Religion & American Law

There are many opponents to same-sex marriage in the United States. The most common however are religious organizations and individuals. In the Bay Area specifically, Chinese Evangelical Christians make up one of the largest and most vocal groups that are in opposition of same-sex marriage. Hak-Shing William Tam, a prominent leader of the community, went to court on Thursday to take stand in the federal trial Perry v. Schwarzenegger that questions the constitutionality of the ban on gay marriage. Mr. Tam’s opponents claim that he is simply homophobic. This argument has some support after Mr. Tam wrote that homosexuality comes with pedophilia and prostitution, and the propositions failure will only legalize it. Regardless of his controversial opinions about homosexuality, he continues to have the support of his fellow Chinese Christians. Gerry Shih examines whether or not the desire to ban same-sex marriage is related to purely religion or perhaps culture.

Although the Chinese Christian Evangelical Group is religious, their reasons for opposing same-sex marriage are traced back to their cultural roots. Most of these individuals strongly believe in the Confucius value of family. It is important to them to maintain their family culture, which most common in China is the nuclear family. A nuclear family consists of a mother, father and their children. The family is also in charge of educating the children, who will eventually become the leading members of society.

I respect this groups desire to remain close to their cultural roots in a world where values and traditions are disappearing. My understanding is that this particular group does not accept homosexuality and same-sex marriage because it threatens the traditionally Chinese family structure. If all aspects of modern society that threatened the Chinese culture were rejected, I could understand the foundation of their argument. However, like Shih hints in his article, there are many modern American values that contradict their culture, but are nonetheless accepted.

For example, according to Confucius, women and men are not equal. In Ancient China, women were denied education and were even rarely given names. With regards to marriage, women were supposed to serve their husbands and give birth. They were not supposed to think, or express their emotions. Obviously it is 2010 and we are no longer in Ancient China. However, even today Chinese women are still going back and forth with regards to having an equal role in society. In traditional Chinese culture women are not supposed to be independent, but an increasing number are leaving China to pursue a better life for themselves.

So, how can this particular group claim that homosexuality is wrong because it threatens their culture? If this is true, then they should openly claim that women and men should not be equal and they should deny their wives and daughter’s education and employment. I don’t see how same-sex families would threaten their culture any more than having interracial families; neither is the traditional family structure. It is interesting to reason with the idea that same-sex marriage may not be a religious issue, but a cultural one. 

 

 

 

 

 

 

 

 

 

Disputes over church property within the United States judicial system date back to the 19th century with Watson v. Jones (1871). Traditionally, these disputes have transpired between members of one denomination or another. However, recent disputes over church properties in Ohio and Massachusetts are set to spark a new conversation in the debate over church-state separation.

A recent article posted by the Religious News Service (here) describes the legal battle between the Catholic Church and the cities of Cleveland, OH and Springfield, MA over the designation of shuttered (closed) churches as historic landmarks. While instances of churches and congregations seeking landmark status for church properties are a fairly common occurrence (for example see: West Park Presbyterian Church in NYC), the disputes in Cleveland and Springfield are unique because, in these cases, the local Catholic dioceses are seeking to block the landmark status on the grounds of the first amendment, claiming if the Catholic Church is not permitted to choose in what ways the shuttered churches will be used in the future, then their rights to free exercise will be violated.

These cases evoke many interesting legal questions concerning the role government can play in religious matters. If a church building is no longer used for religious practices, does it remain a religious structure? And, if so, does the maintenance of such a building by a city government violate the establishment clause? The answers to these questions could have a major impact not only for the cases in Cleveland and Springfield, but also for cases like the West Park Presbyterian Church in New York.

Does the city government’s intent of “preserving the historic character of neighborhoods” outweigh the Church’s right to control church property? Tied to this question is the notion that churches, particularly old churches, while being privately owned, are at the same time public buildings because of their aesthetic and architectural value, as well as, the notion that a community has a right to preserve the appearance of its neighborhood. It is questionable whether either of these notions can be legally substantiated.

