Religion & American Law

Every year since 1953, the (Catholic) Cathedral of St. Matthew in Washington, D. C. has held a special mass for civil servants. This Red Mass is an invitation-only service meant to celebrate the legal profession. The latest Red Mass was held on Sunday, October 4, 2009—the day before the Supreme Court began its new term. The name of the service, Red Mass, dates back to the 13^th century and refers to the red vestments worn by the church celebrants (priests). Although, in the past, Presidents have attended, Obama did not attend the 2009 service; Vice President Biden did. Several Supreme Court Justices always attend. For this last mass, five of the six Roman Catholic Justices attended (Justices Roberts, Sotomayor, Scalia, Kennedy, and Alito), as well as Justice Breyer, who is Jewish. Justice Thomas did not attend even though he is also Roman Catholic. The sermon (or Homily, in the Catholic Church) touched on the issue of abortion while anti-abortion protesters rallied outside the Cathedral steps. Abortion issues were not on the Supreme Court agenda during this term, although the cross in the Mojave National Preserves was.

The idea of bringing together those persons involved in the law of the national government to “simply pray for the wisdom of God” seems so reasonable to those of Christian or fundamentalist backgrounds. After all, our Founding Fathers, admitted that a nation’s leaders required moral fortitude in order to serve the people well and fairly. Even after studying how the Supreme Court derives their decisions and admiring the subtlety and complexity of their arguments, the fact that just before they begin their judiciary responsibilities they attend a religious service expressly seeking the “wisdom of God” seems hypocritical and unsympathetic to the non-Christian and areligious. This Mass combined with the daily harkening of God in the Court implies that this is not a matter of civil religion or symbolic religious discourse. Quite the contrary, this seems to reinforce Justice Douglas’ rendering in Zorach v. Clauson (1952) that “we are a religious people whose institutions presuppose a Supreme Being.” Six of nine Justices attended this service and I find myself wondering just how they go about distancing themselves from their obvious religious identities when deciding religious causes. Is it any wonder that the Court keeps handing down instantly controversial opinions—even between and among themselves? If the law itself is blind to subjectivity, should not those who prescribe the law also be blind to subjectivity? Attending an obviously sectarian religious service on the wake of a legal term seems to preclude that necessary sense of objectivity.

I selected two articles from the Chicago Tribune that discuss the decision made by the federal appeals court on Thursday regarding the phrase “one nation under god” in the U.S. Pledge of Allegiance and “In God We Trust” printed on currency. The first article gives a brief history of the case that ruled in 2002 that the phrase was a violation of The Establishment Clause of the 1st Amendment (which “prohibits the enactment of a law or official policy that establishes a religion or religious faith”). The Thursday ruling reversed itself, stating that the phrases are not unconstitutional. The second article (a topic piece), is a simplified version of the first and gives different citations of the judges’ rulings.

In these articles, the two main justifications behind the court’s decision are: first, that these phrases do not breach the establishment clause because neither are required practices (students are not forced to recite the pledge, and it is not essential to have the phrase printed on currency) and second, these phrases are not religious but ceremonial and patriotic (similar to arguments made against Jehovah’s Witnesses refusal to salute the flag).

Although the first of these may seem easier to support than the second, I’m still not sure I’m sold. The first justification states that neither of these phrases is a government statute and therefore isn’t required by the government. Does this mean that as a result the government can’t forbid them either? This seems to be at odds with the objective of the federal government: to protect people from having their rights violated. But, if they aren’t forced to recite it how are their rights violated? Well, it seems unavoidable to handle money in one’s own country which may, for some, represent part of their identity (their nationality which seems to be embracing religious invocations).

This leads to the second justification: that these aren’t religious phrases but ceremonial and/or patriotic. Although there are several issues at hand here when it comes to defining religious terms or what is religious, it seems counterintuitive to claim that these are not religious terms. Claiming they aren’t religious takes away their fundamental meaning which would give it a ceremonial or patriotic meaning in the first place. Furthermore, to claim that such phrases are “patriotic” seems to mean that there is something about these terms that is fundamental to the nation. I’m not sure that this avoids the complaint made by those who object to the phrases. For me, if these phrases are going to be rendered constitutional it should be justified in other terms than these.

In a recent interview on PBS Rob Abernathy and Simone Campbell discussed the role of religion in the health care debate. Before moving into an in depth discussion of the issue, a video of a recent “interfaith” gathering that took place at Washington D.C. is shown. In this video, we see members from a variety of religious groups speak out in favor of a universalized health care plan.

