Religion & American Law

This article from the Huffington Post describes a recent ruling by a Federal District Judge on the constitutionality of National Prayer Day. In her opinion, Judge Barbara Crabb ruled that the upcoming National Prayer Day 2010 is unconstitutional and should be canceled. Needless to say, this decision has garnered a great deal of criticism. Even the Obama Administration has started an inquiry into what can legally be done to overturn this ruling. Justice Crabb stated the United States government should have no say over “whether or when” an individual prays. Additionally, Judge Crabb describes prayer as something that is completely personal. Any declaration of a prayer day, by the government, can be viewed as an issue of establishment. The issue of establishment is clearly defined in the First Amendment of the Constitution. Justice Crabb went on to say, “In this instance, government has taken sides on a matter that must be left to individual conscience.” She finishes her opinion by stating that her ruling in no way bars the declaration of official prayer days until all legal means of appealing the ruling have been utilized.

In response, the American Center for Law and Justice expressed displeasure about the ruling. The ACLJ’s Chief Counsel Jay Sekulow asserted that this decision is a blatant disregard for the religious tradition of the United States. Mr. Sekulow believes that the National Prayer Day in no way breaches the Establishment Clause of the First Amendment. In fact, Sekulow argues that the National Prayer Day is a sign of respect for the role that religion played in shaping the nation. Additional criticism for this ruling has come from the White House. Representatives of the Obama Administration have stated that President Obama still plans to recognize a National Prayer Day. According to presidential representatives, the National Prayer Day in no way violates the Establishment Clause. Rather, as the ACLJ also suggests, the tradition of holding a National Prayer Day has unequivocally upheld the First Amendment. The government argues that the National Prayer Day does not impose a religion on any individual; it only celebrates the role of religion in the United States.



It is undoubtedly the case that Judge Crabb’s decision has gone against a long tradition of holding a national day of prayer in the United States. But, is she correct that the National Prayer Day breaches the Establishment Clause of the First Amendment? In my opinion, the National Prayer Day does not establish any form of religion in the country. Although the religious history of the United States is founded in Protestantism, it is not the case that the National Prayer Day favors any particular religion. It is merely a day to celebrate the freedom of religion that is granted to all citizens. Furthermore, the Prayer Day does not directly bias non-religion. Individuals are not being coerced in to participating in this day or any activities related to it. The government setting aside a single day to celebrate a certain activity hardly constitutes religious establishment. For these reasons, I believe that that Federal District Judge’s decision will eventually have little effect on the future of National Prayer Day.

The realization that National Prayer Day has never been struck down as unconstitutional, until this point, is indicative of the widely held belief that National Prayer Day does not constitute an establishment of religion. Along these lines it has also been argued that the Prayer Day is not an excessive entanglement of government and religion. I agree that this single day of recognition is not an example of excessive entanglement and furthermore does not violate the Establishment Clause. This issue can be paralleled to the decision in Marsh v Chambers. In Chambers, the Court ruled that the unique history of religion in the United States shows that a publicly funded prayer does not infringe on the Establishment Clause of the First Amendment. While there are other arguments made in the Chambers ruling, I believe that the issue of tradition is the most pertinent to the decision on National Prayer Day. If the argument of tradition can be used to show that a publicly funded prayer does not violate the Establishment Clause then it is unreasonable to suggest that the a National Prayer Day, which is not tied to any specific religion, establishes a national religion. In this way, Marsh v Chambers sets a precedent for the government arguing that the secular reason of celebrating the tradition of religion through publicly sponsored prayer is constitutional.

The most difficult issue surrounding this decision is whether or not a National Prayer Day discriminates against those individuals who are non-religious. Although I quickly brushed this issue aside at the beginning of this post, it is the most common argument made in favor of Judge Crabb’s ruling. The notion of prayer is undeniably linked to religion or at least faith in general. It may be argued that by the government establishing a National Prayer Day, the state is in turn violating the rights of atheists who do not believe in religion. However, this argument seems to be logically invalid. There are plenty of examples of “National” holidays that could be said to discriminate against anyone who does not believe in their religious underpinnings. If it is the case that the National Prayer Day violates individuals rights under the First Amendment, then so must every other holiday that has some form of religious history. (For example, Thanksgiving) However, this is not the case. The National Prayer Day is no more an establishment of religion than any other governmentally recognized holiday. The government has a secular reason for celebrating religion. Simply put, prayer has played a major role in constructing the nation. It therefore has a secular right to be recognized and it is important to do so. The National Prayer Day does not serve as an establishment of religion but rather as a way to inform citizens of their history and the role religion has played in it. For these reasons I believe that Judge Crabb’s ruling, that the National Prayer Day is unconstitutional, is unfounded and will eventually be overturned by the appeals process.

Following a trend set in New York and Washington DC, Catholic leaders in Indianapolis have decided to convert two parochial schools into state-funded charter schools. However, this marks the first time that an archdiocese will run public charter schools. In order to qualify for almost $1 million in funding for the first year, the schools St. Anthony’s and St. Andrew and St. Rita’s Academy will have to undergo significant changes. All prayer, Bibles and religious icons have to be removed from the school and religious education during the school day will end. Teachers will also have to undergo strict lessons on the constitutional duties of public school teachers, and all of the teachers will have to reapply for their jobs, though the archdiocese expects most of the teachers to return. Americans United for Separation of Church and State has taken on the role of watchdog, to ensure that the archdiocese goes through with its promises to remove the church from the now state-funded schools. The president of the group’s chapter in Indiana stated, “we are certainly going to be watching the situation as closely as we can and making noise about it when we see things going on that should not be”. The schools will even be renamed this summer. The schools are in very low-income areas and as such, the archdiocese has a long history of subsidizing them. While the schools are not overjoyed about the decision to apply for charter status, parents are very excited about only having to pay for textbook rental once the conversion is complete.

