Religion & American Law

In an article published this week on ReligionDispatches.org, Mark Bergen discusses a new development of the rapidly spreading Prison Fellowship Ministries program. For those that are unfamiliar, Prison Fellowship Ministries (PFM) states that their mission is “to seek the transformation of prisoners and their reconciliation to God, family, and community through the power and truth of Jesus Christ.” This program was launched by Charles “Chuck” Colson, who was incarcerated for 7 months himself after the notorious Watergate scandal, in 1976. PFM then went inside the prisons to serve as an “alternative” rehabilitation program for prisoners. For further information on the values and history of the PFM please see their website.

This article on RD deals directly with a new PFM program called Out4Life. Out4Life began in Louisiana and has gained tremendous popularity recently and will be spreading to more than 10 other states in the coming years. Out4Life’s basic structure will vary in each state; however, the basic structure “will mirror the one in Louisiana, set in place with “a partnership with state and church,” says Jean Bush, Out4Life’s National Director. Is this a viable partnership?

What is of particular interest here is not the fact that PFM wishes to help ex and current criminals change their lives through Jesus Christ, but that it is a government funded program within the prison system. Therefore issue for programs like Out4Life is this: Is it a violation of the Establishment Clause for the government to sponsor and aid a religious, and clearly evangelical Christian, program?

Dr. Winnifred Sullivan published her book Prison Religion last year after being called as an expert witness in the case in Iowa involving the PFM and the Americans United for Separation of Church and State. Her book is a detailed account of her experience as a witness, the trial, and the programs in place in the Iowa prison. When questioned by the defense on behalf of the PFM, Sullivan was frequently pushed to agree that on paper PFM is a non-sectarian group with a completely secular purpose: to transform prisoners. However, I defy anyone who looks at the PFM website listed above and reads their mission statement and core values section to claim that this is an inherently secular and not a religious group.

With that in mind, is there a clear violation of the Establishment Clause? Judge Pratt found that in Iowa there most certainly was. However, the PFM continues to grow inside and outside of the prison walls. In fact, President Obama recently set aside $144 million to support these reentry programs put in place by former President George W. Bush. Despite the fact that PFM has bipartisan support, is it constitutionally legal for the government to support and endorse such overtly religious programs? It is my understanding that with the precedents set up in cases such as Everson v. Board of Education there is to be a “high and impregnable wall” between Church and State. Recently, it seems that this wall has become a 2-way swinging or revolving door. If the government wishes to continue to state that they remain totally and completely neutral to religion, this wall must remain high and impregnable. If it does not, I have a feeling that we will see many more cases like the one in which Dr. Sullivan testified in Iowa.

Should serving pork be a requirement for good foster parenting? As outrageous as this question sounds, apparently a private company called Contemporary Family Services (CFS), which is authorized by the state of Maryland to place foster children, believes serving pork is such a requirement. This question came to light when Ms. Tashima Crudup, a Muslim woman who was once part of the foster care system herself, was denied the opportunity to become a foster parent. CFS denied Ms. Crudup’s application after a home interview during which Ms. Crudup explained that she would not allow pork products in her home. CFS claims that this is the sole reason that Ms. Crudup’s application was denied stating “there could potentially be a discrepancy between her expectations and the needs and personal views of a child.” However, Crudup had assured the CFS representative that she would honor the religious beliefs of any child in her care. She told the representative that she would take the child to services of his or her choice and the child was free to consume pork products in establishments outside the home.

On April 14th Ms. Crudup, with the help of the ACLU of Maryland, filed a complaint with the Baltimore City Community Relations Commission on grounds of illegal religious discrimination. Ajmel Quereshi, attorney with the ACLU maintained, “The law is clear that you cannot deny people the opportunity to care for foster children based solely on their religion, particularly when they have emphasized that they would help children in their care to follow their own religious beliefs.”

