Archive for the 'Family Law' Category

Employment Rights in a Religious Work Place: The Ministerial Exception

Kate Drumgoole, New Jersey native, loved her job. She worked for Paramus Catholic High School as a guidance counselor and women’s basketball coach.  She also loves her wife, a fact the school was unaware of until recently.  Upon learning of Ms. Drumgoole’s marriage, the school fired her.  Ms. Drumgoole has since filed an employment discrimination lawsuit against Paramus.

Employers are forbidden from taking adverse employment action, such as firing an employee, based on a protected class like gender, race, or national origin. Sexual orientation, while not considered a protected class in every state, is a recognized protected class in New Jersey and has been considered a protected class by the Equal Employment Opportunity Commission for several years now. However, Paramus argues that they are protected by their First Amendment freedom of religion in firing Ms. Drumgoole for not living according to the tenets of their faith.  In her lawsuit, Ms. Drumgoole contests this allegation, pointing out that Paramus employs faculty members who are divorced or violate other Catholic tenets.

Ms. Drumgoole is not alone; more than 50 people have been fired or had employment offers rescinded by religious institutions for similar reasons since 2010. An Indiana Catholic School recently fired a teacher of purely secular topics after it came to her attention she used in vitro fertilization to become pregnant—calling her a “grave immoral sinner.”  An Ohio woman was fired by a religious institution earlier this year over being artificially inseminated. In Florida, a woman was fired for becoming pregnant outside of marriage.

Discrimination based on pregnancy is well established as gender discrimination, a federally protected class throughout the U.S. So how can religious institutions make employment decisions based on such clearly discriminatory reasons without fear of lawsuits such as Mrs. Drumgoole’s?  The answer lies in the interplay between employment rights and freedom of religion—the ministerial exception.

The Ministerial Exception and the Hosanna Case

To preserve the separation of church and state, as well as the free exercise of religion, employment law has a carve out for religious institutions, allowing them to favor those who share their beliefs. The Ministerial exception is so named because the employees who typically embody this carve out are church minsters. The exception is an affirmative defense—it must be proved by a religious employer seeking its refuge—which has historically been interpreted to allow discrimination on the basis of religion, but not as a loophole to any neutrally applied valid law. It specifically wasn’t generally considered an exception to non-religious discrimination.  This changed with the 2012 Supreme Court case which first recognized the ministerial exception—Hossana-Tabor Evangelical Lutheran Church v. EEOC.

The case was brought by Cheryl Perich, an ordained teacher at a Hossana who went on disability leave after she was diagnosed with narcolepsy. After six months leave, Hosanna asked Ms. Perich to resign.  Ms. Perich refused and threatened a lawsuit for violation of the American’s With Disabilities Act which requires employers to make reasonable accommodations for employee’s with disabilities and forbids discrimination based on an employee’s disability.  Hosanna fired Perich, explicitly over her disability.  Perich sued.

Unfortunately for her, the Supreme Court unanimously came out in favor of a particularly strong version of the ministerial exception. They ruled that employees who have a role in conveying the Church’s message and carrying out its mission” are barred by the First Amendment from suing over employment discrimination. This broad protection meant that religious institutions are totally insulated from discrimination lawsuits so long as the person suing them counts as a “minister.” This left the question, who qualifies as a minister.

Perich was ordained, but spent only a small portion of her time teaching anything that had to do with religion. However, the Court certainly felt she qualified as a minister. Unfortunately, the Court was also intentionally sparse on exactly why. They wanted to avoid a clearly delineated test for fear of excluding religions with different traditions. They did make it clear that the portion of time spent with religious duties is a factor, but not a deciding one on its own. However, as an ordained minister in both Hosanna and her own eyes, the Court felt there was little doubt Perich was a minister.

