Changing times are forcing debates about difficult topics

By Scott Merrill

                Conventional wisdom in the United States has held that people should never talk about money, politics – and especially religion.

So much for conventional wisdom.

Over the past 19 months and counting, pandemic-related contingencies and politics – along with cases in the United States Supreme Court and the New Hampshire Supreme Court – have forced debates into the open and are testing the waters on a variety of topics that were once considered taboo to speak about openly.

One area where this shift can be seen is the intersection between Covid-19-vaccine mandates and requests for religious exemptions in the workplace.

And connected to this issue is the question of whether an individual’s or an institution’s religious beliefs can excuse them from compliance with an otherwise valid mandate or law prohibiting conduct that government is free to regulate.


Religious Exemptions in the Workplace

Employment law attorney Beth Deragon represents several clients requesting religious accommodations from their employers involving the COVID-19 vaccine. Prior to the pandemic, she says, religious accommodation requests were rare and mainly limited to employees requesting time off for religious holidays.

Anti-discrimination laws that once created a workplace culture that discouraged discussion about religion while at work, Deragon continues, have given way to a workplace environment where employees who are requesting a religious accomodation now must express and potentially defend their religious beliefs to their employers.

“It goes without saying that religious beliefs are deeply personal. Typically, employees do not  reveal their religious beliefs in the workplace,” she says. “In fact, until the vaccination issue,  discussion of religious beliefs in the workplace was discouraged due to potential liability under state and federal anti-discrimination laws.”

Title VII Civil Rights Act of 1964 prohibits discrimination based religion, among other protected classes. It requires covered employers, upon notice of a request for an accomodation, to reasonably accommodate employees who have sincerely held religious beliefs, practices, or observances that conflict with work requirements, unless the accommodation would create an undue hardship to the employer.

Section 12 of the Equal Employment Opportunity Commission’s (EEOC’s) guidance on religious discrimination explains that a belief is “religious,” for Title VII purposes, if it is “religious” in the person’s “own scheme of things.”

Further, the EEOC’s guidance states that an employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.

While potentially risky, employers can challenge whether an employee’s religious beliefs are sincerely held.  Deragon says she has been advising clients who are requesting a religious accommodation to provide as much information as they are comfortable with to validate the sincerity of their religious beliefs.

“This is unchartered territory,” she says, referring to one of her recent clients where the employer, after receiving a detailed account of her client’s religious beliefs, requested a follow up panel interview with the employee to discuss the employee’s religious beliefs.  “Some health care providers are asking employees who request a religious accommodation from the COVID vaccination, ‘Why  didn’t you request an exemption for the influenza vaccine when that was offered last year’ suggesting an inconsistency based on past choices that employee made.”

While inconsistent behavior is one factor that an employer can consider in assessing the sincerity of an employee’s religious beliefs, the EEOC guidance is clear that it is not dispositive.

One stumbling block for health care employers, Deragon says, could involve a scenario where a person with a “sincerely” held religious belief seeks a religious exemption for the  a COVID vaccine and the employer concludes that it would be an undue hardship to provide such an accommodation based on  health and safety concerns.

“Not every employee in the healthcare industry works directly with patients. A blanket denial of a religious accommodation request based on health and safety concerns regardless of the employee’s position will likely not comply with the law. We went through a pre-vaccine period where employees who had to work in the workplace were wearing PPE  with a high degree of success in terms of mitigating transmissibility and where some healthcare positions enabled employees to work remotely,” she says. “The employer is required  to consider the requested accommodation and whether there are other accommodations that are reasonable such as wearing PPE, social distancing and regular testing. If the employer can’t provide any accommodation, then it has  to be able to articulate what the undue hardship is.”

While this issue percolates in the court system, Deragon says employers are left with interpreting the existing legal requirements in the context of vaccination requirements without much guidance.

