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Archive for the tag “protect”

EEOC Sues Over Firing of Muslim Employee

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

The EEOC announced this week that it has filed a Title VII religious discrimination lawsuit against KASCO, a St. Louis-based company that manufactures and sells butcher supplies and meat processing equipment. The press release explains:

According to EEOC’s lawsuit, Latifa Sidiqi had worked for KASCO since 2008, most recently as a buyer. After she began more seriously practicing her religion in 2012, a supervisor and others began making derogatory comments about her fasting during Ramadan, wearing a hijab, and her native country, Afghanistan. The agency charged that Sidiqi was fired during Ramadan 2013 because of her religion and national origin, and because she complained about her supervisor’s treatment.

You can learn more about this issue here.

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No-Fault Divorce Does Not Violate Hindu Husband’s Free Exercise Rights

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

In Bhandaru v. Vukkum, (KY App., Aug. 19, 2016), a Kentucky appeals court rejected an argument that the state’s no-fault divorce law violates the free exercise rights of a Hindu husband.  The husband argued that his Hindu religion only permits divorce if some grounds for divorce are stated. The court concluded however that the divorce law is a law of general applicability and the state has a rational basis for it.  It thus survives a 1st Amendment challenge and the free exercise provisions of the Kentucky constitution offer no greater protection than those in the 1st Amendment.  The court also rejected the argument that under notions of comity it should have applied the Indian Hindu Marriage Act.

You can learn more about this issue here.

Reasoned Voting

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

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Keeping in mind that this site does not engage in party politics, I still feel prompted to share something in the context of the up-coming election in the U.S. Although most of this will discuss the political climate in the U.S. I also send this out to any readers “across the pond” in the U.K. as they approach the very important vote on whether or not to remain in the E.U. Distributism is based on certain philosophical principles which originate in a scientific view of philosophy. It has become all too common in our political environments to use fear tactics to try and convince people to vote a certain way. These tactics can sound reasonable, but are truly an attempt to get you to abandon reason. Therefore, I want to present certain principles of reason as I think they apply to deciding how to vote.

The philosophical principles of reason which come down to us from the great minds of the past like Aristotle and Saint Thomas Aquinas are those precepts which we must follow when applying reason to anything. The failure to do so will ultimately lead us to accepting absurd things. They are employed by all of our natural sciences. They are employed by all of our ethical reasoning. They are crucial to fulfilling our capabilities as rational beings. Unfortunately, some people throw around some of these principles in an incorrect or incomplete manner. Because we no longer learn true philosophy (even philosophy students seem to spend more time learning about philosophers – both good and bad – than about the actual science of philosophy) many people are ill equipped to see that these are false applications.

“Choosing the lesser of two evils”

This is a frequent claim used as an election draws near. In the U.S. It has long been used by pundits for the Republican party and has recently been used more by those of the Democrat party. The failure to nominate a candidate their voting base can really support has forced them to use this claim. They essentially say, “we know you think our candidate is bad, but he’s not as bad as their candidate.” This call to choose the “lesser” of two evils is usually followed by the next claim.

“A vote for x is really a vote for y”

This is a double-attack on your reason. Not only is your decision not to vote for their candidate or policy wrong, but you will somehow be guilty for the fact that the other candidate or policy won. In essence, the claim is that by voting other than the way they want, you are actually choosing what (presumably) neither of you want. This is used by both of the major parties in the U.S. as an attack against anyone who considers a third party option. It is based on the premise that the candidate or policy you want has no chance of winning, which leads us to the next claim.

“Don’t let the best be the enemy of the good”

Politics is the art of compromise, so why don’t you just compromise and vote for us? Since your position or candidate has no chance of actually winning, you should back down a little and vote for us. By doing so, you’ll get at least some of what you want instead of “wasting your vote.”

All of these arguments sound reasonable, but are actually not so, and a serious look at the principles of reason will reveal why.

