and non-religious belief. 10 (Emphasis added.)

The Supreme Court has identified key factors that indicate when a belief is in the realm of religion for First Amendment protection, as well as the scope of the Court’s authority and its role in challenges to religious rights in the First Amendment. In 1878, the Court held that a person’s right to belief is absolute and inviolable; however, his or her actions are not. 11 Quoting Thomas Jefferson, the Court made “an authoritative declaration of the scope and effect of the (First) amendment,” by stating, “[r]eligion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions.” 12 This does not suggest protecting religious practices in prison falls outside the scope of the First Amendment. Rather, a court must subject claims to careful analysis considering both First Amendment rights and state security. Clearly, when challenged, a court needs parameters for identifying what a religion is or is not, and prisons need clear parameters when establishing policies regarding religious practice.

In Cantwell v. Connecticut, the Supreme Court addressed the interplay between the Establishment Clause and the Free Exercise Clause holding, “the first is absolute but . . . the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.” 13 Thus, the Court settled its authority to give definition to religion regarding when courts must consider First Amendment applications and violations. a.

The Measure of Religion under the First Amendment

Belief and the concept of truth relating to a professed belief are not easily measured. However, the Supreme Court found gauging the sincerity of a person’s professed belief could be a means to identifying a legitimate 10

John O. Hayward, Religious Pretenders in the Courts: Unmasking the Imposters, 20 TRINITY L. REV. 24, 27–28 (2014).

11 Reynolds v. U.S., 98 U.S. 145, 166 (1878).

12 Id. at 164.

13 Cantwell v. Conn., 310 U.S. 296, 303–04 (1940).

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religion. In United States v. Seeger, when addressing whether conscientious objectors qualified for religious exemption from the draft the Court held, “the test of belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.” 14 “One who clearly qualifies for the exemption,” 15 suggests the measuring rod is based on traditional religions, while opening the way for non-traditional beliefs to be held as legitimate so long as they could measure up.

Similar to Seeger, Roberts v. Ravenwood Church of Wicca also looked to the sincerity and a “meaningful belief in God” in order to decide whether the church of Wicca can be considered a religion. 16 Unorthodoxy was deemed insufficient in order to disqualify the Church of Wicca from tax exemption, since the church legitimately demonstrated its religious legitimacy under the standard identified in Seeger. 17 i.

Sincerely Held Belief and Strict Scrutiny

Sincerity has become a major factor the Court uses when deciding whether a person is entitled to First Amendment protections. When addressing a case charging First Amendment violations, the Court must first decide whether the practice identified constitutes a religion or religious belief for First Amendment purposes. It then must evaluate whether the action cited violated the plaintiff’s free exercise of his or her religion.

In 1963, the Sherbert Test established, through strict scrutiny, a means to evaluate whether free exercise of religion has been violated by a certain action or regulation. 18 In Sherbert v. Verner, the Court held if a general law burdens free exercise, the state may justify it only “by showing that it is the least restrictive means of achieving some compelling state interest.” 19 This greatly limited the possibility of state actions, ordinances, and laws abilities to justify the limitation of a person’s free 14

United States v. Seeger, 380 U.S. 163, 165–66 (1965).

Id. 16 Roberts v. Ravenwood Church of Wicca, 249 Ga. 348, 350–51 (1982).

17 Id. 18 Sherbert v. Verner, 374 U.S. 398, 405–10 (1963).

19 Id. 15

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exercise of religion. Case law, however, continued to consider prison reality as a less rigorous application of strict scrutiny, weighing heavily in favor of the state’s definition of its compelling interest. ii.

Less Strict Scrutiny

In 1987, the Supreme Court decided two cases that arguably placed First Amendment protections in a prison context in the realm of rational basis rather than strict scrutiny. In Turner v. Safley, the Supreme Court laid out four factors to decide whether a prison’s actions in burdening religious exercise was “reasonably related” to a penological interest. 20 More importantly, Turner, accompanied by O’Lone v. Estate of Shabazz, down played the “strict scrutiny” that had once been considered essential to First Amendment claims, including prison-related claims in Sherbert. 21 The Turner Court held, “although inmates do maintain their constitutional rights during incarceration, restrictions on those rights may be justified by ‘legitimate penological interests,’” eventually leading the way for broad deference when considering prison authorities’ security concerns. 22 However, the Court has held that prison systems, and other courts, should not be in the business of judging religious doctrines or being “arbiters of religious law.” 23

20

Turner v. Safley, 482 U.S. 78 (1987); see also Turner 482 U.S. at 89–91 (evaluating the reasonableness of the prison action based on: (1) whether there is a “valid rational connection” between the prison regulation and a “legitimate and neutral governmental interest put forth to justify it,” (2) whether there are alternative means for exercising the right that are accessible to the inmate, (3) the impact that the accommodation will have on guards, other inmates and prison resources, and (4) whether the regulation is an exaggerated response, and ready alternatives exist at a minimal cost to valid penological interests.).

21 O’Lone v. Est. of Shabazz, 482 U.S. 342, 345 (1987).

22 Aaron K. Block, When Money is Tight, is Strict Scrutiny Loose?: Cost Sensitivity as a Compelling Governmental Interest Under the Religious Land Use and Institutionalized Persons Act of 2000, 14 TEX. J. C.L. & C.R. 237, 241 (2009).

23 Charles v. Verhagen, 220 F.Supp.2d 937, 945 (D. Wis. 2002), aff’d, 348 F.3d 601 (7th Cir. 2003); see also Ethridge B. Ricks, The Gospel According to Warden: Rluipa, the First Amendment, and Prisoners’ Religious Liberty Requests, 11 FIRST AMEND. L. REV.542, 591–92 (2013) (reiterating the “doctrinal determinations are contrary to the fundamental Establishment Clause notion that government entities should not be authorities on religion, and despite the constitutional complexities of incarceration, the Establishment Clause principle is applicable in the prison context.”).

14

The Supreme Court appears to affirm strict scrutiny for First Amendment rights and in turn temper that strict scrutiny in relation to prison issues. By only requiring legitimate penological interests instead of compelling government interests, Turner and O’Lone risk reducing the citizenship of prisoners by reducing their access to fundamental First Amendment rights.

III. RLUIPA AND A RETURN TO A “STRICT SCRUTINY” METHOD OF PROTECTING THE FREE EXERCISE OF RELIGION The First Amendment declares, Congress shall not pass laws establishing a state religion or limiting a person’s religious exercise.24 That means a First Amendment analysis will begin with the challenged regulation. RLUIPA, on the other hand, begins at the individual’s right to religious exercise, and bars state action that places a substantial burden on that right. Through RLUIPA, Congress sought to return to the strict scrutiny of Sherbert, protecting First Amendment rights to free expression of religion even behind bars. Additionally, “[t]he Turner standard did not protect prisoners’ religious practice as much as RFRA or RLUIPA do.” 25 In Turner, the First Amendment analysis of whether specific prison regulations unconstitutionally burden religious exercise evaluates whether prison regulations are reasonably related to legitimate penological interests using the four factors identified above. 26 Compared to Turner, RLUIPA indicates that government officials cannot substantially burden a person’s religious rights unless the regulation or action furthers a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest. 27 (Emphasis added.) In other words, RLUIPA applies a strict scrutiny analysis to the prison regulation, and instead of beginning with the prison regulation, RLUIPA begins with the prisoner’s claim, evaluates whether it is a sincerely held religious belief, and whether the regulation imposes a substantial burden on that religious belief. 28 24

U.S. CONST. amend. I. Know Your Rights Freedom of Religion, ACLU NAT’L PRISON PROJECT, https://www. aclu.org/files/images/assetuploadfile7825744.pdf.

26 Turner v. Safley, 482 U.S. 78, 79 (1987).

27 42 U.S.C. § 2000bb-1(b) (2015).

28 Mayfield v. Tex. Dep’t of Crim. Just., 529 F.3d 599, 613 (5th Cir. 2008).

25

15

When the constitutionality of RLUIPA was challenged in Cutter v.

Wilkinson, the Supreme Court ruled that the portion of RLUIPA dealing with inmates “qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.” 29 Congress understood the necessity to become more explicit after its initial experience with RFRA, in addition to three years of public hearings and listening sessions. In turn, congress chose to expand the understanding of religious exercise in RLUIPA, by including “any exercise of religion whether or not compelled by, or central to, a system of religious belief.” 30 In its fact-finding hearings and other sessions, Congress noted some institutions restrict religious liberty in egregious and unnecessary ways, while prisons officials sometimes impose frivolous or arbitrary rules. 31 Some prison authorities still require any request for religious accommodation proved as central to a sincerely held religious belief and orthodox practice as verified by an outside religious authority. However, this cannot stand under RLUIPA’s expanded definition of religious exercise.

Under RLUIPA, when a prisoner demonstrates that a state policy substantially burdens his sincerely held religious belief, the state must demonstrate a compelling interest to uphold that policy and that no less restrictive means exist to avoid burdening the religious exercise of that particular claimant. 32 In other words, once the prisoner meets his or her burden of a prima facie case, the burden shifts to the state to prove its case. 33 A state merely explaining the importance of a prison policy, or the reason why a chaplain recommended denying an exemption or accommodation is not enough.

The debate about this issue turns on either defending prisoners’ rights, or defending prison authority. David Fahti of the ACLU National Prison Project states the Safley-O’Lone standard is too deferential to the state, pointing out that “[o]ftentimes in the lower courts prison officials do not provide any evidence that their regulation serves a legitimate prison 29

Cutter v. Wilkinson, 544 U.S. 709, 720 (2005).

42 U.S.C. § 2000cc-5(7)(A) (2015).

31 Religious Land Use and Institutionalized Persons Act, S. 2869, 106th Cong., 146 CONG. REC. (2000) (enacted).

32 Holt v. Hobbs, 135 S. Ct. 853, 863 (2015).

33 Id. 30

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interest but simply come up with a post-hoc, speculative reason to justify the restrictive policy.” 34 On the other hand, the American Correctional Association claims the Safley-O’Lone standard to be the proper one. 35 RLUIPA should have laid this discussion to rest, although some lower courts still seem to be sorting out exactly what is a sincerely held religious belief, and what compelling government interests are. “After RLUIPA’s passage, the permissibility of testing sincerity created confusion in its application for both prison facilities and lower courts,” even taking away rights from those who did not practice a religion with 100 % adherence. 36 Additionally, courts apply different standards when addressing claims based on the First Amendment, RLUIPA, or Equal Protection: This is even more of a risk when the religions are outside of the traditional understanding of mainstream religions.

IV. RELIGIOUS PRACTICE AND PRISON AUHORITY While the judgments of prison officials are entitled to considerable weight because they are based upon firsthand observance of the events of prison life and upon a certain expertise in the functioning of a penal institution, prison officials are not judges. They are not charged by law and constitutional mandate with the responsibility for interpreting and applying constitutional provisions, and they are not always disinterested persons in the resolution of prison problems. We do not denigrate their views but we cannot be absolutely bound by them. 37 (Emphasis added.)

Security is a legitimate issue in a prison context. When weighing constitutional issues within the prison systems, courts should listen to and defer to prison authorities’ concerns regarding general prison safety.

However, a court cannot blindly defer to prison authority because, not all requests for religious accommodations constitute security breaches. How 34

David L. Hudson Jr., Free Exercise Clause: Prisoners’ rights, FIRST AMENDMENT CENTER (Sep. 16, 2002), http://www.firstamendmentcenter.org/prisoners-rights.

35 Id. 36 Noha Moustafa, The Right to Free Exercise of Religion in Prisons: How Courts Should Determine Sincerity of Religious Belief Under RLUIPA, 20 MICH. J. RACE & L. 213, 215 (2014).

37 Brown v. Peyton, 437 F.2d 1228, 1232 (4th Cir. 1971).

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are the dreadlocks of a prisoner practicing as an African Hebrew Israelite of Jerusalem faith pose more of a security risk than the dreadlocks of a prisoner practicing Rastafarianism? 38 Without clear guidance from Congress or the Court, prison authorities find themselves determining whether a religion is authentically held and sincere, and whether a specific religious practice is legitimate. The biases of a majority Christian atmosphere, the biases of the prison atmosphere, the realities of budgetary limits on staffing, and the delicate balance between security and prisoners’ rights all play a major role in prison authorities’ determinations.

