Religion & American Law

Earlier this year, a parent sued a charter school after claiming they had used religious discrimination towards her child. The principal of the school allegedly undercut the mother’s request to respect their “familial religious practice” of fasting from 7am to 4pm in observance of Lent. The mother claimed that the principal had prevented her from picking the child up during lunch and that he isolated the child and presented her with food. In the end however, under the Color of State Law, it was agreed upon that charter schools are not state actors. During a recent retrial, the court found that the plaintiff adequately pleaded the sincerity of her religious beliefs and had adequately set out an equal protection claim. However, in response the court concluded that the "plaintiff's general reference to a 'familial religious practice', without an explanation of the role and importance of fasting to this religion, is insufficient to allege a sincerely held religious belief."

I personally am in defense of the charter school for this case. I see no valid act of religious discrimination. The school is not forcing the child to eat food, they are simply making sure the child is where they're suppose to be at the appropriate time. One of the issues to examine here is the differentiation between a “right” versus a “privilege”. In this case, I firmly believe, that allowing the child to leave school grounds during the lunch period would serve as a privilege. Therefore, the charter school is not infringing upon the child’s rights of free exercise in any way. They are not attempting to impose on the child’s religion, but rather they are simply instituting school policy. As stated in the Sherbert v Verner case, actions may be regulated if they pose some substantial threat to public safety, peace, or order. In this situation the threat to order would be violated if students were allowed to come and go as they please from school grounds. This could also pose as a potential threat to the student body. Say for instance if a kid leaves and returns to school armed with a weapon, drugs, or any other object that may be deemed dangerous and illegal.

Allowing the child to leave the school during lunch for a religious reason would be unfair treatment. This special treatment could in itself bring forth a number of new lawsuits by other parents of religious denominations who want preferential treatment for their children. Such preferential treatment could also be seen as a violation of the establishment clause, since preferential treatment is being given to those of religious identities over those of nonreligious identities. Therefore, those of religious identities would have a benefit over nonreligious students. This would create a climate for establishment of religion, where religious holidays would be celebrated, practiced, and followed and those of nonreligious backgrounds would be forced to take these days off in honor of these religious practices. In the end, the question comes down to the legality of a charter school to grant privileges to students to break school policy in order to practice their religion. What do you think, does this seem like a “right” or a “privilege” for these students. I for one am not buying the plaintiff’s case. As of now, the case has yet to be decided.

In a press release last Thursday, the ACLU and American United announced that they are dropping a lawsuit that was filed in July 2008 which challenged a proposed D.C. official arrangement with the Central Union Mission, a religious-sponsored shelter. According to this agreement, D.C. officials intended to give the Mission, Gales School, valued at $8.93 million based on tax records, and $7 million in cash that had been “set aside for renovations,” in exchange for the institution’s previous property, valued at $4 million. The ACLU states that the plan would have given the Mission $12 million in public support to aid the homeless; however, those sheltered and who utilized the Mission’s services were required to attend evening Christian religious services. Moreover, the Mission hires only people who identify themselves as Christians.

Though this agreement would clearly violate the establishment clause, the lawsuit was dropped after Central Union Mission and D.C. dropped the transaction. Instead, Central Union Mission won a bid to lease the Gales School and use it as a homeless shelter for “$1 per year, for 40 years, with an option to extend the lease by 25 more years.” The Mission would also be required to use the property “primarily as a homeless shelter” and not be given money to maintain and refurbish the building. Moreover, the Mission is not permitted to use the Gales School for voluntary religious activities. This new agreement between D.C. and the Mission appears to remove the State from the “three main evils against which the Establishment Clause was intended to afford protection: [which are] ‘sponsorship, financial support, and active involvement of the sovereign religious activity,” according to Lemon vs. Kurtzman (1971). Nevertheless, does this new agreement inhibit religion and the Mission’s free exercise of the members’ shared religious beliefs? Given that both contributing groups willingly changed their agreement, there is no constitutional violation of the Mission’s free exercise. Yet, the lawsuit did not address the fact that the religious organization does not hire people who are not Christians, a blatant violation of the Civil Service Reform Act of 1978 (CRSA) which prohibits private employers from discriminating against employees on the basis of religion, among other factors.

