Recent Developments in Church/State Law

Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

Operation Rescue and Leader Randall Terry Under Siege

Operation Rescue, the activist anti-abortion organization founded by Randall Terry, has fallen on hard times. Numerous federal courts across the country have imposed injunctions, imprisonment, and fines on the organization and its leaders. 

Operation Rescue's tactics of using human blockades to deny access to abortion clinics or doctor's offices is under heavy legal scrutiny nationwide. The courts are seemingly unimpressed by Terry's argument that his trespass and other unlawful acts are justified to "prevent a greater harm." 

Although Terry won an early trial in Los Angeles last year when the jury accepted his "necessity defense," recent trial court verdicts and appeals have seriously crippled the controversial movement. Operation Rescue recently closed its national headquarters at Binghamton, New York, because of debts in excess of $100,000 and ever-increasing court imposed fines. Appellate courts in Virginia, Pennsylvania, New York, and other states have upheld permanent injunctions enjoining the organization from engaging in anti-abortion activities. A federal appellate court in Virginia, upholding a permanent injunction, ruled that OR's activities had "crossed the line from persuasion into coercion and operated to deny the exercise of the rights of others protected by law." 

Besieged by numerous trials, fines, and appeals pending in many states, Terry recently announced a new strategy—publicizing the names and home telephone numbers of judges and prosecutors who allegedly treat the OR unfairly. He also plans to organize all-night prayer vigils in front of homes of such judges and prosecutors. But given the recent indictments against OR leaders for interstate conspiracy to obstruct justice, the future of the organization looks bleak indeed.

Private Schools Subject to More Governmental Regulation

Are private schools subject to age discrimination regulations? Yes, ruled a Wisconsin Court of Appeals recently. A private school board (Sacred Heart School) and its principal in Green Bay, Wisconsin, did not renew a fifty-six year old teacher's contract for religious reasons. She then filed an age discrimination suit. A court refused to grant the school's request for dismissal. The school argued the non-renewal was for religious reasons and that an age-discrimination investigation by the state would compromise the school's autonomy and violate the school's right to free exercise of religion. The court disagreed and allowed the state to investigate the age discrimination claim. 

This case illustrates the alarming trend to hold private schools subject to the government's social philosophy regarding sex and age discrimination (previous decisions have held private schools subject to federal minimum wage and equal pay provisions).

Landlord May Refuse to Rent Unmarried Cohabitating Couples

Notwithstanding state laws prohibiting discrimination based on "sex" or "marital status," may a landlord refuse for religious reasons to rent an apartment to an unmarried couple? Yes, rules the Minnesota supreme court. A landlord refused to rent to a woman who planned to live with a man with whom she was not married. The trial court and court of appeals held for the unmarried couple and ruled that the landlord violated the Minnesota Human Rights Act which prohibits "marital status discrimination." 

The Minnesota supreme court overruled, holding that the landlord's sincerely held religious belief that cohabitation outside of marriage was against biblical principles was protected. The court stated that the state failed to demonstrate a compelling state interest that outweighed the landlord's religious belief and freedom to refuse renting to a cohabitating, unmarried couple. The Minnesota court further held the state couldn't interfere with the landlord's religious practice unless that practice is "inconsistent with the peace or safety of the state." 

An Illinois court also recently ruled in favor of a landlord denying a lease to a cohabitating, unmarried couple. Said the court: "Couples who wish to live together without being married can certainly do so, but they must find a landlord who does not object to such an arrangement." The Illinois court also found this to be in harmony with the state's interest in "strengthening and preserving the integrity of marriage" and its disapproval of common law marriage. 

It is encouraging to know that some states will still honor a landlord's religious belief and practice refusing to rent to homosexual or unmarried couples. Although states such as California and New York are outlawing such "discrimination," Christian landlords should oppose this trend as long as possible.

Christian Scientists Convicted

In two recent cases that attracted national attention, Christian Scientist parents were convicted of felonies after they failed to seek medical help for their children. 

In a Boston, MA case last summer, David and Ginger Twitchell, lifelong Christian Scientists, were convicted of manslaughter after their two and a half-year old son Robyn died of a bowel obstruction. Although the child was violently sick for several days, the Twitchells refused to seek medical assistance and instead summoned a "spiritual healing" practitioner. 

Although the Massachusetts child-abuse statute created an exemption for parents who believe in spiritual healing, the judge ruled that "a subjective belief in healing by prayer is no excuse for not obtaining medical help when a child is seriously ill." The Twitchells were sentenced to ten years probation and were ordered to submit their other three children for regular medical examinations. David Twitchell remarked after the trial that the case was "a prosecution against our faith." The Twitchells have appealed their conviction. 

In a similar case in the South, a Florida court of appeals recently affirmed a conviction of the Christian Scientist parents of 7-year old Amy Hermanson, who died after a lingering illness of juvenile diabetes. Her parents had ignored medical treatment in lieu of extended "spiritual treatment" in harmony with their religious beliefs. Their treatment failed, Amy died, and the Hermansons were convicted of third degree manslaughter.

They appealed their convictions on the grounds that their religious practice of "spiritual healing" was protected by the "free exercise" clause of the First Amendment. The appellate court disagreed, holding that the "state may intervene when it appears the parents' decision will jeopardize the health or safety of the child. . . ." 

Although some constitutional scholars see these Christian Scientist cases as the embodiment of the classic legal tension between church and state, it perhaps could also be said that this is only religious cultism run amok. Surely requiring parents to seek reasonable medical attention for children in peril of death can hardly be seen as a serious threat to religious liberty in this country. These cases are a terrible tragedy; the leaders and practitioners of such cults share an awesome responsibility for the death of these children.