In the interview itself, Abernathy questions Campbell as to her reasons for supporting health care reform. She unsurprisingly begins by claiming that the lack of universal health care in this country is a “moral outrage.” She sounds similar to President Obama, who has called health care reform a “core ethical and moral duty” and has encouraged religious leaders to garner support for it (Unfortunately, President Obama has not explained why he himself sees it as a moral and ethical duty). Thus, it seems that on the surface, Campbell is just reiterating the ethical outlook of the Democratic Party, which vaguely embraces the call for “equal opportunity” and universal access available to all citizens. Supposedly this is an inherent “right” available to people regardless of creed or belief. Towards the end of the interview Campbell hints that her religious convictions might have more to teach.

In discussing the role of death and dying, Campbell brings her religious convictions to bear in a unique and interesting way. She notes that in this country we have a problem dealing with death. She claims that we want to prolong life as much as possible, and avoid accepting death as a part of living. She says, “As a person of faith know it’s not the worst thing that can happen to you.” Her religious perspective comes from her faith as a Catholic Christian and here adds an interesting twist to the debate over instituting a universal health care law. But to hear this voice requires us not to treat health care as a neutrally applicable universal law but instead, as one rooted in an ethical and political history. I have yet to hear such voices echoed on the Left, aside from the vague gestures towards “ethical duty” mentioned above.

What I would like to suggest is that listening to these “religious” voices in the health care debate might indeed add helpful nuance to the debate. When we start viewing health care reform as a particular ethical issue rooted in the politico-ethical background of the U.S. (based on equality, liberty, et cetera) it becomes possible to begin debating the real issue. When we start thinking about how we relate to death as a community, for example, and not just as individuals seeking to prolong their life as long as possible, it becomes possible to re-think how we debate health care. It seems that both sides of the debate have not given enough attention to the ethical implications of universal health care. Instead, the debate has revolved around the economic viability of reform. Thinking through the ethical issue doesn’t require embracing a particular “religious” voice, but it should be a voice that gives “thick” ethical reasoning behind universal healthcare. The religious voice mentioned above is but one example of the type of conversation we need to be having. Thinking about health requires us to think about life, death, and ethics in challenging ways; ways that conversations about the economics of health care do not give attention to; ways that religious voices perhaps do.

The school board cancels the scheduled prom rather than allow same sex dates and cross dressing. The article provides the basic details of the dispute generated by school board regulations concerning a school sponsored prom dance. The two interesting factors are the school boards decision to cancel the dance and the public stated understanding as to why they took this action.

In the years following the Brown v. School Board Supreme Court decision, many school boards and communities would take this same attempt to be ‘non-discriminatory’ by canceling activities rather than change the segregated patterns. Entire school systems were closed rather than provide integrated education. Their thoughts were that if no program was provided for anyone how could they be accused of discriminating against one segment of the population. The prom dance was an issue even after integrated school were established. In many communities the school system no longer sponsored any dances. Taking the place of school proms, and any other dance activity, parents would hold ‘private’ parties. There would be a dance for white students and maybe a separate dance for black students. Economics was a major factors and frequently no ‘black prom’ dance was organized. The interesting response in many communities where two separate dances were held was that the ‘white prom’ was closed and restricted who could attend while the ‘black prom’ was open to all students. The ‘white prom’ fell to low attendance as the white student would explain that the ‘black prom’ was more fun. From a racial civil rights point the prom issue seems to have become a non-issue. It took years of community change but rarely is racial segregation expressed as an issue in school proms.

Here we see the same tactics used to battle a discrimination case: 1) an injured party brings court action to change a discriminatory practice and the official organization responds by canceling the activity, and 2) the private community responds by providing an alternative activity. The specific details will determine court decisions, but the pattern of this response is most interesting.

The highlight of this issue is the statement at the end of the article. “Southside Baptist Church Pastor Bobby Crenshaw said he's seen the South portrayed as "backwards" on Web sites discussing the issue, "but a lot more people here have biblically based values." “ Again religion is seen as the cause of conflict between segments of society rather than a force to bring society together. Why do such people not look inward and see that something must be wrong a religion that is the source of such conflict.

Both the New York Times and NPR had stories last week about the controversial C Street Center townhouse, pictured to the left. The townhouse is located in Washington D.C. approximately three blocks from the Capitol and is host to a contingent of fundamentalist Christian members of Congress. It is affiliated with the Fellowship and provides a place for Congressmen to live and pray together for a minimal fee of $600 per month for a private room. You may remember the Fellowship from their heavy involvement in the National Prayer Breakfast, an event which every president since Dwight Eisenhower has attended. The C Street Center hosts several functions that are smaller than the National Prayer Breakfast, but serve largely the same purpose. These include Wednesday prayer breakfasts for United States Senators and Tuesday night dinners for Members of Congress and other Fellowship associates.

The C Street Center was granted tax exempt status as a church under Section 501(c)(3) of the Internal Revenue Code, which states that “corporations organized and operated exclusively for religious, charitable or educational purposes” are entitled to tax exemption. Tax exempt status remained formally unchallenged until last year, when several C Street tenants were embroiled in marital infidelity scandals that focused a public eye on the Center. As a result, the Office of Tax and Revenue for Washington D.C. determined that portions of the townhouse were being rented out for private residential purposes and the exemption was partially revoked so that only 34% is now tax exempt.