When people use variants of the “lesser of two evils” argument, keep in mind that this is only a partial statement of the actual principle of reason. The actual principle is, “If one cannot avoid doing one of two acts, from both of which will follow an evil effect, one is obligated to choose the lesser of the two evils.”  Note that the premise here, which is fundamental to the entire principle, is that you cannot avoid doing one of the two acts. For this to apply in the context of an election, you would have to be constrained to only choose one of two candidates and have no other option – you must vote and you must vote for one of the only two candidates presented to you. Is this the actual case in our elections? Do you really only have two choices? I am not speaking of the so-called “practical” choices, by which is meant those choices generally accepted as having a chance to win. If there is in fact another option, then you are not limited by the constraint of the principle, so it simply doesn’t apply. Actually, if one were to insist on applying it to the case of an election, a reasoned expansion of this principle would be that, in the case of more than two choices, you must choose the one from which will follow the least evil effect. Don’t forget that, when electing candidates in the U.S., there is usually a blank line where you can write in the name of a better choice than the ones being presented.

This leads us to the next claim. Is it true that choosing something other than the two “practical” choices is equivalent to choosing one of them? The answer is obviously no. They say that the only choices are A and B because C has no chance of winning. Therefore, if you vote for C, you are effectively giving the election to whichever option they don’t want from the choices of A and B. This is nonsense. They are trying to shift the blame to you for the fact that they didn’t present a candidate you would want to support. They are trying to blame you for all the others who also didn’t want to support their view. This seems to be a mangling of the principle which states, “Things that are identical with a third are identical with each other.”Your actual responsibility in an election is to vote for the candidate or position you think should win. What you vote for represents what you choose regardless of the outcome. You are not to blame for the votes of others.

This leaves us with the only argument that actually deserves any consideration. “Don’t let the best become the enemy of the good” is inherently incorrect, but it can actually be applied in a way that doesn’t compromise the principles of reason. However, this argument must be properly understood in the light of those principles to determine if it actually applies to the current choices.

First of all, using the terms employed, the “good” must always be directed toward the “best” or it fails to be good. (“Every agent acts for the sake of an end.”) Therefore, one can accept the merely “good” for now, but only on the condition that is a movement toward the “best.” If this is not the case, then you would be violating the principle which states, “It is never lawful to reject a greater good for a lesser one.” The lesser good can only be accepted as a means to achieving the greater good, and never as an end itself. This is the essence of political compromise. Realizing that achieving the “best” may not currently be politically possible, achieving the “good” at this time with the intention of continuing to work for the “best” may be prudent.

Another consideration for this argument must be kept in mind. At what point does continual compromise from the “best” end up being an acceptance of the merely “good?” If you keep voting for an inadequate candidate on the grounds that “we can’t let the other party win,” what incentive will your party ever have to stop presenting inadequate candidates? If you continue to agree to legislation that falls short of what you really want, what are your chances of ever getting the legislation you really want? The pundits accuse those who choose to make a stand with their vote of wasting it, but the purpose of voting is to try and get the change you want. What vote could be more wasted than when you vote for something you don’t want?

At what point do we wake up to the realization that the political machines of these parties are actively engaged in saying what their base wants to hear just to secure votes, but don’t actually mean those things? How many times to we have to see them fail to even try to accomplish what they tell us they will before we accept the fact that it really isn’t all the fault of the other party? Remember that this sort of compromise is only acceptable if it is both prudential and will actually help to move from the “good” to the “best.”

A final consideration on this kind of compromise is that we have to examine the risks of the other side of the compromise. It is not enough to look at what we’ve gained, we need to look at what we’ve potentially lost through the compromise.“It is never lawful to take a risk with the right of another.” “It is never lawful to do an evil act to accomplish a good end.” “A good intention does not justify the use of an evil means for the end in view.” If your side of the compromise would fall into any of these categories, then the compromise cannot be made. Remember that your vote represents you. Your beliefs and values. “All human acts must tend towards the good of man.”

I am also reminded of something posted by Ryan Grant. There is another claim that says that you have no right to complain if you don’t vote. Of course, this is also nonsense. The officials of government have a moral responsibility in the exercise of their office. This is true even if those officials are not democratically elected. Citizens always have the right to complain about injustices regardless of how those officials came to hold their offices. In some election campaigns, there were movements of people who wanted a ballot option for “none of the above” as a way of indicating their dissatisfaction with all of the candidates. However, if you believe that elections are useless, because of the corruption of the political parties, the media, the voting process, or the ballot counting process, then why should you bother to vote even to say “none of the above?” Justice in government is a human right, not one just for those who engage in the system of voting.