I agree with the religious discrimination claim made by Ms. Crudup and the ACLU in this case. I believe that CFS discriminated on religious grounds in denying Ms. Crudup’s application because such a dietary standard would lead to denial of applications by Orthodox Jews who also abstain from consuming pork, Catholics who do not eat meat on Friday, and even vegetarians, but it has not yet been shown that any of these groups are not fit to be foster parents because of their dietary restrictions. Therefore, it seems clear that Ms. Crudup has been singled out due to anti-Muslim prejudice by CFS.

If Contemporary Family Services has illegally discriminated against Ms. Crudup on a religious basis, one must wonder for how long the company has discriminated against Muslims and to whom else has this happened. There are thousands of kids across the United States that are in need of a family to care for them and I highly doubt that they are concerned whether pork is allowed on their dinner table or not.
Furthermore, although dietary restrictions as the basis for foster parent approval may appear secular on the surface, this rule clearly has not been secular in practice. If CFS had denied other parents such as Jews, Catholics, vegetarians, and vegans based on their dietary requirements, then I think this rule would be constitutional (although in my opinion unreasonable). However, by singling Ms. Crudup as a Muslim out from the other individuals with dietary restrictions, I think there is certainly a basis for an illegal religious discrimination claim and CFS should be held responsible.

Despite Contemporary Family Services’ opinion, given the option between pork products and foster parents, I would choose the latter. Wouldn’t you?

The college experience for many people is one of vast networking that many students have to go through if they want to make it ahead after graduation. And with networking we see these students join various clubs, be it physical (martial arts), mental (student United Nations). However, when it comes to joining a spiritual club, the student tries to find a sense of religious ideology with their fellow clubbers. However, one religious club at the Hastings College of the Law in San Francisco, a branch of the University of California, in particular has one rule that must be followed pertaining to homosexuals and their exclusion. And in this article we will look at one club who has overstepped their boundaries on who to let in and the trial that ensued.

The case titled, Christian Legal Society v. Martinez deals with the club excluding homosexuals because it clashes with their religious beliefs. The main issue that this case will determine is whether religious-based and other private organizations that want federal funding have the right to discriminate against people who do not hold their core beliefs. The Christian Legal Society requires members to sign a proclamation of their faith and that they do not participate in sexual immorality that clashes with Christian beliefs thus the reason for no homosexuals. The group even wants the University of California to fund their club, but the university not only denied them but shut them down on the basis of discrimination. At first the case was thrown out by federal judges saying how the club violated the first amendment granting free speech and free exercise which is upheld by the 9th U.S. Circuit Court of Appeals in 2004. However, this case has made it all the way to the Supreme Court in which the justices are split on the issue at hand the official rule will happen this summer.

The big question that comes into play is the actions of the Christian Legal Society. One can understand that the group holds the Christian beliefs as their core value, but to deny someone entry on the basis of their sexuality is just wrong. There are clubs that do allow others in even if their ideals clash such as Democratic students entering into Republican clubs such as Justice Scalia puts it, so what is to stop them from allowing homosexuals into their club.

In my opinion, I believe that the homosexuals should be allowed into the Christian Legal Society. The club could make a rule in which the member, be it homosexual or not, must pass a biblical quiz in order to join them or something. However, by blacklisting these future candidates the Christian Legal Society is just limiting themselves and their image within the University.

This semester has had many questions, mostly unanswered, but one of the big ones is ‘what is religion?’ In Kitzmiller v. Dover Area School District (from now on referred to as Kitzmiller) we get incredibly long and detailed reasons and definitions for the decision to strike down intelligent design as a science because it is not a science. This opinion in the Atlanta Journal Constitution is a very well written opinion, but I am having a hard time with “environmentalist religion”. It seems like the environment should be a science. In Kitzmiller the 3 levels used to determine ID as not a science were invoking and permitting a supernatural being, the use of ”irreducible complexity” or dualism, and the fact that evolution is supported by scientists. Professor Nelson never calls the environmentalists scientists, but based on these three levels his opinion would not disprove validity of science. So then the question is “is it really a religion”? Nelson claims that the environmentalists are trying to be God and have their own 10 Commandments and have made Earth Day their Easter. However, he says the reason the Earth Day Environmentalists (EDE)are able to get such support is by connecting with people from various religious groups as well as spiritual people who have no wish to be in a religion. Here is the money question; “have the EDE created a viable universal religion that puts the Prison Fellowship Ministries (found in Winnifred Fallers Sullivan’s book Prison Religion) to shame?” In some ways I would argue yes. Professor Nelson says

