Religion & American Law

A recent case in Illinois raises the question of whether a family court can order divorcing spouses to raise a child in just one religion. In an op-ed piece in Newsweek, Dahlia Lithwick details the issues that are involved, while also raising questions that need to be answered.

Joseph Reyes converted to Judaism when he married Rebecca Shapiro in 2004. When they split up four years later, Rebecca won primary custody of their daughter and Joseph was granted regular visitation. The two parents had allegedly agreed to raise their daughter within the Jewish faith, however, Joseph, seeking to expose his 3-year old to his Catholic background, had her baptized. When Rebecca found out, she obtained a temporary restraining order, prohibiting Joseph from exposing their daughter “’to any other religion other than the Jewish religion during his visitation.’” But when Joseph took his daughter to Catholic mass, his ex-wife’s lawyers demanded that he be held in criminal contempt, with jail time included in the punishment. While this case may seem like an average divorce case between two feuding individuals, it has turned into one that deals with important questions of religion and the rights of an individual as decided by the Constitution.

According to Lithwick, “divorce-court spitballs” have begun to fly. Joseph has argued that he converted to Judaism “under duress” to satisfy his in-laws, while also requesting and winning a new judge since the original judge was Jewish. Rebecca argues that she has sole custody of their daughter, and that the couple agreed to raise the child Jewish. Rebecca sent her to a Jewish preschool and believes that “exposure to another religion would ‘confuse’ her.” However, Joseph countered by saying that his daughter was not harmed by the baptism, and that under Illinois law a noncustodial parent can attend religious services with his or her child unless there is “’proof of harm to the child’ or it ‘interferes with the custodial parent’s selection of the child’s religion,’” which does seem to be the case here. Ultimately, Joseph believes that his religious freedoms have been violated.

The question that Lithwick raises is if a court can decide what religion your child will be. She argues that family courts violate constitutional freedoms all the time. Courts can bar you from interstate travel if you seek to move your child away from your ex, and can violate freedom of speech if they bar you from speaking ill of your ex in front of your children. In the end, as we continue to mention in class, it’s all about the children. While the author writes that “for most of us ‘there’s always only one way to heave, and its mine,’” she concedes that one parent will always been shut out of the decisions regarding a child’s upbringing, including their religious training.

The questions raised in this article and this case are tricky. On one hand, we need to take the education and upbringing of the child into consideration. However, religion is important to so many people, that it is understandable that these two parents have been reduced to petty squabbling. However, I do not think it is appropriate for a court to rule in this case. By choosing a side, the court will ultimately be forced to choose one religion over another. In the Supreme Court’s decision in Watson v. Jones (1871), the court was asked to rule on the issue of slavery between two sects of the Presbyterian Church. Justice Miller, in the Court Opinion, made the argument that civil judges are not as competent in religious law as religious tribunals are. “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” By ruling in a case like this, the court would clearly be forced to choose between two religions. This issue should be resolved between the parents, not through a secular court

            This article, discusses an aspect of religion that often encroaches in on the public sphere: that of charitable work.  The article centers around an atheist named Dale McGowan.  McGowan, in May 2005, decided to take his family to church at St. Mark’s Episcopal Cathedral in Minneapolis.  He did so because, although he did not hold religious convictions, he wanted his children to gain what he termed “religious literacy.”  While attending several services, McGowan did not garner religious beliefs; however, he did realize that churches did more than preach to their members.  He ascertained that churches are incredibly philanthropic organizations.  The church that he attended, for instance, held a weekly dinner for the homeless.  Congregations throughout the country hold similar activities as well as collect offering money to help those in need.  By witnessing such examples of charity, McGowan decided to emulate the church in its manner of giving by starting, in essence, an atheist’s collection plate.  Five years later, McGowan’s initial idea has taken the form of a nonprofit organization that receives donations from fellow atheists and distributes them to organizations in various fields of need.  The name of this organization is the Foundation Beyond Belief.  McGowan, although clearly not a promoter of religion, does believe that churches, through their works of charity, do help to aid those in need.  McGowan wants atheists, too, to be known for more than their unbelief.  “One of the things I’m trying to get past, is a dismissive attitude about why religious people give – that it’s out of fear, a fear of God or a fear of damnation.  It’s out of a human need.  And we secular humanists have to have enough self-confidence to look at what they’re doing right as well as wrong,” McGowan said.

            When reading this article I felt that it raised some poignant questions that related to our class discussions and readings throughout the semester.  When looking at the case of Bob Jones University v. United States, the Court decided that Bob Jones University could lose its tax exempt status due to the fact that it would not admit individuals engaged in interracial relationships.  The discussion of this case in class led us to further inquiries concerning the tax-exempt status of churches and governmental aid to faith-based initiatives.  I think that this article, once again, takes a look at the charitable nature of churches; and it allows us to go back to the question of whether or not churches should receive tax-exempt status.  One might also ask whether or not the tax-exempt status of churches violates the Lemon test, thereby violating the Establishment Clause.  Does this tax-exempt status have a secular purpose?  Does this tax-exempt status neither advance nor inhibit religion?  Lastly, does the tax-exempt status of churches create an excessive entanglement of church and state?