Finally, I would like to point out how ironic it is when I hear Republican pundits heap scorn on those who would even consider a third party candidate. They seem to forget that their party was once the upstart third party in a political climate dominated by two other parties. The “Grand Old Party” is significantly younger than its chief rival. Why is it that they don’t address the growing popularity of third party candidates among their voter base? The Republican party was propelled to electoral victory because the voting public got sick and tired of the fact that neither of the major parties of the time were putting forth candidates and positions that truly reflected their views. Well, the same thing is happening today in both of the major parties. It is common for pundits of both parties to lay the blame for an electoral loss on the votes “stolen” by a third party candidate. The truth is that these votes were not stolen because they didn’t “belong” to any candidate or party. They never “owned” our votes and they shouldn’t take them for granted. If they want our votes, then they should present candidates and positions we want to support. If they want to keep our votes, then those candidates better use their time in office actually trying to accomplish what they were elected to accomplish. In other words, voters need to remember that parties and individual candidates need to earn our votes, and need to keep doing so. If they fail to do this, then why shouldn’t we look elsewhere and be proud of doing so?

In their attempts to convince others to vote for a particular candidate, many people are using arguments that invoke the fundamental principles of reason from the philosophical sciences. Unfortunately, many of these invocations use these arguments in an improper way. I addressed some of the most common in a recent article titled Reasoned Voting. I recently came across another use of a principle of reason in support of voting for a particular candidate which, in the interest clear reasoning, I would like to address in this follow-up to that article. The principle is known as “Double-Effect.”

The main goal of these articles is not to convince or dissuade people about voting for a particular candidate or party. It is to foster a better understanding of the principles being invoked because an improper use of these principles can have bad results.

“A small error in principle can lead to a big error in conclusion.”

Doing something, even something good, for a bad reason is not something we should be willing to accept because that would be acting contrary to our nature as rational beings. Therefore, even if you continue to support a given candidate, it should not be because of a faulty application of the principles of reason.

Where the principle commonly called “the lesser of two evils” is used to decide between two choices, the principle of double-effect only applies to a single choice. It is the method used to determine if a particular choice can or cannot be made. Thus, we have seen questions like “can a Catholic vote for Trump/Hillary?” Some commentators have attempted to answer these types of questions pertaining to the upcoming election using the principle of double-effect, but I believe these attempts are a misapplication of the principle.

The principle of double-effect answers the question of whether or not a specific single act is permissible when it is known that the act will produce not only a good, but also a bad effect. In the context of the political election it is proposed that, because we know a candidate will do both good and bad things, double-effect applies to the question of whether or not we may vote for a specific candidate. However, I believe that this is a misunderstanding of the principle as it applies to the question at hand.

The principle of double-effect addresses the following question.

Given an act that that produces two effects, one good and one bad, can we do the act?

 

To determine whether or not a particular act is permissible, the principle of double-effect applies four conditions to the act and its effects to arrive at an answer. If all of the conditions are met, then the principle of double-effect applies and the act may be done. The conditions which must be met for double-effect to apply are these.

 

The act itself must be good, or at least indifferent.
Both effects must proceed immediately from the act.
Only the good effect may be intended.
There must be due proportion between the good and bad effects.

The first two conditions determine whether or not double-effect applies to a particular act. If not, the act must be examined in light of other principles of reason. The second two conditions answer the question of whether or not an act to which double-effect does apply may or may not be done.

A fairly common example of how the principle is legitimately applied is the question amputating a limb infected with gangrene. Amputating the infected limb will remove the threat to life, but it will also result in the loss of the limb. Can we amputate the limb?

First: The act is amputation of the limb. This act is indifferent because the goodness or badness of it depends on the end toward which it is directed.
Second: Both effects will proceed immediately from the act. The moment the act is performed, both the threat to life and the limb will be removed.
Third: We only desire the good effect. If we could remove the gangrene without doing harm, or with less harm, we would do so.
Fourth: The good of preserving life is greater than the evil of losing a limb.

From this we can see that the principle of double-effect applies to this case, and that the reasonable conclusion is that we may amputate the limb.

Those who attempt to apply this principle as an argument for casting your vote for candidate X seem to do so on the basis of campaign promises. Even though it is likely that X will do some things we consider bad, X has promised to do other things we believe are good. We believe there is due proportion between the good and the bad that X will likely do while in office. Therefore, they conclude, the principle of double-effect shows that we can vote for candidate X. I will explain two reasons why I believe double-effect just doesn’t apply to the question of your vote. Note that I am only addressing the question of whether or not double-effect applies to the question of your vote, there are certainly other factors that do.