It is the courts duty to maintain an essential role in holding the fundamental rights of the U.S. Constitution sacred to all, weighing them within the context of any substantial burden to an individual and compelling government interests. However, the religious diversity of the prison populations makes the job of courts even more challenging. It is clear that the denial of access to things such as dietary requirements, basic religious materials, spiritual leaders, and opportunities to gather for worship and rituals is not exclusive to non-traditional religions. There have been many cases that Christians, Jews, and Muslims sought the court’s guarantee of their religious rights in prison.

For example, in Nelson v. Miller, Roman Catholic plaintiff Brian Nelson was required to show his religion compelled the practice of abstaining from meat via documentation from a church authority. 39 Ironically, the prison chaplain’s actions based on his “knowledge” of Catholicism, according to him, did not require abstention from meat. In cases explored below, oftentimes the prison chaplains’ missteps arise out of a lack of knowledge of certain religions. Having said that, the court in Nelson held that the requirement of documentation was unlawful under RLUIPA because it posed a substantial burden on the plaintiff’s religious practice, and the requirement was not justified by a compelling government interest. 40 In 2009, the Ortiz v. Downey decision demonstrated that arbitrary application of the personal religious standards of prison personnel was still 38

Grayson v. Schuler, 666 F.3d 450, 452–55 (7th Cir. 2012) (clarifying that a sincerely held belief is not limited to what a religion “requires” nor is a prisoner required to adhere one hundred percent to all tenets of a religion.).

39 Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009).

40 Id.

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unconstitutionally restricting the right to exercise one’s religion. 41 The Ortiz court addressed invalid restrictions on a Roman Catholic prisoner when the prisoner requested a prayer book, rosary, and access to a Roman Catholic priest. 42 The Chief of Corrections denied the prisoner’s request stating that he too was Catholic, and therefore knew that a rosary and prayer book were not essential to the practice of the prisoner’s religion. 43 The circuit court reversed the dismissal in favor of the defendant, holding that the defendant demonstrated no legitimate penological interest and, “[a] person’s religious beliefs are not subject to restriction by the personal theological views of another.” 44 (Emphasis added.)

In Holt v. Hobbs, the district court upheld a prison regulation denying a Muslim prisoner the right to grow a half-inch beard according to his religious beliefs because, finding not all Muslims believe men must grow beards, the court determined the prisoner could practice his religion in other ways. 45 The Supreme Court, however, found while the First Amendment could recognize a prisoner had other alternative ways to practice and profess his religious belief, RLUIPA requires more. 46 RLUIPA asks whether the government has substantially burdened that specific prisoner’s religious exercise, independent of whether the particular practice is “compelled” by religious tenet. 47 Whether or not a specific practice based on a sincerely held belief is an essential tenet to a religion is not the question in RLUIPA. Rather, the Supreme Court held the prisoner had the right to practice a belief that was part of his religion, and was not contradictory to the tenets of Islam. 48 Majority of challenges to mainstream religions are sought in order to show prisoners are sincere in their beliefs, rather than demonstrating their beliefs are actually a part of a legitimate religion. Generally, cases unfold differently when the plaintiff professes a nonmainstream religion— historically; the prisoner loses his claim on all counts. The Equal Protection Clause of the Fifth Amendment has been a means for winning 41

Ortiz v. Downey, 561 F.3d 664 (7th Cir. 2009).

Ortiz, 561 F.3d at 666.

43 Id. at 669.

44 Id. 45 Holt v. Hobbs, 135 S.Ct. 853, 857 (2015).

46 Holt, 135 S.Ct. at 857.

47 Id. at 862.

48 Id. at 857.

42

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access to justice in defending one’s religious rights. Additionally, RLUIPA and state RFRA statutes offer more broad latitude in defining religion and religious exercise, and reduce arbitrary application of policies by strictly analyzing compelling government interests that may serve to outweigh a prisoner’s right to practice his religion. a.

Two Seminal Cases in the Right to Practice Exercise of Religion in Prison Federal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ including prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances. 49 (Emphasis added.)

Two seminal cases in the 1960s and 1970s demonstrated the Supreme Court’s commitment to the free exercise of religion even behind bars. While the Court’s opinions in both Cruz v. Beto and Cooper v. Pate were not without restrictions and deference to prison authorities, they signaled to the lower courts that deference with no limits violates the U.S. Constitution, and religious rights are not checked-out when the steel doors slammed shut on a prison cell. 50 Both Cruz and Cooper arose out of complaints of restrictions on religions that were not considered traditional at the time: Buddhism and Islam. Both cases demonstrate legitimate religious claims, prison authority restrictions, and court involvement at various levels. Additionally, both Cruz and Cooper were decided prior to the decisions of Turner and O’Lone. i.

Cooper v. Pate

During its five-year engagement with the judicial system, Cooper v. Pate raised issues of: substantial burden, deference to prison authority, compelling government interest, the consideration of less restrictive alternatives over categorical prohibition for meeting that compelling 49 50

Cruz v. Beto, 405 U.S. 319, 321 (1972).

Cruz, 405 U.S. at 321 (1972); Cooper v. Pate, 382 F.2d 518, 518–24 (7th Cir. 1967).

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government interest, while addressing whether a prisoner’s beliefs as an Elijah Muhammad Muslim were based on religion and his inherent First Amendment rights. 51 In 1963, Thomas Cooper filed his own handwritten appeal with the court of appeals for the Seventh Circuit after the district court dismissed his claim of a violation of the Civil Rights Act. 52 The alleged violation occurred when the Statesville Prison denied him access to religious material, the opportunity to meet with ministers of his faith, and to gather with other prisons for religious services. Cooper also claimed the prison punished him as retaliation for his religious beliefs.

Based on a civil rights claim, Cooper, in his brief, referred to the First, Fifth, and Fourteenth Amendments. Had Cooper been a white practicing Baptist, rather than a black Elijah Muhammad Muslim, access to religious material and the right to meet and pray would be a simple right to exercise. However, the prison denied Cooper the right to practice his religion based on safety and security reasons, claiming he was a disciplinary problem whose goal was to incite riots and tout the inherent superiority of the black man, and whose belief was not a religion. 53 Additionally, the prison found it suspect when Cooper sought to learn Swahili and Arabic in order to read the Quran in its original language. 54 It is hard to imagine that a Methodist seeking to learn Greek to read the Bible in its original language would be denied a primer in Greek.

Despite its initial dismissal for lack of a cause of action, the U.S. Supreme Court, in a one-paragraph opinion, affirmed Cooper’s cause of action and reversed the decision of the lower court. 55 On remand, the Seventh Circuit held the issue in fact was one of religious freedom. 56 Five years after his initial filing, Thomas Cooper finally won recognition of his beliefs as a religion, and the right to the same privileges available to other religions.

51

Cooper v. Pate, 382 F.2d 518, 520–22 (7th Cir. 1967).

Cooper, 382 F.2d at 518.

53 See generally id.

54 Id. at 519.

55 Cooper v. Pate, 378 U.S. 546 (1964).

56 Cooper v. Pate, 382 F.2d 518, 522 (7th Cir. 1967).

52

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In the court’s final decision, Judge Fairchild wrote, “[c]ourts will closely scrutinize the reasonableness of any restriction imposed on a prisoner’s activity in the exercise of his religion, and specially so where the adherents of one faith are more heavily restricted than the adherents of another.” 57 He went on to confirm the right of inmates to receive an English version of the Koran: Specifically, the version requested. 58 He also confirmed the right to correspond and visit with ministers of prisoner’s faith, indicating the prison authority failed to show any clear and present danger resulting from allowing prisoners’ access, thus, identifying the preclusion as discriminatory based on other religion’s access to those religious benefits. 59 Cooper and other members of his religion were also guaranteed the right to gather for services. The court held there were less restrictive alternatives to regulate organized religious services than a categorical ban. 60 Despite losing on some claims, the overall outcome of the case was a significant victory in prisoners’ access to religious rights and the option to seek judicial recourse. ii.

Cruz v. Beto

A second case, Cruz v. Beto, reached the Supreme Court in 1972, seeking relief under the Civil Rights Act. 61 Following the lead of Cooper, Cruz was a Buddhist who filed a complaint stating Protestant, Jewish, and Catholic inmates were allowed to gather regularly for religious services, consult spiritual leaders, and even earn points of “good merit” for attending religious services, while Buddhists were not. 62 He also alleged as punishment the prison put him in solitary confinement, placed him on a diet of bread and water, and denied him access to any publications in retaliation against him because of his religion. 63 57

Cooper, 382 F.2d at 522.

Id. 59 Id. 60 Id. 61 Cruz v. Beto. 405 U.S. 319 (1972).

62 Cruz, 405 U.S. at 319; See also Cruz v. Estelle, 497 F.2d 496, 498 (5th Cir. 1974) (noting that Cruz’ first complaint was filed pro se and written on toilet paper. Only after the case was transferred to the Southern District of Texas, did voluntary counsel appear to represent him and the case transferred from toilet paper to legal paper).

63 Cruz, 405 U.S. at 320 n.1.

58

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The federal district court dismissed the case based on absolute deference to prison authorities, stating the complaint was, “in an area that should be left ‘to the sound discretion of prison administrators.’ It went on to say, ‘[v]alid disciplinary and security reasons not known to this court may prevent the ‘equality’ of exercise of religious practices in prison.’”64 Distinguished from Cruz, the Supreme Court in Cooper only recognized the plaintiff’s valid cause of action without getting into the merits of the case. 65 However, the opinion noted the cause of action to be specifically related to a denial of privileges related to religious beliefs that were enjoyed by other prisoners. 66 Moreover, the Court in Cruz addressed the fact that constitutional rights reach all citizens, as does the right of redress, including access to judicial consideration when those rights are infringed. The opinion clearly sets limits on deference to prison authorities by stating federal courts must enforce the constitutional rights of all persons, including prisoners. 67 (Emphasis added.) The Court concluded its opinion by stating if Cruz, as a Buddhist, was denied an opportunity to practice his faith, while other prisoners of more traditional faiths were not, then Texas had discriminated against him because of his religion violating both the First and Fourteenth Amendments. 68 The decisions in both Cooper and Cruz involved minority religions and were filed as violations of prisoners’ civil rights. 69 Additionally, upon reaching the Supreme Court, the Court indicated both cases stated a valid cause of action that had to be addressed on the merits, while simultaneously identifying equal access to the free exercise of religion was the underlying issue in each case.

64

Id. at 321.

Cooper v. Pate, 378 U.S. 546 (1964).

66 Id. 67 Cruz, 405 U.S. at 321.

68 Id. at 322.

69 It should be noted: The Cooper decision additionally refers to the First, Fifth, and Fourteenth Amendments.

65

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b.

Wicca, Thelema, and Odinism: Identifying Religion and the Parameters of the Free Exercise of it i.

Dettmer v. Landon

Herbert Dettmer began studying witchcraft through a correspondence course with the Church of Wicca as a prisoner in Virginia. 70 He began meditating and practicing rituals based on his studies. 71 Eventually, he requested incense, candles, a white robe with a hood, sea salt or Sulphur, and a small hollow statue to aid in protecting him, and “storing spiritual power called down during meditation.” 72 The government claimed the doctrine of the Church of Wicca was not a religion, rather a, “‘conglomeration’ of ‘various aspects of the occult, such as faith healing, self-hypnosis, tarot card reading, and spell casting, none of which would be considered religious practices standing alone.’”73 Unsatisfied with the limited accommodations the prison offered, 74 Dettmer filed a civil rights suit pursuant to 42 U.S.C. §1983 in 1984, for denial of his freedom of religion. 75 Building on previous case law, the court in Dettmer v. Landon addressed whether or not Wicca was a religion, a prisoner’s right to practice it with the accouterments necessary for such practice, and the limits of religious rights within a prison environment. 76 Significant to the overall issue of prisoners’ rights, the district court held Wicca is a religion and that Dettmer’s rights had been violated. 77 The court in turn enjoined the state to provide access to the necessary material needed for Dettmer to practice his religion, while recognizing the states continued need to

70

Dettmer v. Landon, 799 F.2d 929, 930 (4th Cir. 1986).

Dettmer, 799 F.2d at 930.

