Is the Property Insurance Bill Unconstitutional Because It Establishes Support for a Christian Organization and No Other Religious Based Organizations?
Religion sure brings out some strong and sometimes bitter feelings among friends. A number of adjusters, after hotly debating the topic with emails copied to me, have inquired whether the pending property insurance bill is unconstitutional because of the exemption to the required examination given to the members of the National Association of Christian Catastrophe Insurance Adjusters. Since I am scheduled to take the California Bar Examination this July, some may think that my First Amendment Constitutional Law expertise has been refreshed with recent study and that I am able to address this question. My friends know better and often wonder how I passed any bar examination.
The end of yesterday's post, Is the Proposed Property Insurance Bill Bad for the Average Florida Insurance Consumer?, addressed the subject legislation. My emotional response was:
While a Christian, I believe in separation of church and state. Nobody I know in the insurance adjusting community has ever opined that membership in this particular organization renders an adjuster more educated, experienced or qualified to do the job. The qualifications for membership in the Christian one, the National Association of Christian Catastrophe Insurance Adjusters, certainly do not meet the level of experience and knowledge required of a CPCU or AIC in adjusting.
I wonder what my Jewish adjuster friends think of it?
What would happen if the organization was the National Association of Atheist Catastrophe Insurance Adjusters? Suppose that organization allowed any other religious individuals to join. And, assume that it required that all of its members subscribe to a Code of Ethics that promoted fairness, honesty, professionalism, required an Associate in Claims (AIC) designation followed by three years of catastrophe experience. Does anybody think any Florida politician would support such a measure? The answer is obviously "no" because it is much more politically expedient to pander to the religious majority rather than those whose religious beliefs are in the minority.
I know nothing about the reputation of the National Association of Christian Catastrophe Insurance Adjusters. Maybe it has a large, excellent and very silent membership base. Certainly, if I were an adjuster, I would comply with many of its stated ethical obligations. Still, after calling around, nobody I know of in the insurance industry has ever heard of this group before, and I know a lot of people on all sides of the business. I am not taking "pot shots" at the group, I am simply pointing out that the legislation exempts members of this group from a qualifications test required of every other public adjuster, and there is nothing to indicate that membership in this group requires the skill and qualifications that would justify this exemption. People have a right to assemble in this country. Indeed, the leadership of this group, which is not revealed on its website, has done a marvelous job of promoting some very high ethical standards.
Yet, can our government legally grant privileges to a certain religious based organization, or even support its growth, by granting its members an exemption to our insurance licensing laws? Whatever the right answer, it will probably be found in cases discussing the Establishment Clause of the Constitution.
The Establishment Clause of the First Amendment refers to the language which provides that "Congress shall make no law respecting an establishment of religion."The Free Exercise Clause is equally important because it prevents laws which "prohibit[ing] the free exercise [of religion]."Both clauses are considered when analyzing religion debates under the First Amendment. Religion is very personal, and the debates can become very heated.
Everson v. Board of Education, 330 U.S. 1 (1947)[upheld a state statute funding student transportation to schools, whether parochial or not. The United States Supreme Court held that:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State.
The state law was upheld because it applied "to all its citizens without regard to their religious belief." I am not certain the current property insurance legislation can be read that way. It seems to aid one religion. And, the associate membership status of the subject organization seems to prefer Christians over non-Christians.
Yet, in Lemon v. Kurtzman, 403 U.S. 602 (1971), the United States Supreme Court outlined a three prong test which is makes the legal result questionable. If any of the following three prongs are violated, the state statute will be found as unconstitutional:
- The government's action must have a secular legislative purpose;
- The government's action must not have the primary effect of either advancing or inhibiting religion;
- The government's action must not result in an "excessive government entanglement" with religion.
So, the bottom line is that I do not know if it is unconstitutional, but I agree Mark Phillips’ comment:
God is now looking with favor on my ability to provide the best "Christian adjustment" possible per contract terms? I know they must certainly want to upgrade perceptions of the "Adjusting Profession", but I really think this is more of a ploy to market to the Carriers, don't you?
I don't think Moses or Christ carried any kind of branding marketing theme. They just simply prodded our brains and hearts to simply pay it forward and do what's right.
Therefore, adjust the damn claim the right way for the right reasons - the consumer paid his premium and deserves every right of indemnification, regardless if he prays with the adjuster when he arrives at his doorstep.
Amen.
Chip,
Your jewish friends always get the wrath!!!
48 rule should be unconstitutional because Sunday is the only day we can work on weekends!!!
Randy,
I never thought of it from that perspective.
How does this non-entity warrant ink in any legislation?
I googled the organization - 9 hits - 2 of which were links to my recent posts.
Not much more for christianadjusters.com
The phone number is a cell.
The organization lists its office as the home of Adam Gardiner, president of Versicat, Inc.
It appears to be a one-man shop.
Very few hits for Adam either, most are advertising because he's an instructor on some training websites - same testimonial repeated on several sites.
I might ask one of my reporter friends to interview Mr. Gardiner and get his perspective.
He certainly was more successful at lobbying than any consumer who had no legislation that was passed. Not one pro-consumer sponsored bill got anywhere in the Florida legislative committees. The insuance industry dominstaed this past legislative session and the only question is if they can spin their proposed laws as favorable to the governor.
How about the Fifth Amendment?
When state government intentionally favors a particular class of persons, one should consider if the conduct violates The Equal Protection Clause of the Fourteenth Amendment. If those discriminated against fall under certain "suspect classes" such as race or national origin, then the law will be struck down unless the state can prove that it is necessary to achieve a compelling state interest. In other words, the law must survive a "strict scrutiny" analysis. If any other classification is involved, the action will be upheld unless the challenger proves that the is not rationally related to a legitimate government interest.
Here, it appears the state is intentionally favoring those who belong to a particular Christian association over those who do not because those members do not have to take an exam. Clearly, the law does not involve a "suspect class", so those who would challenge it would bear the burden of proving that the law is simply arbitrary and irrational.
Though most laws survive a rational basis review, this one is so ridiculous I think it could easily be challenged. Absent the particular organization at issue having a greater testing standard than the state, I really can't see why this particular class should be allowed to avoid having to take the exam everybody else has to take.