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Discussion On The Free Exercise Clause

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
June 25, 2021 12:00 pm

Discussion On The Free Exercise Clause

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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June 25, 2021 12:00 pm

Attorneys Josh Whitaker and Joe Hamer discuss the U.S. Supreme Court ruling on the Free Exercise Clause and talk about various cases dating back to 1961, including Fulton v City of Philadelphia where the Supreme Court ruled in favor of Catholic Social Services in which they objected to placing foster children in a same sex household based on religious freedom and the Free Exercise Clause  and workplace questions involving the COViD vaccine.  To reach the law firm, call 800-659-1186, email questions@theoutlawyer.com or visit TheOutlawLawyer.com 

See omnystudio.com/listener for privacy information.

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This week on The Outlaw Lawyer, Joe and I take a look at the U.S. Supreme Court's recent decision in Fulton versus the city of Philadelphia and how that affects the delicate balancing act between the free exercise clause and other constitutional rights.

Up next. And now, the Supreme Court has said unanimously this was wrong, fact-based. Your belief at the time doesn't necessarily drive what the actual law is.

It's reasonable, informative. Now, if you take in facts and you think about them and you don't jump to an instant opinion, you're the outlaw. And now, Outlaw Lawyer with Josh Whitaker. Welcome to this week's episode of The Outlaw Lawyer. My name is Josh Whitaker.

I am a partner over at Whitaker and Hamer, a law firm serving Wake, Johnston, Harnett, Wayne, and other counties here in the area. And my co-host, as always, is my law partner, Joe Hamer. Joe, how are you doing today? I'm doing fantastic, Josh. How are you doing today? Good, good. I always ask that question and you're always doing fantastic. So that's good news. I don't know, I don't know what I expect you to say, but it's good that you're always doing fantastic.

Anytime I'm with you on The Outlaw Lawyer, I'm doing fantastic. The highlight of my life. Did you, I, uh, you know, I was thinking about some things this weekend. I went to the, I went to the beach and actually went to a South Carolina beach. So I felt like I was kind of cheating on North Carolina. I don't usually go to beaches outside of North Carolina. So I went to a South Carolina beach that was not Myrtle beach.

I feel like you have to throw in that disclaimer, but I do. I feel like I was unfaithful to North Carolina. What was the beach? Not Myrtle. It was a beach called Fripp Island.

Sounds like a made up beach. Did you really go to the beach? I did.

I did. And it was, you know, it was kind of, it was good. We had the family there. We had boys there and we all got a chance to really talk. Uh, cause we didn't want to, basically we didn't have cable TV. All we had, they had, they had Netflix on there and someone had already logged in.

I didn't want to log in to any other service. And so we just watched Netflix. And so we watched like all of we bear bears, we bear bears.

I'm a big fan. What we explain, we bear bears to me, it's a cartoon on the Cartoon Network. Have you seen that?

No, I have not. What's three bears and they have adventures. Is this a Fripp Island exclusive show? So we watched that and then we watched a movie I never watched. It was from 1990 and I've never seen it before. I remember it, but I never watched it, but I don't know if you saw it. Hook? You've never, how have you never seen hook?

Well, I just never seen it. I remember like McDonald's had like a book. How old were you 1990? Was that sixth grade, seventh grade?

That's prime hook time. I don't understand. How old were you?

I was a four-year-old boy. Did you see it? Yes, several times, several times.

Rufio. It doesn't strike a chord with you? It does. No, I never saw it. But I watched it with the kids. That was the worst movie I've ever seen in my life.

That's saying a lot. And I guess I should say it's not the worst movie ever. I guess there's people that love that movie. I don't love the movie particularly, but it's not the worst movie ever. And I guess I should say spoiler alert, even though the movie's 30 years old, but what was that kid's name you just said?

Rufio. He got a terrible, I felt so bad for his character. Yeah. I like that guy. I like the actor. I like that guy.

Yeah. Well, anyway, Hook's a terrible movie. And so if you've made it 30 years without seeing Hook, it's got an all star star studded cast, man.

It was terrible. Is it Dustin Hoffman? Is he not? Yeah, I think he's Hook. Robin Williams is Peter Pan.

God rest his soul. Yes. Julia Roberts as Tinkerbell.

And that was weird too, man. Do you? Bob Hoskins. I don't know who that is. You can't say any movie with Bob Hoskins is the worst movie ever. I'm not sure who that is. All right, well. Has he been in something else? Yeah, he's been in everything. What are you talking about?

Who are you? Can you name one? Just one? He's been in so many things it's impossible just to name one. Well, it was terrible.

It'd be easier to name one he hasn't been. I don't know. Yeah. I think it's not for your demographic. I think if you would have caught it when you were in sixth or seventh grade, you'd have a different appreciation of it. And when it doesn't hold up well either. It was just it's just terrible.

So that's a that's a whole week long vacation. And what you take from it is Hook is the worst movie you've ever seen. Hook gets a double thumbs down. It doesn't hold up well.

And it's just terrible all around. But the kids watched it. And they loved it. They liked it. They tolerated it. They watched it.

They tolerated it. And it was a break from We Bare Bears because there's like seven seasons of that show. Seven. Did you watch all seven We Bare Bears? We got through 2014-2015.

I think that's three and four. Well, while you were vacationing at the beach, I was just working at a law firm. So the work at the law firm continued in my absence. It was great.

Watching no TV shows or Netflix just did actual work. Well, for those of you listening, me and Joe are actual practicing North Carolina attorneys. Our law firm is is aptly named Whitaker and Hamer after the two of us. And we do have offices in Riley, Garner, Clayton, Goldsboro, and Fuquay-Varina. And we we do we do help anybody who who needs our help who calls and sets up a consultation or just to give it to your phone number here at the show is 1-800-659-1186. Again, that's 1-800-659-1186.

That is a message line. So if you call and leave us a voicemail, we can if you need an attorney, we can put you in touch with an attorney who can talk to you and set up a consultation. And if you just have something you want us to talk about on the show or a question about something we talked about on the show, that's the quickest way to get ahold of us.

