Religion & American Law

Many will remember that a large part of the “No Child Left Behind” school initiative that was passed by the Bush administration was concerned with providing school vouchers for families of students who feel the public school system does not sufficiently meet students educational needs. In theory, vouchers seem like a viable solution for improving the level of education for America’s students. Families are provide with a given amount of money to put toward tuition in a private school of their choosing, implying that parents will be able to find a school that will provide a first-rate education. Much debate has centered on the efficacy of voucher programs, and the funding of these programs continues to be an issue within state and national legislative bodies.

A recent post on Americans United for the Separation of Church and State investigates Senator Lieberman’s “personal mission” to renew funding for the voucher program in Washington, DC. The post presents the views of those who oppose the program and the reasons they feel it does not work. It cites three US Department of Education studies that show “no significant improvement in the reading and math scores of D.C. voucher students coming from schools in need of improvement.” The post also cites a 2007 Government Accountability Office report that “found participating private schools lacked occupancy permits and employed teachers without bachelors’ degrees.” Such evidence would seem to suggest that voucher programs are not an effective means to improve American education.

In addition to raising questions about efficacy, voucher debates raise questions of establishment. In the Supreme Court case Zelman v Simmons-Harris (2002) the question of establishment was addressed concerning the voucher system in Cleveland, OH. The issue that arose in Cleveland was that 96% of the students who opted for the voucher applied it toward tuition into religious schools. The reason for such a high percentage going to religious schools rather than non-religious private schools was that the amount of money provided by the voucher would not pay enough of the non-religious schools. Implicitly, the higher costing private schools offer better resources for learning and a better overall education.

The Majority opinion of the Court found that Cleveland’s voucher program did not violate the establishment clause because the program was deemed formally neutral in purpose. The dissenting opinion argued that the effect should also be taken into account. According to the post, “approximately 82% of DC voucher students attended religious schools in 2009.” It seems likely that no voucher program can logistically offer enough money to allow students to attend the higher priced, non-religious private schools, so the majority of students will tend to go to cheaper religious schools. The Americans United post explains that the DC voucher program, which provides almost three times the amount of money as Cleveland’s, does not provide “parents nearly enough money to cover the tuition for Sidwell Friends, the elite private school attended by Obama’s daughters.”

The post also states that the majority of people who are supporting Sen. Lieberman in his ‘mission’ are religious groups: “Religious Right groups, right-wing think tanks, anti-public school forces and religious school lobbies.” This would seem to point to the fact that the purpose of voucher program legislation is to promote religious teaching rather than improve student learning.

There are, of course, a multitude of issues that contribute to the difficulties faced by public education. However, after teaching for five years in North Carolina Public Schools, I have been convinced that two of the biggest problems arise from insufficient funding and classroom overcrowding. These problems absolutely cannot be fixed by incorporating a voucher program. I think money that is wasted in voucher programs should be redirected into the public schools to lower the student-teacher ratio and improve educational facilities and resources.

As The Christian celebration of Easter came and went the United States paid particular attention to one mans family as they entered a church on Sunday for the Easter service. The Obama family attended a South Washington DC church in hopes of finding a good Easter service. With the usual flash photography as he entered the predominately “black” church, he and his family scurried to their pew upon their late arrival. This however is not the church that they attend. In fact, there is not a church that they “officially” attend.

http://news.yahoo.com/s/ap/20100404/ap_on_go_pr_wh/us_obama_church

While, for most of us, it is nice that he attends a church on major holidays, there is still the question of “what does this man believe?” In his own recent statement he clarifies that he has not yet found a church and plans to end the search for the time, as there are more pressing issues. Surprisingly, the public has said much toward this claim. Why is it so important for the Christians of this country to have a leader that believes in the God that they believe in? Do they feel that this will lend moral insight on laws and events? Probably. Although this might be against what most non-Christians want to believe, it undoubtedly shapes the way in which the president views the issues at hand. For example, laws against abortion are a predominately rightwing idea. They are also, for the majority, a Christian thought. As most know, the majority of right-wingers are also Christians.