Double-effect applies specifically to “an act that produces two effects, one good and one bad.” We are examining the effects of specific individual act, so the act in question must clearly be the cause of those effects. In the case of amputation, both effects are produced by the act of amputation – they are both unavoidable effects of the act and the act is clearly the cause of those effects. Can we say the same thing about your vote? Is your vote the cause of both the good and the bad that candidate X will do while in office? The answer is obviously no. You cast your vote based on various things like campaign promises and position statements, but your vote does not actually cause any of those things to actually occur. Whether candidate X keeps or breaks every campaign promise, whether X does exactly what you expect or the opposite of what you expect can not reasonably be attributed as an effect of your vote. It is an effect of the free will of the candidate while in office.

I know that some will argue that your vote is the cause of the candidate getting elected and therefore, by extension, it is the cause of what the candidate does in office. I maintain that double-effect still doesn’t apply even if we accept the argument. The principle of double-effect states that both effects must proceed immediatelyfrom the act. This is clear in the case of amputation. Both effects are immediate. They happen simultaneously and there is no delay between the act as the cause and its effects. In regard to your vote, none of the effects can be considered to proceed immediately from your vote. Even if we were to say that the effects in question will take place over a period of time, they don’t even start to happen when you cast your vote. The candidate won’t even get sworn in for two months after you cast your vote. X could refuse to be sworn in or die before doing so. Amputation guarantees that both the limb and the disease will be removed. Your vote does not even guarantee that candidate X will win the election. Clearly, double-effect does not apply to the question of your vote.

In the end, as stated in the previous article, you must exercise your prudential judgement. Faced with the fact that the candidate is not ideal, is it prudential to vote for X rather than one of the several other available candidates? Is it prudential to (once again) compromise on what you really want and vote for X as a step toward a greater good to be more fully achieved in the future? There are many factors to consider for this important decision. I hope that these articles will help clarify the good and bad points some are making on the subject. These decisions are unfortunately difficult and complex. The principles of reason exist to assist us in understanding the factors that go into making a good decision. It does not help if our thinking gets muddled by the improper application of these principles, even if those doing it have the best intentions.

Originally posted on June 16, 2016 (part one: see here) and August 18, 2016 (part two: see here).

Suit Challenges Latin Cross In County Seal and Flag

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

A suit was filed in federal district court this week seeking to enjoin Lehigh County, Pennsylvania from continuing to display the current county seal and county flag that includes a Latin cross (partly hidden by a depiction of the county courthouse) as a prominent part of the design.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, filed 8/16/2016) contends that the cross amounts to an endorsement of Christianity, while the county Board of Commissioners says the cross was made part of the design to honor the original settlers of Lehigh County who were Christian. FFRF issued a press release announcing the filing of the lawsuit.

You can learn more about this issue here.

Superior Court Ruling Gives Hope to Custody-Seeking Grandparents

Pursuant to 23 Pa.C.S. Section 5324, grandparents and great-grandparents, if they meet the statutory criteria, may be awarded legal and physical custody of their grandchild(ren) (or great-grandchildren). Typically, grandparents assert their potential custodial rights in opposition to the rights of the parents of the children. In some situations, however, more than one set of grandparents may seek to exercise their custodial rights at the same time. How is that conflict resolved? The recent Pennsylvania Superior Court case of G.A.P. v. J.M.W. v. S.J. and R.J., 2018 Pa.Super. 229 sheds some light on how such a matter could be handled.

In G.A.P., the father of the child has a history of substance abuse and also a criminal history, and was alleged to have committed sexual abuse against the child. Similarly, the mother of the child also has a history of substance abuse. The child has lived, from time to time, with the maternal great-grandparents over the course of his entire life, and has lived continuously with them since 2015.

In the summer of 2016 the great-grandparents filed for custody of the child on the basis that he had been living with them continuously since October 2015 and asserted that he was unsafe when in the custody of the father. The trial court, on an emergency basis, awarded the great-grandparents sole physical custody of the child and suspended the father’s partial physical custody, and an agreement was reached with the mother awarding her supervised physical custody of the child. At the end of 2016 the trial court awarded the great-grandparents and the father shared legal custody, the great-grandparents primary physical custody, and the father supervised physical custody. The mother was not awarded anything as she failed to appear for the hearing.

