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  L EGAL T HEORY   A NDREW R ITHO   Problem 1 Alfred Leo Smith and Galen Black were members of the Native American Church and counselors at a private drug rehabilitation clinic. The clinic fired them because they had ingested peyote, a powerful entheogen, as part of their religious ceremonies as members of the Native American Church. The county of Nogero criminalises the intentional possession of peyote. Does firing the two men violate their right to freedom of religion? How might group rights theories and other conceptions of rights aid you in deciding the question? Summary of Key Ideas to the Case/complaint: a.   Membership of the Native American Church is a personal right of religion that the two gentlemen exercised well within their rights. Such membership assumedly comes with certain rights and duties. From the facts, it is not clear if peyote is a mandatory part of their religious ceremony or simply one optional path. b.   Smith’s and Black’s membership as counselors at the clinic sounds like an employment contract. The contract necessarily had terms and conditions that they accepted and signed off against. From the brief facts presented, it seems reasonable to assume that they were aware that the clinic forbade ingestion of drugs, but nonetheless went on to take them. Additionally, if the clinic on this fact proceeded to fire them, it would also seem that this was a crucial clause in their employment contract. It is an assumption on my end that this clause was included to protect the addicts recovering at the clinic from any harmful exposure. c.   Additionally, the county criminalises possession of peyote. Again, it can be safely assumed that this was on grounds of public health or public morality. Question 1(a): Does firing the two men violate their right to freedom of religion? The freedom of religion as captured in the Kenya Constitution 2010 Section 32 (1) is unpackaged somewhat in subsection (2) which notes the following: (2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.  So the question (1a) can be rephrased (1b): does the clinic firing the two men, violate their right to manifest any religion or belief through worship, practice, teaching or observance ? Additionally. Section 32 (3) also points out that  A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion. So the question (1a) can be further rephrased to read (1c): does the clinic firing Messrs. Smith and Black contravene their right to an institution, employment or facility? Question 1 (b): does the clinic firing the two men, violate their right to manifest any religion or belief through worship, practice, teaching or observance ?  As in the case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission (2017)  where a baker declined to bake a wedding cake for a gay couple, the court held that since Mr. Jack Philips was not the only baker available, and that the couple could get a wedding cake in any other bakery, then the couple could not be held to be denied the right to have a wedding cake. The court also found that the baker had a right not to be forced to go against his own religion and his own conscience. As applied to the case at hand, as judge, I would point out that from the facts presented, Messrs. Smith and Black did not have their right to manifest their religion and belief violated because they were very much at liberty to so manifest their religion and belief elsewhere. Secondly, it would seem that the rule for not ingesting drugs (at the clinic) serves to protect the addicts admitted at the clinic. Subject to further details, this singular aim of the entire clinic, would perhaps trump the right that the two men have to take drugs on the clinic campus. Question 1 (c): does the clinic firing Messrs. Smith and Black contravene their right to an institution, employment or facility? Again, on the strength of the same case quoted above, I would decide in the negative. The firing does not contravene their right. In the particular circumstances of the case, the (right to) health and recovery of addicts admitted to the clinic trumps the right of the plaintiffs to ingest drugs in a way, form, manner or place that would endanger their recovery. If it did, then it would defeat the entire purpose for which the clinic was built and that is seemingly absurd. In his book Fundamentals of the Faith¸ Prof. Peter Kreeft explains that there are three traits or aspects by which you can identify a religion. Every religion he says, has a creed, a code and a cult; words, works, and worship; theology, morality, and liturgy; something for the intellect to know, for the will to do and for the aesthetic sense to appreciate. Question 2: how might group rights theories and other conceptions of rights aid you in deciding the question? a)   One con ception I would have recourse to is “ group rights may only be used to protect externally, not to restrict inwardly members”.  This I would argue applies not just to Messrs. Smith and Black, but also to the group of addicts seeking recovery at the clinic. They too have a rightful claim to be protected from actions of other external persons that harm them physically and mentally. b)   Additionally, I believe the concept of the common good is fundamental in deciding this case. How would the court be upholding the common good better? By backing the right to religion of the plaintiffs, or by backing the right to health of the addicts? Since it has not been shown that peyote is a mandatory part of their religion, I would be more inclined towards the latter.  c)   In this sense, the idea that there are no absolute rights and that they are limited by others becomes terribly practical. And the only way to judge one way or the other is through a good understanding of what the common good is. Problem 2 How would you address the following questions, as framed by the petitioner, put before the court? How might group rights theories and other conceptions of rights aid you in deciding the question?   Question 1: Whether or not the Enactment and coming into force of the Prohibition of Female Genital Mutilation Act was in contravention of Articles 19, 27, 32 and 44 of the Constitution? Under Article 19 Article 19 serves to underline the dignity of each person and consequently of social justice. Prohibition of FGM and its Act can be argued as being enacted precisely to preserve the dignity of the patient. And according to the Constitution and these provisions, this dignity rises way and above any health, cultural, religious or customary claims. Under Article 27 It would seem that part of the inspiration behind the FGM Act was precisely the affirmative action mentioned in Article 27 (6). Under Article 32 & 44 The FGM Act seems to be one more concrete instance of where subsidiary law is enacted to uphold the common good as greater in importance than individual rights. And this point of the common good again is the key to unravelling the last question. Question 2: Whether or not the rights of women to uphold and respect their culture has been violated in enacting the prohibition of Genital Mutilation Act? It would seem clear that since law’s primary role is to create order in society, then the primary concern of law is not individual rights, but order. A fundamental part of this order is what is captured under the concept of the common good. The right to live and respect one’s culture does not rise above the common good.  
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