1-800-659-1186. And then new this week, we actually went ahead and set up an email address. So if it's easier for you to email, our email address is just the word questions. I debated whether that should be question singular or questions plural. I'm going to make a bold prediction.

And it's that we're going to get inundated with hook fans blowing up our lines. Coming for your head, man. Yeah. So it's questions plural. That's what I went with questions.

Hopefully we get more than one question. So yes, I think you went with the right spelling questions at the outlaw lawyer.com. So that's questions at the outlaw lawyer.com. Well, Joe, this week we're going to be talking about the free exercise clause. There was a US Supreme court case that came down the pipe this week with an interesting legal opinion. And when I was looking at it and I read it, I was like, this would be a good topic because what we can do is we can bring our listeners, we can explain what the free exercise clause is.

Again, it's one of those legal principles that comes from just a few words in the in the bill of rights. And when we can take a look at that, and we can take a look at all the cases that kind of have come before and where we're ending up now, we've also got some listener questions we want to talk about. So we've got a pretty full show today.

Yeah. I'm excited to take our listeners on the rollercoaster ride of the first amendment. Give a little bit of a history lesson.

And then like you said, dive into some more recent, some more recent history and development there. And man, you look tan. I just want to say that I got a lot of sun.

Your skin looks good. A lot of pool, a lot of a lot of beach. Fripp Island was kind to you. Yeah, I appreciate it. Do you recommend Fripp Island to our listeners?

Yeah, I don't get paid anything to do that. It was our first time there. If you're going to leave North Carolina, so if you're gonna still say it's a made up place, it I understand that it sounds like it.

You know, it's funny there. The the deer, I guess they feed the deer. It's like a whole island.

It's all like one resort. And the deer just come up to you. They want to be fed. So you'll be sitting there, you know, looking out the window and a deer will just come up and wait for you to come to the window because they want you to give them carrots or whatever. That's magical, man. The kids liked it.

The kids had a good time. Beach deer. Yeah, lots of them. But anyway, that's enough about Fripp Island. That's enough about Hook. Up next on the Outlaw Lawyer, we read the U.S. Constitution. Well, not really the U.S. Constitution, just the first amendment. And really not the first amendment, just the first two clauses, which is about 16 words. So up next, we read the first 16 words of the First Amendment.

Stay tuned for that. All right, Joe. Free Exercise Clause. So this takes us to our Constitution and our Bill of Rights. And on our first couple of shows, we've kind of touched on this, that the Constitution is not a lengthy document. We've got our basic Constitution. You've got the Bill of Rights, which all of our rights are based on the Bill of Rights, and it's very, very short. The First Amendment covers a couple of things. I think most people, usually the First Amendment, when you're talking about it, you're talking about freedom of the press.

You're talking about things like that. But the First Amendment has a couple of clauses in it. And the clause we want to focus on today is the Free Exercise Clause. And then that's basically, Joe, I'll let you read the text of that one.

Yeah. So like you said, you think of First Amendment, I think you just think of free speech in general. And like you said, we want to talk about the Free Exercise Clause.

But to do that, we've got to understand the text. And you've also got to talk a little bit about the establishment clause, which we'll do as well, because they kind of tie in together. But just giving you the text, all 16 long words of it, basically just says, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. That's it. That's it.

That's all. That together is the Free Exercise Clause and the Establishment Clause. So all of our case law, all of our statutes on freedom of religion, that's where it comes from.

It comes from 16 words. I'm always amazed at how this is interpreted, because that's all courts are doing. That's what courts do. That's what the Supreme Court does. They interpret statutes.

They interpret the Constitution. They take these 16 words, and they make them apply to every bizarre, crazy, cuckoo situation that comes up that needs to be addressed. It's the sign of good drafting, when you can write 16 words and get years of legislation based on them. I can only imagine a client comes into our office, pays us to write a contract, and I give them a page that has 16 words on it. We should do that. A 16-word limit to every legal document we do for you from now on. That'll be- It's called the Founders Special.

That'll be $5,000. But that's what we got. That's all we're working on. And so you've got two clauses here, and we're actually not concerned with the whole thing. So the establishment clause basically just says that the government is not going to establish a religion, is not going to support a religion. There aren't a whole lot of cases.

I think there's cases there, but there's not a whole lot of cases on that. But it's a companion, and it's a piece of the puzzle. And it comes up. And so it's good to know what it is. But our discussion today is going to circle around the free exercise clause, which is basically the last part of that 16 words. So you've got Congress shall make no law respecting an establishment of religion. That's the establishment clause.

And you've got a comma. So we've got a new clause coming up. And it says, or prohibiting the free exercise thereof.

So that's one, two, three, four, five, six words. So six words out of that 16 is the free exercise clause. And we got a litany of cases here. And some we're going to talk about, because what we want to do is kind of show you, our listener, how the free exercise clause has come into play in the past. We're eventually going to get to the case that the Supreme Court just recently decided, which was Fulton v. The City of Philadelphia. But we're not going to get there quite yet, because I don't think that case makes sense unless you look at where we've been and how the court has kind of fleshed out the free exercise clause.

Yeah. And like I said, we're going to take you guys on a history roller coaster ride through history, starting way back in the great year of 1879. But first, again, just a little bit about the free exercise clause itself. The free exercise clause withdraws from legislative power, state and federal, the exertion of really any restraint on the free exercise of religion. Its purpose is really to secure that religious liberty in the individual by prohibiting any invasions by civil authority. So it's going to bar governmental regulation of religious beliefs. It's going to prohibit the misuse of secular governmental programs to impede the observance of religion, or just any kind of discrimination by the government between religions. Even though that burden on the religion may be characterized as being indirect, that's still protected by the clause.