72 Id. 73 Id. at 932.

74 Id. at 930–31 (although the government claimed that Wicca was not a religion, the regional administrator attempted to conciliate the situation, stated the, “items requested are deemed to be a threat to the safety and security of any penal institution, and are not allowable under DGL 141 (Personal Property). However, if you can provide this office with written proof through doctrine, that the full practice of this rite, with the items you request, is a required tenet of your faith, reconsideration will be given to your request.”).

75 Id. at 931.

76 See generally id.

77 Id. 71

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guarantee security. 78 The court cited multiple cases as precedent in considering the Church of Wicca a religion that equally protected by the free exercise clause of the First Amendment.

On appeal, the court of appeals recognized the, “district court properly considered whether the Church occupies a place in the lives of its members ‘parallel to that filled by the orthodox belief in God’ in religions more widely accepted in the United States.” 79 The district court found that members of the Church of Wicca adhered to a complex set of doctrines relating to the spiritual aspect of their lives, and that these doctrines concern the “ultimate questions of human life, as do the doctrines of recognized religions.” 80 Despite such recognition, the court of appeals still found a “wideranging” deference was appropriate as applied to “prison administrators’ decisions concerning the proper means to accommodate prisoners’ rights to the needs of ‘internal order and discipline,’ unless there is ‘substantial evidence in the record to indicate that the officials had exaggerated their response to these considerations.’” 81 Thus, the Fourth Circuit Court upheld the identification of Wicca as a religion, but vacated the district court injunction granting Dettmer’s access to the material needed in deference to the prison authority. 82 Citing Cruz, the Fourth Circuit indicated while a prisoner must be, “accorded a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts,” the decision by the prison administration to prohibit the items sought did not discriminate against him because of his “unconventional beliefs.” 83 The decision was based on a prohibition of use of the items by any inmate and not specific to Wicca nor to the plaintiff.

78

Id. at 930.

Dettmer, 799 F.2d at 931.

80 Id. (citing U.S. v. Seeger, 380 U.S. 163, 166 (1964); Africa v. Penn., 662 F.2d 1025, 1032 (3d Cir. 1982); Int’l Soc’y for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir.1981); Malnak v. Yogi, 592 F.2d 197, 208 (3d Cir. 1979)); (arguably, the factors the court identified anticipate what later was laid out in U.S. v. Meyers, 906 F. Supp. 1494, 1502–03 (D. Wyo. 1995), aff’d, 95 F.3d 1475 (10th Cir. 1996)).

81 Id. at 934.

82 Id. at 929.

83 Id. at 933.

79

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While overall outcome of Dettmer recognized Wicca as a religion and a prisoner’s right to First Amendment Free Exercise of his religion, the court limited the religious practice by deferring to the prison administration’s regulations. Thus, the Court held the limitation of the religious practice of Wicca was not discriminatory.

When considering the deference and far less strict scrutiny the court repeatedly identified as foundational to First Amendment rights as accessed in prisons, the importance of Congress explicitly identifying parameters for religious freedom in RFRA, and later in RLUIPA, becomes clearer. Dettmer points out the central issues are not as focused on the plaintiff’s right to use incense and candles insomuch as they are the clear statements of deference made by the courts. ii.

Koger v. Bryan

While Buddhism, Islam, and Wicca are recognized religions there remain many small churches, less widely known religions, and individual beliefs that are sincerely held and followed by prisoners. In turn, those religions and beliefs merit the same protection under the First Amendment, Fifth Amendment, Fourteenth Amendment, RFRA, and RLUIPA. In 2001, Gregory Koger, a prisoner at Pontiac Correctional Center, was a member of the Ordo Templi Orientis (OTO), and practiced the religion Thelema. 84 Koger filed suit for failure to accommodate his religious requests under RLUIPA, and the First and Fourteenth Amendments. Under the First Amendment analysis, when considering the diverse lower court’s interpretation of the Safley, O’Lone, and Meyers factors, Koger failed to establish that his religion was legitimate and that his request for a vegetarian diet was religiously based, even if not considered an essential tenet of his religion. 85 The district court in turn found for defendants on all claims, and granted summary judgment.

84

Koger v. Bryan, 523 F.3d 789, 793–94 (7th Cir. 2008); Thelema was founded by Aleister Crowley in 1904, and has as its central tenet, “Do what thou wilt,” which its followers consider a divine mandate to discover their true purpose in life.

85 Koger, 523 F.3d at 795.

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However, on appeal the Seventh Circuit Court of Appeals reviewed the case under RLUIPA standards, and reversed on all counts.86 Moreover, RLUIPA explicitly defines “religious exercise” as, “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 87 The initial burden of persuasion in a RLUIPA claim rests on the plaintiff who must produce prima facie evidence to support a claim alleging a violation of the Free Exercise Clause, and evidence as to whether the government practice that is challenged by the claim “substantially burdens the plaintiff’s exercise of religion.” 88 Gregory Koger desiring accommodations for a private spiritual practice, in turn sought a religion that would be compatible with his beliefs when prison officials denied his initial request. In 2000, Koger began practicing yoga and stopped eating meat because of his new yoga practice. 89 In turn, Koger requested from the chaplain responsible for approving religious accommodation to receive a vegetarian diet the prison provided to members of different religions in the prison. 90 Upon initial request, the chaplain informed Kroger that he needed a letter from a “rabbi-imam.” 91 In time, Koger requested an explanatory letter from the Prison Ministry coordinator to give to the prison chaplain. 92 However, the chaplain did not accept the letter and denied the meal request. 93 The prison informed Koger, avoiding meat was not a dietary requirement of OTO despite many Thelemite’s regular practice of not eating meat it as part of their regimen or spiritual discipline. 94 86

Id. at 793.

42 U.S.C. § 2000cc-5(7)(A) (2015).

88 42 U.S.C. § 2000cc-2(b); In its entirety, 2(b) states: “(b) Burden of persuasion: If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.”

89 Koger, 523 F.3d at 793.

90 Id. at 793.

91 Id. at 794.

92 Id. 93 Id. 94 Id. 87

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Dead-ended with nowhere left to turn, Gregory Koger filed suit against the prison, challenging two specific practices of the prison officials that placed a substantial burden on his religious exercise. First, Koger stated the denial of a non-meat diet, simply because it was not required by the religion, substantially burdened his personal practice of his beliefs. 95 Second, the requirement of a letter to verify the OTO religion and its tenets, arguably, placed a substantial burden on Koger. 96 The court addressed these issues as a “religiously required test” and a “clergy verification test.” 97 Because RLUIPA defends, “any exercise of religion whether or not compelled by, or central to, a system of religious belief,” 98 the court, after evaluating plaintiff’s practices and claims since early 2001, held Koger’s practice was clearly based on a sincerely held religious belief. Not only was his request for a non-meat diet a sincerely held religious belief, the court went on to hold the government did not offer any compelling interest to overcome that burden on his religion. 99 (Emphasis added.)

“Additionally, the prison officials have not offered evidence that the religiously required test was employed in furtherance of a compelling governmental interest, or the least restrictive means of furthering that interest.” 100 The court also indicated requiring a “clergy verification letter” could not be justified by any compelling government interest. 101 RLUIPA specifically states that any exercise of religion, whether or not compelled by a system of religious belief is to be considered a religious exercise. 102 (Emphasis added.) Having established the plaintiff’s religious belief were sincere, the court noted requiring a letter from a rabbi, or imam, in order to verify the authenticity of the practices, rather than based on a compelling government interest, is a violation of RLUIPA. The court concluded by saying:

95

Id. at 797.

Id. at 796–97.

97 Id. at 798.

98 42 U.S.C. § 2000cc-5(7)(A) (2015).

99 Koger, 523 F.3d at 798.

100 Id. 101 Id. at 801.

102 Supra note 98.

96

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[s]umming up, we conclude that [the plaintiff] met his burden of establishing that both the religiously required test and the clergy verification requirement operated as substantial burdens on his religious exercise. The prison officials failed to meet their burden in showing that their practices were the least restrictive means of furthering a compelling government interest. 103 As mentioned above, RLUIPA protected these rights for Gregory Koger. If this case was analyzed under Turner or Meyers, Koger may not have been able to prove his genuine religious belief or that it was violated by restrictive prison policy. However, under RLUIPA, had Koger not found OTO, rather continued with his spiritual practice of yoga, a nonmeat diet would not qualify as an exercise of religion based on his sincerely held beliefs. iii.

Mayfield v. Texas Department of Criminal Justice

Much like Koger, the court in Mayfield v. Texas Department of Criminal Justice also analyzed contentions under both the First Amendment and RLUIPA, and recognized the risk of arbitrary applications in “covert suppression of particular religious beliefs,” in religious subgroups. 104 The significance of Mayfield, beside prisoners seeking to protect religious rights, lies in the distinction between First Amendment and RLUIPA analyses.

In Mayfield, the First Amendment analysis begins with prison regulations and considers its application to the individual case, while the RLUIPA analysis begins with the prisoner and his religious belief and asks whether that belief is substantially burdened by prison regulations.

The difference of vantage point is subtle, but materially affects the final court decision.

Darren Mayfield practiced Odinist/Asatruism: A religion that worships a variety of gods and goddesses, uses runes for meditation, and holds group meetings for worship. 105 Mayfield’s complaint alleged the prison denied access to runestones, literature regarding runes, and 103

Koger, 523 F.3d at 801.

Mayfield v. Tex. Dep’t of Crim. Just., 529 F.3d 599, 609 (5th Cir. 2008).

105 Mayfield, 529 F.3d at 602.

104

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opportunities to meet for worship. The court began its First Amendment analysis by looking at the prison regulation, and analyzing whether it encroached on fundamental rights. Essentially, the Court asked whether the regulation demonstrated a reasonable relation to a legitimate penological interest and whether the regulation applied in neutral manner. 106 Under the First Amendment, the circuit court indicated the prison had legitimate security concerns related to the use of runestones, and upheld the district court decision denying access to the runestones. 107 However, the circuit court found summary judgment was inappropriate in analyzing whether the prison violated the First Amendment neutrality requirement. 108 By denying the Odinists’ right to meet for worship without the presence of a volunteer, the way other religions were allowed to meet, and denying access to rune literature in the prison library, the prison violated the First Amendment neutrality requirement. 109 On the other hand, under a RLUIPA analysis, the court found Mayfield had in fact demonstrated a sincere religious belief that had been substantially burdened by prison policy. 110 Once established under RLUIPA, the burden shifted to the state to demonstrate its policy was narrowly tailored to serve the compelling security interest of the state prison system. The circuit court also believed the granting of summary judgment regarding the access to actual runestones claim was inappropriate because the state did not prove the non-existence of a less restrictive alternative. 111 In fact, the Texas Department of Criminal Justice (TDCJ) has since decided to implement a pilot program allowing limited access to runestones. 112 While it has not been implemented yet, the pilot program clearly demonstrates a less restrictive alternative is possible. 113 The circuit court initially stated the neutrality requirement of the First Amendment precluded summary judgment in regards to the 106

Id. at 610.

Id. at 611–12.

108 Id. at 610.

109 Id. at 610–12.

110 Id. at 616.

111 Mayfield, 529 F.3d at 616.

112 Id. at 616–17.

113 Id. 107

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opportunity to gather for worship and access to religious literature, despite the court upholding the legitimate penological interest of denying access to runestones. However, under RLUIPA, the circuit court found the prisoner demonstrated a sincere religious belief, and the TDCJ policy substantially burdened that belief by denying access to runestones for meditative practice. At the same time, the court held the TDCJ bore the burden of proving its policy was narrowly tailored, such that there were no less restrictive means for meeting the compelling government interest of security, which the state failed to meet that burden. iv.

Success Under the Establishment Clause

As the United States continues to grow in cultural diversity, and religious expression continues to diversify, RLUIPA and First Amendment guarantees are the most effective means to guarantee people’s ability to practice their religion while incarcerated. Two recent decisions involving the Establishment Clause demonstrate this.

In California, inmates lost their claims under the Equal Protection and Free Exercises Clauses, as well as RLUIPA. 114 However, the court found the prison had violated the Establishment Clause when favoring some religions over others when choosing chaplains was not based on actual religious participation. 115 In an interesting twist on an understanding of sincerely held beliefs, the court held in Kaufman v.