A final question which directly concerns the 1st amendment is whether the freedom of Catholics to practice their religion is affected if the diocese is not able to control church property. Clearly the diocese’s power is limited by the landmark designation. The diocese loses the ability to dictate the sale and use of the building, but it is unclear if that places a direct burden of the free exercise of the individual Catholic person’s religion. Since the buildings are no longer used for religious service, it seems that loss of control over the buildings would be inconsequential for religious practice.

Whatever answers the court finds for these and similar questions raised by these cases, one can be sure that they will shape future cases involving church property. Furthermore, they will have significant impact on American understanding of church-state separation and the interpretation of the religion clauses.

In a small Ohio town, where most people would describe themselves as devoutly Christian, a trial involving a middle school science teacher has been compared to the Scopes trial of 1925 has created a rift between citizens.

According to a New York Times article, John Freshwater, an eighth-grade public school science teacher in Mount Vernon, Ohio is accused of burning a cross on the arms of at least two students and teaching creationism in his classes. Home to about 15,000 people, 30 churches and an evangelical university, the town remains split. “To some, Mr. Freshwater is a hero unfairly punished for standing up for his Christian beliefs. To others, he is a zealot who pushed those beliefs onto students.” In my opinion, Mr. Freshwater is trying to push his own beliefs onto his students, going against the separation of church and state that has existed within this country for hundreds of years. I agree with the school systems’ lawyer who argued that this is “a basic issue about students having a constitutional right to be free from religious indoctrination in public schools.”

Public schools are much different from private, religious based schools. The funds they receive are from taxpayers of all races, ethnicities, and religions. Students in public schools deserve to receive a secular education, one that is not influenced by a specific religion. According to the article, a number of Mr. Freshwater’s colleagues found his teachings to go against this ideal. One teacher testified that Mr. Freshwater advised students to refer to the Bible for additional science research. “School officials said that Mr. Freshwater’s science classroom was adorned with at least four copies of the Ten Commandments and several other posters that included verses from Scripture.” It is clear that Mr. Freshwater has moved faith from the private sphere, in homes and churches, into the public sphere, where it does not necessarily belong. His practices in his classroom have created a place where religion is pushed upon students who may not share the same beliefs that their teacher believes.

However, some do not feel the same way. Mr. Freshwater’s pastor believes that the criticism was part of a larger trend toward bigotry against Christians. “If he had a Koran on his desk, he’d be fine and no one would say a word to him. If he had ‘Origin of Species’ on his desk, they would celebrate that.” Even students have taken the side of Mr. Freshwater, holding a “bring your Bible to school” day, and wearing t-shirts that read “I support Mr. Freshwater- God” on the front. However, rules are rules. The United States is a secular nation, one where laws have been enacted preventing the teaching of religion in public schools. It will be interesting to read court cases later this semester involving these issues, however, without these examples, it is evident that Mr. Freshwater is violating the fundamental separation of church and state.

It is hard to imagine myself sitting in Mr. Freshwater’s classroom. As someone who does not share the same religious views as this teacher, it would be uncomfortable to hear his teachings. In the upcoming court case it will be interesting to see how Mr. Freshwater is judged and if the separation of church and state will be upheld.

Following the events of 9/11, Americans have become increasingly more skittish around non-mainstream religious practices. This particular article discusses an event in which an observant Jew, engaging in a customary religious ritual, was mistakenly viewed as a threat to the security of a Kentucky-bound flight. On January 22, 2010, a 17-year-old male, aboard the flight, strapped tefillin to his wrists and head, and began the ritual of morning prayer. An alarmed flight attendant, ignorant to this customary practice, alerted the captain, believing that the boy had just strapped some sort of explosive device to himself in order to destroy the aircraft. The pilot, erring on the side of caution, diverted the plane to Philadelphia. Upon landing, police officers boarded the plane and searched for explosives, while placing the boy and his sister in handcuffs. After discovering that there was no imminent threat, the boy and his sister were released. In retrospect there existed no threat to the security of the aircraft and its passengers; however, ignorance of anomalous religious practices caused the flight attendant to raise the alarm. “But the obvious reality of it is that when we see people carrying explosive material in their shoes and their pants and I am the passenger next to him and see someone strapping, I would panic too,” Isaac Abraham, an observant Jew said.