In the spring of 2017 the great-grandparents filed a petition for special relief requesting the father be drug tested and have his custody modified to supervised visits only, on the basis that he allegedly had relapsed into drug use. As a result, the trial court suspended the father’s unsupervised partial physical custody and replaced it with supervised physical custody.

Not long after the father’s custody was reduced, the paternal grandparents filed a petition to Intervene and requested physical custody of the child. The grandparents asserted that their petition was filed pursuant to 23 Pa.C.S.A. Section 5324(3)(iii)(B) which permits grandparents to file for custody of their grandchildren if “the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.”

In response, the great-grandparents filed preliminary objections against the grandparents’ petition to Intervene, asserting that the grandparents did not have standing as, allegedly, the child was not “currently” at substantial risk. The trial court agreed and dismissed the grandparents’ petition to Intervene for lack of standing, leading them to file an appeal to Pennsylvania Superior Court.

During the litigation of the petition to Intervene, the great-grandparents conceded that the grandparents had a relationship with the child that began with the consent of a parent, and were willing to assume parental responsibility over the child. In other words, the great-grandparents admitted that the grandparents essentially met the other requirements of Section 5324 except, in their view, the requirement that the child be currently substantially at risk.

The grandparents argued that the risk to the child, by the plain language of the statute cited above, is due to “parental abuse” specifically and, therefore, the claim that the great-grandparents are not a source of risk is irrelevant. Furthermore, the “grandparents also argued that the purpose of the statute is to grant grandparents standing in custody matters, not ‘to create a situation where grandparents are essentially in a race to file to receive standing’ because the grandparent who files first is the only one able to obtain standing in a custody matter.”

The Superior Court agreed that Section 5324 confers standing upon grandparents when the child is substantially at risk “due to parental abuse, neglect, drug or alcohol abuse or incapacity.” In its view, these words are clear and unambiguous and make no exception for a child’s potential custodial situation at a given time. In the court’s words “the plain language of the statute confers standing to grandparents when a child is substantially at risk due to ongoing parental behaviors.”

Upon review of the trial court record, Superior Court noted that the conditions required by Section 5325—including the risk factors—were present to grant the great-grandparents standing. Superior Court determined that there was nothing to suggest that the risk created by the parents had changed or somehow subsided. Significantly, the court observed, as the parental rights of father and mother have not been terminated or relinquished, either or both father and mother could seek (additional) custody of the child at any time. As a result, the ongoing risk from the parents is still ongoing.

Finally, it is in Superior Court’s opinion that the General Assembly did not intend, by its adoption of the specific language in the statute, to create a so-called race-to-the-courthouse standard by which the (great) grandparent who files first gets awarded custody at the expense of the others. Instead, the Superior Court reasoned, the court should have the opportunity to consider all possible or viable options in order to decide how to allot custodial rights according to the best interests of the child at issue. As a result, Superior Court reversed the trial court’s sustaining of the great-grandparents’ preliminary objections and remanded the case back to the trial court.

This case should provide practitioners the justification, and potential custodial grandparents hope, that they can pursue potential custodial rights over their grandchildren even if others who are in a similar state of life or situation (e.g., another set of grandparents) seemingly have done so already.

Originally published in The Legal Intelligencer on October 2, 2018 and can be found here.

Ministerial Exception Doctrine Bars ADA Claim By Adventist Music Teacher

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

In Curl v. Beltsville Adventist School, (D MD, Aug. 15, 2016), a Maryland federal district court held that the ministerial exception doctrine applies to prevent a music teacher at a Seventh Day Adventist school from pursuing federal claims under the Americans With Disabilities Act, the Age Discrimination in Employment Act and the Family and Medical Leave Act.  The teacher sued when her contract was terminated because she was unable to return fully to work a number of months after being seriously injured in a fall at work. In finding that plaintiff ‘s position was ministerial in nature, the court said in part:

Although a portion of Plaintiff’s responsibilities were secular in nature, Plaintiff acknowledges that she is personally a Seventh-day Adventist whose role at the School included teaching religious music and leading prayer services…. [S]he agreed to abide by the Education Code, which “requires that schools employ only those who live in complete harmony with the beliefs and practices of the Church” and therefore required that all School teachers be “baptized Adventists committed to the Church’s program of ministry.”… [A] portion of her salary was paid by tithe funds, which are intended to be used for ministry…. Moreover, Plaintiffs performance was evaluated in part based on her spiritual leadership.

