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2019 | OriginalPaper | Chapter

5. Applying the Heightened Standard

Author : James N. Szymalak

Published in: Expanding Public Employee Religious Accommodation and Its Threat to Administrative Legitimacy

Publisher: Springer International Publishing

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Abstract

The previous chapter sought to explain the requirements of a heighten duty to accommodate, but what would that actually look like? Politically motivated rhetoric can easily become attenuated from the actual impacts of proposed legislation, and it appears that is what is happening in regards to protecting religious free expression.

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previous chapter Expanding Religious Accommodation

next chapter Challenges of an Expanded Obligation

Harry Eckstein, Case Study and Theory in Political Science, in 7 Handbook of Political Science, Strategies of Inquiry 99 (Fred I. Greenstein & Nelson W. Polsby, eds., 1975). For other examples of Eckstein’s model being used to evaluate proposed regulations, see Allison Christians, Case Study Research and International Tax Theory, 55 St. Louis Law Journal 57 (2011) (citing Arthur Cockfield, Transforming the Internet into a Taxable Forum: A Case Study in E-commerce Taxation, 85 Minn. L. Rev. 1171, 1171 (2001); Arthur Cockfield, Designing Tax Policy for the Digital Biosphere: How the Internet Is Changing Tax Laws, 34 Conn. L. Rev. 333 (2002)).

Eugene Volokh, Test Suites: A Tool for Improving Student Articles, 52 J. of Legal Educ. 440, 440–1 (2002).

See generally Eugene Volokh, Intermediate Questions of Religious Exemptions—A Research Agenda with Test Suites, 21 Cardozo L. Rev. 595, 600 (1999). In a similar vein, Volokh applies a test suite to determine the potential impacts of religious exemptions.

As an actual example, see Faulkner v. Univ. of Cincinnati, 173 F. Supp. 3d 575 (S.D. OH., 2015). Faulkner, though he disclaimed any university endorsement, was admonished for integrating numerous Biblical references into his training presentation. Id. at 577.

702 F.3d 269 (6th Cir. 2012), cert den’d 134 S. Ct. 119 (October 7, 2013).

Id. at 272.

Id. at 277.

Piggee v. Carl Sandberg College, 464 F.3d 667 (7th Cir. 2006).

Id. at 668.

This assumes that the accommodation denial would reach a federal court. The EEOC would adjudicate first, and only employees can appeal the decision to federal court. If the employee prevailed at the EEOC stage, the agency could only appeal within the EEOC and not seek its own judicial review.

http://creativitymovement.net/creativity/1950-2/ (last visited March 13, 2018).

“This is the sequel to Nature’s Eternal Religion, and spells out in detail the Racial Religion of Creativity - and the program of building a sound mind in a sound body, in a sound society, in a sound environment. Contains information on the Creativity plan for ‘Salubrious Living’, environmental protection, Articles for defense of the White Race, and much more.” http://creativitymovement.net/library/white-mans-bible-by-ben-klassen-1981/ (last visited March 13, 2018).

http://creativitymovement.net/creativity/the-sixteen-commandments/ (last visited March 13, 2018).

205 F. Supp. 2d 1014 (E.D. Wis. 2002).

Id. at 1023.

Id. at 1022.

Id.

United States v. Trainer, 265 F. Supp. 2d 589, 593 (D. Md. 2003).

Conner v. Tilton, 2009 U.S. Dist. LEXIS 111892 (N.D. Cal. December 2, 2009) (unpublished) (finding Creativity or Church of the Creator is not a religion as defined in Africa v. Pennsylvania, 662 F.2d 1025 (3d Cir. 1981)).

Id. at 40.

Id. at 17, note 4.

Deville v. Crowell, 2011 U.S. Dist. LEXIS 111107 (D. Kan. September 28, 2011).

“Also, plaintiff’s reliance on Peterson as establishing that the Church of the Creator is a federally recognized religion, is misplaced. As pointed out in Conner, that recognition was made in the context of an employment discrimination case applying the standard for determining whether a particular set of beliefs qualified as a religion for purposes of Title VII, which is more broad than the standard applied under the First Amendment.” Id. at 17.

Hale v. Federal Bureau of Prisons, 2018 U.S. Dist. LEXIS 52447 (D. Co. March 28, 2018).

Coward v. Robinson, 2017 U.S. Dist. LEXIS 138263 (E.D. Va. August 28, 2017). See also Miles v. Guice, 2018 U.S. Dist. LEXIS 9581 (E.D. N.C., January 22, 2018) (finding NGE a religion to be accommodated).

Id. at 2.

Id. at 8–13.

Id. at 21–22.

156 F.3d 771 (7th Cir. 1998).

Id. at 777.

Id. at 779 (Posner, C.J., concurring).

Id.

Id. at 779–80 (Posner, C.J., concurring).

Endres v. Indiana State Police, 349 F.3d 922, 924 (7th Cir. 2003); cert den’d 541 U.S. 989 (2004). “Gaming Commission agents certify gambling revenue, investigate complaints from the public about the gaming system, and conduct licensing investigations for the casinos and their employees.” Id.

Id.