Yeah, yeah. And so these cases, they take two shapes, right? So when these get to the Supreme Court, you got to think something's happened. And somebody's taken this always to the all the way to the US Supreme Court. And so these cases happen in kind of two situations. And one situation is where the government, be it a town, a city, a county, a state, a federal law, somebody with the ability to make laws has made a law that someone thinks impedes their freedom to exercise their religion. And then they sue and they say, Hey, you know, I got criminally charged.

Um, or you told me I couldn't do this and I need to do it for the practice of religion. And, uh, so that's kind of one set of cases and we'll talk about some of those. And so there's a test and the, and the Supreme Court kind of looks at the facts and any kind of ways this statute, is it in violation of the free exercise clause or isn't it? So that's one line of cases. Most of the cases, oddly enough, like I think that first category makes a lot of sense. The second set of cases that we see the most often under free exercise clause is, um, where someone has taken a job and they have been fired because part of the job that they're required to do violates their free, they would argue their free exercise of religion.

And so they're either fired or they quit and then they go to look for unemployment and then they get denied. And then that denial of unemployment is the part of the case that makes it all the way up to the U S Supreme Court. Exactly. And we will, in our brief trip through history, see each of those types of cases.

Yeah. And then it'll get confusing and we're not here to teach a constitutional law class. We're going to gloss over a lot of stuff that would be important.

If you guys were all first year law students and we were talking about constitutional law, we're going to kind of hit the highlights, but there's different rules for different cases. And so we won't get too hung up on that because that can get confusing in an hour long show on a Saturday afternoon. People are here for that. That's what they came for.

Yeah. So I guess starting it off, let's take it back way back 1879 Reynolds versus United States. Uh, one of the first, uh, important free exercise cases where the court examined whether the federal anti-bigamy statute violated the first amendment's free exercise clause, because the argument is that plural marriage is part of religious practice. And the court actually unanimously upheld the federal law that bans polygamy. They stated that the free exercise clause forbids governmental regulation of belief, but it does allow the government to punish activity. That's judged to be criminal, regardless of whether or not that activity has a basis in religious belief. So this was back in 1879 and it was, it was, uh, there was a religion where they said, this is part of our religion, uh, polygamy, which has been illegal in the U S for ever, I guess, as long as people can make laws, this is something that was not a, I'm not a polygamy scholar.

I'm no expert, no expert, but I've not done much research. The, uh, but it's frowned upon. And so you've got every state, I think probably has a statute. I know North Carolina does. I assume every other state does.

So this is something that, that, that the government, the States, the towns, whoever, they had authority to regulate it. It's general, it applies to everybody evenly. And so the, this is, this Reynolds is where they're first saying, Hey, uh, certainly we, I think the, the court would probably admit that this was, uh, you know, we understand that this is part of your religion and this is probably, uh, not letting you freely exercise your religion, but we've already decided this was illegal and it's just going to be illegal.

And that's the way it is. And there's no test here back in these early cases. A lot of times you don't get courts love to come up with a test. Um, and they love to apply these.

There'll be three, uh, you know, they'll have three parts. They have all these different tests. Anyway, there's no test here.

The court just says, Hey, the government has the right to, to decide what's illegal and legal, and this is illegal and it probably does hinder you, but we don't care. Yeah. Again, not a bigamy podcast. Uh, that's not what we're here for, but, uh, you know, bigamy does have, I think there's been recent changes there.

And, uh, as a result, we have a lot of TLC shows that are out there for your entertainment. Um, but yeah, that's one of the first examples of that free exercise clause being discussed and looked at by the court. Um, the next one I want to talk about, and we'll go a little bit out of order, uh, but we got one Braunfield versus Brown in 1961. It came before the Supreme court, but there we had, uh, basically Pennsylvania had some blue laws, which allowed certain types of stores to remain open for business on Sundays. And certain businesses had to be closed. Uh, we had some business owners who had to be closed on Sunday who thought this was unfair. Um, it was a different time.

You know, this is one of those cases where the facts don't really, we're so used to stuff being open on Sunday now, you know, and this was only, what was that? 70 years ago, 61, was that 70 years ago? 70 years ago, right around the time you were born, Josh. So 70 years doesn't sound like a lot of time, but, but 70 years ago, everything was really different. I think that's one of the things just in general, people don't think about how quickly things change now and it only changes faster. But anyway, back then, this was a big deal, like a long time ago, though it was, but it was, it really wasn't.

This was a big deal back then. Uh, this was the Orthodox Jewish community that saw this to be an undue economic burden. And there was a lawsuit, they sued, um, and the court held that this blue law did not violate the free exercise clause because it had a secular basis and did not make any religious practices unlawful. So here, they weren't saying you had to be open on a Sunday. You didn't have to violate here.

They saw no violation of the free exercise clause. So they didn't really get very far in their analysis, but this is considered to be an important case. Yeah, it is because you see that you see that discussion of permission where there's a secular basis and, and things being permitted, as long as that, the religious practice is not unlawful. All right, well, we're going to take a quick break. When we come back, we're going to talk more about cases and we'll, we'll get past 1961. We'll speed it up a little bit and we'll get more to the present day so we can look at our new case that we want to talk about.

Sounds good. We're back on the Outlaw Lawyer. I'm Josh Whitaker of Whitaker and Hamer. I'm with my friend, my colleague, Joseph Hamer.

Hello, Josh. We are continuing on our trek to get you up to date on the free exercise clause. The free exercise clause and where, how this, how this has affected everybody's religious liberty, where we're at today, getting you ready for talking about Fulton v. City of Philadelphia. The next case we wanted to highlight was Torcaso v. Watkins. And so we're still in 1961 and we did some math.

A lot of action in 61. Yeah, 1961 was a hot year for free exercise clause, but what's going on in this case, Joe? So in Torcaso v. Watkins, the court considered whether the establishment clause of the first amendment was violated by a Maryland requirement that a candidate for public office declare a belief in God to be eligible for the position. And in a unanimous decision, the court held that that requirement violated the establishment clause by giving preference to candidates who believed in God and were willing to stake their beliefs over other candidates. Um, in this, Maryland effectively aided religions involving a belief in God at the expense of religions or beliefs that do not, uh, a position that is expressly prohibited in the state. So, you know, the state can't take that position essentially.