McCaughtry, “[a]theism is [the plaintiff’s] religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being.” 116 Because prison authorities failed to articulate any compelling reason as to why this group should not be able to meet, while other religious groups were allowed meet, the court held the Establishment Clause was violated. 117

114

See generally David Reutter, Ninth Cir. Reverses Dismissal of Wiccan Prisoners’ Establishment Clause Claim, PRISON LEGAL NEWS (Feb. 15, 2014), https://www. prisonlegalnews.org/media/issues/02pln14.pdf.

115 Id. 116 Kaufman v. McCaughtry, 419 F.3d 678, 684 (7th Cir. 2005).

117 Kaufman, 419 F.3d at 684.

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V. CONCLUSION While the judgments of prison officials are entitled to considerable weight because they are based upon firsthand observance of the events of prison life and upon a certain expertise in the functioning of a penal institution, prison officials are not judges. They are not charged by law and constitutional mandate with the responsibility for interpreting and applying constitutional provisions, and they are not always disinterested persons in the resolution of prison problems. We do not denigrate their views but we cannot be absolutely bound by them. 118 (Emphasis added.)

When considering cases that have challenged the courts from 1962, to the present, and considering cases that were not considered mainstream religions at the time of filing, it is clear how important First Amendment guarantees are for protecting the free exercise of religion in a prison setting. The cases mentioned, and many others, cite prison authorities as the defendants. Moreover, those defendants often claim a person’s belief does not constitute a religion, his religious commitment to avoiding meat is not feasible, or that a recognized authority in his church must authenticate it. However, without these statutes and amendments, prison authorities would find themselves attempting to decipher whether a person’s sincerity, whether a religion is truly a religion, and what actually constitutes an essential element of the religion.

While abuses may occur from both sides, religious practices should be encouraged in prisons and not held as a means to control prisoners in the power struggle that occurs in correctional institutions. The Supreme Court has been deciding cases since the nineteenth-century, seeking to guarantee religious freedom that is fundamental to this nation. In addition to those decisions, the passage of RFRA and RLUIPA are milestones aiding in this process. They expand the understanding of religion to guarantee all prisoners with sincerely held belief’s the ability to freely practice their religion, unless the government successfully demonstrate a compelling interest for restricting the practice by the least restrictive means.

118

Brown v. Peyton, 437 F.2d 1228, 1232 (4th Cir. 1971).

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ARE CHURCHES FREE TO TEACH BIBLICAL SEXUALITY? NOT IN IOWA OR MASSACHUSETTS, WHERE GOVERNMENT INVADED SERMONS, BULLETIN BOARDS, AND POLICIES Elizabeth M. Paillere * It is well known, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” 1 Yet, for the first time in our nation’s history, officials, from two different states, are reaching into the internal affairs of churches to silence them from teaching and publicly endorsing a central tenant of their faith. This in turn is forcing churches across the nation to operate their own facilities in a manner that contradicts their faith. 2 As a central tenant of the faith for thousands of years, Christians believe that God created two distinct, immutable, and complementary sexes, male and female, to reflect God’s image and nature. 3 However, many groups believe the sexes of our species are not immutable, rather, subject to change, as a person’s gender identity is not tied to their biology. This particular clash of beliefs is the inspiration for this note. More specifically, churches that are directly affected by this opposition are located in the states of Iowa and Massachusetts.

*

Elizabeth M. Paillere is an Army spouse and mother of two. She is the recipient of a merit based scholarship and candidate for J.D. at the University of North Carolina's School of Law. She received the Department of the Army Commander's Award for Public Service with the 82nd Airborne Division Family Readiness Group. During her volunteer service under the 82nd, she spearheaded the establishment of the Battalion Spouses Bible Study.

1 U.S. CONST. amend. I. 2 Plaintiff’s Memorandum in Support of its Motion for a Preliminary Injunction at 7, Fort Des Moines Church of Christ v. Jackson, 215 F.Supp.3d 776 (S.D. Iowa 2016) (No. 9–1) [hereinafter IA Memo].

3 IA Memo, supra note 2, at 6 (“[f]or millennia, a central tenet of the Christian faith has been that God created two distinct, immutable, and complementary sexes—male and female—to reflect God’s image and nature.”); see also Plaintiffs’ Memorandum in Support of Their Motion for a Preliminary Injunction at 6, Horizon Christian Fellowship v. Williamson, No. 1:16-cv-12034 (D. Mass. Dec. 12, 2016) (No. 8) [hereinafter MA Memo].

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From its founding, the Fort Des Moines Church of Christ (Iowa Church), “[has] not only taught this religious belief, but also ordered it’s facility to reflect and convey that belief.” 4 It was not until the Iowa Church discovered an interpretation 5 by the Iowa Civil Rights Commission (Commission) of the Iowa Code section 216.7 6 (Iowa Code) that the Iowa Church began to fear repercussions simply for exercising their First Amendment freedoms of speech and religion. 7 Deeply concerned about their adherence to the Commission’s policy interpretation, the Iowa Church was compelled to violate their religious beliefs when required to refrain from publicly communicating their religious beliefs regarding biological sex. 8 In response to the Commission’s interpretation of the Iowa Code, the

4

IA Memo, supra note 2, at 6.

IOWA CIVIL RIGHTS COMM’N, SEXUAL ORIENTATION & GENDER IDENTITY: A PUBLIC ACCOMMODATIONS PROVIDER’S GUIDE TO IOWA LAW 1–2 (“[d]oes This Law Apply to Churches?: Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to a bona fide religious purpose.”), (“[w]here qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).”), (“[proscribing the] [r]efusal to allow an individual to use all the facilities or services of the public accommodation” and, “directly or indirectly advertising or publicizing that patronage of persons of any particular . . . gender identity is unwelcome, objectionable, not acceptable, or not solicited.”).

6 IOWA CODE § 216.7 (2016) (“[it] shall be an unfair or discriminatory practice for any owner, lessee, sublessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof: a. To refuse or deny to any person because of . . . gender identity . . . the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of . . . gender identity . . . in the furnishing of such accommodations, advantages, facilities, services, or privileges.”), (“[t]o directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any . . . gender identity . . . objectionable, not acceptable, or not solicited.”), (“[t]his section shall not apply to: a. Any bona fide religious institution with respect to any qualifications the institution may impose based on . . . gender identity when such qualifications are related to a bona fide religious purpose.”).

7 IA Memo, supra note 2, at 7.

8 IA Memo, supra note 2, at 7 (“[t]he Commission’s interpretation of the Act requires churches to violate their religious beliefs in at least two ways: (1) they must refrain from communicating their religious beliefs about biological sex or in any way indicating that persons should use the sex-specific facility that accords with their biological sex, and (2) they must open church sex-specific, private areas like showers and restrooms to persons of the opposite biological sex.” (citing Iowa Code § 216.7(1)(a)-(b)).

5

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Church filed a federal lawsuit in an attempt, “to stop the government from censoring the church’s teaching on biblical sexuality.” 9 Meanwhile, as the Iowa Church struggles against local policy interpretation, in Massachusetts the issue is amplified. Horizon Christian Fellowship, Abundant Life Assemblies of God, House of Destiny, and Faith Christian Fellowship of Havervill (Massachusetts Churches), equally believe in the historic Christian teaching about human sexuality. 10 Like the Iowa Church, the Massachusetts Churches from their founding have “not only taught this doctrine, but have also structured their building policies to reflect and reinforce that doctrine.” 11 Until recently, the Massachusetts Churches were free to promote this central tenant. 12 The Massachusetts Commission Against Discrimination (MCAD) and the Massachusetts Attorney General, like the Commission, have threatened those freedoms through the state’s public accommodations law. 13 Fearful of facing devastating financial penalties or possible imprisonment for violations of the Massachusetts statutory provisions, the Massachusetts Churches and their pastors now seek judicial protection of their most basic First Amendment rights.

This note will delve into the constitutionality of regulations of religious institutions and whether it is permissible for a governmental entity to reach into the inner sanctums of a religious institution in order to impose regulations in direct conflict with the institution’s faith beliefs. Section I will highlight the history of the free-exercise of religion, and discuss the Iowa and Massachusetts statutory provisions affecting the free-exercise of religion in those respective states. Section II will discuss how constitutionally protected speech developed and the historical differentiation between content and viewpoint based discrimination.

Section III will explore the application of the First Amendment Institutionalism theory and the Church Autonomy Doctrine as applied in

9

Alliance Defending Freedom, Sermons on biblical sexuality illegal in Iowa?, ALLIANCE DEFENDING FREEDOM (July 5, 2016), http://www.adfmedia.org/News/PRDetail/10015.

10 MA Memo, supra note 3, at 6.

11 Id. at 6–7.

12 Id. at 7.

13 See MASS. COMM’N AGAINST DISCRIMINATION, GENDER IDENTITY GUIDANCE (Sept. 1, 2016).

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these respective states. Finally, Section IV will explore the proponent’s of the churches views.

I. THE HISTORY OF THE FREE EXERCISE CLAUSE AND HOW IT CONFLICTS WITH CURRENT STATUTORY ISSUES IN IOWA AND MASSACHUSETTS On June 12, 776, the Virginia Constitutional Convention adopted the Virginia Declaration of rights. 14 The final proposition of Virginia’s Declaration of Rights states, “all men are equally entitled to the free exercise of religion.” 15 Moreover, Thomas Jefferson drew upon the Virginia Declaration of Rights when drafting the opening paragraphs of the Declaration of Independence. 16 Eventually, the Bill of Rights, otherwise known as the first Ten Amendments, was ratified by three-fourths vote of the state legislature on December 15, 1791, which included the First Amendment’s free exercise of religion and speech clauses. 17 When enacting the Bill of Rights, the federal government intended to implement protections for the people in their religious exercise of choice, as well as their speech.

In the state of Iowa, the preamble to the Constitution of the state is grounded in a faith of a higher power, stating, “[w]e the people of the state of Iowa, grateful to the supreme Being for the blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of those blessings.”18 Furthermore, the Iowa Bill of Rights affords protection to the citizens of Iowa, asserting that the, “[g]eneral [a]ssembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 19 That includes the liberty of free speech such that, “[e]very person may speak, write, and publish his sentiments on all subjects . . . [and] [n]o law shall be passed to restrain or abridge the liberty of speech or of the press.” 20

14

The Virginia Declaration of Rights, NATIONAL ARCHIVES, https://www.archives.gov/founding-docs/virginia-declaration-of-rights.

15 Id. § 16.

16 Supra note 15.

17 The Bill of Rights, NATIONAL ARCHIVES, (June 16, 2017), https://www.archives.gov/founding-docs/bill-of-rights-transcript.

18 IOWA CONST. pmbl.

19 Id. art. I, § 3.

20 Id. § 7.

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Additionally, the preamble of the Massachusetts Constitution carries the same anthem, stating: We therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity . . . of entering into an original, explicit, and solemn compact with each other, and of forming a new constitution . . . and devoutly imploring His direction in so interesting a design, do agree upon, ordain, and establish the following Declaration of Rights. 21 Observing Article II of the Massachusetts Constitution, the protection afforded to citizens appears to be more in depth than Iowa’s protection. Article II states: It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the greatest Creator and Preserver of the universe.

And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate for worshiping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments. 22 Furthermore, the protection is expanded in Article XVIII, section 1, stating, “[n]o law shall be passed prohibiting the free exercise of religion.”23 In addition to that protection, the right of free speech is secured in earlier articles of the Massachusetts Constitution. 24 Interestingly, within the same procedures that the Massachusetts Constitution outlines for establishing either an amendment or creation of new laws, the Constitution unambiguously excludes certain matters from possible amendment or law proposal. 25 Specifically, “[n]o measure that relates to religion, religious practice, or religious institutions [including] no proposition inconsistent with any one of the following rights of the 21

MASS. CONST. pmbl.

Id. art. II. 23 Id. amend. XVIII, § 1.

24 Id. art. XVI, amended by MASS. CONST. amend. LXXVII. 25 Id. amend. XLVIII, § 2.

22

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individual . . . shall be the subject of an initiative or referendum petition [including] the freedom of speech.” 26 The icing on this proverbial cake rests in the notion that the Initiative section of the Massachusetts Constitution indicates: [n]o part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition. The limitations on the legislative power of the general court in the constitution shall extend to the legislative power of the people. 27 This suggests the framers of the Massachusetts Constitution placed limitations on future laws from inhibiting both the free exercise of religion and speech.