Id. at 925.

Id.

Id. (citing Van Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995)).

Cert. den’d 541 U.S. 989 (2004).

562 F.3d 256 (3d Cir. 2009).

Id. at 262.

https://www.opm.gov/policy-data-oversight/worklife/employee-assistance-programs/ (last visited July 23, 2014). “An EAP is a voluntary, work-based program that offers free and confidential assessments, short-term counseling, referrals, and follow-up services to employees who have personal and/or work-related problems.” Id.

244 F.3d 495, 501 (5th Cir. 2001).

Id. at 497.

Id.

Id. at 498.

Id.

Id. at 499.

Id. at 501.

Id. at 502.

Walden v. Centers for Disease Control and Prevention, 669 F.3d 1277 (11th Cir. 2012). Ms. Waden was represented by Alliance Defending Freedom (ADF), an organization discussed infra.

Id. at 1280–81.

Id. at 1281.

Id. at 1286–87.

Id. at 1294.

Noesen v. Med. Staffing Network, Inc., 232 Fed. Appx. 581, 583 (7th Cir. 2007); rehearing denied by Noesen v. Med. Staffing Network, Inc., 2007 U.S. App. LEXIS 14445 (7th Cir. Wis. June 13, 2007).

Id. The supervisor even arranged for birth control prescriptions to be sorted into a separate basket so that Noesen would not have to touch the items.

Id.

Id. at 584.

Id.

EEOC Enforce Guidance on Religious Accommodation at 70.

See Jason Gruenauer, Marriage Scripture Poster Citing ‘Man and Wife’ Hangs at Elbert County Clerk’s Office, December 8, 2015, available at https://www.thedenverchannel.com/news/local-news/controversial-marriage-poster-in-elbert-county (last visited March 17, 2018). County clerk hung a bride and groom poster with a verse from I Corinthians reading “…each man should have his own wife and each woman her own husband.”

Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995).

Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004).

Id. at 601–2. One of Peterson’s postings was taken from Corinthians 10:12. The other featured the following passage from Isaiah:

The shew of their countenance doth witness against them; and they declare their sin as Sodom, they hide it not. Woe unto their soul! For they have rewarded evil unto themselves. Isaiah 3:9.

Subsequently, Peterson posted a third scriptural passage:

If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be put upon them. Leviticus 20:13.

Id.

Id. at 602.

Id. 607–8.

Wilson v. U.S. West Communications, 58 F.3d 1337, 1339 (8th Cir. 1995).

Id.

Id. at 140–42.

Rabbi Levi Brackman & Rivkah Lubitch, Postmen Refuse to Distribute New Testament, Ynnetnews.com, Jewish World (May 3, 2012).

Id.

The Kaiser Family Foundation finds that 21% of hospitals are state and locally government owned. http://kff.org/other/state-indicator/hospitals-by-ownership/ (last visited July 23, 2014).

North Coast Women’s Care Medical Group, Inc. v. Benitez, 44 Cal. 4th 1145 (2008).

Id. at 1150.

Id. at 1159.

The most notorious being example being that of Rowan County Clerk Kim Davis, an elected official, that was forced by the court to issue marriage licenses to same-sex couples. Miller v. Davis, 123 F. Supp. 3d 924 (E.D. Ky. 2015). See also Summers v. Whitis, 2016 U.S. Dist. LEXIS 173222 (S.D. In. December 15, 2016) (substantiating the termination of the deputy clerk for refusing to process an application for a same-sex marriage); Parker v. Forman, Case 0:16-cv-62155-JEM (S.D. Fl. 2016) (complaint alleged religious discrimination when the assistant county clerk was terminated for refusing to process same-sex marriages).

See Thomas Kaplan, Rights Collide as Town Clerk Sidesteps Role in Gay Marriages, The New York Times, September 27, 2011, available at http://www.nytimes.com/2011/09/28/nyregion/rights-clash-as-town-clerk-rejects-her-role-in-gay-marriages.html (last visited July 23, 2014).

Id.

Islington v Ladele [2008] UKEAT 0453_08_1912, [2009] BLGR 305, [2009] ICR 387, [2009] IRLR 154.

Slater v. Douglas County, 743 F. Supp. 2d 1188 (D. Or. 2010).

Id. at 1195.

Id. at 1993–94.

Id. at 1190.

Thomas Kaplan, Rights Collide as Town Clerk Sidesteps Role in Gay Marriages, The New York Times, September 27, 2011, available at http://www.nytimes.com/2011/09/28/nyregion/rights-clash-as-town-clerk-rejects-her-role-in-gay-marriages.html (last visited July 23, 2014).

Slater v. Douglas County, 743 F. Supp. 2d 1188, 1195 (D. Or. 2010).

Title: Applying the Heightened Standard
Author: James N. Szymalak
Publisher: Springer International Publishing
Book: Expanding Public Employee Religious Accommodation and Its Threat to Administrative Legitimacy
Print ISBN: 978-3-319-97830-7

Electronic ISBN: 978-3-319-97831-4

Copyright Year: 2019
DOI: https://doi.org/10.1007/978-3-319-97831-4_5

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