“By appearing distinct from formal theologies and official churches of institutional Christianity, it can attract people who would normally not be involved, including residents of many nominally Christian nations and those who think of themselves as “spiritual,” while vigorously rejecting any suggestion that they should ever belong to “a religion.”

Where the InnerChange Freedom Initiative (IFI) employs sectarian views (there was disagreement in discussion about whether sectarian or secular or universal but I think we all agreed that there were no strong arguments for universalism) the EDE is able to bring people willingly into the fold through casting off religion. On Earth Day, Facebook was littered with statuses along the lines of “Go Green or Die” by people whose “religion box” ranged the gambit from Christian to Atheist to Spiritual to various smart-alecky remarks. Now Facebook is not the most “scientific” of sources to use for an argument but it certainly touches many people in the United States, and it is telling that it does touch so many different types of people. Sullivan argues that “religion” is not a viable term to use in the language of law. But looking at all the different things we call “religious” or “a religion”, maybe “religion” has outlived its viable use. The practices and beliefs of all of these different groups are still strong and in many cases growing. But if we continue to split up the world into “religions” we will never have a “universal group”. That seems like an oxymoron anyway. I have never heard of a “group” that includes everyone. I thought that was a species. And then we are back to religion v. science….

Several weeks ago a post was written about the banning of Muslim burqas in France, which we have discussed several times since. It never crossed my mind that such a religious discrimination would ever be imposed in the United States. This article discusses the on going issues facing Muslim women desiring to wear hijab, religious headscarves. Hani Khan, a young woman who worked at Hollister (owned by Abercrombie & Fitch), was asked one day to remove her hijab. When she refused, she was fired a week later. Khan filed a religious discrimination suit against the company only to discover she is one of many. Muslim women have been singled out in airports, banks, and at the Division of Motor Vehicles due to the ability to easily identify them by religious garments. A 16-year-old girl in Delaware now has a license depicting her crying because of how upset it made her to be asked to remove her hijab. Another woman, Nadia Hassan, was subject to a full-body search at the airport due to refusal of removing her hijab although she did not set off the metal detector.

Many different issues are brought up in this article. Should companies be allowed to portray a certain image to their customers? Are hijabs a threat to national security, either pictured in one’s license photo or worn on a plane? Does our country’s fear of terrorism give us the right to impose additional security on Muslim’s?

Regarding Khan and her suit against Abercrombie & Fitch, the company offered her a job if she agreed to stay in the stockroom, out of view. She refused claiming, “The company is trying to portray this all-American look. Well. I’m American.” I think Khan makes a wonderful point here. America is the mixing pot; our country is special because of its multiple cultures and the freedom of expression. I think it is unconstitutional for a company to be allowed to filter its employees by their religion and the accessories that accompany it. I don’t think a hijab hinders one’s ability to perform at a job in a clothing store, which I think should be the company’s only concern. The free exercise of religion should only be dismissed if there is a compelling state interest, which I hope the court agrees the image of Hollister is not. If the military, as discussed in previous blogs, can make exceptions for religious head coverings if they are not detrimental to performance, I believe a clothing store should have to.

In the original ruling of Wisconsin v. Yoder, the judge ruled that mandating the pledge of allegiance was constitutional due to the context of World War II. Given the context of the current war and recent terrorism attacks, I am sympathetic to the country’s concern regarding identification and traveling. The clerk at the Delaware Motor Vehicles Department was actually corrected, and the girl was told that there was no need for her to remove her hijab. I agree, that it is unnecessary to force women to do something interfering with their religion, but I also agree that it is important to insure the women are clearly identifiable in their pictures. If the hijab is covering a woman’s face it must be modified due to the fear of identity theft interfering with national security.

