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Archive for the tag “county”

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

This is from religionclause.blogspot.com which you can find here:

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP’s plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion…. [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same….

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

You can learn more about this issue here.

Court Strikes Down North Carolina Limits On Worship Services

This is from religionclause.blogspot.com which you can find here:

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor’s COVID-19 order that limits indoor worship services to ten people. Saying that “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.,” the court continued:

The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.

News & Observer reports on the decision.

You can learn more about this issue here.

Court Refuses To Dismiss Catholic School Teacher’s Suit On Church Autonomy Grounds

This is from religionclause.blogspot.com which you can find here:

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.(IN Super. Ct., May 1, 2020), an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a teacher who claims that the Archdiocese interfered with his contractual relationship with Cathedral High School, an independent school that had a relationship with the Archdiocese. The teacher was fired pursuant to a directive from the Archdiocese issued after the teacher entered a same-sex marriage. The school feared that if it did not comply, the Archdiocese would no longer recognize it as a Catholic institution. The Archdiocese argued that the lawsuit should be dismissed under the “church autonomy” doctrine. The court said in part:

In civil dispute involving church as party, the court has jurisdiction to resolve the case if it can be done without resolving an ecclesiastical controversy. The court can avoid the religious controversy by deferring to the highest authority within the ecclesiastical body….

… [T]his Court cannot determine that the directive by the Archdiocese to terminate Payne-Elliott was made by the highest authority in the ecclesiastical body of Cathedral or of the Roman Catholic Church.“

The court also questioned whether the case involved an ecclesiastical controversy at all:

… [A] letter from the President and Chairman of the Board of Cathedral elaborates as to ”What is at stake?” Therein, Cathedral states: ”Furthermore, Cathedral would lose its 501(c)(3) status thus rendering Cathedral unable to operate as nonprofit school.” This rational for firing Payne-Elliott is important,… If Payne-Elliott was terminated by Cathedral for an economic benefit to Cathedral at the direction of the Archdiocese, then that is different matter than Catholic doctrine.

The court also refused to accept several other grounds for dismissal put forward by the Archdiocese.  Indiana Lawyer reports on the decision.

You can learn more about this issue here.

Nativity Scene On Indiana County Building Property Held Unconstitutional

This is from religionclause.blogspot.com which you can find here:

In Woodring v. Jackson County, Indiana, (SD IN, April 30, 2020), an Indiana federal district court held that the Establishment Clause is violated by a nativity scene displayed on the lawn of an historical courthouse that now houses county offices. The court first concluded that plaintiff has standing to sue:

Her injury is the direct contact she must endure with a display that she alleges violates the Establishment Clause in the course of exercising her rights as a citizen of Jackson County.

Moving to the merits of the claim, the court said in part:

Here … the Nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers….

Nevertheless, two facts persuade the Court that this Nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display…. Santa and the carolers are placed to the far side of the display, away from the more centralized Nativity display, which straddles the sidewalk subdividing the lawn…. The crèche is the vast majority of the display … making it appear much larger than the solitary Santa figure…. The carolers have been placed in the back of the display, lessening the attention they would draw from an observer….

The second fact that convinces the Court that the Nativity scene would give the impression of a religious endorsement is the scene’s history. For many years, it was only a Nativity scene, with no secular elements at all….But in 2018, in response to a letter from the Freedom from Religion Foundation questioning the display’s constitutionality, the President of the County Commissioners …physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche…. The addition of less prominent secular symbols at the fringes of the display is not enough to counteract the impression a reasonable observer would have gotten from seeing the Nativity display placed on the lawn of the Courthouse for nearly 20 years. The Court has no doubt that a sufficient balancing between secular and nonsecular elements could bring this display into harmony with the First Amendment despite its history, but that balancing has not occurred here. Thus, the display fails the endorsement test.

You can learn more about this issue here.

Negligent Violation of Inmate’s Religious Dietary Needs Did Not Violate 1st Amendment

This is from religionclause.blogspot.com which you can find here:

In Mbonyunkiza v. Beasley, (8th Cir., April 24, 2020), the U.S. 8th Circuit Court of Appeals held:

absent evidence that an underlying prison regulation or policy violates the Free Exercise Clause, evidence that a correction official negligently failed to comply with an inmate’s sincerely held religious dietary beliefs does not establish a Free Exercise Clause claim under §1983.

In the case, a Muslim inmate claimed that four times in 257 days, prison kitchen staff served him meals containing pork products. In rejecting plaintiff’s claim, the court said in part:

[T]he Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion.