That's right. And we slipped, we slipped that one in there. That one's not a free exercise clause case, but we did talk about the establishment case and how it comes up and doesn't come up a lot. I thought that was a good one where we can kind of see the establishment clause at work, because again, that was 1961.

That wouldn't fly today in 2021. There wouldn't even be a question. And that's why, because we've already, this has been adjudicated. We know what the law holds on this one. Um, and let's see, I'm not going to really spend much more time on establishment clause cases.

So that's going to take us to a very important case, uh, Sherbert v. Verner. And so that was a case where, um, the facts were there, we had a seventh day Adventist church. Um, so we had a member of that church who was fired by her South Carolina employer because she would not work on Saturday. It was against her religion. That's her Sabbath day. Um, and I always wonder when I read these cases, you know, did they know ahead of time, they were going to have to work on Saturday when they took the job, you know, the court doesn't talk about that. That's what you were, what I was wondering is, does this lady live on Fripp Island, a South Carolina resident?

All right. So she was unable to obtain other employment because she could not work on Saturday. So she lost her job because she wouldn't work on Saturday, a job that she, that she was able to get she's fired. She can't obtain other employment because she can't work on Saturday, apparently in whatever industry field she's in, that's a big deal working on Saturday. So she filed a claim for unemployment compensation benefits. And again, that's how a lot of these start. Someone's been fired, uh, something to do with, uh, having to do something that's against their religion. And that's kind of how we get here. And so she went up before the unemployment commission and said she was ineligible, ineligible for benefits because she is not, you know, she's been, she she's had job interview.

She's just not taking jobs, you know? And so that's where the dispute kind of starts. Um, but here Sherbert V. Verner, they, they held that, um, the South Carolina statute abridged her right to the free exercise of religion in violation of the first amendment. Um, they held that this was, you know, her not being able to get unemployment benefits was a violation of the free exercise clause. And they kind of came up with a, a test that you use as, you know, the Sherbert test. And it's kind of where you look at the, you look at the statutes for the state when they allow people to get unemployment benefits, when they don't, does the state have a compelling interest, compelling interest you hear a lot in the law.

Um, but they got a little test where they would look at it and kind of balance the equities. Well, what's the government's interest in enforcing this law? Does it overcome, uh, the, the, the, the appellant, the person who's coming for relief from the court, does it overcome their right to exercise their religion freely? Um, and so that's what the court did here.

They analyze it. They, they decided that the state's compelling interest, uh, wasn't narrowly tailored enough and that, you know, she should get her unemployment benefits cause she can't, she can't work on Saturday. So this was, um, I don't remember, and I didn't write it down. So I don't remember what year this was, but this was a, this was an important case. Um, it's kind of held up and it's going to be, it's going to be integral when we get to our current case that we want to talk about.

Yeah, exactly. You said it, when you talk about that compelling state interest piece, that's going to become very important. And like you said, court found here, no compelling state interest, uh, to basically substantially infringe on the appellant in this case, his right to that religious freedom, which we've talked about extensively now and shall continue to do so. Uh, jumping to 1972 now Wisconsin v Yoder and Wisconsin v Yoder, the court examined whether the state of Wisconsin's requirement that all parents send their children to school, at least until age 16 violated the first amendment by criminalizing the conduct of parents who refuse to send their kids to school for religious reasons. And their unanimous decision, the court actually ruled that Amish adolescents could be exempt from the state law, requiring school attendance for all 14 to 16 year olds, because their religion required living apart from the world and worldly influence.

The state's interest in having students attend two additional years of school did not outweigh the individual's right to free exercise of religious belief. So again, you get into that, that same little bit of a test being applied there. And, um, and there you see, again, the court ruling that the, the state's interests did not outweigh that individual's individual right to the free exercise of their religious belief around about around the same time as Wisconsin v Yoder. There's another case, lemon versus Kurtzman. And for our attorney listeners out there, who've had to sit through first year constitutional law, the lemon test is, is one that you talk about a lot in constitutional law.

This is where the lemon test came from. And it basically set up, um, a three prong test for the constitutionality of a statute. So the, you know, uh, the, the government creates a statute and says, Hey, this is legal.

The way the Supreme court was supposed to look at it, according to this test is, does this statute prime? The first prong is, is it primarily enforced for a secular purpose? Basically was this, the statute wasn't just made up to antagonize a certain religion. This is just a general secular purpose, um, like outlawing bigamy, right?

That's the one we talked about where there's a criminal statutes outlawing it. And that's just, that's just a primarily a secular purpose. Uh, the second prong of the test is it's principle effect.

The statutes principle effect, neither aids nor inhibits religion. Again, doesn't favor one religion over the other and three, the government and religion are not excessively entangled. And so that's the lemon test. And so in, in lemon v. Kurtzman, we've got a Pennsylvania law that was reimbursing, uh, some families who sent their kids to religious schools with state funds. Um, and it was kind of a, it's kind of, it kind of had a little bit of free exercise and a little bit of establishment clause, a little bit of a mix there.

Yeah. So they both came into play there, but then again, the, for our listeners at home, basically the court's always going to look at the competing interest. And so here we've been looking at, you know, government interest versus individual Liberty versus individual Liberty. Now coming up, we're going to be talking about a case that has different individual liberties kind of, you know, that's kind of what we're building towards here.

But, uh, before we get there, I want to look at another old case. Um, and just to give you an example, um, Marsh v. Chambers back in 1983, the court kind of didn't even use its own test. So it has this test at the lemon test that it's laid out. And here it was another establishment clause with some, you know, kind of both kind of coming into play, but I don't want to get too much into the facts cause these can get confusing. And the more cases we talk about, they all build up on you, but basically you had some government money going to reimburse people for some religious, arguably some religious, uh, benefits. And, and so again, they, they kind of looked at the lemon test to see if the establishment clause was violated and, um, and found that it, that it wasn't. And again, I won't get too hard into the facts besides just to say, this is a case where, um, you know, both, both of these things came into play, but it, it can get confusing after you look at a lot of these cases.