To be honest, I don’t feel like Obama believes much of anything. Since before his election to office he has been plagued with questions of his spiritual beliefs. He has also been ridiculed for past religious acquaintances. He has had to serve the public for more than a year now. He has occasionally gone to church, but when asked about it he pushes it aside and says that there are more important things like heath care. Christians believe that there is nothing more important than ones religion, specifically their religion. To suggest that the healthcare plan is not God led should have raised some eyebrows. He has been serving the public eye long enough and now he feels confident to pursue courses of action without the guidance of God as envisioned by the eye of the masses.

What does this mean for the nation? Does the nation seem to care less about God led decisions and more about how it affects them and their families? Not really, this has always been the way of people. Just because people are looking out for ‘number one’ does not mean they are abandoning faith. People, now more than ever are accepting a separation of church and state, even on the personal level. It is the same as being in a religious studies class. The teachings are very secular and the discussions are far from God led. Religious thinkers must have a ‘momentary suspension of beliefs’ in order to function within the discussion. I personally have found this to be a very difficult task. If it is so difficult for me then it should be equally as difficult for the rest of humanity. Does Obama believe in a God? Who knows? He is however still led by a nation that, for the majority, believes in a higher power. Because of this, Obama is still held to the moral standards and responsibilities of a God led nation.

Is music, religion? Can a piece of classical music with no lyrics violate the Establishment Clause? The Supreme Court, in their failure to grant certiorari to Nurre v. Whitehead believes so. In light of the recent case we’ve read involving prayer at graduation ceremonies, it was very interesting to see this case come before the Supreme Court. It was not prayer at graduation that was the problem, this time it was music. The high school band chose the instrumental song “Ave Maria” because the piece showcased their musical skills. The administration vetoed the song based on the title for fear that it would incite opposition on the basis of religion. The school administration was also reacting to an incident at the previous graduation where the students selected a song containing lyrical references to “God”, “heaven,” and “angels” which caused some complaint and encouraged the superintendent to veto “Ave Maria” for fear of a repeat incident. A student member of the band (Nurre), sued the school administration for violation of her first and fourteenth amendment rights, namely free speech. The 9^th Circuit Court ruled that the student’s rights were not violated. They indicated that the graduation contained a captive audience and promoting a religious message to said captive audience would have been a violation of the Establishment Clause. The Supreme Court (with a rare dissent from Justice Alito) decided not to hear the case, allowing the lower court ruling to stand. [Alito’s dissent is at the bottom]. The text of the case contains some very interesting reasoning. The 9^th circuit court applied Lemon and other prior precedents to rule in favor of the school, but there is an interesting point that was not addressed by either the dissent in the case or the Supreme Court appeal. What is at stake is the overtly religious nature of “Ave Maria” and the belief that the approval of such a piece by the school violated the Establishment Clause. In his partial dissent on the case Judge Smith concurred that the student’s rights were not violated, but disagreed that “Ave Maria” would violate the Establishment Clause. Smith discussed the history of music and placed music from this classical music period in a historical music context that he believed exempted the piece from overtly religious association. What is interesting and mostly unexplored is the majority agreement that music is speech and in this case even instrumental music with no lyrics is also speech. A reasonable argument could be made that lyrics in a piece of music could be speech, especially since they can be removed from the music piece and stand on their own as speech. Conversely, a purely instrumental piece, to be considered speech and religious enough to be considered a violation of the Establishment Clause is subject to a series of tests in itself. In the absence of lyrics of any kind, the musical piece would have to be recognizable as religious by a reasonable person. Even if that is satisfied, the same piece would also have to be recognized by a reasonable person to contain a religious message that is so universally understood so as to represent a religious point of view with a level of particularity that the religious message could be conveyed simply from the hearing of a particular collection of musical notes played together. I do not think the case has provided enough evidence to draw this conclusion. I would also argue that should such a universally recognized message be apparent to a reasonable citizen based purely on an instrumental rendition, I think you could argue that it then represents some form of cultural memory that would be akin to the same logic that allows “One nation under God” to be considered a non-religious patriotic assertion in the eyes of the Court. I think the 9^th Circuit Court got it wrong in this case. Either instrumental music is not speech at all and the administration was not justified in their disallowing of the piece, or the idea of a universally understood religious message embedded and recognized within an instrumental piece has not been in any way substantiated and thus should not have resulted in a veto.