As the state’s constitutions and the federal constitution both provide for such robust freedoms and protections of religion and speech, the government has attempted to limit their own infringement on these freedoms. However, the Supreme Court has reviewed multiple cases where a state’s government has burdened the freedoms of religion and speech, creating exceptions to the highest laws of the state and country. 28 When initially reviewing these types of cases, the Court will apply the compelling state interest test in order to determine whether the government has placed a substantial burden on an individual’s free exercise of religion or speech. 29 For example, in the case of Sherbert v. Verner, 30 the Court applied the compelling state interest test, which required any state 26

MASS. CONST. amend. XLVIII, § 2 Id. 28 See infra Section II for discussion on applicable exceptions.

29 See generally Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 656–58 (1990); Boos v. Barry, 485 U.S. 312, 334 (1988) (plurality opinion); see also, Burson v. Freeman, 504 U.S. 191, 194–95, 197–99 (1992) (plurality opinion); Bd. of Airport Comm’rs v.

Jews for Jesus, Inc., 482 U.S. 569, 573–75 (1987); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 794–809 (1985); United States v. Grace, 461 U.S. 171, 177 (1983); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); Wisconsin v. Yoder, 406 U.S. 205, 214 (1972); Sherbert v. Verner, 374 U.S. 398, 406 (1963).

30 Sherbert, 374 U.S. at 403–08.

27

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that imposes a substantial burden on the free exercise of religion to justify the burden by a compelling state interest. 31 While the state in Sherbert was able to pass the compelling state interest test, the Court in Employment Division v. Smith 32 “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” 33 The Court indicated it “would not apply [the compelling state interest test] to require exemptions from generally applicable criminal law.” 34 Ultimately, that meant if the enacted state law was narrowly tailored to meet a compelling state interest, and the law applied generally to all citizens of that state, even if it inhibits the free exercise of religion, the law will be considered constitutional. 35 The Court in Smith made it clear, the scope of the freedom of religion promised in the United States Constitution was going to become narrower. Thus, Congress decided to act.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) for the purpose of, “restor[ing] the compelling state interest test . . . and to guarantee its application in all cases where the free exercise of religion is substantially burdened.” 36 RFRA prohibited any agency, department, or official of the United States or any state from, “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.” 37 In line with its purpose, RFRA provided an exception to the rule in stating that the “government may substantially burden a person’s exercise of religion only if it is in the furtherance of a compelling state interest.” 38 However, in City of Boerne v. Flores, 39 the Court held that RFRA was an overreach of congressional authority and, as applied to the states, thus, RFRA was deemed unconstitutional. 40 After the Court declared 31

Id. at 403.

Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990).

33 42 U.S.C. § 2000bb(a)(4) (1993).

34 Smith, 494 U.S. at 884.

35 Smith at 872.

36 42 U.S.C. § 2000bb(b)(1) (1993).

37 42 U.S.C. § 2000bb–1.

38 42 U.S.C. § § 2000bb–1(b)(1)–(2).

39 City of Boerne v. Flores, 521 U.S. 507 (1997).

40 Flores, 521 U.S. at 536 (“[w]hen the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be 32

39

RFRA’s application to be unconstitutional, twenty-one states responded by enacting their own RFRA statutes. 41 Moreover, seven state legislatures, including Iowa, are now considering RFRA bills of their own, 42 while nine states, including Massachusetts, have interpreted their state’s constitutions as protecting religiously motivated conduct even from generally applicable laws. 43 Today, in Iowa and Massachusetts, the rights of Christians and the ability for their churches to live according to their faith, which once was protected, has been threatened under both the supreme law of the land and their state. The Iowa and Massachusetts Churches desire to engage in religiously motivated events like they have in the past. The Iowa Church’s mission to “[l]ove God . . . love people . . . and serve everyone,” is promulgated by way of their: weekly worship services, Bible studies, youth activities, other religious events, all while welcoming the public to attend their religious indoctrination. 44 However, the Iowa Code prohibits “public accommodations” from refusing or denying any person because of gender identity, the accommodations, advantages, facilities, services, or privileges thereof (Iowa facility-use mandate). 45 In addition, Iowa law prohibits the understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis . . . RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.” The Court stated further, “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act’s constitutionality is reversed.”).

41 See generally State Religious Freedom Acts, NATIONAL CONFERENCE OF STATE LEGISLATORS (May 4, 2017), http://www.ncsl.org/research/civil-and-criminaljustice/state-rfra-statutes.aspx.

42 See generally 2017 Religious Freedom Restoration Act Legislation, NATIONAL CONFERENCE OF STATE LEGISLATURES (May 4, 2017), http://www.ncsl.org/research/civil-and-criminal-justice/2017-religious-freedomrestoration-act-legislation.aspx.

43 See Larson v. Cooper, 90 P.3d 125, 131 (Alaska 2004); Fotlin v. Roman Catholic Bishop, 871 A.2d 1208, 1227–30 (Me. 2005); Rashee v. Comm’r of Corr., 845 N.E.2d 296, 302–03 (Mass. 2006); State v. Hershberger, 462 N.W.2d 393, 396–99 (Minn. 1990); St. John’s Lutheran Church v. State Comp. Ins. Fund, 830 P.2d 1271, 1276–87 (Mont.

1992); Catholic Charities v. Serio, 859 N.E.2d 459, 465–68 (N.Y. 2006); Humphrey v.

Lane, 728 N.E.2d 1039, 1043 (Ohio 2000); City of Woodinville v. Northshore United Church of Christ, 211 P.3d 406, 410 (Wash. 2009); Coulee Catholic Sch.s v. Labor & Indus. Review Comm’n, 768 N.W.2d 868, 884–87 (Wis. 2009).

44 IA Memo, supra note 2, at 8.

45 IOWA CODE § 216.7(1)(a) (2007).

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direct or indirect advertisement, or in any other manner, indication, or publication deeming persons or any particular gender identity as unwelcome, objectionable, not acceptable, or not solicited (Iowa speech ban). 46 The Iowa code broadly defined “public accommodation” to include private establishments when offering services, facilities, or goods to nonmembers. 47 The code further exempts “bona fide religious institutions” if they impose “any qualifications . . . related to a bona fide religious purpose.” 48 It must be noted, both of these terms are left undefined by the Iowa code; without a clear definition, it is not understood what either “bona fide religious institution” or “qualifications . . . related to a bona fide religious purpose” are or are not.

Moreover, the Iowa Commission has the power to interpret, administer, and enforce the Iowa Code through its broad remedial powers, including, but not limited to: seeking monetary damages, legal fees, costs, and injunctive relief. 49 In an effort to assist public accommodations providers, in their role as interpreters of the Iowa Code, the Commission issued a publication guide titled “Sexual Orientation & Gender Identify: A Public Accommodations Provider’s Guide to Iowa Law” (original Iowa Guide). 50 When answering whether or not the Iowa law applied to public accommodations, the original Iowa guide singled out one establishment in particular: churches. 51 The original Iowa guide indicated, “[w]here qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions, for example a child care facility operated at a church or a church service open to the public.” 52 Based on the harsh ramifications of the original Iowa guide, the Iowa Churches promptly filed action.

46

IOWA CODE § 216.7(1)(b).

IOWA CODE § 216.2(13)(a) (2017).

48 IOWA CODE § 216.7(2)(a) (2017).

49 See generally IOWA CODE § 216.5 (2017); see also Rent-a-Center, Inc. v. Iowa Civil Rights Comm’n, 843 N.W.2d 727, 730 (Iowa 2014) (“[t]he [Iowa Commission] is entrusted by the legislature with interpreting, administering, and enforcing the Iowa Civil Rights Act.”).

50 Iowa Civil Rights Comm’n, Sexual Orientation & Gender: A Public Accommodations Provider’s Guide to Iowa Law, https://icrc.iowa.gov/sites/default/files/publications/2016/2016.sogi.pa1.pdf.

51 Id. 52 Id. 47

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After lodging their initial complaint, the Commission was quick to respond to the Iowa Churches by replacing the original guide. A new guide (new Iowa guide) was published with a “places of worship” exemption indicating, “[p]laces of worship are generally exempt from Iowa law’s prohibition of discrimination, unless the place of worship engaged in nonreligious activities which are open to the public.” 53 The new Iowa guide states that the law may apply to “an independent day care or polling place located on the premises of the place of worship.” 54 While the new guide appears to offer better accommodations for churches, “[m]inor cosmetic changes to an brochure cannot mask the fact that the [Iowa] Commission still intends to apply the unconstitutional law to churches.” 55 Attorneys representing the Iowa Church assert the “underlying problem” is the Iowa Code itself. 56 On October 17, 2016, the federal court agreed with the Iowa Church’s position, in turn granting the Church’s motion for preliminary injunction against the Iowa Commission. 57 The court, in its decision, recognized a sermon would “undoubtedly qualify under the religious exemption as an act intended to serve a bona fide religious purpose.” 58 Additionally, the court further recognized the Church’s intentions when making “statements that may lead members of a protected class to feel that their patronage is unwelcome or not acceptable—at the very least, not accepted in [Iowa Church] restrooms or showers,” as conduct that is, “arguably proscribed by the statutes and ordinances at issue.” 59

53

Iowa Civil Rights Comm’n, Sexual Orientation & Gender: A Public Accommodations Provider’s Guide to Iowa Law, https://icrc.iowa.gov/sites/default/files/publications/2016/2016.sogi.pa1.pdf.

54 Id. 55 Christiana Holcomb, Iowa’s “Sorry We Got Caught” Brochure, ALLIANCE DEFENDING FREEDOM: BLOG (July 29, 2016), https://www.adflegal.org/detailspages/blogdetails/allianceedge/2016/07/29/iowa-s-sorry-we-got-caught-brochure-edit-didn-tchange-bad-law-that-still-threatens-churches.

56 Id. 57 Fort Des Moines Church of Christ v. Angela Jackson, 215 F. Supp. 3d 776 (Dist. Ct. S.D. Iowa 2016).

58 Id. at 804 (Dist. Ct. S.D. Iowa 2016) (order on plaintiff’s motion for preliminary injunction, state defendants’ motion to dismiss, and city of Des Moines’s motion to dismiss) (determining that the delivery of a sermon by a pastor of a church is undoubtedly an act intended to serve ‘a bona fide religious purpose.’).

59 Id. at 13.

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The court concluded, as a consequence of the ordinance, the Church’s self-censorship constituted as an injury in fact, as the Church suffered from an objectively reasonable and chilled effect on their speech out of fear of prosecution. 60 Based on this violation of their constitutional rights, the court has allowed the Church to continue with further federal proceedings. 61 This decision, “provided much-needed reassurance and clarification to churches in the wake of two vague brochures produced by the Iowa Civil Rights Commission that applied the [Iowa Code] to [the] Churches.” 62 While the Iowa Church is making legal headway, the battle has just begun for the Massachusetts Churches. Similar to the Iowa Churches, the Massachusetts Churches hold weekly services, Bible studies, youth events, and other ministry activities in furtherance of communicating the transformational love of Jesus Christ.63 For example, the Massachusetts Churches: [m]otivated by their desire to build relationships and share their beliefs with their communities, welcome members of the public to attend their religious services and seek out ways to minister to their communities—everything from sharing meals with the poor and homeless, to welcoming the youth for neighborhood basketball outreaches, to allowing certain outside groups to use their church building. 64 Additionally, the historic Christian teaching about human sexuality is a central belief for these churches as well. 65 Not only have the Massachusetts Churches taught this doctrine for many years, they have also structured their building policies to reflect and reinforce this doctrine. 66 It was not until the enactment of MCAD when the Massachusetts Attorney 60

Id. at 16.

Alliance Defending Freedom, Court: Govt bureaucrats have no business deciding whether Iowa church activities are religious, ALLIANCE DEFENDING FREEDOM: BLOG (Oct. 17 2016), https://www.adflegal.org/detailspages/blogdetails/allianceedge/2016/07/29/iowa-s-sorry-we-got-caught-brochure-edit-didn-tchange-bad-law-that-still-threatens-churches.