I say we jump, I say we jump in time all the way to 2010, we've got Christian legal society v. Martinez, and this is going to bring us more current and start tying everything into where we are today. Um, 2010 Christian legal society v. Martinez, you had the court considering whether Hastings college of law, which is a school within the university of California's public school system violates the first amendment by refusing to officially recognize a student organization, unless it allows all students to join the group, even if that requires a religious organization to admit gay students who don't adhere to the group's core beliefs. Um, Hastings officially recognizes student groups through a registered student organization program. And having that status confers valuable benefits to the group, such as the use of school funds, the use of facilities, certain channels of communication, and the use of the school's official name and logo. And in exchange, those registered student organizations have to abide by certain conditions, which include their school's non-discrimination policy, which follows state law barring discrimination on a number of basis, including religion and sexual orientation, which again, it was at issue in this case.

And under this, those registered student organizations must follow an all comers policy, basically allowing any student to participate, to become a member or to seek leadership positions regardless of their status or beliefs. And in a five, four decision, the court held that that Hastings all comers policy is a reasonable viewpoint, neutral condition, uh, on access to that RSO forum and does not transgress the first amendments limitations. All right. So that was only 2010. That was, if my math is correct, Joseph, that was 11 years ago.

You've, you've gotten better at math over the course of this, of this show. All right. So the last case I want to talk about to get us up to current is employment. It's another it's employment division of, I can't remember what state this is offhand V Smith.

And so this was, uh, this was a 1990 case. So we're backtracking just a little bit, but I want to get this. I want to get this one in our discussion because this one, the facts are kind of, they're kind of out there. And so we got two counselors for a private drug rehabilitation organization who used peyote. Um, so peyote, powerful hallucinogenic. Yes. And so they use it.

One of the most powerful hallucinogenics is what Google tells me. Oh, so these guys were members of a native American church. This was part of their practice of their religion. There's no accusation that they did this during their work time. Um, the facts that are reported here tend to lead to, they failed a test, you know, they failed a drug test and they were fired. They applied for unemployment.

They were denied unemployment. And this case goes all the way to the Supreme court on a free exercise, uh, clause issue here. The, uh, the state appellate court had, uh, reversed the, well, that's not important to our discussion, but the U S Supreme court basically said, um, it held that the free exercise clause does not provide a right to religious exemptions from neutral and generally applicable laws. And so I feel like this takes us all the way back to the very first case we talked about, but basically the, the state has a legitimate interest in making certain things illegal and certain things illegal. And here peyote is a, is a very powerful drug that there's a schedule. Certain drugs are illegal and it's for, in theory, the betterment of society as a whole. And, um, you can't just say you have a religious religious exemption from everything, right? There are certain things that need to be, uh, illegal. Exactly.

And peyote is one of those things. So yeah, basically, like you said, they're there. If they're, if you've got a neutral law that is generally applicable to society and is beneficial for all of society, then you can't just throw that free exercise clause at it. And suddenly that thing becomes legal because again, it's, it's a, it passes the test that we've discussed.

All right. So that's a lot of case law. That's probably more case law than, than maybe even wanted to hear, but that brings us current. So you've kind of, you kind of know how the U S Supreme court has looked at these 16 words. Um, and so up next, we're going to get to our actual case that I want to talk about Fulton, the city of Philadelphia.

So that's coming up. It's been a long winding road. We've come a long ways from the, from the early sixties, the hot free exercise clause cases of the early sixties, all the way through the 2010s. And now we arrive at the reason we're here, Joe, I feel like we, I feel like we've all been on a journey today. I feel like a journey. I feel like it's been a labor of love.

We really want you, our listener to know what the free exercise clause protects and doesn't protect. So we really done this for you. We've done it for you. We've talked peyote.

We've hit every, every corner. So we're up, we're up to 2018. This, this all happened in 2018.

The decision is fresh off the press here in June of 2021. Uh, but basically the city of Philadelphia, um, is in charge of, uh, fostering children, right? So there, the government's the one that has the authority to remove a child from an unsafe environment and put that child with a foster family.

That's a, it wasn't always that way. And that's important to this case a long time ago. Um, religious entities, Baptists, Catholics, they, they handled a lot of that on behalf of the state, but now it's, that power is vested in the, in the government, in the state, in the city. And so here we have the city of Philadelphia who contracts that out to different agencies, um, placing foster children, checking up on them. Um, and so the city of Philadelphia is doing that. And one of their agencies is the Catholic social services agency.

Let's just call them the CSS, the CSS there in Philadelphia. And that's what they do. They, they take, you know, I bleeds in the right word, but they take, uh, they take action at the behest of the city of Philadelphia to place foster children and foster families.

They've been doing it forever, I guess, in that area. And so the Catholic social services, they have a problem placing, or they refuse to place foster children with same-sex couples. Um, and so here we have a couple of interesting things going on. So we got, uh, you know, we've got obviously the, the U S Supreme court has made a same-sex marriage, uh, uh, implied constitutional right. So there's no question there.

Um, back in that 2010 case, we talked about before the break, that wasn't the case, but now that is, that is the case. And so Catholics, uh, in general, I'm sure every, I'm sure every Catholic's different as I'm not speaking for all Catholics, I'm not Catholic, but the Catholic church has over the, you know, its existence has been opposed to same-sex marriage. I think that's fair to say.

I think that even as you not being the official non-Catholic spokesperson for the Catholic religion, that is a safe, that is a safe thing to say, looking at history. So that is the issue here. And so the, the CSS declined to place a foster child with a same-sex couple, that being the sole and only reason that we're, we're made aware of in the facts. And, and obviously that, that's going to rub a lot of people the wrong way on both sides of this thing.