In Milburn New Jersey, Rabbi Mendel Bogomilsky in the process of applying for building permits in order to build a 16.000-square-foot, 144-seat Dutch colonial style synagogue and social center with a parking site for 50 cars. As one of the 4,000 emissaries of the Brooklyn-based Lubavitch Hasidic group, Rabbi Bogomilsky has been conducting his religious services out of the two homes he personally owns because the township of Milburn does not have an Orthodox house of worship. He has been able to draw in 30-40 worshipers on the Sabbath and 150 on the High Holy Days. The neighborhood began complaining about the overwhelming number of vehicles flooding the streets and other disturbances to the neighborhood’s tranquility and sued in order to stop the services. The state judge urged the parties to settle the matter themselves. As a result, the town did not make Rabbi Bogomilsky pay the potential $500,000 in fines and in return Rabbi Bogomilsky agreed to seek an actual synagogue elsewhere. However, little did the town realize that this would lead to his development plans of tearing down his houses and creating his own synagogue in the middle of the neighborhood.




Neighbors are banding together and calling themselves “Concerned Neighborhood Association of Millburn Township” in order to protest the development plans. Despite the fact that approximately 1/3 of the town is of the Jewish faith, many residents who are Jewish are joining in the movement against Rabbi Bogomilsky. They argue that the building of this synagogue will not only disrupt the peace by being located in the middle of the neighborhood but they also fear that it will not just be a place of worship. They believe the central issue is that a synagogue on a small plot within the neighborhood could allow for other business, such as day care centers or shelters, to do the same.
This is a classic example of someone pushing a law to the extreme. I do not believe it was the original intent of the law to have an entire congregation held within a personal home. If this case is advanced through the court system, I believe the court would rule in favor of the community because of the precedent set forth in Braunfield v. Brown, in which the Supreme Court upheld the Pennsylvania Sunday closing laws because it was seen as the state’s best interest to promote a peaceful day of relaxation.

Legally, Rabbi Bogomilsky has the right to host prayer services in his home because of a recent New Jersey case law that upheld this right. However, when Rabbi Bogomilsky starts applying for the zoning permits to begin construction, he is now involving the state is his plan. If the state approves the zoning permits, it could be argued by those who are against the building plans that it would further allow for the establishment of a town religion by other businesses following the same footsteps of the synagogue. On the flip side it also could be argued by those who are in favor of the building permits that by not approving the building permits it would be directly hindering the religion because there is not an Orthodox house of worship within the town. However, the people of Millburn are not protesting the idea of building a synagogue but rather the location of it. By ruling against Rabbi Bogomilsky’s building plans, it would not be a case of discrimination because the issue is not that a place of worship is being built but rather that a place of worship is being built in middle of where people live and raise their families. The community would probably protest the same if a Wal-Mart was being built in the exact location.

In this blogpost on ACLU’s blog, ACLU reviews a case it is currently pursuing. The ACLU is suing on behalf of the members of ACLU of Massachusetts because said members object that their tax dollars are being funneled by the Department of Health and Human Services (HHS) to the United States Conference of Catholic Bishops (USCCB). The USCCB uses this money to help victims of human trafficking; however, it does not allow anyone who comes to it for help to seek contraceptive or abortion services. That is, the USCCB refuses to let federal funds go to contraceptive or abortion services because of its religious beliefs. Hence, the ACLU sued.