62 Id. 63 MA Memo, supra note 3, at 1.

64 Id. 65 Id. 66 Id. at 1–2.

61

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General threatened to infringe upon those freedoms through the state’s public accommodations laws, indicating there would be a prohibition on the Churches’ rights to reflect their doctrine. 67 The Massachusetts Public Accommodation laws (Massachusetts Code) reaches further than those in the Iowa Code. For example, the Massachusetts Code forbids discrimination in three distinct ways. 68 First, it directly and indirectly prohibits the “publishing, issuing, circulating, distributing, or displaying in any way, advertisement, book, pamphlet, written, painted, or printed notice or sign, or any kind or description, intended to discriminate or actually discriminating,” against persons of a protected class relative to a person’s admission or treatment in any place of public accommodation (Massachusetts publication ban). 69 It goes on to prohibit, “any distinction, discrimination or restriction,” based on a protected class, relative to a person’s admission or treatment in any place of public accommodation (Massachusetts facility-use mandate.) 70 Finally, it prohibits aiding or inciting the violation of the Massachusetts facility-use mandate, or publication ban in whole or in part (Massachusetts conspiracy ban). 71 The code additionally imposes a fine up to $50,000 and imprisonment for those public accommodations that are found to be in violation of these prohibitions. 72 The Massachusetts Code and MCAD, arguably, are bolder and more egregiously construed than the Iowa Code and the Iowa Commission. For instance, the Massachusetts Code defines public accommodation as, “any place, which is open to and accepts or solicits the patronage of the general public.” 73 More importantly, “[i]t does not expressly exempt churches—or any other religious institutions.”74 Further, “[i]n July 2016 the Massachusetts legislature [added] “gender identity” as a protected class under the [Massachusetts Code].” 75 The Massachusetts legislature in turn 67

Id. at 2.

See MASS. GEN. LAWS ch. 272 §§ 92A, 98 (2016).

69 Id. § 92A. 70 Id. § 98.

71 Id. §§ 92A, 98.

72 Id. ch. 151B § 5(c) (allowing civil penalties up to $50,000 for engaging in proscribed discriminatory practice).

73 Id. ch. 272 § 92A. 74 MA Memo, supra note 3, at 2.

75 Id. 68

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“directed MCAD to issue regulations or guidance to effectuate the new law, which took full effect October 1, 2016.” 76 In response, MCAD issued a “Gender Identity Guidance” which states, “[e]ven a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.” 77 However, within that guidance MCAD has failed to identify any objective standards when applying it’s “spaghetti supper test.” 78 In fact, MCAD commented in a footnote within their Gender Identity Guidance that “[a]ll charges, including those involving religious institutions or religious exemptions, are reviewed on a case-by-case basis.” 79 It becomes clear that MCAD intended to apply the Massachusetts Code to churches with a subjective mindset. This is particularly disturbing because MCAD has been noted to enjoy, “substantial deference from Massachusetts courts.” 80 Moreover, this requirement of a case-by-case analysis through court adjudication for any alleged violation by a church in Massachusetts would ultimately cause all churches in Massachusetts to incur costs, attorney fees, and the like, simply to defend their freedoms of religion and speech. Even more disturbing: Not only does MCAD apply the Massachusetts Code to the churches, the Attorney General—”the highest law enforcement officer in Massachusetts”—intends to apply the code as well. 81 At the time of the filing of the Church’s brief, the Massachusetts Attorney General’s website included a list of public accommodations

76

Id. Massachusetts Comm’n Against Discrimination, GENDER IDENTITY GUIDANCE, at 4 (Sep. 1, 2016), http://www.mass.gov/mcad/docs/gender-identity-guidance.pdf.; (since the publishing of this note, the Gender Identity Guidance has since updated the content of the Guidance, and removed the “spaghetti supper test.”).

78 Id. 79 Id. n.13.

80 Id. at 3; see also Currier v. Nat’l Bd. of Med. Exam’rs, 965 N.E.2d 829, 842 (Mass.

2012) (“[t]he Legislature essentially delegated to the commission the authority in the first instance to interpret the statute and determine its scope. We thus are guided in our interpretation of the statute by the construction afforded by the commission.”); Dahill v.

Police Dept. of Boston, 748 N.E.2d 956, 961 (Mass. 2001) (“The guidelines represent the MCAD’s interpretation of G.L. c. 151B, and are entitled to substantial deference.”).

81 MA Memo, supra note 3, at 3.

77

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among which listed “without qualification, nuance, or even a ‘spaghetti super’ test—houses of worship.” 82 The Massachusetts Churches deduced their First Amendment freedoms were in jeopardy when communicating their beliefs about human sexuality, using their houses of worship consistently with their beliefs about biological sex, ultimately risking enforcement proceedings or possibly even prison. 83 Some Massachusetts Churches have passed written restroom policies in order to establish how their facilities are to be used consistently with their faith. 84 However, out of fear of the legal repercussions, the Massachusetts Churches have been reluctant to publish these policies.85 Despite that, “[a]ll the Massachusetts Churches still enforce their unwritten policies governing use of sex-specific changing areas and restrooms,” with the full understanding that their conduct could potentially place them in a legal conundrum. 86 Moreover, pastors of the Massachusetts Churches have “curbed their public teaching about biological sex because the [Massachusetts Code] is written broadly enough to proscribe religious statements about God’s design, both inside and outside of the church.” 87 However, the Massachusetts Churches may seek a preliminary injunction in order to temporarily suspend the proscription of their beliefs.

In order for the Massachusetts Churches to obtain a preliminary injunction to halt the enforcement of the Massachusetts Code, they must pass the threshold of a four-pronged test. 88 The Churches must demonstrate: (1) they will likely succeed on the merits; (2) a likelihood of irreparable harm; (3) a balance of equities in their favor; and, (4) a service of the public interest. 89

82

Id. at 3–4; see also Public Accommodation, THE OFFICIAL WEBSITE OF THE ATTORNEY GENERAL OF MASSACHUSETTS (2017), http://www.mass.gov/ago/consumerresources/your-rights/civil-rights/public-accomodation.html (listing public accommodations including “houses of worship”); (it must be noted, since the publishing of this note, the Attorney General’s website no longer lists “houses of worship” on its website under public accommodations.).

83 MA Memo, supra note 3, at 4.

84 Id. 85 Id. 86 Id. 87 Id. 88 See generally Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015).

89 Id.

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When establishing the first prong, the Massachusetts Churches have built their argument around the Church Autonomy Doctrine, 90 asserting the Massachusetts Code, “infringes on the Massachusetts Churches freedom to determine how they communicate their faith either verbally, in writing, and through the use of their facilities.” 91 Specifically: the facility use mandate: contradicts the Churches’ doctrine that every service and event that takes place [sic] in the church facility—like worship services and community events—is in furtherance of the Churches’ religious purposes and therefore a religious activity; is based on the inherently religious judgment that the Churches’ control of their facilities is not reflective of the Churches’ ability to communicate their beliefs, govern themselves, or determine their religious identity; interferes with the Churches’ right to communicate their beliefs; encroaches upon the authority of the Churches’ ecclesiastical government of their own affairs; and coerces the Churches to abandon their religious beliefs regarding human sexuality. 92 It is additionally argued that the Massachusetts facility-use mandate “violates both the Free Exercise Clause and the Establishment Clause because it allows government bureaucrats to subjectively determine on a case-by-case basis whether the Churches’ activities are sufficiently religious or not.” 93 The attorneys for the Massachusetts Churches note the, “system for such individualized government assessments, in its general inapplicability, gives rise to strict scrutiny under the First Amendment.” 94 Although Massachusetts does not have an enacted version of RFRA, Massachusetts’ common law instead provides the same protections that the compelling state interest test would in order to justify a burden on religion. 95 Moreover, “[t]he publication ban and conspiracy ban are so broadly written as to prohibit these Churches and their pastors from delivering sermons or 90

See infra Section II. MA Memo, supra note 3, at 4.

92 Id. at 8–9.

93 Id. at 10.

94 MA Memo, supra note 3, at 10.

95 Rashee v. Comm’r of Corr., 845 N.E.2d 296, 302–03 (Mass. 2006) (requiring the state to show “it has an interest sufficiently compelling to justify that burden.”).

91

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public statements concerning their religious beliefs about biological sex, discussing those beliefs in connection with their facility policies, or distributing [any] written changing room and restroom policy.” 96 Arguably, the Massachusetts publication ban is both content and viewpoint based discrimination. 97 If this is true, that means the Massachusetts Churches must satisfy the second-prong of the four-pronged test. 98 For example, the Massachusetts Churches’ “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constituted irreparable injury.” 99 Additionally, because the Massachusetts Code, and its interpretation, places a chilling self-censorship on the Churches’ speech, violating their First Amendment right, the Massachusetts Churches have satisfied prong three of four. 100 The third prong of balance of hardships in favor of the Churches is satisfied because, “[w]ithout an injunction, the Massachusetts Churches will continue to be deprived of their free speech, free exercise, and due process rights.” 101 Moreover, “[w]ith an injunction, MCAD and the Attorney General [lose] nothing because ‘the Government does not have an interest in the enforcement of an unconstitutional law.’” 102 Finally, the fourth prong is satisfied by way that, “it is axiomatic that prosecution of First Amendment rights serves the public interest.” 103 Having demonstrated a meeting of all four prongs of the fourpronged test, it is evident that the Massachusetts Churches have a viable claim based on both federal and state laws. However, the argument would 96

MA Memo, supra note 3, at 4.

See id. at 12 (“[t]he [Massachusetts Code] allows for this noxious discrimination: it permits speech that favors access to changing rooms and restrooms based on gender identity, but proscribes speech that favors access to these [areas] based on biological sex.”); see also discussion infra Section II for specifics regarding content and viewpoint based issues with regard to speech.

98 Arborjet, Inc. v. Rainbow Treecare Scientific Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015).

99 Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 15 (1st Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)).

100 See MA Memo, supra note 3, at 17.

101 Id. 102 Id. (citing Am. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003)).

103 Id. at 23 (citing Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012)).

97

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be noticeably deficient in Iowa because not only does Iowa’s Code fail to provide religious exemptions of any sort, the Massachusetts Code is more broadly construed. In fact, the Massachusetts Code and its interpretation explicitly apply to religious institutions in order to enforce the Massachusetts Code by the Attorney General. Moreover, it is evident that Iowa courts, in reviewing the issue, have applied a more narrowly construed means of resolving this issue.

II. CONSTITUTIONALLY PROTECTED SPEECH While the freedom of speech is embodied in the text of the Constitution of the United States, there are, however, several categories of speech that are not protected including: incitement of violence, 104 obscenity, 105 defamation, 106 speech integral to criminal conduct, 107 fighting words, 108 child pornography, 109 fraud, 110 impersonation of a police officer, 111 true threats, 112 and speech presenting some grave and imminent threat the government has the power to prevent. 113 An additional underlying principle of the First Amendment is “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” 114 The main source of conflict arises when state or federal authorities attempt to regulate speech, indicating that the reviewing court must decide whether or not the regulation is one that is either content or viewpoint based. 115 Further, an impermissible content-based discrimination may arise 104

Bradenburg v. Ohio, 395 U.S. 444 (1969).

Miller v. California, 413 U.S. 15 (1973).

106 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Welch, Inc., 418 U.S. 323 (1974) (imposing some limits on liability for defaming a public figure).

107 Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 688 (1949).

108 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

109 New York v. Ferber, 458 U.S. 747 (1982).

110 Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

111 United States v. Alvarez, 567 U.S. 709 (2012).

112 Watts v. United States, 394 U.S. 705, 708 (1969).

113 Near v. Minnesota, 283 U.S. 697 (1931).

114 Texas v. Johnson, 491 U.S. 397, 414 (1989).

115 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995) (“[the Court] ha[s] observed on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, 105

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when a regulation prohibits public discussion of an entire topic.116 “Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” 117 For instance, a content-based restriction would arise if the government prohibited people from using restrooms that comport with their biological sex.

The other main principle emerging from the Court’s decision is, “the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” 118 A restriction such as only allowing topics such as helping the poor, but forbidding the topic of gender identity within the church setting is just one example of viewpoint-based discrimination. Additionally, when, “the government targets not the subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”119 Based on the Court’s interpretation, “[v]iwepoint discrimination is thus an egregious form of content discrimination.” 120 In order to prevent and avoid discrimination the, “government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”121 Arguably, this should allow for speech supporting the use of restrooms regarding purported gender identity, in turn proscribing the restricted means of speech regarding restroom use to only comporting to a person’s biological sex absent gender claims. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” 122 However, if there is discrimination against speech based on the content of its message, it is presumptively unconstitutional.123 viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations.”).