The Legal Landscape After Hosanna

After Hosanna, many have questioned the breadth of the ministerial exception.  The exception has seen some abuse. Catholic schools adding “minister” to every employee’s job description from teachers to receptionists to janitors.  Religious institutions often supplement this argument by making all employees sign a contract agreeing to uphold the tenets of their faith.

The flip side to this potential is the sanctity of church and state. Should a religious institution be legally forced to employ somebody who conflicts with their beliefs? As an extreme example, a synagogue shouldn’t have to employ a Holocaust denier.

The happy medium likely extends the exception more narrowly, to people whose positions implicate primarily religious duties. As it stands, the ministerial exception is extremely broad. The current state of the law bars ministers from bringing any employment discrimination or retaliation against a religious employer, regardless of whether the discrimination is related to religious tenets. As mentioned above, this clarification is a tricky prospect to say the least due to the differences between religions.

The truth is, since Hosanna the courts have done more to expand the exception than limit it.  There are some courts, such as this year’s Fratello v. Roman Catholic Archdiocese of New York, which have applied Hosanna as a balancing factor test looking at whether 1) the school held the employee out to the world as a minister, (2) the employee’s title connoted a religious “calling,” (3) the employee held themselves out as a minister and (4) the employee had religious responsibilities.  However, prior to this case the vast majority of courts have given much more deference to the religious organization’s categorization of an employee.

The cases discussed in the beginning of this article all deal with employees with completely or primarily non-secular duties. Cases like Ms. Drumgoole’s, pitting protected groups and employment discrimination against the ministerial exception, will help winnow down the exception and assist courts in understanding when a religious institution is properly due the protections of the First Amendment. Generally, the Constitution provides rights to protect yourself—not assert those rights as a license to discriminate or diminish the rights of others.

Massachusetts Awards Parental Rights and Paves the Way for Unmarried Same-Sex Partners

One more giant step towards equal rights for same-sex couples as Massachusetts Supreme Judicial Court just ruled that unmarried same-sex couples are entitled to the same parental rights as heterosexual couples.  Regardless of gender, if you’re raising a child together, why shouldn’t you have the same parental rights as every other parent?

The case stems from a same-sex couple, Karen Partanen and Julie Gallagher, who were in a committed relationship and raising two children.  The couple used in vitro fertilization in order for Gallagher to give birth. The couple publicly held themselves out as the parents of the two children, as well as jointly raised the children up until the couple’s separation.  After the separation, since she isn’t the biological mother of the children, Partanen sought to establish parentage in order to obtain legal rights—like visitation and shared custody.

The Age-Old Tradition of 1 Man and 1 Woman as Parents

Massachusetts’ statute only allows a man to be presumed the father of a child born out of wedlock if the man takes the child (jointly with the mother) into their home and openly holds that child out as his own.  Since the statute obviously presumes parentage from the biological mother, Partanen was left with no parental claim simply because she’s of the same sex as the biological mother.   Paid Family Leave

As a result, a probate judge dismissed Partanen’s complaint.  This meant, even though Partanen had been raising these children since each of their births as her own, she couldn’t claim parentage and gain any parental or custody rights.  Partanen, understandably, appealed the decision and the Massachusetts Supreme Court took notice.

Can a person establish themselves as a presumptive parent in the absence of a biological relationship with a child?  This was the question before the court.  Most of the facts of the case were undisputed, that both partners played an important role in raising the children, which no doubt effected the Court’s decision.

If You’re 100% Involved, You’re a Parent

The couple was in a committed relationship, moved out of state together, bought a home together, and ultimately decided to start a family together. It was undisputed that the couple intended to both be the parents of any children that resulted out of the relationship.  Even though unsuccessful, Partanen was  the first partner to undergo in vitro fertilization.  It was only after that point that Gallagher went through the same treatment and ultimately ended up giving birth on two separate occasions.

Although Partanen never adopted the children, she was fully committed and 100% present in their upbringing.  The couple did all the normal day-to-day activities of raising children equally, including making important decisions about the children’s’ upbringing.