By contrast, in this case NCF’s food policies affirmatively accommodate the beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not challenge those policies. Rather, his Supplemental Complaint asserts that defendants are liable in damages because they did not properly implement those policies on certain occasions.

You can learn more about this issue here.

WHY IS THE LAW SO COMPLICATED?

I suspect what has happened to make the law so complicated is that more and more laws, rules, regulations, etc. (referred to in this article as “laws”) have been, and continue to be, added daily by every governmental entity, as it is easier to create new laws then thoroughly examine or repeal existing laws. This is much like the process when Presidential candidates pledge on the campaign trail that if elected, they will eliminate or consolidate government departments and cabinet positions. This rarely happens because of the enormity of the task, the power struggles between the various departments, and because the Federal government not good at laying off personnel (or balancing budgets).

The severe downside of our layered system of laws is that it is nearly impossible for the average person and the small business owner to navigate the legal process.  It is also a problem for large business entities, but they have the resources to seek assistance.

I am constantly surprised to read about the existence of laws I never heard of, and I learn about these laws by reading various legal publications, or hearing about them in legal seminars. Recently I read about a class action which had been brought against an amusement park because when credit cards were used to purchase entry tickets, the expiration date was also printed out. This apparently violated some law.  The end result of the class action was that the amusement park was to give out free tickets to previous customers, and also to the community, if enough previous customers did not avail themselves of the free ticket offer. The only ones who received any money out of the lawsuit were the lawyers. The lawyers were doing a public service by protecting the privacy of the amusement park customers, but one wonders whether every amusement park operator is aware of this law, and if not, are they required to have their lawyers scour the law for such types of law? The answer is yes, they are so required.

The law has become so complex so that even a small matter, such as a buyer discovering a defect in a house he bought, faces some complex laws. In researching the remedies for a client in a similar situation recently, these were the issues we encountered:

  • State law exempts an estate (the house was sold by an estate) from responsibility in selling real estate unless the administrator/executor knew about the condition.
  • If the buyer complains of a problem, mediation, rather than a court hearing is required by the sales agreement.  The mediator has to be paid by each party involved.
  • The buyer had an inspector inspect the property. If the buyer feels the inspector did not do a good job, the inspector’s agreement requires that the matter first be arbitrated, and the buyer cannot take the matter to court, at least initially.

As we were uncertain whether the buyer could prove the seller knew about the defect, or whether the inspector should have told them about the leak, which means each party would point a finger at each other, and because we could not initiate a claim even in a small claims court, where it probably would have been resolved quickly, we advised the clients just to absorb the expense of repairing the problem, which was not large, and certainly far less expensive than paying for a mediator, an arbitrator, or a lawyer.

This post is from Faye Riva Cohen’s blog Toughlawyerlady.

1st Circuit OKs “So Help Me God” In Naturalization Oath

This is from religionclause.blogspot.com which you can find here:

In Perrier-Bilbo v. United States, (1st Cir., April 3, 2020), the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of “so help me God” at the end of the oath of allegiance administered at naturalization ceremonies. Plaintiff, a French citizen, was offered the options of just not repeating those words during the ceremony or of having a private ceremony where the oath would be administered without that phrase. She rejected these as inadequate.

The court denied plaintiff’s Establishment Clause challenge, applying the test used by the Supreme Court in American Legion v. American Humanist Association, saying in part:

We follow the Supreme Court’s most recent framework and apply American Legion’s presumption of constitutionality to the phrase “so help me God” in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath. And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or “deliberate disrespect” by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

Rejecting Plaintiff’s Free Exercise claim, the court said in part:

We do not second-guess the sincerity of Perrier-Bilbo’s beliefs or her feeling of distress upon hearing the phrase at issue. But even if the phrase offends her, offense “does not equate to coercion,” Town of Greece, 572 U.S. at 589, and the Free Exercise Clause does not entitle her to a change in the oath’s language as it pertains to others….

The court rejected Plaintiff’s argument under RFRA, saying in part:

While she might find the options offered by the Government subjectively burdensome, however, the district court was right to conclude that not every imposition or inconvenience rises to the level of a “substantial burden.”

The court also rejected equal protection and due process challenges.  Judge Barron filed a concurring opinion. Free Thinker blog discussed the decision.

You can learn more about this issue here.

Michigan Will Allow Secular Marriage Celebrants

This is from religionclause.blogspot.com which you can find here:

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

You can learn more about this issue here.

