Portland, Oregon Civil Litigation Defense Attorneys - Kaempf Law Firm PC

A Blog by John Kaempf

5 Tips To Reduce The Risk Of Legal Liability Against Your Church Or Religious School

 1. If you help operate a church or religious school, the safety of children is your first concern. Over the last decade, about 75% of churches and religious schools that got sued did so because of child safety issues. Churches and schools have a legal duty to protect children in their care from reasonably foreseeable risks of harm.

So, churches and religious schools need to engage in due diligence when selecting staff and volunteers to work with children. This should include conducting background checks and requesting references.

Make sure all employees and volunteers receive basic first aid training. Confirm that your facilities are free of tripping hazards. Keep sharp objects and dangerous chemicals away from the reach of children. Make sure doors are locked when rooms are not being used. Confirm there is adequate lighting inside and outside your buildings. Continue reading

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In May, Justice Thomas Foreshadowed What May Be The End Of Roe V. Wade, Which Would Send The Abortion Debate Back To The States As Intended By The 10th Amendment.

Abortion restrictions have been the subject of a lot of state legislation in the South recently. This issue seems likely to end up before the U.S. Supreme Court in the next few years. Because abortion is not mentioned in the U.S. Constitution, it appears that the new majority of 5 “textualist” Justices on the Court believe it should be an issue for the people in each of the states to decide under the often overlooked 10th Amendment to the U.S. Constitution. It provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

If Justice Thomas has his way, the “new” U.S. Supreme Court, with the addition of Justice Gorsuch and Justice Kavanaugh in the last two years— conservatives both appointed by President Trump—and the departure of Justice Kennedy, a moderate “swing” vote, may overrule or significantly limit its 1973 Roe v. Wade decision. That would send the abortion debate back to the states.

In May of this year, the U.S. Supreme Court partially decided a case called Box v. Planned Parenthood of Indiana and Kentucky. It concerns an Indiana law that does two things. First, it prevents incineration of fetal remains following an abortion along with “surgical byproducts” like infectious waste and needles. A lower federal appellate court struck down that part of the law as not “legitimate.” The Supreme Court reversed that ruling, holding that “a State has a legitimate interest in proper disposal of fetal remains.” The Court also held that “Indiana’s law is rationally related to the State’s interest in proper disposal of fetal remains.” Therefore, it upheld the first part of Indiana’s law. Continue reading

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Decisions This June In The Sweetcakes By Melissa and Arlene’s Flowers Gay Wedding Cases From the Pacific Northwest Seem Poised To Allow The Newly Configured U.S. Supreme Court to Finally Decide The Legal Issue of Whether Christians Who Oppose Gay Marriage Can Ever Be Forced To Participate In Them. A Decision From The Court On This Issue By June 2020, Five Months Before The Presidential Election, May Occur. That Would Tee Up A Big Election Year Issue For Politicians And Voters.

Readers will recall that last year, in the Masterpiece Cakeshop case, the U.S. Supreme Court held that Colorado violated the First Amendment rights of a Christian baker, Jack Phillips. He sells his pre-made goods to everyone, but would not create a custom cake for a gay wedding based on his sincere religious beliefs. The Court based its decision on the hostility to religion expressly stated by a State agency, which characterized his sincere beliefs as “despicable” like the Holocaust and slavery. The Court, in an opinion written by Justice Kennedy, a gay rights supporter who also wrote the majority opinion in the Obergefell case that legalized gay marriage in 2015, limited its holding to those egregious facts. So, the broader First Amendment legal issues about whether a government entity can ever force someone to participate in an event that violates their sincere religious beliefs, or effectively be compelled to “speak” in support of it, were left undecided by the U.S. Supreme Court in Masterpiece Cakeshop. “Swing” Justice Kennedy “punted” on those issues before retiring and being replaced by Justice Kavanaugh last year.

It is important to recognize that this dispute is not just about gay weddings. It has much broader implications for all Americans. Also, the media often misses the fact that the Christian business owners involved in these disputes sell their pre-made goods to everyone. No gay people were denied “service.” Also, these Christians are not protesting gay weddings. Rather, this dispute is about the far greater issue of the government (1) forcing citizens to create and effectively (2) say something, and (3) associate with something, they oppose based on (4) their centuries-old sincere religious beliefs. If you don’t comply, the government can (a) fine you hundreds of thousands of dollars personally, and (b) shut down your business. This dispute involves three separate First Amendment rights. (1) The right to freely exercise religion; (2) the freedom of speech, which includes not being compelled to speak; and (3) the freedom of association. Since 1958, the U.S. Supreme Court has recognized that the First Amendment also protects the freedom of association.

After Masterpiece Cakeshop was decided, a very similar legal dispute arose in the State of Washington involving Barronelle Stutzman, a Christian florist. She owns a business called Arlene’s Flowers. She politely declined to create custom floral arrangements for a gay wedding based on her sincere religious beliefs. She is an active member of the Southern Baptist Church. Her beliefs include that marriage can only exist between one man and one woman. The State of Washington’s Attorney General, Bob Ferguson, was so eager to go after her that he filed his case against her personally, and her business, without receiving a complaint from the gay couple. Washington then held that Ms. Stutzman violated its antidiscrimination law. Continue reading

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In June, The U.S. Supreme Court Held That A Large Cross Displayed On Public Land In Maryland As Part Of A Memorial To World War I Veterans Does Not Violate The Establishment Clause of the First Amendment.

This June, in a case called The American Legion v. American Humanist Association, the U.S. Supreme Court addressed a constitutional challenge to a 32-foot tall monument in Bladensburg, Maryland on public land, known locally as the “Peace Cross.” It was built in 1925 with money raised by the American Legion, a military veterans association. It was designed by mothers as a tribute to their sons, 49 area soldiers who died in World War I. The Court held that it does not violate the Establishment Clause of the First Amendment to the U.S. Constitution. It states: “Congress shall make no law respecting an establishment of religion.”

In a 7-2 decision (Justices Ginsburg and Sotomayor dissented), the Court in American Legion stated that the dispute must be viewed in its “historical context.” After World War I, rows of white crosses marking the overseas graves of soldiers who died were “emblazoned in the minds of Americans at home.” For nearly a century, the Cross “has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought.” The Cross sits on a large pedestal. The American Legion’s emblem is displayed at its center, and the words “Valor,” “Endurance,” and “Devotion” are inscribed at its base, along with the names of the soldiers who died. Continue reading

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