It is evident from this article that although the First Amendment to the Constitution provides individuals with the right to engage in the free exercise of his/her own religion, this right, as has been seen throughout the history of the United States, is not absolute. There do exist certain exceptions to the Free Exercise Clause. The question then becomes: When is it necessary to restrict one’s religious practices? In this particular instance, one might also ask: Was it beneficial or even necessary to land the plane prematurely and apprehend the alleged terrorist? One could even go further and ask: Did such actions taken by the flight crew and police officers violate the young man’s rights under the Free Exercise Clause of the Constitution?

In response to such questions I would say that first and foremost it is pertinent to understand that the Free Exercise Clause, along with other clauses contained in the Bill of Rights, is not absolute. Although the Framers intended to establish a nation grounded in the acknowledgement of certain individual rights, they recognized that exceptions to such freedoms did exist. As can be seen throughout the history of the Supreme Court there have been instances in which freedom of speech, press, and religion were denied under varying circumstances. “Fighting words,” for example, have been deemed to be illegal; because the statement of such words could result in imminent danger to individuals. Similarly, at times, religious practices could be halted if they present danger to innocent civilians. In the post 9/11 world that we live in, it is in our nature to be more skeptical of “unusual” religious practices. The fear of future terrorist attacks has caused the implementation of somewhat harsher restrictions on individual freedoms. In the predicament described in the article it does appear that there was no threat of an attack. However, at the time, the flight attendant was acting in a manner of good faith. She felt that it was her duty to protect the innocent individuals aboard the aircraft. If that meant alerting the captain; prematurely landing the plane; and having the suspicious individual searched and handcuffed; then that was the risk she was willing to take. In my opinion I believe that the flight crew and police officers acted in a fitting manner. At times one’s rights must be suspended in order to ensure the security of others. Some might argue that the ignorance of the flight attendant caused an innocent individual’s rights to be suspended for no legitimate reason; and that such actions were a violation of the Constitution. I would argue, however, that in this instance, due to the nature of the world that we currently live in, it is better to act in good faith to protect innocent individuals; then to allow one person to continue with his/her religious practices that could possibly lead to the loss of innocent lives.

In summation, at times, and I believe in this instance, religious freedoms can be infringed upon in order to guarantee the safety of others.

Chesterfield County, VA, is not a fan of fortunetellers, but Sophie King argues that she is not a fortuneteller, but a spiritual counselor. While it appears to be nothing more than an argument over semantics, the distinction has real legal consequences in Chesterfield. Fortunetellers must get a special license, like bondsmen, nightclub operators, and adult business operators (municipal ordinance Part II Sec. 6.7) to operate. A fortuneteller is required to submit “A certificate signed by five county citizens that the person is of good character and honest demeanor” (Part II Sec. 15.246), as well as submitting to a background check and zoning restrictions which other business owners are not required to do. Moreover, a fortuneteller is defined as “any person or establishment engaged in the occupation of occult sciences, including a fortune-teller, palmist, astrologist, numerologist, clairvoyant, craniologist, phrenologist, card reader, spiritual reader, tea leaf reader, prophet, psychic or advisor or who in any other manner claims or pretends to tell fortunes or claims or pretends to disclose mental faculties of individuals for any form of compensation” (Part II Sec. 6.1). King claims to be a spiritual counselor because she does not predict the future. According to the county, because she reads cards, she is a fortuneteller. So, King filed suit that “Chesterfield is violating her constitutional rights to free speech, free exercise of religion and equal protection.” Read the full article here.

Many of the comments to this article argue for one of two distinctions: that she is not a religion (that is, that she by herself does not make up a religion, instead of that her practices are not religious practices) and so does not get the protection of a religious institution or that she is running a business and therefore does not get the protection. Those not the important distinction here, though, nor is it what she is challenging. King is not arguing that she should not be required, for example, to pay any business tax like any other business. Rather, she is arguing that by singling out “fortunetellers,” the county is making an unconstitutional religious distinction. In fact, many other counties do not make this distinction – that is, fortunetelling is not singled out in any way. It is just another business. Chesterfield, by singling out fortunetelling, may be taking fortunetelling more seriously than even King herself, who says that its just another form of spiritual counseling.