116 Boos v. Barry, 485 U.S. 312, 319 (1988) (citing Consolidated Edison Co. v. Pub. Serv.

Comm’n., 447 U.S. 530, 537 (1980)).

117 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015).

118 Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)).

119 Rosenberger, 515 U.S. at 829.

120 Id. at 829.

121 Id. 122 Id. at 828 (citing Police Dep’t. of Chicago v. Mosley, 408 U.S. 92, 92 (1972)).

123 Id. at 829 (“Discrimination against speech because of its message is presumed to be unconstitutional.”).

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Therefore, if the Court determines the freedom of speech claims by the Iowa and Massachusetts Churches as either content or viewpoint based discrimination, the respective defendants would be required to rebut the constitutionality of their specific state’s statutory provisions.

To overcome both content and viewpoint based speech regulations, the government must pass strict judicial scrutiny. 124 Moreover, the strict judicial scrutiny test requires the government to prove the disputed regulation is narrowly tailored in order to serve a compelling state interest. 125 Debatably, the Massachusetts Churches, as well as other churches, have a constitutional right to direct and control their facility in harmony with their religious beliefs. 126 This includes establishing standards for the use of sex-specific facilities. 127 If the government fails to reach this high bar, the regulation is presumptively unconstitutional.128 Indeed, the government would be hard-pressed to prove they have a compelling interest in censoring religious messages or ideas, “especially those doctrinal beliefs expressed within a house of worship.” 129 Even if they could prove a compelling state interest, the government will still be required to prove that the bans are narrowly tailored in order to achieve that compelling state interest. It has been maintained that both the Massachusetts publication and conspiracy bans lack such narrow tailoring because they do not “merely ban words declining to admit persons to accommodations or facilities, but also ban oral and written communications that could be interpreted as adding or inciting—in any way—that denial.”130 Essentially, this furthers the issue that “[a]ny criticism of a group or ideas 124

Perry Educ. Ass’n. v. Perry Local Educator’s Ass’n, 460 U.S. 37, 45 (1983) (“[f]or the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2238 (2015) (J. Kagan concurrence) (“when the restriction ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace’—we insist that the law pass the most demanding constitutional test.”) (citing R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)) (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991)).

125 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015).

126 MA Memo, supra note 3, at 18.

127 Id. 128 Reed, 135 S. Ct. at 2226.

129 MA Memo, supra note 3, at 21.

130 Id. at 13–14.

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associated with a group could imply that group is not permitted to use the sex-specific facilities of their choice.” 131 The snowball effect that is created by these bans may begin cascading over a substantial amount of constitutionally protected expressions, directly opposing the very nature of the narrowly construed regulations.

That being said, it is for the courts to decide whether or not to concede to the content or viewpoint based arguments. If the courts agree with the government, the Churches will be faced with an uphill battle, as the court has generally afforded the government more leeway to regulate features of speech unrelated to its content. 132 Furthermore, the courts may nevertheless impose time, place, or manner restrictions on protected speech, requiring the restriction to be “narrowly tailored to serve a significant governmental interest, and that they leave open, ample alternative channels for communication of the information.” 133 As to the first issue, the Iowa and Massachusetts Codes restrict speech at a certain time, place, and manner by making a person of a specified gender identity not feel welcome, or possibly uncomfortable, when relating to all public accommodations, and thus limited to a specific place restriction of the content of their speech. Thus, if the courts find the churches are indeed public accommodations, this hurdle may possibly be cleared.

The second portion is whether the restriction is narrowly tailored to serve a significant government interest. The courts must evaluate the content-neutral restrictions by determining whether or not the restriction burdened no more speech than necessary to serve that interest. 134 Here, the government would need to establish that there is no other way to accomplish a prohibition of this type of gender identity discrimination without restricting the free speech of the churches. Even if the government could prove no more speech was restricted than necessary, in this particular instance, they would additionally have to show that there are ample alternative channels for the Churches communication of biblical sexuality and use of their facilities.

131

Id. at 14.

McCullen v. Coakley, 134 S.Ct. 2518, 2529 (2014).

133 Id. (citing Ward, 491 U.S. 781, 791 (1989)) (quoting Clark v. Cmty for Creative Non– Violence, 468 U.S. 288, 293 (1984)).

134 Madsen v. Women’s Health Ctr. Inc., 512 U.S. 753, 767 (1994).

132

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On the one hand, the Iowa Churches may use the alternative of utilizing their sermons as a channel of speech as sermons have been recognized as protected speech. On the other hand, the Massachusetts Churches, because of the added fear of the Massachusetts conspiracy ban, may not be able to speak freely regarding their facility policies or beliefs about human sexuality, even in their sermons.

III. A THEORY AND DOCTRINE SUPPORTING RELIGIOUS FREEDOM a.

First Amendment Institutionalism Theory

“First Amendment institutionalism seeks a way out of this by encouraging the rebuilding of First Amendment doctrine.” 135 It recommends a “bottom-up, institutionally sensitive approach that openly ‘takes . . . institutions seriously.’” 136 It also proposes, “in numerous areas of constitutional doctrine an institution-specific approach might be preferable to the categorical approach that now exists.” 137 “One implication of this approach is that the courts would be more willing to openly acknowledge that particular institutions—religious associations—’play a fundamental role in our system of free speech.’” 138 The courts should understand that, “‘the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of,’ these institutions.”139 The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. 140

135

Paul Horwitz, Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 HARV. C.R.-C.L. L. REV. 79, 87 (2009) (“[f]irst Amendment institutionalism seeks a way out of this fix by encouraging the rebuilding of First Amendment doctrine.”).

136 Id. (footnote omitted).

137 Id. (citation omitted).

138 Id. (“[o]ne implication of this approach is that the courts would be more willing to openly acknowledge that particular speech institutions—universities, the press, religious associations, libraries and perhaps others—’play a fundamental role in our system of free speech.’”) (citation omitted).

139 Id. (citing Richard W. Garnett, Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 VILL. L. REV. 273, 284 (2008)).

140 Richard W. Garnett, Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 VILL. L. REV. 273, 284 (2008).

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Like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, religious freedom is not exercised only by individuals; like free expression, religious freedom involved more than protecting a solitary conscience . . . Accordingly, the theories and doctrines we use to understand, apply and enforce the First Amendment’s religious freedom provisions should reflect and respect this fact. 141 Therefore, the use of First Amendment Institutionalism as applied to religious entities would provide such understandings.

First Amendment institutions are those “that play a significant role in contributing to public discourse, and that there are both institutionally distinct and largely self-regulating according a set of internally generated norms, practices, and traditions.” 142 Moreover, “[t]hese ‘First Amendment institutions’ are free speech actors, but they also play a structural role—or, again, an ‘infrastructural’—role in clearing out and protecting the civil society-space within which the freedom of speech can be wellexercised.” 143 There are many reasons why students of First Amendment Institutionalism should concern themselves with religious entities, and why scholars who are interested in the legal status of religious entities should consider the lesson of First Amendment Institutionalism. 144 One reason is that religious entities are recognized in the text of the Constitution itself.145 Additionally, there can be “little doubt that religious entities have played a central role in our history and continue to do so today.” 146 Finally, “religious entities fit naturally into the study of First Amendment institutions,” as the type that are self-regulating according to a set of internally generated norms, practices, and traditions. 147 141

Id. Paul Horwitz, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. REV. 1497 (2006).

143 Garnett, supra note 140, at 274.

144 Horwitz, supra note 135, at 82.

145 Id. (citing U.S. CONST. amend. I).

146 Id.; see generally Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. REV. 1385 (2004).

147 Id. 142

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The pertinent question begs whether “religious entities [may] occupy a distinctive place in our constitutional order.” 148 “By and large . . . we focus on ‘speech’—its content, purpose, and viewpoint—and not on its institutional context, origins, or effects.” 149 “In the real world . . . however, ‘speech’ happens in, through, and by institutions.” 150 Therefore, it would be proper for the courts to view speech in terms of the institution that is promoting the speech.

One of the “most obvious way[s] in which constitutional law might take on board a more institution-sensitive understanding of the Religion Clause would be to focus more closely on the religious freedom of religious institutions, associations, groups, and communities.” 151 Religious freedom involves more than non-interference by government in the content of individual beliefs, such as how the “existence and freedom of religious communities, is no less than the liberty of conscience enjoyed by persons, rooted in the ‘nature of man.’” 152 Moreover, the freedom “rightfully claim[ed]” by religious communities to “govern themselves according to their own norms” is important, not only for the church itself, but also the, “‘welfare of society here on earth,’ that, ‘the church should enjoy that full measure of freedom.’” 153 One concern that may be raised when applying the First Amendment Institutionalism approach is, “such approach allows these institutions to become law unto themselves.” 154 It has been suggested that most, if not all, First Amendment institutions are already significantly self-governing. 155 These First Amendment institutions operate within a “thick web of norms, values, and professional practices that channel and restrain their actions.”156 148

Garnett, supra note 140, at 274 (quoting Ira C. Lupu & Robert W. Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 VILL. L. REV. 37, 92 (2002)).

149 Id. at 277.

150 Id. 151 Id. at 291; see generally Richard W. Garnett, Church, State, and the Practice of Love, 52 VILL. L. REV. 281 (2007).

152 Richard W. Garnett, Church, State, and the Practice of Love, 52 VILL. L. REV. 281, 295 (2007) (citing JUSTICE AND RIGHTS: CHRISTIAN AND MUSLIM PERSPECTIVES 138 (Michael Ipgrave ed. 2009)).

153 Id. 154 Horwitz, supra note 135, at 88.

155 Id. 156 Id.

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The norms, values, and practices of the institutions would serve as the starting point for the First Amendment Institutionalism approach, ultimately helping defining the boundaries of such institutions and set appropriate constraints for them. 157 That is to say, the norms, values, and practices of the institutions would serve as the floor or the framework for the courts to build boundaries and constraints upon.

If courts adopted First Amendment Institutionalism, churches, like those in Iowa and Massachusetts, would be free to govern themselves according to their specific norms, values, and practices. The courts would have the freedom to look to the central tenants of the Christian faith—such as God created two distinct, immutable, and complementary sexes, male and female, to reflect God’s image and nature—and use the churches’ worldview to approach the legal issue. This would provide more distinct religious institutional rights for the court’s overall application of the law.

Moreover, First Amendment Institutionalism for religious institutions would support churches freedom and independence as they relate to the First Amendment’s safeguards on freedom of religion, speech, and expression.

After all, a church’s freedom, including “the independence of religious communities from political control over their internal polity and norms . . . is a vital dimension of any attractive notion of religious freedom.” 158 If the courts are not willing to adopt this approach, there becomes a huge danger that churches will not be considered independent from the government. For instance, “[i]f churches are not independent of the state, if they are not free to be different from the state, and if the government is not limited by the churches’ freedom, then believers are not really free, either.” 159 If the courts deny churches the ability to be free from government meddling, then it is, in essence, denying believers their rights as well.

Ultimately, the decision rests in the hands of the courts to change this. By refusing to provide an exception for the church, it appears as if the courts are prepared to tell pastors, and other believers, that their freedoms mean less than others, or perhaps are not even freedoms at all.

157

Id. (citation omitted).

Garnett supra note 152, at 293.

159 Id. 158

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b.

The Church Autonomy Doctrine

“Church autonomy is the right of churches to be free from government interference when handling its internal affairs which include matters such as defining church governance, structure, and institutional identity.” 160 The concept of church autonomy dates back to the time of the founding fathers. 161 In the words of Thomas Jefferson, “‘[man] owes account to none other for his faith or worship,’ including state.”162 Additionally, James Madison wrote, “[t]he Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” 163 As such, “[c]hurch autonomy is also rooted in specific constitutional guarantees—freedom from establishment, free exercise, freedom of speech—and in the right of association implicit in these explicit guarantees.” 164 As mentioned: the First Amendment reflects a promise that a church may be distinctive; that a church may be different from secular entities and other churches; that the government may not impose upon a church criteria that define it; that a church may, free of government intrusion and interference, exercise and enjoy those characteristic that make it what it is—in short, a promise that churches can be churches. 165

160 Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1389 (1981).