10th Circuit Reverses Dismissal Of Inmate’s 1st Amendment Claims

This is from religionclause.blogspot.com which you can find here:

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court’s sua sponte dismissal of a federal pre-trial detainee’s pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains’ refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

You can learn more about this issue here.

Consumer Choice and Society

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

Those who like to celebrate the contemporary capitalist economy frequently do so in terms of choice. Some are quite open that it is consumer choice that excites them, the ability to pick and choose among an immense variety of products, according to one’s whims and desires. Others, more conscious of the shallowness implicit in reducing man to simply a consumer of goods, are wont to point out that even though our society itself may be preoccupied with material possessions, we ourselves as individuals are free to occupy ourselves with better things, with cultural or spiritual goods, for example.  While of course this is true, one might wonder why so few people seem to manifest much interest in these latter types of goods. But perhaps the real problem here is the attempt to reduce human choice solely to the individual level. It is true, of course, that individuals do have the freedom to choose. Our wills were created by God to desire goods, but we have the freedom to choose among goods, to choose appropriately or not, to make choices that do not interfere with the attainment of our eternal salvation, or that make this more difficult or even impossible to attain. This does not mean, of course, that we must always choose the highest goods; rather, as the collect for the Third Sunday after Pentecost in the traditional Roman rite puts it, in such a balanced way, that “we may make use of [transeamus] temporal goods so as not to loose eternal goods.”

But there is much more to say here than simply to exhort one another to make good choices. For we exist not merely as individual choice-making consumers – even when our choices might be of the most laudable kind – but as members of society, and as such, invariably influenced by that greater social whole. In his 1991 encyclical Centesimus Annus, St. John Paul II offered a penetrating discussion of the connection between individual choice and the society or culture around us. He wrote (in section 36)

The manner in which new needs arise and are defined is always marked by a more or less appropriate concept of the human person and of the person’s true good. A given culture reveals its overall understanding of life through the choices it makes in production and consumption. It is here that the phenomenon of consumerism arises. In singling out new needs and new means to meet them, one must be guided by a comprehensive picture of the person which respects all the dimensions of his being and which subordinates his material and instinctive dimensions to his interior and spiritual ones. If, on the contrary, a direct appeal is made to human instincts…then consumer attitudes and lifestyles can be created which are objectively improper and often damaging to the person’s physical and spiritual health. Of itself, an economic system does not possess criteria for correctly distinguishing new and higher forms of satisfying human needs from artificial new needs which hinder the formation of a mature personality. Thus a great deal of educational and cultural work is urgently needed, including the education of consumers in the responsible use of their power of choice, the formation of a strong sense of responsibility among producers and among people in the mass media in particular, as well as the necessary intervention by public authorities.

Here John Paul makes clear the connection between individual choice and the concept or picture of human good which a culture projects. Consumerism is not simply bad choices made by consuming individuals, for these bad choices do not occur in a vacuum. They presuppose the fundamental things that a society values, what it produces and what it teaches about human needs and goods. John Paul notes four matters that require attention, “the education of consumers in the responsible use of their power of choice, the formation of a strong sense of responsibility among producers and among people in the mass media in particular, as well as the necessary intervention by public authorities.” For now, let us focus on just one of these, “the formation of a strong sense of responsibility…among people in the mass media.”

Here advertising immediately comes to mind, and it is surely one of the most potent methods of teaching that any society makes use of. Advertising rarely teaches by precept, but more subtly creates illusions as to what is a good or satisfying or exciting life, and what products are necessary to share in such a life. It is not simply the promotion of a particular product, rather it is generally the promotion of “artificial new needs which hinder the formation of a mature personality,” for the sake of convincing the public to buy new products or new kinds of products.

It is true that the ability of advertising to influence consumer choice is not unlimited. There have been notable instances of marketing failures because of consumer resistance. But I do not think that anyone looking honestly at our economy today could fail to see that for the most part it is characterized by “artificial new needs which hinder the formation of a mature personality,” which convince people that happiness is to be found in the possession of more gadgets or of some particular gadget.

However, it is not simply by advertising that the mass media influence culture and public opinion. The media as a whole present an image of “consumer attitudes and lifestyles” that, more often than not, “are objectively improper and often damaging to the person’s physical and spiritual health.” They do this by the contents of their shows, certainly, but equally as much by the very images they offer, of apparently successful and happy people, and even by the news items they focus on and the way they analyze news events.