I told you all that to tell you this: the government asked that the case be dismissed based upon a US Supreme Court decision in Hein v. Freedom From Religion Foundation. In that case, “which barred taxpayers from challenging the funding of regional conferences hosted by the Bush administration to promote its so-called ‘Faith-Based Initiative.’” This decision has since been used to argue that taxpayers do not have standing to sue the government over the use of tax dollars. Crisis narrowly averted in this case, though, for the federal court in Massachusetts did not dismiss the case.

However, this does bring up an interesting question. In many of the court cases we’ve read in class, such as Everson v. Board of Education of Ewing, the Court has said in its decisions that taxpayers have an interest in how that money is being used. A non-Catholic, for example, shouldn’t have to pay for a Catholic school. To argue otherwise could make challenges based on Establishment Clause almost impossible. However, would a challenge against school prayer have worked in Engel v. Vitale if Engel wasn’t a student? Could a citizen who did not have a child in school have challenged school prayer? In theory, certainly, in practice… And, if the Freed From Religion Foundation couldn’t challenge the funding of conferences to promote “Faith-Based Intiatives” as taxpayers, who can? Could a citizen challenge faith-based initiatives because of the use of taxpayer money? Is the right of a citizen to sue over spending tax money as absolute as Judge Richard Stearns suggests? And does it need to be so absolute?

In Kitzmiller v. Dover Area School District, we were given definitions of science and of religion to give these terms explicit meanings in order to close the issue of curriculum.This article makes it clear that we need some more definitions. In light of the December bombing of 2009, the government has attempted to come up with an informational system that will prevent potential bombers from getting onto planes. “The new approach will replace a broader layer of extra scrutiny that had been imposed recently on all passengers from 14 countries, most of which are Muslim.” The word Muslim is not said anywhere else in the article. In fact the “new” system is not profiling, because it uses information. Ok, so what is profiling? Dictionary.com says it is “the use of specific characteristics, as race or age, to make generalizations about a person, as whether he or she may be engaged in illegal activity.” (Merriam Webster has commercial and racial profiling but not generic profiling.) So what is the difference between that and the new government approved safety system? According to the administration official “It’s much more tailored to what intelligence is telling us and what the threat is telling us, as opposed to stopping all individuals from a particular nationality or all individuals using a particular passport.” To me that just sounds like profiling tailored to the needs of the profiler. All of this brings me back to the word “Muslim”. I understand that in an attempt to stop potential terrorists from blowing up planes we need to target and stop those who are trying to blow up the planes, and at the moment most of these people are coming from Muslim countries. I get that. And I can understand the logic behind it. But can we do that? If judges on the Supreme Court can set precedents ruling that Rabbis are not allowed to say a carefully constructed prayer at a high school graduation because it would offend at most 50 students and their parents, how can we put limits on Muslim countries that basically says “Muslims are terrorists” which offends a few million people? Unfortunately I do not know enough about how airport laws work. Airline companies are privately owned and this issue deals with flights coming into America from other countries. Do the airline companies have to check with the host countries before they put these new systems in place? At the very basest level, isn’t there a possibility of that hurting the American businesses? I know that the business and economics is not the priority of the government and I don’t think that it should be, but I do think that it is a valid question as long as the government is going to try to control as many aspects of business and economics as it can. The first two words of this article are “President Obama” followed by “has signed off on new security protocols for people flying to the United States” which from a grammatical view was a bad word choice cause “signed off” could mean he hates it or approves of it, but the President of the United States has endorsed this security system. At the moment, I don’t think anyone will even think of questioning it because everyone is so afraid of being blown up on a plane. But just for a minute, imagine if this was to go to court. The questions being “Is this a constitutional security system?” and the answer would probably be “of course, desperate times and desperate measures you know…” but would it fly if fear was not in the equation? Is putting security systems based on “intelligence” coming from different streams of government intelligence to screen all those entering the United State from these 14 (many Muslim) countries going to offend people, and is it Constitutional to do so? What do you think?