So we've got competing constitutional rights, the constitutional right to be in a same-sex marriage, um, you know, and then the free exercise clause. And so that's, that's basically what happened. The city of Philadelphia heard about this complaint and they said, you know what, CSS, we're going to terminate the contract. There was a provision in the contract where at their sole, uh, discretion, the city of Philadelphia could terminate it. And that's what they did.

That's what happened. And so the CSS has been doing this for almost, I think one of the amicus briefs at almost a hundred years, long, long time. And this is what they're set up to do. They wanted to continue to do it.

They had been very successful otherwise. And so they sued saying, Hey, this provision violates our right to practice our, our, our religion, the way we want to. It violates the free exercise clause. And it's an interesting one because like you said, you've got two competing constitutional rights, two things that have been established in direct, in direct conflict with one another. Um, and, and it's always interesting to see how the court's going to side and what the court's going to rule when you have those two competing principles that both have been established as being, having that basis in the constitution. And so here the court actually held that Philadelphia's refusal to contract with the CSS for the provision of foster care services, unless the CSS agreed to certify same-sex couples as foster parents actually was a violation of the free exercise clause of the first amendment.

And that seems like that's a huge holding. So that seems like when you read that, it seems like the court is favoring the free exercise clause over anything, any of the other equities, you know, equities it's trying to balance here, but they, they narrowed it. So you have, uh, I think you had six justices, um, uh, writing the, the majority opinion on this one, if I remember correctly. And they basically said this only applies to these facts. And so basically in the contract between CSS and the city of Philadelphia, there was that one sentence that allowed the government to, to terminate the contract at their sole discretion. And the court basically said, look, if you just rewrite that contract and you take that out of there, then this case doesn't apply. And so this, this is a case that people have been, you know, they announced these things years ahead of time when stuff's going to go through the Supreme court, when it's going to get heard, a lot of people, a lot of pundits, they were all waiting for this one to come down. You read the holding, you're like, Hey, that's huge. But then the court just says, Hey, it really only applies to this.

Yeah. I think you, I think you hit it on the head. It, when you narrow, you read the holding seems large, and then you read how narrow it is. And like you said, it kind of hits with a whimper. Um, so really you have a big ruling, you have a whole lot of headlines, but, but at the end of the day, you don't really have a whole lot that has practically and functionally changed as a result of the ruling.

If you read, if you read the folks who get, get paid to commentate on kind of the U S Supreme court, get paid to watch the U S Supreme court. I think, I think the general, the general feeling is that over the past 20, 30 years, kind of the protection in the free exercise clause is slow, slowly falling out of favor. It, it, it's coming up second to other constitutional rights that, that may be out there.

And as a, as a Americans stop going to church as much, um, I think it's just a societal shift in general. And I think it's fair. I mean, I think that's fair to say.

Yeah. I think no matter what church you attend, you may go to church every Sunday and that's, and, and, but a lot of people, if you look at the general statistics, uh, are not going in the free exercise clause just doesn't seem as seem as urgent or as needed as sometimes it may be, but it keeps coming up. And this is a perfect example. And people really hope the court would, would establish a new test really lay down. Um, cause this is gonna, this is gonna keep coming up. And, and I think a lot of people are disappointed by this, this ruling.

I think that's fair to say, but, but again, it's the society changes and, uh, and things shift. And again, we're talking about 16 words. It, again, I've said this like eight times. I think I say it every show.

I'm just amazing. It's just amazing to me, the breadth of those 16 words and that we're still, you know, however many hundreds of years, I'm not gonna try to do the math later. We're still trying to figure it out.

Please do not do not do any more math on air, please. But the Supreme court, always interesting, uh, every time they issue an opinion, you know, I try to read it. I try to figure out what's going on. It doesn't necessarily affect our day-to-day practice at the law firm of, of Whitaker and Hamer. Uh, but it's, it's as an attorney, it's just very interesting to see these rights. Cause what they decided, you know, today can really affect society and where we go 10 to 15 years from now. But, um, I appreciate you guys hanging in there with us, getting, getting you from day one on free exercise establishment clause to the most recent case.

We've got you guys all juiced up on that free exercise knowledge. If you have any questions or comments, we would love to hear from you. Um, and again, if you need us, we've got an email it's questions. That's plural. That's the plural form of the word questions at the outlaw lawyer.com. So questions at the outlaw lawyer.com. And then you can always call us 1-800-659-1186. That's 1-800-659-1186.

You can call that number, send an email there. If you have any questions for me and Joe that you want us to talk about on the show comments, only thing that we've talked about, if you need, if you need a lawyer, if you need a law firm, if you need to talk to someone, you trust about a legal matter, same thing. You can call 1-800-659-1186 Joe and I over at the firm, Whitaker and Hamer, we have a lot of attorneys that'd be happy to talk to you, happy to consult with you and, and try to figure out the best way to handle whatever legal situation you have going on at the time. But again, 1-800-659-1186, or you can email us at questions at the outlaw lawyer.com. Coming up next on the outlaw lawyer, we will take another listener question and we will talk about using certain online websites for the formation of business versus consulting with an actual licensed attorney.

All right. We're back on the outlaw lawyer. So Joseph Hamer, Josh Whitaker of law firm of Whitaker and Hamer, we're here with you. And we have another listener question. I'm going to have to censor this listener question though, because there's, uh, there's some proprietary, uh, names in here that we probably shouldn't use. And I don't want to get sued.

That sounds great. Um, that's, uh, that's, that's lawyer for you. I'm going to avoid a lawsuit here, but we've got a listener, Brian, again, we got no last name. If you guys submit a listener question, give us your last name. Give us your social security.

I feel like I'll, I'll know you better. But anyway, so Brian, an undetermined, Brian asked us, he's basically says I own a small business. I want to incorporate, I went to a, I'm gonna say a website that provides online legal services, but the website doesn't answer my questions and basically wants to know what's the difference between using one of these websites and using an attorney. So he uses a, a branded name to talk about the website, but just so you know, if it's not clear, the websites we're talking about are the websites that provide legal services at your direction. So there's a lot of websites out there that advertise that, Hey, why do you need an attorney to do this, this or the other?