            When initially analyzing the tax-exempt status of churches during our discussion of the Bob Jones University case I thought that providing churches with tax-exempt status was a violation of the Establishment Clause.  I personally believed that this created an excessive entanglement of church and state.  Now, however, after reading more cases, and after looking at this article, I have changed my position.  In the article, McGowan feels incredibly strongly about the charitable work done by churches.  Churches do provide aid to the community in a myriad of ways; therefore, I do not believe that their tax-exempt status is in violation of the Establishment Clause.  Instead, the government is merely treating them neutrally.  The government grants charitable organizations tax-exempt status.  Personally, I think that if an organization meets the criteria necessary to be deemed a charitable organization, then it should be granted tax-exempt status.  It should not matter whether the organization is religiously affiliated or not.  I would treat this case of tax-exempt status similarly to that of the Rosenberger case.  In Rosenberger, the religiously affiliated publication, Wide Awake, at UVA was able to utilize school funds, because it met all of the neutral criteria.  The tax-exempt status of churches seems to mirror the Rosenberger case.  This article certainly brought to light the fact that churches do more than proselytize.  The charitable work of churches does encroach in on the public sphere; however, ultimately I think that allowing churches to be tax-exempt does have a secular purpose; it does not directly advance religion and it does not inhibit religion; and it does not create an excessive entanglement of church and state.

On January 5, 2010, just outside of Nashville in Wilson County Tennessee, the Wilson County School Board agreed to desist with their annual distribution of Bibles to elementary schools students. Earlier in the school year, all of the 5^th graders of Carroll-Oakland Elementary School, including Joann Doe, were taken to an assembly and introduced by the school’s principal to a contingent of representatives of The Gideons. After being told by their principal about her first time being given a Bible, The Gideons proceeded to tell the students about their world-wide Bible distributions. After this speech, each student was called up to the front of the assembly to receive their own copy of the bible; however, the taking of a Bible was not mandatory.

Like the other students of her class, Joann Doe felt pressured to go up and retrieve a Bible of her own due to fear of being ostracized and mocked by her peers. At this point, all the students returned to their respective classrooms and were instructed by their teachers to write their names in their Bibles for “personal use.”

Shortly thereafter, John and Jane Doe, Joann’s parents, went to the ACLU to complain about the Bible circulation. After receiving a letter threatening a lawsuit if the Bible dispersion did not desist, the Wilson County Board of Education agreed to stop the annual distribution of Bibles at Carroll-Oakland Elementary and all other Wilson County Schools.

During an interview on the TV show Fox & Friends Huckabee is quoted as stating, “You don’t want the school imposing a religious doctrine on kids. They’re absolutely right. And it’s very difficult for me to ever come to the place where I say I agree with the ACLU.”

This instance of Bible distribution is incredibly similar to other cases surrounding the religion and public school debates. It is clear in this case that the ACLU, along with the Doe family, is concerned with the implicit coercion effect that this has on the students. This is very similar to the situation presented in the Lee v. Weisman graduation ceremony conflict. While the school did not require each student to come up and receive a Bible, the assembly was in fact mandatory. We see a similar situation in Lee v. Weisman as students were not required to join in or stand for the prayer at the graduation ceremony, and in fact not technically “required” to attend graduation; however, one faces the same sort of ostracism and mockery by abstaining from or not attending the event.

Although this case was not taken to the courts, I believe the same outcome would have occurred. While the principal of the school did not mandate that each child take home a Bible, the teacher later had them each write their names in their individual Bibles for “personal use.” If this isn’t an act of coercion, I’m not entirely sure what is! I’m even more shocked to find myself agreeing with Huckabee in his statement that “you don’t want the school imposing a religious doctrine on kids.”

What I’d like to think about with this situation is a hypothetical situation. What if they school board had refused to sign the agreement? If this case had gone to the courts, do we think the courts would strike down the school’s practice of Bible distribution? On what grounds would they have done so? Coercion? Or, do we think the courts might have upheld the practice since “technically” the taking of a Bible was not mandated by the school officials? Just some food for thought…

The Pledge of Allegiance is recited by millions of students across the United States as a form of patriotism that goes back all the way to their first day of school. Usually before class begins, the principal’s voice on the intercom tells everyone to stand for the pledge; they recite it, and get on with their school day. Although, many students recite the pledge without a care about word context within each stanza, some parents view this as going against everything they stand for. So, the premise of this article focuses on a group of atheist parents from Sacramento, California viewing the pledge as indoctrinating their children about God and how the Court of Appeals ruled against them.