Two weeks ago, a group of Ohio pastors filed a complaint about the partial tax exemption of the C Street Center. The pastors are concerned that the Center is not a church and that by masquerading as a church, the Center “poses a threat to the integrity and legitimacy of all religious organizations in the United States.” In an interview with NPR, Pastor Eric Williams, a leader of the Ohio ministers, stated, “Is there public worship? Is it open to the public? Are there trained leaders who serve the church? C Street really has none of those marks that make it a church."

This case raises constitutional issues similar to those raised by Bob Jones University versus United States in 1982. The IRS revoked Section 501(c)(3) tax exempt status of Bob Jones University, a private Christian University, because it denied admission to students involved in interracial relationships. Bob Jones University challenged in court, holding that the IRS violated the University’s rights under the religion Clauses of the First Amendment. The Supreme Court ruled that the IRS had the right to revoke the tax exempt status of organizations that are contrary to established public policy.

The C Street Center case is slightly more complicated because the pastors are concerned with separation of church and state, not freedom of conscience. The Ohio pastors believe, and I agree, that the Fellowship is using the C Street Center to influence Congressmen and other public officials. If the IRS revokes Section 501(c)(3) tax exempt status, the C Street Center will have to file tax returns that reveal its sources of income. This will make it possible to determine whether private money from the Fellowship is being filtered into the Center. If the IRS investigation is brought to court, the C Street Center could argue freedom of conscience by claiming that the townhouse is actually a place of worship for its residents. This argument puts the state in the sticky position of defining religion, which can lead to excessive entanglement. Clearly, the C Street Center tax exemption raises a lot of constitutional issues.

A teacher at the Guthrie Center High School in Iowa was put on five-day unpaid suspension for not allowing one of his students to build a Wiccan altar. Dale Halferty is the industrial arts teacher at the high school and did not allow a senior in his class to build the Wiccan altar because Halferty felt “it's offensive to worship rocks and trees…I am just trying to be moral. I don't know how we can profess to be Christians and let this go on." Halferty feels his suspension is misguided because he was merely acting as a good Christian. Halferty is upset that the school is making him act against his Christian beliefs and for allowing students to be exposed to beliefs he feels are wrong and bad for youth. When the student told Halferty that he was a practicing Wiccan and the table he was building was actually a Wiccan altar, Halferty said he could continue with the project as long as the student kept any religious materials at home. The student then began bringing a book of witchcraft with him to class. It was then that Halferty told the student he couldn’t continue building his altar. However, Halferty claims he was not discriminating against the Wiccan religion; he said he had previously told another student he could not build a cross in his class because he firmly believes in the separation of church and state. School officials placed Halferty on suspension for violating at least one school policy, and because state and federal law prohibits the discrimination of a student’s religious beliefs in school assignments. The principal of the school has said that Halferty will be allowed to return to work and will not suffer further consequences if he allows the student to build his altar. The principal equated his decision to “it's sort of like, what if I had a biology teacher who does not want to teach evolution? If a teacher doesn't do the job to which they are assigned, they are insubordinate." If Halferty refuses to return to the classroom, the superintendent will then decide what to do, and the school board will make any decisions regarding termination of employment.

This article focuses primarily on religious expression in public schools. We have been talking a lot in class about expression of religion in state-funded schools, and this article ties in nicely because it concerns religious expression of a student, as we saw with the case West Virginia State Board of Education v. Barnette. The Jehovah’s Witness students in that case were protected from having to salute the American flag due to their religious beliefs, and in this case the student’s freedom of expression rights are similarly being protected by both school policy and state and federal law. An interesting aspect to this instance is the teacher didn’t want the student to build a Wiccan altar because it conflicted with his Christian beliefs, yet he claimed to be a staunch supporter of the separation of church and state. While the teacher claims to have not allowed a student to make a cross previously, it almost seems like the teacher is questioning the legitimacy of the Wiccan religion because of how it is practiced. I think that this is an inappropriate expression of religious belief on the part of the teacher. While Mr. Halferty is entitled to his opinion, he was wrong in telling the student that he could not build the altar, and is especially in the wrong because Mr. Halferty used his own religious beliefs as a reason for not allowing the project. Teachers are in positions of authority and should not use that position as a means of preaching their own personal beliefs.

I agree with the suspension of Mr. Halferty because if the school chose to stifle the religious expression of its students, regardless of creed, our schools would quickly start to resemble the purely secular system of France. This is a problem because our Constitutional ideals of religious expression and the separation of church and state are to allow the free expression of religious beliefs, not to completely stifle all religious expression.