In response to this John Paul rightly highlights the need for “educational and cultural work,” the formation of a strong public recognition of man’s true good and, on the other hand, awareness of those false goods which directly appeal to human instincts and fail to subordinate our “material and instinctive dimensions to [our] interior and spiritual ones.” In this connection both the Church and educational institutions at all levels can play an important part. But he also notes “the formation of a strong sense of responsibility among producers…, as well as the necessary intervention by public authorities.” Here we can ask if the very structure of economic life can contribute to the correct formation or to the deformation of our understanding of the human person. In considering this, if we recall the definition of capitalism offered by Pope Pius XI in his 1931 encyclical Quadragesimo Anno, as “that economic system in which were provided by different people the capital and labor jointly needed for production” (sect. 100), we might begin to see why a society’s ordering of its economy has profound implications for its cultural, intellectual and spiritual health.

Under capitalism, when separation of ownership and work is the norm, there exists a class of persons, the owners of capital, for whom the economy is not so much a way of supplying mankind with truly necessary and useful products, with real means of satisfying genuine human needs, as it is of making and selling anything that people can be persuaded to buy, of working to create “artificial new needs” in order to promote sales of their products. Hilaire Belloc explained this in a striking passage.

But wealth obtained indirectly as profit out of other men’s work, or by process of exchange, becomes a thing abstracted from the process of production. As the interest of a man in things diminishes, his interest in abstract wealth – money – increases. The man who makes a table or grows a crop makes the success of the crop or the table a test of excellence. The intermediary who buys and sells the crop or the table is not concerned with the goodness of table or crop, but with the profit he makes between their purchase and sale. In a productive society the superiority of the things produced is the measure of success: in a Commercial society the amount of wealth accumulated by the dealer is the measure of success. [1]

The small producer is intimately connected with his product, and generally has some interest or pride in workmanship beyond simply how much money he can make. But necessarily those who are one or more steps removed from the productive process will tend to look at their product as simply something to be sold, and sold not necessarily because it is necessary or useful, but because advertising can persuade people to buy it. Under capitalism, “the formation of a strong sense of responsibility among producers” will be unusual, because the cultural climate will focus on “the amount of wealth accumulated,” not on the inherent quality of the product or service.

St. John Paul notes also “the necessary intervention by public authorities.” In many people’s minds, this raises the specter of a Soviet-style command economy. But this is a groundless fear. Any type of economy requires a legal system to support it. Capitalism, as much as any other, both shapes the legal environment and depends upon it for structure and support. For example, were it not for the unprecedented powers and rights given to corporations by courts and legislatures since the second half of the 19th century, advanced capitalism could hardly exist. None of this was inevitable, however, but rather the result of corporate influence over government and the general cultural attitudes endemic to a commercial or consumer society.

But a legal system could also work in favor of a distributist economy, an economy characterized, as much as is feasible, by a joining of ownership and work, private ownership for the most part, but private ownership of such a kind that producers are generally interested in more than how much money they can make. “The man who makes a table or grows a crop makes the success of the crop or the table a test of excellence.” Of course he needs and expects to make a sufficient return on his work to support himself and his family, but the ever-present connection with real work and real products tends in the opposite direction from the capitalist separation of ownership and work. Moreover, we should note that ownership in a distributist economy need not be individual proprietorships, but can be employee cooperatives. Such cooperatives will generally be necessary for production which requires large-scale machinery or large capital investment.

Of course, due to our First Parents fall into sin, distributist owners will also be affected by greed, by a temptation to cut corners, and so on. This is part of the human condition. But there is a huge difference between a system which facilitates greed, which promotes a desire to cut corners and defraud customers, and a system that does not encourage such evils. Capitalism promotes sin, distributism does not.

Right now the power of capitalists, particularly as embodied in corporations, is overwhelming. For the most part, distributism must manifest itself in nooks and crannies of the economy. We should seek these out and help them to grow. But there is another thing we can do: we can refuse to allow the culture of capitalism of colonize our minds. We can reject “new needs and new means to meet them” which are not “guided by a comprehensive picture of the person which respects all the dimensions of his being and which subordinates his material and instinctive dimensions to his interior and spiritual ones.” We can distinguish in our own thought and life “new and higher forms of satisfying human needs from artificial new needs which hinder the formation of a mature personality.” We can thus carry out, in our own minds, in our own families and among our own friends and acquaintances, some of the necessary “educational and cultural work” that John Paul calls for. In short, we can take small steps to break down the oppressive ideology of consumerism which surrounds us and live in the freedom of that truth which can set us free.

Notes:
[1] An Essay on the Nature of Contemporary England (New York: Sheed & Ward, 1937) p. 67.

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