As was brought up in discussing the blog regarding Muslims opposition to x-ray airport security, this is a very big issue. Muslim’s are, unfortunately, associated with terrorism. They are the only group of people that we have had such devastating recent issues with and whom our troops are fighting to protect us against. But this does not take away the constitutional rights of Muslim Americans. Under the U.S Constitution a Christian American should be viewed no differently than a Muslim American. It is unfortunate that the hijab has become a target on Muslim women, but they are merely exercising their freedom of religion. To constantly mentally associate the symbol negatively is unfair. Social profiling is not provable, so although it is unconstitutional it is inevitable. We should not be able to employ additional security upon Muslim’s with no probable cause, but our fear of national security will over ride the rights of the people. The right to fair employment though is provable and unconstitutional. Stores like Hollister and Abercrombie & Fitch are sending a bad image to youth saying that expressing a non-Judeo-Christian religion makes you not American. We must first tackle this terrible misconception before there is any hope for complete protection for religious minorities.

Today, the Supreme Court heard arguments from the Christian Legal Society at the University of California's Hastings College of Law. The Christian Legal Society is suing Hastings College because it believes that its religious freedoms were violated when it was denied recognition as a student group. In 2004, the Christian Legal Society implemented a requirement that voting members sign a statement of faith. Shortly thereafter Hastings revoked the society’s recognition as a student group because its membership requirement violated the strict nondiscrimination policy, which states that student groups that wish to receive money from the publicly financed college cannot refuse membership on the basis of race, religion, national origin, sexual orientation or other prohibited factors. Hastings’ nondiscrimination policy is consistent with California law prohibiting postsecondary educational institutions that receive state money from discriminating based on religion or sexual orientation. In 2006, a San Francisco Federal Court decided in favor of Hastings. This decision was affirmed unanimously by the Court of Appeals for the Ninth Circuit. A more detailed description of today’s hearings can be found in this Wall Street Journal article.

The major constitutional issues raised by this case are whether the nondiscrimination policy of Hastings is neutral or hostile towards religion and whether the policy is necessary to avoid violation of the Establishment clause. I believe that the policy is neutral towards religion, deeming it unnecessary to consider Establishment issues. This case is very similar to Rosenberger v. University of Virginia. Ronald Rosenberger was among a group of undergraduate students that formed a student publication at University of Virginia. The publication, called Wide Awake, focused on contemporary issues from a religious perspective. The University of Virginia denied school funding to Wide Awake because it believed that the publication “would jeopardize the University's tax-exempt status.” Rosenberger subsequently filed suit claiming that the University had violated his freedom of speech. The Supreme Court ruled in favor of Rosenberger, claiming that the University of Virginia had engaged in viewpoint discrimination and that providing funding to the student publication would not have violated the Establishment clause.

However, there are several key differences between this case and Rosenberger v. University of Virginia. Firstly, Rosenberger was argued on free speech grounds and I do not think that the Christian Legal Society can make a valid free speech case. In my opinion, Hastings did not engage in viewpoint discrimination because they did not attempt to sensor the content of Christian Legal Society meetings or brochures. The university merely enforced a nondiscrimination policy consistent with California state law. Secondly, I believe that Hastings faces a real risk of violating the Establishment clause by providing funding to the Christian Legal Society because Hastings would essentially be funding a religiously discriminatory membership requirement. By doing so, the Hastings students and the public at large could see the college as favoring Christianity over other religions. The University of Virginia was not a risk of violating the Establishment Clause because they were funding a group that was verbal about its opinions, but did not have any discriminatory policies.

Opinions of the Supreme Court Justices were mixed today. The always outspoken Scalia noted "It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy." A decision on this case is expected to be released in June.

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.