The Court found that although the statute spoke in specific gender terms, the same concept could be interpreted in a gender-neutral manner.  This meant that because Partanen brought the children into her home and held them out as her own. It doesn’t matter that she is not a man as the plain language of the statute reads.

To push the point home further, the state had already established that a man could establish paternity for a variety of reasons other than biology.  More specifically, the Court argued that the purpose of the statute, which was clearly defined, was to provide all “children born to parents who are not married to each other…the same rights and protections of the laws as all other children.”

Seems pretty simple, right?

Many Will Easily Follow in Massachusetts’ Footsteps, While Others Will Fight Against It

With all the positive decisions that have been made in favor of same-sex couples lately, there’s been battles to halt the progress in its tracks.  Just this month, an Alabama Supreme Court Justice was removed from the bench for issuing an order preventing magistrate judges of that state from issuing marriage licenses to same-sex couples, despite the federal decision in Obergefell.  In North Carolina, two different magistrate judges filed claims that their rights had been violated by administrative memos received that said they could be fired if they refused to perform same-sex marriages in accordance with the law.

There will undoubtedly be criticism of the decision to give same-sex partners parental rights, but the general consensus seems to be in favor of same-sex couples and it only seems like the next logical step after Obergefell to give same-sex couples the same parental rights as heterosexual couples.

What People Ought to Know About Louisiana’s New Marriage Law

Many foreign-born people have been denied marriage licenses in Louisiana after the state passed restrictions on marriage based on immigration. Proponents of this bill claim it deters marriage fraud by preventing illegal immigrants, including terrorists, from getting married. But, this bill has also prevented many legal immigrants from obtaining marriage licenses, and has mostly impacted Louisiana’s Laotian and Vietnamese refugee communities.

House Bill No. 836

The bill introduces new requirements for a Louisiana marriage license, including requiring a birth certificate. Birth certificate requirements differ for U.S.-born persons and foreign-born persons. A U.S.-born person may obtain a judge’s waiver if unable to provide a birth certificate. But, this waiver exception does not apply to people born outside the U.S., even if he or she can produce an unexpired visa or proof of citizenship.  In short, if a foreign-born person cannot produce a birth certificate, then he or she cannot get married in Louisiana.

The Story of Marilyn Cheng and Out Xanamane

Marilyn Cheung and Out Xanamane’s marriage license struggles highlight the absurdity of this bill. This Louisianan couple, like many in Louisiana’s Laotian community, had a traditional Buddhist ceremony in 1997, but never obtained a formal marriage license mistakenly believing they had a common law marriage. The couple learned they were not legally married when Mr. Xanamane discovered he had liver cancer and was not covered by Ms. Cheung’s insurance. Although the couple have lived as husband and wife for nearly 20 years and have four children together, Louisiana does not recognize common law marriages. Marriage

Subsequently, the couple went to a Louisiana courthouse to obtain a formal marriage license. Even though Mr. Xanamane brought his green card, refugee documents and driver’s license, they were turned away because Mr. Xanamane did not have a birth certificate. Mr. Xanamane has legally resided in the U.S. since 1986, but he was born in Laotian village in 1975 when the country fell to communism. His family fled the country and he never received a birth certificate. Thus, despite Mr. Xanamane’s liver condition, the couple drove fourteen hours round -trip to Alabama where the court accepted Mr. Xanamane’s immigration documents and issued them a marriage license.

Ms. Cheung and Mr. Xanamane are not the only couple enduring hardships under this new law. Since the law was enacted, about six to eight couples every month have been denied marriage licenses in Orleans Parish alone.

Is the Bill Xenophobic or a Necessary Protection of American Sovereignty?

Proponents claim this legislation prevents illegal immigrants, and possibly terrorists, from obtaining citizenship through marriage. But, the birth certificate requirement place unnecessary burdens on legal immigrants, particularly on Louisiana’s Laotian and Vietnamese refugee communities.

