Announcer: Chapman University School of Law and Department of

Announcer: Chapman University School of Law and Department of Religion present …. Lorin
Geitner on Issues of Law and Religion, in the News.
Lorin Geitner
What happens when the practices of a small, idiosyncratic sect violate the law? What happens
when a law is drafted specifically for the purpose of discouraging the practices of a minority
relgiion? Where do we draw the line between protecting religious expression and supporting the
health, safety or welfare of the majority of citizens? These are a few of the questions raised by
todays …..
Sound F/X: Printing press
Lorin Geitner: …. story – in the news.
The Hutterites are a curious group: a Protestant sect somewhat like the Mennonites and the
Amish. They grow their own food, make their own clothing, do not engage in military service
and, more to the point of this particular story, they do not vote, they live in communes and don’t
pay wages.
According to a story in Business Week, this led them into social and legal conflict in
Montana when they expanded from farm work into construction, with considerable success,
because their communal lifestyle allows them to charge significantly less than private
construction firms. Those firms pressured state legislators to pass a new law which requires all
business entities engaged in construction to carry workers compensation insurance. A
community called the Big Sky Colony in northwest Montana filed suite, arguing that this law
infringes on their free exercise of their religion, and that, moreover, they don’t need workers
compensation insurance to pay for lost wages, healthcare or cover claims by workers because
they don’t get wages, have healthcare coverage through the Hutterite Medical Trust, and don’t
make worker’s compensation claims.
A state judge has already found in the favor of the Hutterites, and the State of Montana
has appealed this matter up to the Montana Supreme Court.
To fully understand and appreciate the implications of this story, though, we need to
more fully understand the religion of the Hutterites, and the relevant law concerned. Lets begin
with talking about …..
Sound FX: Heavenly choir
Lorin Geitner: ….religion.
The Hutterite religion and way of life was founded by one Jacob Hutter in 1528 as an
offshoot of the Anabaptist movement of the Protestant Reformation in Switzerland. Their
distinctive practices, beliefs, and manner and unwillingness to conform with the society around
them gave rise to frequent persecutions in the course of their nearly 500 year history, When
governments insisted that they change, being pacifists, they have not fought back, but rather
preferred to move to some other more tolerant country. At one time or another, they have settled
in, and were eventually driven out of, Moravia, Slovakia, and Transylvania. In the 1770s, they
were actually encouraged by the government of Czarist Russia to settle in the Ukraine, and
experienced some peace, stability and tolerance there for about a century. However, in the late
1800s, when they were once again confronted with a demand that they assimilate, they decided
to move again. Three communities were established in the southeastern Dakota territory in the
1870s in the hopes of finding the religious tolerance that they had been seeking for centuries at
this point. This area appealed to them because of its similarity to the Russian Steppes. Their
strong work ethic allowed them to establish farms and prosper in territory that many other people
had tried, and failed, to settle. They have flourished in the northern United States and in Canada,
and now have over 400 communities.
In many ways, they are very similar to the Amish and Mennonites, both related
Anabaptist movements, wearing similar distinctive dress, fostering a strong sense of community
and concomitant wariness of mainstream society, but not as resistant to modern technology as
the Amish. Their core beliefs include adult baptism, community of goods and the total
separation of church and state. This last belief has led them to refuse to bear arms, and minimal
engagement with social and political institutions. They are one of the longest lasting
experiments in communal living in the West. They follow an ethic based on cooperation instead
of competition, self-surrender and mutual service to those within their communities, putting the
needs of the community above personal freedom and ambition.
That then brings us to examining the …. :
Sound FX: Judge’s Gavel
….law. What legal standards apply in this case?
When I first came across this news story, the first precedent that came to my mind was
Wisconsin v. Yoder. That case, from 1972, involved 3 Amish families which requested that their
children be exempted from a law that required public school attendance past eighth grade. As
with this Hutterite case, the Amish argued that this requirement violated their sincerely held
religious belief, and was, moreover, unnecessary because their community independently
fulfilled the purpose which led to the creation of the original law, by providing vocational
training. The court agreed with the Amish on both these points.
So, you would think that would it, wouldn’t you? The Hutterites “for the win”?
But that’s exactly when things become complicated:
In 1989, in an opinion called Employment Division v. Smith, in which to members of the
Native American Church were denied unemployment benefits because they were fired for having
used peyote in a religious ritual. The Court found in favor of the Employment Division on the
principle that a law that only incidentally burdened the free exercise of religion was justified if it
was generally applicable and otherwise valid.
