International Organization Foundation Is Enforcement Necessary for Effectiveness? A Model of the International Criminal Regime Author(s): Michael J. Gilligan Source: International Organization, Vol. 60, No. 4 (Autumn, 2006), pp. 935-967….
rejecting church tribunal’s decisions and substituting its own inquiry
I dissent. This case is not about the exercise of a religious belief—it is about money. The majority opinion confuses the manner of our review and imposes an amorphous standard that is not compelled by Constitution or statute and is not consistent with a court’s duty to avoid an analysis of another’s religious beliefs.
Initially, the testimony is clear—a blood transfusion and Mr. Wilcut would have survived. This refusal was not a “complication,” as the majority suggests. Simply, Mr. Wilcut and his family exercised their religious beliefs—the employer did not seek judicial intervention, nor did the State, to compel a transfusion.1 As such, there is no religious conundrum for this Court to tackle.
I start by assuming that our Workers’ Compensation statutes are neutral as to religious precepts. The statutory sections at issue are clear-not ambiguous; they are reconcilable—not in contradiction. Sections 287.140.5 and 287.140.9 state:
- No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division or the commission, inconsiderable in view of the seriousness of the injury. If the employee dies as a result of an operation made necessary by the injury, the death shall be deemed to be caused by the injury.; and
- Nothing in this chapter shall prevent an employee being provided treatment for his injuries by prayer or spiritual means if the employer does not object to the treatment.
As is patent, Section 387.140.5 requires the Commission to determine if a refusal is unreasonable “… in view of the seriousness of the injury….” As is obvious, the injury here was life threatening. This record leaves no doubt that the medical opinion was unanimous—a transfusion was compelled. The medical opinion was correct.
This record is likewise clear that the Wilcut family and medical staff were in contact with Jehovah’s Witness counselors who recommended medical treatment that did not include a transfusion of whole blood. This is the record on which the Commission reached the factual conclusion that the refusal was unreasonable, consistent with Section 287.140.5. The Commission reached the only principled conclusion under the facts before it.
The majority, in my judgment, compounds error by then making Section 287.140.9 something more than it is. I read this sub-section to say “pray if you wish”, or, “bring in your Pastor, Priest, Practitioner, or Shaman.” This section does not justify the Court’s straying into a discussion of the principles of a Jehovah’s Witness. Whatever Mr. Wilcut’s beliefs were, they are not necessary to a construction by the Commission as to whether money is to be paid pursuant to Section 287.140. To even engage in this discussion violates clear principles set out by the United States Supreme Court and the Missouri Supreme Court, in both free exercise cases and establishment cases2 —courts are to stay removed from denominational doctrine. Courts have an affirmative Constitutional duty to avoid predestination, transubstantiation, and blood transfusions. The Court engages in a Lewis Carroll exercise—under which if an Atheist or Methodist refused a blood transfusion, the Court would, I assume, find this “unreasonable.”
I suspect that a Jehovah’s Witness who reads the Court’s doctrinal discussion would find it clumsy and cluttered. Courts cannot base decisions on doctrine.There can be neither a Presbyterian, Christian Science, nor Jehovah’s Witness exception to Section 287.140.5; to do so violates the First Amendment to the United States Constitution, and Mo. Const. Art. I, Sections 5 and 7.