You can learn more about this issue here.

Trenton Curfew Arrangement With Churches Is Questioned

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

AP reports today on the church-state questions that are being raised by the juvenile curfew enforcement policies of the Trenton, New Jersey police department. Last month Trenton police began enforcing a midnight to 6 a.m. curfew for juveniles under 18.  If police pick up a violator, they first call the juvenile’s parents.  However if the parents do not answer, or refuse to pick up their child, police under arrangements with a number of faith-based groups drop the juvenile off at a local church. Police say that the churches may not discuss religion with the drop offs, and they are usually held in a community room rather than in the sanctuary.  The juvenile is given the option of instead being dropped off at a police building. The ACLU says that police should provide a number of non-religious drop-off alternatives, though the group has broader objections to the curfew as well.

You can learn more about this issue here.

Ethics Complaints Are Newest Tool In Wars Over Same-Sex Marriage

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

Legal ethics complaints appear to have become the most recent weapon in the culture wars.  After the Southern Poverty Law Center filed a series of complaints with the Alabama Judicial Inquiry Commission against Alabama Chief Justice Roy Moore (see prior posting), an ally of Moore’s has turned the tables.  On July 28, Alabama attorney Trent Garmon and his wife Holly filed a complaint against Richard Cohen, president of the Southern Poverty Law Center, over Cohen’s comments attacking Moore for Moore’s actions opposing same-sex marriage.  As reported by AL.com, the complaint alleges that Cohen’s statements violated Alabama Rules of Professional Conduct, Rule 8.2 that provides;

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge,

Cohen’s comments included a statement that Alabama “elected [Moore] to be a judge, not a pastor;” Cohen called Moore a demagogue and the “Ayatollah of Alabama,” and said he is unfit for office.

You can learn more about this issue here.

Settlement Reached In Suit Over Sheriff’s Religious Use of Department’s Facebook Page

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

A settlement agreement has been reached in American Atheists, Inc. v. Watson, a suit alleging that Bradley County, Tennessee Sheriff Eric Watson used the sheriff department’s Facebook page to promote the sheriff’s Christian religious beliefs. (See prior posting.)  According to an American Atheists press release yesterday, under the settlement the county will pay $15,000 in damages to American Atheists and the local plaintiffs as well as $26,000 in attorney’s fees.  Also under the settlement, the Sheriff’s Department  will create a new, information-only, Facebook page that will not be used to “promote or further any religion, religious organization, religious event or religious belief.” The original Facebook page has already been deactivated.  Sheriff Watson will be allowed to maintain a clearly marked personal Facebook page reflecting his personal opinions.

You can learn more about this issue here.

Native American Cannot Claim Religious LiIberty Defense In Prosecution for Unlawful Hunting

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

In State of Washington v. McMeans, (WA App., Aug. 9, 2016), a Washington state appeals court upheld a trial court’s refusal to give the jury an instruction on a free exercise defense asserted by a Yakima Tribe designated hunter in a prosecution of him for unlawful hunting.  Defendant Ricky Watlamet killed 4 elk to provide meat for the funeral of a tribal elder.  The elk harvesting took place outside of elk hunting season on land of co-defendant who sought help to get rid of elk damaging her property.  Under an 1855 treaty, the Yakima tribe is allowed to hunt on “open and unclaimed lands,” but not private property.  The court said in part:

The defense presented substantial evidence that Mr. Watlamet had sincere religious beliefs and that he used the elk meat for religious purposes. However, he did not provide any evidence that the McMeans property was the only available location to obtain the elk meat. In fact, the record shows that Mr. Watlamet could lawfully hunt elk on State land, Federal land, tribal land, or any open and unclaimed land. The record also indicates that at the time in question there were numerous elk on the reservation as well as elk on state land adjacent to the McMeans property. Mr. Watlamet could have hunted these elk without running afoul of any regulation. He presented no evidence that either these particular elk or this particular place were necessary, preferable, or even convenient, nor has he presented any evidence that hunting the lawfully available elk was in any way burdensome.

You can learn more about this issue here.

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