Media Relations Manager at Dartmouth-Hitchcock, Audra Burns, says that more than 99 percent of Dartmouth-Hitchcock Health (D-HH) employees have complied with D-HH’s Immunization and Exemption Requirements policy for COVID vaccination.

Burns said the hospital is not publicly disclosing specific numbers of vaccinations or exemptions but said employees who received exemptions will be required to follow weekly testing and enhanced PPE guidelines.

“We respect the time and consideration our employees gave to taking this important step, and we are heartened that the overwhelming majority made the choice to support and continue the critical work to defeat the pandemic,” Burns said.


Religious Freedom: State and Federal Law

Derek Januszewski, lead pastor of Pachamama Sanctuary in southern New Hampshire, uses the ayahuasca plant, a traditional Amazonian plant medicine containing dimethyltryptamine (DMT), in the ceremonies at his temple.

In the United States, DMT is considered a schedule one drug that can carry jail time and/or steep fines for possession.

While there is no mention of DMT – a drug that produces hallucinogenic effects – in New Hampshire’s drug laws, other schedule one drugs include heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote.

Januszewski says the First Amendment protects his religious freedoms and he doesn’t spend a lot of time worrying about the legal repercussions of possessing ayahuasca. That’s because he believes he’s acting within his rights under both the United States Constitution and the New Hampshire Constitution.

“I’m lawyered up,” he says. “And if I end up having to deal with something I have a lot of people behind me as well as a solid statement of belief and a text called the Ayahuasca Manifesto, and we hold ceremonies in a very specific way.”

The First Amendment of the U.S. Constitution contains two provisions regarding religion: the establishment clause and the free exercise clause.

The establishment clause prevents the government from establishing a state religion and the free exercise clause protects people’s right to practice religion the way they please, so long as the practice doesn’t go against “public morals” or a “compelling” governmental interest.

So, while the text is absolute, the courts place some limits on the exercise of religion. For example, courts would not hold that the First Amendment protects human sacrifice even if a religion required it. The Supreme Court has interpreted this clause so that the freedom to believe is absolute, but the ability to act on those beliefs is not.

In Prince v. Massachusetts (1944) the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons because the state had an overriding interest in protecting public health and safety.

“As I understand it the first amendment protects freedom of religion and states have their own laws. Each state has its’ own protections. Some more restrictive than others, and some make more allowances for plant medicines,” Januszewski says.


The Free Exercise Clause: State v. Mack and the 1990 Smith Case

The New Hampshire Supreme Court decided a case in Dec. 2020, State v. Mack, in the favor of an individual convicted of possessing psilocybin, a schedule one controlled substance.

The defendant in the case, Jeremy Mack, claimed his membership in a Native American church required him to use the drug for sacramental purposes and this was the basis of his appeal with the N.H. Supreme Court.

Tom Barnard, of the New Hampshire Appellate Defender, was appointed counsel for Mack, who’d been arrested and convicted in Superior Court.

Barnard says he had never had a case involving religious freedom and illegal drugs but that his argument was clear from the beginning.

“The issue this case brought up was obvious,” Barnard says. “When I looked back through the history and understanding of the founders of the state constitution going back to the late 18th century and the electorate it became clear they had very different values than we have today. They placed a premium on religious freedom and the ability to practice religion without state interference.”

Barnard explained that at the time the New Hampshire Constitution was drafted, there was less emphasis on equality of treatment and avoiding discrimination. In fact, he says, there are a lot of exceptions to generally applicable laws, which was what the state relied on in the Mack case, citing a SCOTUS case from 1990.

Employment Division, Department of Human Resources of Oregon v. Smith (1990)  found that generally applicable laws could be applied without strict scrutiny.

The case involved two counselors for a private drug rehabilitation organization who ingested peyote as members of the Native American Church. As a result of the employees conduct, they were fired and denied unemployment benefits on the grounds their behavior was work-related misconduct.