Many foreign-born people legally reside in the U.S. without birth certificates. Simply requiring valid immigration paperwork, like Alabama, would be equally effective in preventing illegal immigrants from obtaining marriage licenses. Moreover, requiring birth certificates unlikely deters terrorists legally in the U.S. from marriage, since many terrorists come from countries, including the U.S., that do issue birth certificates.

While the bill remains ineffective in deterring terrorists from marriage, it does have a disproportionate impact on Louisiana’s Vietnamese and Laotian refugee communities. In the 1970s and 1980s, many refugees from Vietnam and Laos went to Louisiana to seek asylum from war and communism. Many of these former refugees have since obtained green cards or U.S. citizenship, but do not have birth certificates. Refugees and other immigrants fleeing violent-life threatening situations, were either never issued birth certificates or were unable to bring one. Moreover, refugees tend to come from countries with failed governments, and thus, it would be impossible to obtain a birth certificate, even if one was originally issued.

Since the birth certificate requirement is unnecessary to achieve its purpose in preventing illegal immigrants from marriage, we can only conclude it was enacted to place hardships on the Vietnamese and Laotian refugee communities in Louisiana. But, if we give Louisiana’s legislature the benefit of the doubt, the bill is at best a poorly thought-out law that needlessly inconveniences foreign-born people living in United States legally.

Can a Catholic Hospital Refuse Medical Treatment For Religious Reasons?

What happens when a hospital refuses vital medical treatment due to the hospital’s religious beliefs?

In the United States, Catholic hospitals have come under scrutiny when reports emerged of women denied treatment due to their “ethical and religious directive.” In almost every case, it was a woman who was either pregnant and/or wished to prevent pregnancy.

How can hospitals, especially Catholic hospitals, deny necessary treatment? Regardless of religious affiliation, hospitals are there to treat and serve their community. How can the hospital be allowed to operate if they refuse necessary, life-saving treatment for those in need?

What Does the “Ethical and Religious Directive” Say?

In the United States, Catholic hospitals must follow the “ethical and religious directive” set by the Church. The Directive instructs that hospitals should treat all patients, including (but not limited to): the poor, those without insurance, single parents, the elderly, children, and “the unborn.”

The Directive states that a pregnant woman can undergo treatment or care, even at the risk of the fetus’s life, so long as their illness is “proportionately serious” in comparison to the loss of the fetus. In fact, the Directive uses the term “proportionately serious” when describing the health of a pregnant woman and an unborn fetus.

For these hospitals, the life of the unborn fetus is as important as the life of the pregnant woman in distress. In essence, the fetus is as much a patient as the mother. In fact, the directive also forbids the hospitals from sterilizing women, so they also treat the hypothetical “unborn.”

The doctors at the Catholic hospitals refused to perform an abortion, since the fetus’ heart was beating. Even after the women were bleeding heavily, in excruciating pain, developing an infection, and were told that their is no way for their child to survive.

Can a Hospital Refuse to Give Necessary Treatment?

No, a hospital cannot refuse to give a patient necessary treatment. However, the question is whether the treatment is necessary.

An abortion is not always necessary if the pregnancy would become a miscarriage. However, it is a common medical practice in the United States to perform a medically necessary abortion when a patient begins to show signs of infection and/or severe pain.

Many of the women in the report were experiencing severe pain and showing signs of infection. Instead, the Catholic hospitals turned away each patient and told them to wait in pain, discomfort, and fear until the fetus no longer had a heartbeat. In fact, to fight the pain and infection, they were given some aspirin and sent home.

It is easy to say that these women should have gone to a different hospital or facility; someplace that does not follow the Ethical and Religious Directive. But Catholic hospitals are growing in number, and in some states they account for 40% of available hospital beds. This means that for many of these women, finding a place that is not a Catholic hospital may mean hours of travel to receive treatment.

So Why is This Still Going On?