161 Reiah N. Etwaroo, Church Autonomy Doctrine and the First Amendment: Striking the Right Balance between Church and State Interests, LAW SCH. STUDENT SCHOLARSHIP, SETON HALL U., Paper 340, at 3 (2013).

162 Id. (citing Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), https://www.loc.gov/loc /lcib/9806/danpre.html.

163 Id. (quoting Letter From James Madison, to the Honorable the General Assembly of the Commonwealth of Virginia (June 20, 1785), http://presspubs.uchicago.edu/founders/documents/amendI_religions43.html (last visited 164 Mark E. Chopko & Michael F. Moses, Freedom to be a Church: Confronting Challenges to the Right of Church Autonomy, 3 GEO. J.L. & PUB. POL’Y 387, 388 (2005) (footnotes omitted) [hereinafter Freedom to be a Church].

165 Id.

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There are favorable references to church autonomy appearing frequently throughout the Court’s decisions. 166 Since there is no clear decision on the matter, arguably, guidance is needed for courts and other branched of government in recognizing and applying the constitutional right of church autonomy. 167 It is believed that several relevant principals have been derived from case law, and based on their application, would be relevant to the churches cases in both Iowa and Massachusetts. 168 First, the right of church autonomy is considered to be a constraint on all branches of federal state and local government. 169 Since the First Amendment is a limitation on government, “intrusion into churches is unconstitutional whether it is accomplished via statute, common law, regulation, executive order, or other means.” 170 Therefore, it necessarily follows that the statutory provisions in Iowa and Massachusetts, which extend into the inner sanctums of the churches, should be deemed unconstitutional under this doctrine.

Second, “[t]he government may not decide the meaning of religious doctrine or resolve disputes that in turn require the resolution of religious questions.” 171 The autonomy rules necessarily prohibit courts, and by extension every branch of government, from imposing on churches a structure, governance, or doctrine they do not accept or impose on themselves. 172 For the Iowa and Massachusetts Churches, the requirement prohibiting them from teaching biblical sexuality, and the imposition of a facility-use mandate allowing opposing sexes to utilize restroom, changing rooms, and showers based upon gender identity would clearly violate this principal as well.

166

Marsh v. Chambers, 463 U.S. 783, 803–04 (1983) (Brennan, J., dissenting); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 711 (1976); Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 672 (1970); Kreshik v. St. Nicholas Cathedral of Russian Orthodox Church, 363 U.S. 190 (1960); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 (1952); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929); Watson v. Jones, 80 U.S. 679, 727 (1871).

167 See Freedom to be a Church, supra note 164 at 423–24.

168 Id. at 424–26.

169 Id. at 424.

170 Id. 171 Id. 172 See Freedom to be a Church, supra note 164, at 424 (“[w]e think the autonomy rules prohibit the courts from imposing on churches a structure, governance, or doctrine they do not accept or impose on themselves.”).

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Third, “[a] law that burdens a church’s functions, so as to infringe upon that church’s religious self-understanding, infringes upon its autonomy and is not saved by virtue of its general applicability.” 173 This principal speaks to the core of the claims of the Iowa and Massachusetts Churches, namely that the law prohibiting their speech and imposing facility use mandates is more than just a slight burden on the deep-rooted doctrine of the Christian faith. Regardless of the law’s general applicability, it completely prohibits the churches from being churches, separate and independent of government.

Finally, “[t]he government constitutionally may not interfere with church governance, e.g., by ‘reversing’ or otherwise nullifying decisions a church makes about how to govern itself.” 174 Both Iowa and Massachusetts’s governments are, by way of their statutory provisions, nullifying the Christian faith as a whole with regard to how the church chooses to govern itself and its facilities. Specifically, both the Iowa and Massachusetts’ governments are forcefully imposing their secular beliefs of human sexuality and gender identity by reinforcing the facility usage governance onto the churches that are direct violations of deeply ingrained, sincere, and archaic tenants of the Christian faith. 175 It must be noted that the church autonomy doctrine has only been applied in limited cases such as: church property disputes, 176 church employment decisions, 177 torts involving church insiders, 178 and discipline 173

Id. Id. 175 Id. 176 See generally Jones v. Wolf, 443 U.S. 595 (1979) (holding that the state was constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute); Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969) (determining whether the restraints of the First Amendment permitted a civil court to determine the title to church property on the basis of the civil court’s interpretation of church doctrine).

177 See generally Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648 (10th Cir. Colo. 2002) (discussing a youth group leader and assistant music minister was fired after marrying her homosexual partner); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) (reversing a lower court order that a defrocked bishop be reinstated).

178 See generally Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008) (reviewing tort claims asserted against the church for the practice of laying hands on a person who was thought to be possessed); Nally v. Grace Cmty. Church of the Valley, 763 P.2d 948 (Cal. 1988) (reviewing tort claims of malpractice, negligence, and 174

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of religious group members. 179 Unless courts intend on carving out a church autonomy exception regarding either the usage of a facility, the speech involved in advertising the policies of such, or the teaching or biblical sexuality at church events by church pastors, there is little hope that this doctrine will be applied despite compelling reasons to apply it.

IV. THE OPPONSTS OF THE CHURCHES, THE PROPONENTS OF THE BAN The government is not alone in its hopes to curb discrimination against protected groups. The United States Commission on Civil Rights in September of 2016, issued a report titled “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” 180 This report recommends a narrowing of religious exemptions because, “[o]verly broad religious exemption unduly burdens nondiscrimination laws and policies.” 181 The report additionally recommends lawmakers and policymakers at entry level to tailor religious exceptions to civil rights protections, as narrowly as applicable law requires. 182 In his final comments, Chair Martin R. Castor compared the current attempts by religious institutions to be exempt from anti-discrimination laws as a means to justify Jim Crow laws and slavery. 183 He concluded by urging Americans to “stand up and speak out to ensure religion never again intentional infliction of emotional distress against the church after their son committed suicide).

179 See generally Bouldin v. Alexander, 82 U.S. 131 (1872) (holding that ousted trustees were not validly removed according to any legitimate procedure).

180 The U.S. Commission on Civil Rights Releases Report: Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties, PR NEWSWIRE (Sep. 7, 2016), http://www.prnewswire.com/news-releases/the-us-commission-on-civil-rightsreleases-report-peaceful-coexistence-reconciling-nondiscrimination-principles-with-civilliberties-300324252.html (“[t]he U.S. Commission on Civil Rights is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing a federal civil rights enforcement report.”); U.S. COMM’N ON CIVIL RIGHTS, PEACEFUL COEXISTENCE: RECONCILING NONDISCRIMINATION PRINCIPLES WITH CIVIL LIBERTIES (2016), http://www.usccr.gov/pubs/Peaceful-Coexistence-09-0716.PDF. 181 U.S. COMM’N ON CIVIL RIGHTS, PEACEFUL COEXISTENCE: RECONCILING NONDISCRIMINATION PRINCIPLES WITH CIVIL LIBERTIES (2016), http://www.usccr.gov/pubs/Peaceful-Coexistence-09-07-16.PDF. 182 Id. at 26.

183 Id. at 29.

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be twisted to deny others the full promise of America.” 184 Moreover, Commissioners Achtenberg, Castro, Kladeny, and Yaki are of the opinion that RFRA is a “source of discriminatory overreach which must be curtailed.” 185 The report goes on to advance “the claim that the constitutional and statutory protections of freedom of religion apply only to belief and not to conduct,” thus, “eviscerate[ing] the right to free exercise.” 186 The impact of this report could be far-reaching. One thought is, “[s]hould the next president appoint and the Senate approve, judges and justices that agree with [the report’s] findings, the report will serve as a playbook for those who believe that if there is a conflict between religious freedom and antidiscrimination laws, freedom of religion should lose.” 187 A recent complaint in Massachusetts, some argue, “clearly reads as a dog-whistle to the transphobic right wing, in which ADF [Alliance Defending Freedom, the group of lawyers representing the Churches] is a key player.” 188 The argument continues by stating the “phrasing of the supposed injury . . . is clearly drafted to evoke visions of sexual violation, a tried-and-true (though patently false) scare tactic anti-LGBT activists frequently use to defeat non-discriminatory policies.” 189 The argument highlights: [e]ven setting aside the fact that ADF’s claim belies a fundamental misunderstanding of what it means to be transgender (transgender women are women, not men), and its erroneous conflation of gender identity with sexuality, the case is flimsy at best. ADF claims the state is “threatening these churches with fines and imprisonment simply for operating consistently with their faith,” and alleges that this 184

Id. Id. at 37.

186 Dale O’Leary, US Civil Rights Commission Targets Religious Liberty, CRISIS MAGAZINE (Oct. 25, 2016), http://www.crisismagazine.com/2016/us-civil-rightscommission-targets-religious-liberty.

187 Id. 188 Sunnivie Brydum, The “Spaghetti Dinner” Clause That Launched the Latest Religious Freedom Suit, RELIGION DISPATCHES (Oct. 17, 2016), http://religiondispatches.org/the-spaghetti-dinner-clause-that-launched-the-latestreligious-freedom-suit/.

189 Id. 185

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threat is made in a single sentence amid nine pages of guidance from the Massachusetts Commission Against Discrimination (MCAD). 190 Proponents of ADF assert the “spaghetti supper test,” indicating it “appears intended to demonstrate that the use of church facilities, including parking lots, lawns, and other spaces not directly underneath a church’s roof, could be subject to nondiscrimination policies if these events are advertised as open to the public and, as clearly noted, if they are ‘secular.’” 191 Proponents additionally stress: [d]uring worship services and all other explicitly religious events . . . the churches that filed suit (and any other house of worship in the state [of Massachusetts]) [are] free to discriminate against trans people, or gay, lesbian, and bisexual citizens. Any pastor who so wishes will continue to be able to preach the misguided transphobia that ADF champions as a fundamental ‘religious freedom.’” 192 These individuals believe a line must be drawn where a church “donates its parking lot to a neighborhood farmer’s market, which advertises itself as open to the public, [and that the] new law essentially bars churches from demanding proof of gender identity before granting a farmer’s market patron to access the bathroom.” 193 These proponents pronounce this as not an infringement on religious freedom, but rather a “simple adherence to state law that regulated all businesses that serves the public.” 194 V. CONCLUSION It is clear, religious exemptions are the subject of strong fundamental disagreements between legal doctrine and policy. 195 The question of how the law should treat religious liberty may be phrased 190

Id. Id. 192 Id. 193 Brydum, supra note 188.

194 Id. 195 Douglas Laycock, Religious Liberty and Culture Wars, 3 UNIV. OF ILL L. REV. 840, 842 (2014).

191

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several ways. One way to ask is, “[does/should] religious liberty require special justification for all laws that substantially burden the free exercise of religion, including laws that are in some sense neutral and generally applicable?” 196 Perhaps another way to ask is, “[does/should] special justification required only for laws that in some way treat religious conduct differently from similar secular conduct?” 197 Arguably, both sides of the issue can potentially get what they desire.

The first step for the religious side would be to focus on protecting its own liberty, and to give up on regulating other people’s liberty. On the other side the advocated of sexual liberty and marriage equality would have to agree to the same basic proposition: that it is far more important to protect their own liberty than to restrict the liberty of religious conservatives. It would require advocates to agree not to demand that religious individuals or institutions assist or facilitate practices they consider immoral. 198 It appears all too easy to live and let live. While there are conservative Christians who wish to eradicate the world of immorality, there are others that believe it is not necessarily prudent to force their conservatism onto society. Rather, it is by the way a Christian lives that people’s lives are changed. “A new commandment I give to you, that you love one another: just as I have loved you, you are also to love one another.

By this all people will know that you are my disciples, if you have love for one another.” 199 A Christian may very well be able to create a more meaningful change in the world by focusing on issues directly affecting them, such as those presented in Iowa and Massachusetts. While both sides of this battle may have their flaws, in order to maintain peace, and promote public discourse, compromise must be had. The governments in Iowa and Massachusetts have overstepped their bounds and authorities, in turn empowering the Iowa and Massachusetts churches to vigilantly stand up to 196

Id. Id. 198 Id. at 878–79.

199 John 13:34–35 (ESV).

197

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defend their constitutional guarantees. However, in the midst of this all both sides must remember: Hate, no matter how fancily dressed, only begets hate. Love, on the other hand, can change the world.

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