So, it would seem that the Hutterites don’t have a chance, wouldn’t it? After all, this
Montana law is facially neutral, and applies, generally, to all construction firms. But, once more,
things get complicated:
In response to Employment Division v. Smith, Congress passed the Religious Freedom
Restoration Act in 1993, meant specifically to shift the burden to the state to justify any laws
which substantially burden a person’s free exercise of religion even if the burden results from a
rule of general applicability, unless the state demonstrates that the law is in furtherance of a
compelling government interest, and is the least restrictive means to further that interest.
Lookin’ good for the Hutterites? You’d think so!
But, wait! In 1997, the Court found, in City of Boerne v. Flores that the Religious
Freedom Restoration Act doesn’t apply to state law – it only applies to Federal actions. The law
in question is a Montana State law.
So, are the Hutterites hung out to dry? Nope! ‘Cause in the same year that the Religious
Freedom Restoration Act passed, the Court handed down an opinion called Church of Lukumi
Babalu Aye v. City of Hialeah, the court struck down a local ordinance that forbade the
"unnecessar[y] (killing of) an animal in a public or private ritual or ceremony not for the
primary purpose of food consumption." The claimed rationale for this law was to prevent animal
cruelty and to protect human health and safety by keeping people from consuming poorly
butchered meat, and ensuring that animal carcasses were properly disposed. However, the court
found the ordinance, in different parts, to be either drafted too broadly or too narrowly to fulfill
these purposes, making it evident that the real reason behind this prohibition was to keep a
recently opened Santeria temple from practicing the animal sacrifices which are central to their
religion. Because the law was not neutral, the weaker “rational basis” test of the Smith
precedent did not apply, but, rather, the “strict scrutiny” test attached, which required both
compelling state interest and narrow tailoring of the statute so as to not unduly burden religious
Does that help the Hutterites in this current case? It might, because the bill's sponsor,
state Rep. Chuck Hunter, had admitted to aiming it at the Hutterites specifically, and has claimed
that this was needed in order to create "a fair playing field" for private construction firms.
So, what can we conclude from this? How might this case redound upon your life, and
Well, before I can address that, I better get the following out of the way:
Announcer: Any opinions expressed by this speaker are his alone, and do not necessarily reflect
the opinions of Chapman University, it faculty or its administration.
Lorin Geitner: That leaves the question, though, should the Hutterites prevail, or should a societal
interest in “a fair playing field” check their religious expression in this instance?
A couple things strike me about this scenario. First, isn’t it of the very nature of
capitalism that if someone figures out a way to make a product of comparable quality cheaper,
that they deserve to profit from that innovation? And is this not what the Hutterites have done?
The same social structure which allowed them to farm land which earlier individual settlers had
found unprofitable has also served to increase their competitiveness in the construction field.
After all, in spite of the claims of wanting a “fair playing field” is there really anything keeping
private contractors from emulating the Hutterites example, in order to cut down on their
expenses – except for the fact that most non-Hutterites, myself included, are unwilling to make
the sacrifices that the Hutterites have? If a competitor comes up with a more cost efficient
means of doing something or is willing to work harder and make more sacrifices to attain
success, shouldn’t this be incentive for others in the same field to either emulate, or exceed, their
innovation – or get out of the game? Isn’t a law penalizing someone who does a better or more
cost-efficient job necessarily anti-competitive?
Moreover, precisely because of the advantage provided by their social structure, which
they believe ordained by god, and central to their practice of their religion, shouldn’t Free
Exercise protections apply in this instance, especially since, contrary to the Lukumi Babalu Aye
precedent, the legislator who sponsored this bill has fully admitted that it was not neutral but
drafted specifically to target the Hutterites? If any case called for the strict scrutiny standard, I
would think that it would be this one. Doesn’t this law, then, squelch both free enterprise and
free exercise of religion?
…. But, that’s just my opinion. Which side of this issue do you favor, and, more to the point,
why? Let me know!
You may find the sources I’ve relied upon in this chat on our host webpage, along with a full
transcript. We are planning to set up online bulletin boards for this podcast eventually, but, in the
meantime, you can email me at [email protected], and I will share the most interesting
observations on the next recording of this podcast ….
Announcer: Lorin Geitner on “Issues of Law and Religion, in the News”. This has been a
presentation of Chapman University School of Law and Department of Religion. All opinions
expressed by those of this speaker alone, and do not necessarily reflect the opinions of Chapman
University, its faculty or its administration.
Lorin Geitner: For next time, I’m planning to discuss a criminal case currently taking place in
Ohio, involving the Amish, the transporting of shears across state lines with malicious intent to …..
barber, and how this reflects on hate-crimes statutes and the limits of the commerce clause.
Announcer: Thank you for listening. Your announcer has been Adam Laborde.
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