You can come to us. We'll ask you a series of questions and at your direction, we'll prepare your legal documents for you. And so they usually try to help you with certain transactions. So incorporating a corporation, organizing an LLC, drafting a will, drafting a POA, maybe a basic contract, but they're usually, there's going to be a series of questions that they ask you. And then they're going to spit out a document that may be general may try to be state specific. And so that's, you know, a lot of people who start their own businesses, that's kind of where they, they start, they figure that I'll save them some, maybe some time and some money. They won't have to get a consult with a local attorney, you know, who knows the laws like here, me and Joe are licensed in North Carolina or North Carolina attorneys. You go to one of these websites, you know, who knows where they're based at. And I'm sure they try real hard to make everything state specific.

Sure, sure they do. Um, but again, big distinctions between plugging in all of your information and a pre-populated questionnaire versus getting actual individualized legal advice from a competent attorney in good standing in the area that you're working in. So I'm going to, I'm going to assume some things about Brian. I'm going to assume for the purposes of our discussion, great radio taste, first and foremost, he is a, he's a small business. He wants to start a small business. So he's either doing this with some money and doing it on the side, or maybe he's borrowed money or he's saved up a nest egg and he's investing a lot of money into his new business. Most of the people that start a small business who want to organize a corporation or LLC there, you've gotten that you're not selling stuff out of your garage. You've gotten to that point because you want to rent a space or you want to get a loan or you're doing something to further this small business.

So I'm going to make the assumption that Brian's got some skin in the game. Brian's put some money into this. And anytime you do that, you know, when you start a business, unless you're just heavily funded, or you've been preparing for a long time, a lot of people are trying to save money at every turn, uh, Whitaker and Hamer used to be a small business in 2004. So I know where people are coming from, but you never want to skimp on attorney and you never want to skimp on a CPA because once you set something up, it's very difficult to go back and make it right. Especially after you may have investors or you've added a partner, you've gotten an SBA loan.

Like you need things to be right from the beginning. It's only going to get more complicated and not doing it out of the gate initially in the correct way is going to add to that complication infinitely. And the cost, and that's the, that's the thing like, you know, attorneys do charge attorneys.

We don't work, me and Joseph don't work for free. Uh, but the price that you pay a local attorney that you're going to go to, that your family may use for other things that you're going to consult with that fee, that most of those attorneys charge is not going to be that different from the, what you pay one of these websites, these at your direct, you're basically your own attorney at these websites. Um, and so I think there's a, I think there's a misconception that that's going to be remarkably cheaper than if you just go sit down with a local attorney. And, and in my experience, just having clients come to me after the fact, um, and we've, we're having to correct things. We're having to fix things, finding out what they paid. That's not that big of a difference. That's, and again, we can only speak to our experience, to our firm, um, to what we do.

Uh, so that's not necessarily a universal truth, but, but I agree with you. We, we, we talk with a lot of folks and a lot of times we're having to correct a lot of the things that have gone wrong, um, because it's very difficult, you know, everybody's different, everyone's situations different. And when you're working off of a website where these, you know, the bar regulates the unauthorized practice of law, that's what the, the state bar does. Um, so you're not necessarily getting legal advice from these places so much as you are plugging in information into pre-populated forms. And so you're going to be getting limited. It's going to be limited by what you plug in, the questions that they ask. And if you have any kind of special situations, any kind of special circumstances, you are, you're dealing with a computer program, essentially an algorithm and things that you're plugging in. And it's, it's not necessarily going to meet your individual situation.

You're you're, it's going to be the same for every individual that does it. Tanner Iskra One of these websites, which, which again, I'm not going to name, but one of these websites, there was some litigation with the bar. The bar does like Joe said, police unauthorized practice of law. And so they'll send out a letter and there was some, uh, there was some litigation and that website has added attorneys that are on demand that you pay a la carte for that you can, but again, you're dealing with someone who may not, you just need to be careful. I think that's the biggest way we can say this without getting ourselves into any trouble.

We care about you all and we want you to be very careful. Um, you know, I can't, I can't tell you the amount of times where, you know, I've had someone who's got an LLC and they come to me and then they, uh, they've got their articles of organization filed at the secretary of state and think they're all done and you need other things. You know, banks would be looking for other things. If you're buying and selling real property, closing attorneys, you're going to be looking for different things. If you're taking on a partner, certain things need to be done. You know, business attorneys exist for a reason.

And anytime you're, you're in business, your livelihoods at stake, your money's at stake. Um, maybe that's not something people should do with their own direction. You know, if you, if you have an expertise and you feel like you can do that more power to you, but I think people equate them to being just as good as to having an attorney involved. And, and, uh, I just don't think that's the case.

And I would agree. And based on the fact that, you know, we frequently see a lot of people who have done this, have gone this route. And then like you said, they come to us to correct certain errors that they've discovered down the line. Um, again, even if you are saving a negligible amount of money on the front end there, you're still, you're still going to be paying to have that issue corrected, uh, to have whatever questions you need to answer that you could have had answered initially and had it done correctly out of the gate. So again, can't recommend enough to consult with an actual attorney, actual real human being people, not computer programs. It's that's the advice that I can give you here.

So Brian, that's our answer to your question. I think it is worth your time and your money to meet with an actual attorney. That attorney will be there.

If you need anything else, if something's you find out your bank needs something else, your lender needs something else. You can reach back out to that attorney and you can reach out to that attorney for other things too. But more likely than not, this attorney is experienced in the formation of businesses. And, and you're going to be getting all the things that you need upfront, because again, you're going to an attorney that, that does this. And that is extremely familiar with the, the laws required around that business formation.

If you have any business law questions again, me and Joe are here, uh, Whitaker and Hamer's here to help you. Um, you can get in touch with us, uh, several ways. The easiest way is probably just calling 1-800-659-1186. That's 1-800-659-1186. And that line is set up for you to leave a message so that we can call you back. Again, if you have any questions for the show, any comments on anything we've talked about today, or you need help, you need an attorney, we can set you up with an attorney who can contact you about consulting with you.

