Religion & American Law

The issue of abortion is heated and on going. At the moment, abortion is legal but a new stipulation to the issue has arisen with President Obama’s health care reform plan. The gist of the President’s bill is general health care expansion, which would in turn allow insurance to cover abortion costs. This article discusses the opposing views of the Catholic Church regarding this bill because of alternative interpretations of it. Nuns have said that they support the bill because despite their opposition to abortion itself the bill benefits the majority and would be an overall good for the country. Bishops on the other hand, along with Michigan’s Democratic representative Bart Stupak, see the bill as making abortion more accessible due to federal money, including taxes paid by those that see abortion as against their religion.

Should those opposed to the health care reform put aside their personal issues for the greater good of the country? Or would allowing public funds to aid abortion be hindering the free exercise of religion, forcing many Americans to pay taxes to a cause against their beliefs?

Although the Catholic religion is not united in their opposition of the health care reform, I do believe it is unconstitutional to provide tax money to a cause that violates so many Americans religious views. The issue here can be related to that in the case of Lynch v. Donnelly, in which Pawtucket residents found it unconstitutional for their taxes to go towards the building and up keeping of a nativity scene. The court ruled that this was not unconstitutional and if I remember correctly, the majority of the class, myself included, disagreed with this decision due to a lack of apparent secular purpose. In contrast, the health care reform definitely has a secular purpose but the issue of abortion, and in Lynch the crèche, makes it offensive to practitioners of certain religions. The Establishment Clause protects American citizens from providing aid to religious causes they do not support such as parochial teaching in secular schools, seen in McCollum v. Board of Education, and I believe Free Exercise is meant to protect Americans from having to pay taxes that go against their religion, as is the issue here. Representative Stupak and the traditionalists did not use this free exercise argument to support their opposition to the bill but I believe they constitutionally could have. I am pro-choice and I believe in Obama's health care reform, but that does not take away from the underlying religious issues concerning abortion. It is unfortunate that it may generally be the case that those in greatest need for the services of an abortion clinic will not be able to afford it and will now not be able to turn to their insurance for help. But that is where our education systems need to come into play and step up in their part of teaching and enforcing safe sex.

In the end, as described in this article, President Obama ordered that no money from passage of the health care bill will be used for abortion, swaying the bishops and Bart Stupak to support the health care reform. I believe this was a good move by the President and necessary to protect American citizens taxes from working against their religious views, beliefs, and practices.

In 2003 the First Baptist Church of Clarendon in Arlington, Virginia determined that it needed to renovate or rebuild its church building. However, the Church could not finance a renovation or new building and therefore devised a plan by which it would finance the building with public funds. According to the suit, “the Church decided to make the provision of affordable housing part of its religious mission, and it proposed a plan to develop a new Church facility.” One year later, the plan was approved by the county and construction commenced in December 2009. County residents have attempted to sue to stop construction on the basis of zoning and “intrusiveness,” but have failed. Thus, instead, county resident and financial adviser Peter Glassman is suing the church, the county, and the state in federal court on the basis of the Establishment Clause of the First Amendment of the United States Constitution.

The suit states that the affordable housing provision was not the main purpose of rebuilding the Church, which is evident in the time line of events that took place between 2003 and 2004. Plaintiffs also state that “this case represents a remarkable example of state actor taking unprecedented steps to promote, sponsor and fund the demolition, rebuilding and renovation of a Baptist Church with taxpayer money.” In other words, there is excessive entanglement between church and state. Furthermore, Plaintiffs argue that this case is quintessential violation of the Establishment Clause. The diagram of the new Church shows that the physical layout of the renovated building reflects an obvious religious overtone. The suit states that “the building lobby and entrance will be within the Church portion of the property, and will be shared with the Church. The housing units will share with the Church a common foundation, common elevator, and other common infrastructure such as piping and walls.” Residents of the subsidized housing will be subject daily to the Church’s message.



However, as the author of this article from the Washington Post points out, this is a difficult case to prove. In order to prove that this is a violation of the First Amendment Establishment Clause, Plaintiffs must prove that the project fails the Lemon Test, which states that its purpose cannot be religious, it neither advances nor inhibits religion (has no religious effect), or does not create excessive entanglement between the state and the Church.

So, does the Church project pass the Lemon Test?

Although it seems that there is certainly a religious purpose, the County argues that there is a clear secular purpose of creating affordable housing. However, I agree with the Plaintiffs. The original purpose of the project was the rebuilding of the Church and even though that purpose has expanded to include affordable housing, which is certainly secular, I still believe that the religious purpose is the dominating one. On whether the project has a religious effect, I think that it depends. If the space shared by the Church and apartment dwellers contains religious paraphernalia, then there may be an advancement of religion. If this is not the case, then the advancement of religion is a stretch.

Even if I agreed with the County and the Church on the first to accounts of the Lemon Test, the Church project absolutely violates the last part of the test: excessive entanglement. First, “the County granted unprecedented zoning variances to benefit the Church,” which were actually in violation of Arlington’s own zoning ordinances. Second, tax payers’ money was ultimately used for the rebuilding and renovation of the Church.

I will be surprised if the U.S. District Court of Alexandria sides with the County and dismisses the case pending the hearing on the 2nd of April. However, at this point, construction has already begun and a separate non-profit organization, the Views at Clarendon, has been set up to see the development through and manage the apartments thereafter. The affordable housing is needed in Arlington County due to recent incline in real estate prices. Thus, should the renovations simply continue, creating the promised seventy affordable housing units despite the Constitutional violation?

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.