Religion & American Law

On April 9th, Supreme Court Justice John Paul Stevens announced that he will be retiring from the Court at the close of the current term, assuming that President Obama has found a fitting replacement for him. This announcement has been met with a great deal of buzz in the political world, and the question as to the religion of the new Justice has come into play. In this article from the Associated Baptist Press, many of the issues related to religion and the Supreme Court are discussed.

As it stands, Justice Stevens is the only Protestant Justice still sitting on the High Court. The remainder of the Court is comprised of six Catholic members and two Jews, which is highly uncharacteristic of a Court that has historically been dominated by Protestants. While the arguments about numbers and ratios of the religious faiths represented hold a great deal of water in this situation, it is interesting to look back on Justice Stevens’ personal record as related to cases dealing with the Religion Clauses.

While Stevens is generally considered the most liberal member of the Court and his jurisprudence has only drifted further left, the Court itself has seen an overall shift toward the right in membership. Stevens has consistently opposed government entities that have promoted or endorsed religion, most notably seen in Wallace v. Jaffree (1985) and Santa Fe Independent School District v. Doe (2000). Not surprisingly, Stevens has often been criticized for his firm stance on Establishment. Writing the Minority Opinion in Santa Fe, Chief Justice Rehnquist said that Justice Stevens’ Majority Opinion “bristles with hostility to all things religious in public life.”

Interestingly, though, Justice Stevens has been somewhat inconsistent in decisions dealing with Free Exercise claims. In the 1990 Employment Division v. Smith, Stevens joined the majority in striking down the use of Peyote by Native Americans as part of their religious practices. This was one of the most controversial cases dealing with religious liberties that the Court has handed down in recent history. Speaking of this decision, Brent Walker of the Washington-based Baptist Joint Committee for Religious Liberty said that Smith “gutted the Free Exercise Clause of its robust religious-liberty protection for all Americans.” In other cases, however, Stevens did vote in favor of protections for religious groups (Church of the Lukumi Babalu Aye v. City of Hialeah and Lamb’s Chapel v. Center Moriches Union School District, both in 1993).

I think the overarching issue that needs to be examined is Justice Stevens’ tenure on the Court in the context we discussed last week in class relating to the Feldman article, “A Christian America and the Separation of Church and State.” We discussed the seemingly inconsistent manner in which the Court has decided cases dealing with minority religious perspectives. It is evident that our country has developed with a strong Protestant influence and faith, and only sparingly has the Court ruled in favor of the minority groups. How can this be explained? Does the overall religious makeup of the Court have anything to do with this? Will it matter at all if there are no more Protestant members left on the Court? There are groups calling for the President to nominate someone as dedicated to the separation of church and state as Stevens was, and still others who want someone who will provide a more consistent voice in the Free Exercise realm. I wonder, though, if it might be time to call for a nominee of a true religious and cultural minority. The most recent addition to the Court was Justice Sonia Sotomayor, only the third female Justice and the first one of Hispanic heritage. Given the religious melting-pot that our nation has come to be, maybe it is time for the Highest Court to resemble such diversity.

By now, most of us have probably heard about the mine explosion that occurred last Monday in West Virginia. The tragic event left 25 dead and many others injured. What some might not have heard is that the Westboro Baptist Church has made their way up to West Virginia to make known their sentiments regarding the situation. For those unfamiliar with the Westboro Baptist Church, a few years ago they became infamous for showing up to funerals of American soldiers with signs that read “God hates homosexuals,” claiming that the death of soldiers in Iraq and Afghanistan was due to America's toleration homosexuality.

Before what was to be an excursion to West Virginia for protests unrelated to the mining incident, the Church claimed to have received threats about their trip. When the mine exploded, they saw it as a vindication of their mission and condemnation of those who were against them. A quote from the NY times article on the group (from the website of the group) reads, “So God reached down and smacked one of those mines, killing 25 (and likely four more are dead),” it said. “Now you moan and wallow in self-pity, and pour over the details of the dead rebels’ lives, pretending they’re heroes.”

The Supreme Court has already agreed to hear the case of Albert Snyder, father of American soldier Lance Snyder, whose case concerns the Westboro Baptist’s Church’s protest at his son’s funeral. The lower court’s struck down this case on First Amendment grounds claiming that the Church’s members were protected on free speech grounds.

It seems likely that the Supreme Court will also rule in favor of the Church. They are a private religious group with no governmental connections. In many of the cases our class looked at for this week, Goldman v. Weinberger and Sherbert v. Verner to name two, the government played a role in the restriction of free exercise. The role of government interest seems also to be the sticking point for the Court’s decision regarding the restriction of free speech and exercise. Here, the government has played no such role. One could perhaps argue that the Church is defaming the military and therefore the government has a “compelling interest” in restricting the Church's speech. But this would be a stretch since the influence of the group is relatively small, save for the large amount of media attention that they have received. In other words, there is no indication that the Church is a real threat to the government or people and therefore no compelling reason to restrict their speech and exercise.

Unfortunately, it seems likely the public will have to continue to put up with the Westboro Baptist Church and their protests in West Virginia and soldiers' funerals. Perhaps, if there is a positive side to the case, it is that it pushes our appreciation of First Amendment rights to the limit. If we can put up with this, then we can probably put up with anything. And in the end it teaches us about the underside of the First Amendment that we sometimes forget.

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.