After making its way through Oregon’s courts, the case was sent to the U.S. Supreme Court. In a 6-3 decision, with Antonin Scalia writing for the majority, the Court decided that allowing exceptions to state law in cases affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

In State v. Mack, Barnard says the state’s Attorney General’s office argued that N.H. should adopt Smith under the state constitution.

“It looked like the argument under the tate constitution was strong and that Smith was not compatible under the state constitution,” Barnard says.

And the N.H. Supreme Court agreed, using the Free Exercise Clause to inform their interpretation of New Hampshire’s constitution.

When it comes to free exercise rights, Barnard says New Hampshire’s Constitution is relatively more protective than other state constitutions.


Will Smith be Overturned?

Constitutional Law professor, John Graebe, says it was the Smith decision that led to the Religious Freedom and Restoration Act of 1993.

The RFRA protects the rights of individuals to exercise their religious beliefs even if the burden results from a rule of general applicability. It also requires that strict scrutiny is applied in cases involving religious expression.

In situations – such as Januszewski’s use of Ayahuasca, or Jeremy Mack’s use of psycilocibin in religious sacraments – where a law that might be found to intrude on free exercise rights, under the RFRA the government needs compelling reasons to enforce a law against religious adherents.

“The RFRA is Federal legislation that sought to change what the U.S. Supreme Court had done in Smith,” Graebe says.

But with the makeup of the current Supreme Court and recent decisions, Graebe says another case like Smith could be taken up again, and this time the court would likely side with the individual’s right to religious expression.

“The Smith case was the in the 90s and we’ve seen more and more of a shift in society, and a more sympathetic reception from  the Supreme Court with respect to claims by religious persons and religious organizations,” he says.

Graebe cited the Masterpiece Cakeshop case in 2017 – involving a baker’s refusal to bake a cake for a gay couple on religious grounds – as an example of a case where people were ready to revisit the Smith.

While the Court held the baker had free exercise and free speech right to refuse to make the cake, Graebe says the Supreme Court ducked the issue a narrow ruling that sparred Smith.

“They found a really narrow ground for holding that the Civil Rights Commission in Colorado was tainted by religious bias,” he says.

But  the court has changed since the Masterpiece Cakeshop case was decided, Graebe explained, and another case decided in June, 2021, Fulton v Philadelphia,  had many people believing Smith would be overturned.

“People thought, well now we’ll get a majority of the court to overturn Smith and hold that people in these circumstances are entitled to a religious exemption,” Graebe says. “The big area where this comes up, of course, is complying with anti-discrimination laws that extend protections to LGBTQ+ people. But with Fulton the court issued another narrow ruling.”

The Fulton case involved two foster care agencies that the city of Philadelphia hired that would not accept same-sex couples as foster parents. In the end, one of the agencies, Catholic Social Services (CSS), refused to comply with nondiscrimination requirements that are part of all foster-care agency contracts.

The case raised the question whether Smith should be overturned, whether CSS’s free exercise rights were violated, and whether the government was breaking the law by making statements that directly contradict an agency’s religious beliefs.

The Court decided that Philadelphia’s  refusal to contract with CSS for foster case services, unless they certify same-sex couples as foster parents, was a violation of the Free Exercise Clause.


‘A Messy Area of Law’

Graebe believes the Smith case was decided in large part due to the war on drugs and that it is vulnerable today. The problem of overturning it, he says, lies in determining compelling interest.

“Freedom of religion is now a much more prominent issue, especially among conservatives, than it was in 1990. And I think that changes the calculus,” he says, cautioning that if Smith were overturned the door could be opened for a number of cases involving “ludicrous claims.”

During the civil rights movement, for instance, there were people who objected to some of the civil rights act provisions of 1964 on religious grounds, claiming that white supremacy was a plank of their religious beliefs.

“How do you not go back to people being able to exempt themselves on religious basis for any law they don’t want to comply with?” Graebe asks. “ It’s a messy area of the law…and the courts, and government, is constrained in how they respond.”