Religion & American Law

After a semester long of discussion about the first amendment and the various situations in which its been invoked to decide landmark cases, I think it’s interesting to take a look back at an article from a few months ago that many of us may at the time would have brushed off without thinking about the possible implications. Back in October a group of eight various atheist organizations purchased a month long campaign that will place their posters through a dozen different subway stations in Manhattan, in an attempt to foster their message: “A million New Yorkers are good without God. Are you?” Apparently the reason for choosing Manhattan as the location for this campaign is due to the city’s extremely busy nature, and wide spread usage of public transportation. The United Coalition of Reason, a national organization that advocates atheist ideas, is among one of the groups involved in this new campaign to buy ad space from the Metro Transit Authority. While on the surface this may seem harmless, and fully in line with advertising guidelines and constitutional legality, does this make anybody besides me a little uneasy?

There are numerous contexts to argue from as to why implementing these ads is such a problem, but outside of a legal standpoint mainly two. To begin with, why is the MTA, an organization run and funded by New York State with tax payer dollars, promoting a religious campaign? While atheism isn’t exactly a religion, it’s actually quite the opposite, the same logic would apply to any religious billboard, as we know from class religion and non religion must be treated equally, and as such the MTA endorses both similarly in their advertising guidelines. I think while not blatant; the state of New York is in fact endorsing religion, at least on some level. If the board read “A million New Yorkers are good with Jesus. Are you?” I can’t help but feel that people would undoubtedly have a problem with this. In fact many of the atheist groups hope that the billboards “encourage talking and thinking about religion and morality,” according to the article. If this is the purpose of the advertisement, then why is the MTA, which is funded by the government, engaging in this kind of religious encouragement. If you weren’t from the United States and were traveling via subway, as many tourists in fact do, and saw a large billboard sponsoring religion, it would be dubious at best to say this wouldn’t generate confusion about the American legal system.

It also happens that just a few years ago an advertisement promoting Islam was being displayed on subway cars, and was being partially funded by an imam of a Brooklyn mosque who served as a character witness for the man convicted of the 1993 World Trade Center bombing. While I am not saying of course that all Muslims are terrorists or that all Islamic advertisements are funded by terrorists, it must be realized that there is some clear religiously guided message being provided from these billboards. At that time, due to the nature of its funding, this Islamic related billboard was under heavy debate, while currently these new, seemingly religiously content lacking atheist billboards, do not appear to be under particular scrutiny. Whether or not one buys the tax payer dollars argument, we have already looked at cases like Hazelwood v. Kuhlmeier, just to name one from class, where limited public forum has come into play, and quite frankly what I think I am getting at is, if these subway cars are government affiliated vehicles I believe there exists some right, to not be subjected to billboards displaying religious content while I commute to work in the morning.

The recent demolition of Texas Stadium saddened me for reasons I could not explain. What I can admit, though, is that now I have football in my mind. As I now live in Georgia, I reflect on Georgia football—specifically the Lakeview-Fort Oglethorpe High School football program and its cheerleaders. Located somewhere in north Georgia (I admit I have not bothered to look it up), this high school endured public scrutiny last October, 2009 when someone complained about the cheerleader practice of holding up large signs decorated with Scripture for the team’s break-through on the field. A Ph. D. education student at Liberty University alerted the school about possible Constitutional problems associated with this practice. The school principal mused about the “flap and the amount of attention it’s gotten nation wide.” Apparently, this practice is not new and has been going on for six years. The cheerleading coach, Susan Bradley, mentioned her familiarity of the practice from as far back as 2001 in response to 9/11 and the nation’s efforts to rally toward God. The community definitely rallied behind the school. Nearly 12,000 supporters signed a Facebook page created by a local youth pastor. Students attending games peppered the stands with Scripture-bearing signs, some students painted Bible verses on their bodies and players gathered at midfield to pray. One cheerleader commented that this practice seemed so benign when compared to the cheerleaders in one Atlanta suburb who were recently accused of licentiously provocative dancing in front of football players at a pep rally.

Just how benign is a 30 X 15 foot sign painted with Scripture for the football team to burst through on their way to brutal and violent play? Bradley offered that this could not be illegal because the girls fundraised the money for the signs and it was a student-led activity. The school class president declared that the cheerleaders just wanted to inspire and motivate the players and the fans. The Lemon test, hard to die since it is so simple to apply, might allow that (1) the secular purpose is as the class president claims—motivation and inspiration for players and fans; (2) it apparently does inspire and motivate the fans—they attend games—and maybe the players, it is difficult to say since they seem to lose a lot; and (3) the girls did raise the money for the signs, but then they displayed the signs on school district property lit up by lights paid for by the school district (read taxpayers). Or we could stick to O’Connor’s Endorsement test: Is this an invocation of religion and does it cause outsiders discomfort? Has the school been neutral to religion? What is a reasonable accommodation of religion for this community? In a small north Georgia community of less than 10,000, a community that most likely has a long history of religion in the public school despite Supreme Court rulings may very well want their boys to punch through a Scriptural blessing on their way to possible glory. There may be a newcomer in town that may feel uncomfortable with this overtly obvious public display of religion. People interviewed admitted that only Christian verses would be acceptable and other religion’s philosophies would not be received well. Is it, under this circumstance, possible for the school district to be neutral? There seems to be two realities here. First, I cannot see how this practice could be declared Constitutional as it fails every Supreme Court test. Second, taking something endeared by this community, something clean and wholesome (if slightly sacrilegious), and something important to the students away to be replaced by something safely secular is profoundly sad. Whether a matter of state endorsement of religion or of free exercise of religion, the people of this community lose something fundamental to their community’s identity. Too much and too obvious religion may be bad, but to a certain extent, too much and too obvious secularism may be bad too.

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.