The case titled Newdow v. Rio Linda Union School District was brought into the 9th Circuit Court of Appeals in San Francisco, California in December 2007. The argument stems from teacher-led reciting of the Pledge of Allegiance and the reciting of the phrase “one nation under God” that brought atheist parents together on the issue. The plantiff Michael Newdow, a prominent lawyer and atheist, has been pushing this case towards the Supreme Court in 2004. The justices dismissed his case on technical grounds causing him to look for other parents to strengthen his case. However, the 9th Court of Appeals did not see the pledge as a religious message but a traditional patriotic exercise as they ruled 2-1 against Newdow. The dissenting judge, Stephen Reinhardt saw the pledge as being overtly religious forcing many students to recite something they truly do not believe in. However, Newdow still is going to push this issue for rehearing and if that fails back to the Supreme Court, but he believes its pretty futile.

The big question this article presents deals with none other than the Establishment Clause. In the many court cases that we have read dealing with schools and religion from Engel v. Vitale to Everson v. Board of Education of Ewing TP, we see the Establishment Clause show how a mention of God or religion by the government in a public setting such as schools does not violate the law of separation of church and state. However, the Establishment Clause does fall under scrutiny as many of us has seen the Ten Commandments in Courthouses or prayer lead before the beginning of a high school football game i.e. Santa Fe Independent School District v. DOE.

When it comes to my opinion on the subject matter I believe that the 9th circuit Court of Appeals ruled this case pretty fairly. I believe that while some people see the pledge going against everything they stand for the schools can’t simply cater to the minority when it will greatly affect the majority. Unless the atheist parents could get everyone in the school system on their side on the issue then maybe I might reconsider my answer, but it seems that this will not be happening anytime soon.

Over and over in class I hear this statement. That the constitution of the United States of America is in fact one of the most secular documents composed. I for one am partial to secularism within the government realm because I feel that when it comes to religion human beings inevitably make it personal and emotional. After all religion is both personal and emotional and should be left to the decision of the person by the person not for others. But the question is not whether I agree with it but rather is it true and how do Americans feel about this? I feel that when American vote they take into account their morals and through this their religion. The question is although, is that what are founding fathers would have wanted us to do? When the United States was becoming just that did our founding fathers intend for us to make decisions of government nature using our religion as a crutch? Even more so it comes to mind that the founding fathers didn’t know about religions such as Scientology. I find it interesting that this article brings to life a point that many American overlook and should on the contrary take into account and use as a benefit. It states “If religionists better understood the concept of separation of Church & State, they would realize that the wall of separation actually protects their religion. Our secular government allows the free expression of religion and non religion. Today, religions flourish in America; we have more churches than Seven-Elevens.” This is such a wonderfully worded statement that appeals to twenty-first century Americans. So many people believe that America has a “secular constitution” and they automatically insinuate that it is a negative aspect of the country. But on the contrary it is what makes us free. What gives us the opportunity to believe what we want and have that right protected by the government of the country we call home? Think about different countries around the world that do not let their citizens do so. For example, here at Georgia State University I am able to attend Catholic mass during our school wide lunch break, I can go to confession with the priest and we pray the rosary before the actual mass. In Honduras it has been a tradition for decades to have mass during lent. The students are by no means obligated but they can go if they please. The country’s new government has declared it unconstitutional to have this continue arguing separation between church and state. I feel lucky to be able to attend mass at Georgia State where I am sure that the population is not ninety some percent Catholic and Honduras who’s is will not allow their students to willingly practice or have the option of mass at school. This is where this article comes in. Bottom line is that the United States constitution was not created to get rid of religion but to allow it to flourish. One religion will never be favored over another, not because they disregard religion in general but because they respect them all equally. Aid will not be provided to one religion over the other. Not because the government wants the religion to fail but because it should be a fight for the followers to allow it to flourish and in the process enrich them within it. A demonstrated by this statement; “Although many secular and atheist groups fight for the wall of separation, this does not mean that they wish to lawfully eliminate religion from society. On the contrary, you will find no secular or atheist group attempting to ban Christianity, or any other religion from American society. Keeping religion separate allows atheists and religionists alike, to practice their belief systems, regardless how ridiculous they may seem, without government intervention.” The constitution was created to establish order and as a basis of our country’s foundation. Just as we respect its content we must acknowledge that it was created to help us respect each other.

Some of you may recall last week's reported debate raging in Texas over updating that state's school curriculum. Much to the chagrin of secularists and historians, the final selections chosen by the school board in that state have in part reversed a decades-long trend where schools espouse sometimes-unpleasant historical fact and replaced it with comfortable personal beliefs held by the board in question. This article lays out some of the changes made by the board.