Though King is using the First Amendment – free exercise of religion – to file suit, she uses the language of spirituality in her arguments. She, at least according to this article, is not connecting her spiritual counseling to any specific religious institution, but to a more amorphous, loosely defined “spirituality,” as in, “I’m not religious, but spiritual.” Chesterfield County, in its municipal code, is making this same distinction, too. Its municipal code does not allow for religious practice in its definition of fortunetelling, but instead calls it an “occult science.” As this goes to court, though, Chesterfield will have to decide just how they will interpret free exercise as its citizens begin to identify with religious institutions less and less.

In Winnifred Fallers Sullivan’s The Impossibility of Religious Freedom, she shows that courts, at least in Florida but arguably across the United States to a greater or lesser degree, require a practice must be required by a religious tradition everywhere that religious tradition is practice and every time it has been practiced historically in order to be protected. If, as in the case Sullivan studied, the practices are ones that are taught by family instead of institution and not required within religious texts, these practices are a matter of personal choice and therefore not protected. What that may mean, as King’s case shows, is that this trend of moving from institutional religion to a more amorphous “none” will make free exercise, as the courts understand, moot. That is, if fewer and fewer people identify with institutional religions, many of their practices will not be based upon institutional mandate and therefore will not be protected under the First Amendment.

What does that mean for King? Spiritual counseling may not matter. Unless she can show that it is required by some acknowledged religious institution, it may not count as protected. Fortunetelling, after all, appears to be one of those somewhat ubiquitous practices that often occurs unconnected with institutional oversight. However, it presents an interesting question for free exercise. If citizens no longer acknowledge religious institutions that can dictate required practices, instead choosing to do something because of spiritual motivation (whatever that may mean), are their practices protected under the First Amendment?

The battle surrounding the legal challenge to California’s Proposition 8 constitutional amendment continues to rage. Now in its ninth day, parties on either side of the issue have refused to give any ground and have brought forth a multitude of arguments. As this latest article from the Christian Science Monitor observes, “thus far, it has been an examination of modern marriage, contemporary attitudes about homosexuality, and the idea that sexual orientation warrants special legal protection.” The full article is available here.

Stepping beyond Proposition 8 to the broader context of same-sex marriage, what exactly is at stake legally? What is marriage? Are social issues, legal issues? Do social issues, legally enacted, tread dangerously close to establishing a particular interpretation of homosexuality along religious lines? Even these few questions could leave people and states polarized or paralyzed. What I would like to suggest is that the problem with same-sex marriage is marriage itself and the only compelling legal interest for the state is in regulating the marriage contract. All other considerations derive from a blending of religion and state that have grown organically over time.

“Marriage” is a term that has been at the center of the battle and ultimately represents the key to the legal resolution. All the wrangling over the definition of marriage and the many references to “traditional marriage” or other similar descriptors is a pushback over the authorizing of two same-sex individuals to marry. The problem arises from the fact that marriage is defined in at least two distinct ways that are most often conflated in legal discourse, but adopted and defended separately by the pro and anti same-sex marriage supporters.

On the one hand, defenders of “traditional marriage” are correct. Marriage has traditionally been between a man and a woman. However, opponents of same-sex marriage also recognize marriage as a religiously sanctioned commitment, a commitment before god or other religious authority or a sacrament. Claiming marriage is a “sacred institution” is fundamentally correct. Unfortunately, marriage is also defined and recognized as a legally binding contractual partnership between two parties that confers legal rights and privileges. Herein lays the problem. Understanding marriage as a sacrament and a legal contract places the term “marriage” in a precarious position by asking it to fulfill two very distinct roles that may, in the case of same-sex marriage, be mutually exclusive.