The state and federal government have not addressed the gap in treatment options that are due to religious directives. The government wants to encourage the creation and running of non-government run hospitals, but they cannot tell these hospitals how to operate.

Currently, hospitals may be required to have emergency services and not turn away impoverished patients. But women’s health and abortion issues are still heavily debated, in the government and around the dinner table. If the government cannot take a stand on abortion, then it would be hard to impose any requirement on hospitals.

But what can we do about women who are falling through the cracks of the system? These women are not seeking an abortion to end a healthy and viable fetus. They are seeking an abortion to help end the agony of a miscarriage after being told that their child will not survive.

Given the current landscape of women’s health, it seems like this issue will not be resolved any time soon. But for the health and safety of 50.8% of the United States population, we can only hope that it will stop being a question of politics and instead a question of public health and well-being.

Equal Parenting Time: Beneficial or Harmful?

There are times when children have to endure divorce and separation proceedings. The real battle though is about child custody and who should have parental control. Divorce rates have nearly tripled in the last decade or so and child custody is something that courts have to deal with all the time. One of the ongoing issues with child custody is which parent should be the rightful guardian and caregiver of the child.

There are various factors that the court looks at in making this decision. Such factors include: whether a parent has a history of violence and abuse, financial status of the parent, and intimacy of parent with child. In some instances, the court will allow for joint custody where each parent will be given a chance to be with the child under certain scheduled times. These are usually not on a 50/50 basis, but rather on a scheduled basis or percentage that works best for the child. For this kind of equal child custody, there are legal and social ramifications that need to be addressed.

Equal Child Custody and Arising Problems

Equal child custody, the idea that both parents will be given an allotted amount of time to spend with the child, can be both beneficial and harmful. On the one hand, a child might have attachments to both parents and as a result might want to maintain a relationship with both. However, if one parent is abusive or excessively controlling, then this can be harmful for the child. Family Lawyer

Each state has different laws when it comes to child custody. For example, in Arizona, regardless of the parent’s character or temperament, the parent will be able to maintain contact with the child. In other states, equal custody does not mean 50/50. Instead,  both parents will maintain contact, but not necessarily an equal amount of time with the child.

In California, it is broken up into two categories. There is 1) legal custody and 2) physical custody. Legal custody is the right to make decisions on behalf of the child. Physical custody, as it sounds, is maintaining physical contact with the child. Both of this can be arranged for if the parent qualifies. However, as mentioned, equal child custody under either legal or physical grounds can be detrimental to the child.

There are studies that indicate that a child who is equally exposed to two parents with very different lifestyles and philosophies on life could produce confusion in the child and possibly emotional trauma. Socially, the child might not be able to interact with others of his age. This back-and-forth between parents could lead to long lasting psychological harm to the child. Aside from these psychological and social consequences, there are legal ones as well.

Constitutional Violation?

Child custody has always been at discussion for the courts because at its foundation, there is a constitutional issue. Giving one parent more rights than the other could be viewed as a potential equal protection violation under the Fourteenth Amendment of the U.S. Constitution. Under the Fourteenth Amendment, if one classification of people are treated differently than others, then this could be potential grounds for discrimination and hence a constitutional violation.

However, case law has already addressed this. Through case law and statutory authority, it has been established that this kind of unequal treatment is not discriminatory as it is for a legitimate government purpose: the protection of the child. There is an exception to this of course. If the distinction is on the basis of race, gender, or religion, then equal protection rights in accordance with the U.S. Constitution and enforced by the American Civil Liberties Union will be invoked.

Child custody is a concept that can leave a lasting impact on the child in both his mental and emotional growth. Legally, it is a state-by-state issue. Every case will be different but at the heart of it, the parent’s background and history will determine if they will have visitation rights or custody rights to the child. The distinction made between the parents is not a constitutional violation. Circumstantial factors will be looked at to see what is in the child’s best interest as well as for the parents.