It makes me wonder how, in this day and age, such occurrences are still capable. Certainly one would expect flare-ups like this when discussing the topic of human evolution and how it does not wholly agree with Creationist theory, for that is a debate that is still unsettled. But to remove Thomas Jefferson from a listing of influential citizens of the era, simply because he was a secularist? There are boundaries that really should not be crossed, and this one ranks among them. It's censorship based on personal preference.

But what would the courts say? Though the school boards in this country have a long-standing tradition of voting on upcoming curriculum, such a change as that seen in Texas is so radical that it entered the national eye. To me, this is indicative of controversy, and we all know how the courts tend to take up controversial issues.

This isn't excessive entanglement, however, based on the precedent set for years by school boards. THe Lemon Test is passed. Rather, it strikes me as an abuse of power and position by the conservative members of the board who have forsaken their duty to guide children toward adulthood and replaced it with their own prejudices and ill-formed conceptions. The article quotes a David Bradley, voting member of the school board, as saying “I reject the notion by the left of a constitutional separation of church and state." That's all well and good as an opinion, Mr. Bradley, but - as the article points out - the Establishment Clause has never been repealed. While it's true that the actual phrase "separation of church and state" does not appear in the Constitution, its common-law application goes back through the centuries beginning with Howe. Jefferson endorsed it, as seen in both his Treatise on Religious Freedom and his Danbury Church letter. But because it's unpleasant to the religious members of the board, it is to be censored.

This is not simply a local issue, either. Traditionally Texas has been the trend-setter for school boards across the country. If that state has chosen to reject historical fact in favor of personal biases, one can only hope that other states - regardless of their political or religious persuasion - will not follow the pattern seen in the Lone Star State.

Recently the Supreme Court upheld a decision by the US Circuit Court of Appeals in San Francisco to allow a school district in the state of Washington to veto an orchestral religious piece at a public high school graduation. The Supreme Court in a split decision upheld the ruling of the appeals court that the school officials decision to keep the graduation ceremony secular was a reasonable effort to avoid a constitutional controversy. Traditionally, graduating members of the schools orchestra could choose what they played from their list of songs. Although the song they chose, “Ave Maria,” contained references to god, heaven, and angels, the students had elected to perform a strictly instrumental only version, which they had previously performed in choir recitals. The student who brought the appeal, Kathryn Nurre, claimed that the decision to play “Ave Maria” was made on artistic, not religious grounds, and that the freedom of speech of the members of the orchestra were being violated. Religious and artistic imagery in public settings has been a major constitutional issue since Marsh v Chambers in 1983, and continues to prove pertinent today.

When looking at the ruling in this case one must begin by examining the applicability of the Lemon Test. For starters, and most importantly, is there a secular purpose in this case? By this I of course mean: does the performance of “Ave Maria” at a high school graduation have a secular purpose, or is it clearly a medium for religion. I believe that in this case, with an instrumental only recital, the purpose is explicitly secular. How can performing a piece with instruments only insight religion? The answer is that it can’t, and rather that it’s simply a form of art intended only for the audience’s pleasure, and a clear expression of freedom of speech.

Secondly, is the primary effect of the recital of this song intended to advance religion? Hearing an instrumental version of this song provides no religious effect and furthermore provides less of a religious effect than say God Bless America. While of course one could hone in on the specifics of the song and its original message, would this really be its primary effect in this context? Finally and perhaps the question that should have been addressed first: is there excessive entanglement on the government’s behalf? Taxes go to the government, and from there money is allocated to public schools, so in effect has the government funded a religious orchestra performance? I think that this question is probably the hardest to answer because even if there is the slightest shred of evidence that religion is being promoted than the answer is yes they have, but I do not believe that to be the case here. On the surface, Pawtucket displays of nativity scenes and Nebraska state legislature opening prayers, which we saw in Lynch v Donnelly and Marsh v Chambers respectively, appear to be excessive entanglements of the government. After further dissection however, in both cases, it was ruled that both were constitutionally acceptable because of our countries unique Judeo Christian history and the overall secular purpose both performed. I would like to know how an orchestra performing an instrumental piece at a high school graduation is any different. Clearly all three situations raise eyebrows; however consistency in rulings is a necessary mean and thus the same logic used in Lynch v Donnelly and Marsh v Chambers, should be applied here.

It is possible that opponents of an orchestra performance like such could maintain that religiously routed music belongs in private not public schools, and any shred of religious material is influential and therefore unacceptable. Isn’t it true however that allowing kids in public schools to where turbans, yarmulkes, or crosses, exposes others to religious symbolism. Just as though there exists no compelling state interest to prohibit turbans, yarmulkes, or crosses, in public schools, the same goes for an instrumental version of “Ave Maria.” While it is understood that no right is absolute, the right to freedom of speech, which is clearly in play here, has larger implications as we move forward.