Speaking traditionally, marriage, as it was understood by the state, has had an equally muddy relationship. No less difficult as the supposed separation of church and state idea itself, marriage and church and state have existed in close harmony with each other. Indeed, in the state of Massachusetts where same-sex marriage is now legal, the language outlining the “solemnization of marriage” is filled with religious designations – read it here. It seems clear that ambiguity of “marriage” as both a sacrament of the church and a legal contract have been peacefully coexisting for the majority of time in the United States. At the same time, the marriage relationship also saw attempts to regulate the partnership along social lines, specifically with respect to race, ultimately overturned by LOVING v. VIRGINIA, 388 U.S. 1 (1967). The current debate about same sex marriage seems to be built along these same lines. The interest in defining homosexuality as non-biological or “choice”, as well as opposition to regarding homosexuals as a protected class, may be an attempt by same-sex marriage opponents at circumventing a similar decision to Loving vs. Virginia.

A more legally acceptable solution may be to abandon “marriage” altogether as a descriptor or concept of the state regulated contractual partnership. Amending the social definition or the legal definition of marriage has yielded and will continue to yield contention due directly to its duality of meaning. Only by abandoning this term and its understanding entirely can a satisfactory resolution be reached.

Marriage is a legal contractual partnership. The state already has structures in place to regulate these types of legal arrangements. Other legal business relationships are not regulated on the basis of gender or sexual orientation and this business relationship would be no different. “Marriage” could then revert to being a sanctioned commitment (but not legal contract) governed by whichever rules the sanctioning body sees fit in accordance with their rights and beliefs - whether they be religious or not. While any perceived discriminatory policies stemming from religious interpretation may be subject to later challenge, the legal arrangement would be clear, and the question of “marriage” as a state concern would be resolved. As a result, no one would be “married” as far as the state is concerned, but all rights and benefits accorded to the contractual partnership; medical visitation and decision, inheritance, joint ownership and property rights etc. would apply to all.

Social concerns could still be regulated as they currently are with respect to prostitution, incest and polygamy, but since same-sex relationships are not currently subject to any regulation or prohibition in and of themselves, the point would be moot until such time as separate legislation may be passed, but that legislation would again be subject to already established constitutional rights. In any event, the state does not regulate concepts like love or religiosity, so any gesture to these concepts in legal form are irrelevant to the discussion of a legal business arrangement. However, they could be germane to a theological, philosophical or doctrinal discussion outside the boundaries of legal regulation.

Only by abandoning the legal designation of "marriage" can these issues be resolved in a way that avoids unconstitutionality and provides equal rights and access for all parties.

The NY Times article, “A Flight Is Diverted by a Prayer Seen as Ominous: Unfamiliarity With a Jewish Teenager’s Ritual Causes Concern in the Air”, by its headlines seems to say that it was the flight crew’s responsibility to be knowledgeable of and accepting of the ritual practiced by less than one tenth of one percent of the world’s population. Yes, we want greater education about all religions, but how much detail can we expect the general population to know about minority religious practices? The expectation may be higher for employees who meet a wide range of individuals in their work, but there are reasonable limits. The quote by the Philadelphia police officer, “It was unfamiliarity that caused this”, holds this position. Even if the flight attendant had been familiar with the ritual, I would still expect her to respond with caution. We expect the attendants to be observant of all behavior that may be a cover for actions that would possibly endanger the aircraft and passengers. The image that I know that went through her mind was the number photos that have been in the news and on entertainment programs that show a bomber as he threatened a facility. Being wrapped in bindings and having a container attached is the standard picture.

The amazing aspect of this story is that the teenager and his community did not react negatively to the precautions taken by the airline personal. All the comments were supportive of the actions the crew took upon observing the behavior. So many times when people of other communities have been confronted because of their appearance or activity, they react that they are being discriminated against. No one quoted in the story seemed to show any of this reaction. The boy’s rabbi even suggested, “I would suggest, pray on the plane and put the tefillin on later on. Pray, and fulfill the ritual later.”

Acceptance is not just knowing and accepting other people’s rituals, but it is also accepting that other people may not know our religious rituals that set us apart from the general population. But for some groups tolerance is a one-way path.