Um, so 1-800-659-1186. And then if email's better for you, our email is questions. That's plural questions at the outlaw lawyer.com. Coming up next on the outlaw lawyer, Josh and I will discuss how COVID-19 vaccine policies have triggered lawsuits and workplace showdowns next. Welcome back to the outlaw lawyer.

I am Joe Hamer, your host along with your additional host, Joshua Whitaker. All right. So a few weeks ago, we spent some time talking about COVID-19, how it was affecting policy, how is it affecting statutes, some lawsuits that were popping up because of the vaccine or, or I guess not taking the vaccine really. And that has continued, uh, accelerated even as we get into kind of our back or back to normal as everybody says, but several lawsuits have popped up over the past week or two. We thought it was worth the time to kind of revisit and let you know a couple of things that were going on.

Yeah. So we talked about how COVID-19 has impacted everybody's lives. Literally it has impacted everybody's lives unless you lived off the grid under a rock.

Um, but it's, it's had a huge impact. And I think we kind of speculated the last time we talked about it, there's going to be a developing area of the law relating to COVID-19 specifically, and a lot of the fallout from that. And we're seeing exactly that. Um, so at this point, tens of millions of people have been vaccinated against COVID-19 and with that, a lot of things are reopened and we're seeing workplaces reopen. We're seeing sporting events reopen.

We're seeing, like Josh said, life kind of getting back to normal. Um, but the rules that have been put in place by some employers and other people, uh, have basically asked that vaccines be mandated in some cases. And some individuals have taken issue with that due to the fact that the argument being that those vaccines are not fully authorized by the FDA, they just have that, that emergency use approval. And some of the folks take an issue with this are just saying, again, this is not something we should be required to do or mandated to do because, you know, it doesn't have full approval. It's just got that, that emergency use approval. When we talked about this, Joe, we talked about, uh, whether your employer had the right to make you get a vaccine.

I think where we landed is kind of the status quo. Now it's got approval from the FDA. It's emergency status, emergency approval, but we, we were like, yeah, your employer can probably mandate that, that you get this. And we're not legal experts on this by any means.

That was just kind of our thought process doing our research. And so contrary to that, there's a case in North Carolina that's just recently been filed. There's been several cases. So we've seen lawsuits, uh, lawsuits recently have been filed against the Texas hospital. There's been a lawsuit against the Los Angeles school district.

There's been a lawsuit against the new Mexico detention center. And then like you said, the one that's most relevant to us, a lawsuit filed against the North Carolina Sheriff's department and Durham County, actually, you know, there's a large portion of the population that I think it's fair to say is fairly hesitant to get that vaccine. And then you've got some people who just literally outright refuse.

Right. And with that, I think, you know, we've seen these cases and I think we're likely to see additional cases coming down the pipeline from, from people who were kind of in a battle with their employer. If their employer mandates that they get the vaccine and they, for whatever reason feel like they will not be getting that vaccine or outright refuse to get the vaccine. So the central argument in all of these suits is that these vaccines are basically experimental and air quotes, because they only have that emergency authorization.

And as a result, they can't be mandated. And like you said, we discussed this a little bit in a past episode, and we basically came down on the line that that's not a very strong legal argument, because even though there's only been emergency use authorization, the FDA is still saying that that shot is safe enough for the public. This Durham County case. So this is a sheriff's deputy suing the Durham County Sheriff's department, or I guess Durham County in federal court. And this one's going to be interesting because this is basically what he's saying is, uh, you can't mandate that I do this because it doesn't have full approval. And I think the sheriff is looking to be rehired the mandate canceled back pay, things like that. Uh, but I'm really interested to watch that lawsuit kind of weave its way.

And so at some point, you know, uh, I think all these vaccines are on track to get full regular approval later this year. So, yeah, I mean, I guess that that's going to be very interesting to see where, where it falls at that point. And so he would still, this case would still, it wouldn't be, we always say moot.

It wouldn't be moot because this, this happened to him when it was experimental status and he's trying to get his job back. So this one in theory would continue even if some of these look like they may drop by the wayside once. Um, but anyway, the Durham County one's going to be very, very interesting and I am very, uh, I'm looking forward to seeing what a court does with something like this.

Yeah. So it'll be very, very interesting. You know, I believe reading about the case, it sounds like virtually everyone in the Durham County Sheriff's office with the exception of, I think there was 20 or so people who had exemptions from that vaccine had all been vaccinated with the exception of this person who again was terminated. Um, and the lawsuit is basically, like you said, seeking to invalidate that termination and also asking that this individual be reinstated with back pay and benefits. And like you said, even if, even if approval is issued, this is, it's still going to be relevant.

This case will be because again, it's trying to correct that issue from when it was just in that emergency use status. Well, Joseph, I think we've packed all the legal knowledge we can pack into one hour for better or worse. We've talked about the law.

We've talked about Robin Williams and Bob Hoskins. Uh, we've covered many, many topics and I would agree with you. We have packed it full. We have done a lot of discussion. We talked about your vacation. Yeah.

Yeah. We got a lot in. If you have any questions or comments for us here at the Outlaw Lawyer, you can call us 1-800-659-1186. Or you can send us an email questions at theoutlawlawyer.com. Joe and I will be happy to answer any questions we can. If you need an attorney, if you need legal advice, if you're interested in Whitaker and Hamer being your attorney, your law firm for life, we're happy to do that. And you can get ahold of us at the same contact information 1-800-659-1186. Joseph, I enjoyed it.

I also enjoyed it. And I just want to say we, we really appreciate everyone listening. We love to hear from you guys. Um, we want to talk about things that are interesting to you. So please, like Josh said, reach out, get in touch with us, and we're happy to talk about any legal or otherwise topic that you guys would like for us to discuss. All right. We'll see you guys next week. North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of the show, contact us directly.
Whisper: medium.en / 2023-05-30 12:02:21 / 2023-05-30 12:27:39 / 25

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