The mayor sees this as an innovative way to keep good schools open in neighborhoods that are underprivileged, and as a way to ensure that these struggling parochial schools stay open. Indianapolis is a unique situation because ADI Charter Schools Inc, a non-profit set up by the archdiocese will continue to run the schools once they are converted. The parochial schools that were converted in New York and Washington DC were turned over to a secular organization. As families continue to find it more difficult to pay parochial school tuition, more schools are looking into converting to charter schools. Officials feel confident that the schools will successfully be able to separate religion from the school through secular adaptation of the state-approved character education curriculum already used in the city's urban Catholic schools. Parents are confident that children will still learn the same Catholic values in these schools through parental involvement at the school and ensuring that their children remain active in their local parishes. Greg Richmond, president of the National Association of Charter School Authorizers, stresses that “the schools will have to walk a fine line…This switch goes far beyond saying, ‘Well, we're no longer going to say prayers.’ There is a whole set of obligations that public schools have to students and to the public that private schools do not have”.

Once again we see the collision of the state and religion in schools. Like many of the cases we have read in class this article discusses the role religion is going to play in the running of a public school. However, in this case the school was previously run privately by the Catholic Church and is converting to a public charter school as a result of financial troubles. Additionally, there have been previous, successful transitions of parochial schools into secular charter schools, but they have been run afterwards by secular organizations. In Indianapolis, the non-profit that will be running the schools is organized by the archdiocese. This can present some potential problems in keeping the schools secular, as will the parental involvement. Parents want to make sure that their children still receive the same Catholic morals that they were receiving before the school became public. The school will have to be very careful to not promote anything religious, as they will be closely watched. As we saw in Santa Fe Independent School District v. Doe, Wallace v. Jaffree, and Edwards v. Aguillard, the court is becoming increasingly strict on religious activities occurring during the school day. I think that the parochial organization running the day-to-day operations of the charter school will complicate the secularization of the schools. I do not think that a religiously affiliated organization should have any type of control over a school that is being funded by taxpayers. Charter schools are traditionally free from many of the regulations regular public schools are subject to by the state regarding ciriculum and budget, so I think the state and the ‘watchdog’ organization should keep a close eye on these new charter schools to ensure that they realize they are now secular schools. I think it is very noble of the Indianapolis government to try to rescue these good schools serving needy areas, and if they want this venture to be successful, they have to keep a close eye on the curriculum and activities of the school to ensure that any religious education that the students receive occurs after school, or at their respective churches.

The United States Army changed its policy regarding Sikhs in 1984, when it decided to no longer permit adherents of Sikhism to retain their uncut hair, wrapped in a turban, and unshaven faces and still enlist in the military. However, the army has recently granted exemptions to this policy to two Sikh men, and Captain Tejdeep Singh Rattan just graduated from basic officer training.

The Supreme Court held in 1986 (two years after the aforementioned policy shift) that a Jewish Air Force officer could not wear his yarmulke with his uniform, so this is certainly a change in the way the military feels about religious apparel and the uniform code. The Court did not rule that soldiers could not display external signs of their religion; only that the military was within its right to ban those displays, and the case of Captain Rattan shows that the military has decided to allow at least some displays of religion.

One of the major concerns that would arise with this case would be unit cohesion, since Captain Rattan appears noticeably different from his peers while they are all in uniform. However, one of Rattan’s unit’s instructors stated that, “[o]nce the other soldiers understood that [Rattan wasn’t a foreign national and had received the Army’s permission to maintain his beard and turban], there were no issues.” I think that there will always be people who do and do not accept people who are different from them, and if there are soldiers who will not accept a practicing Sikh, their opinions will not really hinge on the soldier’s outward signs of his faith but rather his religious beliefs or ethnic background.

Another concern is the safety of stepping outside of the traditional uniform, a worry that the article also addresses, describing how Rattan wore a helmet over his turban and how he was able to seal his gas mask over his beard. The Army’s safety concerns, which would have been legitimate, were thus assuaged. I agree that safety is tantamount and I think that is the appropriate line of demarcation when it comes to religious displays on soldiers. If a soldier’s outward manifestation of his religion could present a danger to himself or others, he will have to choose between his uniform and his faith, but as long as the outward display cannot cause harm, the Army should allow soldiers to express their religion because the Constitution allows them free exercise.

I do believe that the Army has erred in only granting exemptions rather than doing away with the non-Sikh policy in the first place. Since Captain Rattan has made it clear that Sikhs maintaining the articles of their faith can successfully serve in the military, there is no reason for the Army’s continued discrimination against his Sikh fellows. In addition, since the Supreme Court’s main argument in Goldman v. Weinberger was that the Court should yield to military experts, that case should be overturned as the Army has determined that retaining the articles of their faith does not negatively affect a Sikh’s performance, and I cannot see why a Jew’s yarmulke would not fall under the same banner.

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.