Given that the Mission is receiving benefits from the federal government by leasing a valuable piece of property, notably located only a few blocks from the U.S. Capitol, for a mere dollar a year, the State must infringe on the religious liberties of the organization to ensure equal employment opportunities for all citizens regardless of their religious affiliations. As noted in the majority rule in United States v. Lee (1982) which stated that “not all burdens on religion are unconstitutional…[and that] the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest,” civil liberties can be upheld despite faith based initiatives. However, as observed through a quick perusal of the Mission’s website, the institution seems to exhibit sincere religious beliefs. As a religious organization, employees are expected to “agree and ascribe to our [the Mission] statement of faith at all times.” Provided the Mission’s purpose is “to glorify God through proclaiming and teaching the Gospel, leading people to Christ, developing disciples, and serving the needs of hurting people throughout the Washington Metropolitan area,” is it constitutional to infringe on the organization’s free exercise to determine its employees? Using Bob Jones University v. United States (1983) as a case study, the Mission receives benefits from the federal government which should depend on “meeting certain common law standards of charity” must “not be contrary to established public policy” and exist in “harmony with the public interest.” This precedent should overturn religious institutions abilities to discriminate against people of different religions. Significantly, due to West Virginia State Board of Education v. Barnette (1943), affirmation of beliefs and attitudes of one’s mind are protected by the Constitution. Therefore, this case and Bob Jones University v. United States if used as a precedent would protect people who have different beliefs, though they may not be explicitly religious, such as sexual orientation, to be protected by the national government.

In an article by the Department of Justice a Board of Education within the Berkeley School District 87 in Illinois has consented to resolve a recent religious accommodations lawsuit filed last year. The case is centered on Safoorah Khan, a Muslin teacher in the middle school who sued after being denied an unpaid leave to go on a pilgrimage to Mecca, known as Hajj, which is required by her religion. Khan claims that when the district denied her request, she was being forced to choose between her religion and job, which lead to her discharge.

The school chose not to grant her request based on a policy that refuses to permit leave to non-tenured teachers based on religious practices if the request is not already specifically included within their leave policy. Although the policy does contain several religious practices that permit leave, there are several, like Hajj, which are not contained within the language of the policy and are required for specific religions. The school district was found guilty of religious discrimination and has agreed to pay Ms. Khan $75,000 for lost pay, damages, and her attorney fees. Thomas Perez, Assistant Attorney General for the Civil Rights Division claims “this case shows the consequences of an employer refusing to engage in any interactive process to understand and work with an employee to find an accommodation of the employee’s religious beliefs.” Along with the sum of money, the district is required to provide mandatory training on religious accommodation to all BOE members and several others who are involved with legislature within the region. This training is centered on teaching members how to look at religious accommodation requests on a case-by-case basis and make better decisions on requests submitted by employees.

I feel that Safoorah Khan’s rights were neglected when the school district refused her request to go on a religious pilgrimage. Not only did she submit proper paperwork to go on a trip to Mecca required by her religion, she did not ask for pay or any other special treatment. The BOE was wrong to deny her request, and has paid the price. The training ordered by the court will go a long way to making sure this does not happen again within the district. I think it is unfortunate that the case had to come to court and that the school was fined such a large sum of money, but they were very out of line by refusing to let her travel to her religious home. Although the school’s policy was not directly establishing any specific religion, it was preventing less mainstream religions that may not have been considered when specific accommodations were listed in the policy.

Do you think that the policy acted as a method of establishment even though it did not single out one religion above any others? What are your thoughts on the court ordered training for the district’s personnel? Do you foresee any benefits of it? Do you see any negative repercussions to this decision? This is an unfortunate situation where old legislature comes back to harm a district as less mainstream religions become more popular across the country. Hopefully this was not an active case of discrimination, but merely a necessary reality check for the district to update its legislature and realize the negative effects their policies could be having on people and their faiths.

In 1963, the first graduating class of Cranston High School West presented murals of the school creed and prayer to the school, which remains on display in the school auditorium. Jessica Ahlquist, a junior at Cranston, is suing the city for removal of the mural, on grounds that it’s offensive to non-Christians.

The lawyer defending the city, Joseph Cavanagh Jr, claims that the prayer, which begins with “Our Heavenly Father” and ends with “Amen”, does not force religion on anyone, and serves solely as a “historical document as a tradition of the school”. The prayer “encourages students to strive academically” and, as Cavanagh claims, serves no religious purpose.

Ahlquist’s lawyer, Lynette Labinger, disagrees with Cavanagh’s comparison of the prayer to the Pledge of Allegiance, arguing that this is explicitly religious communication.

The display of this prayer mural in a public high school clearly violates the Establishment Clause of the First Amendment of the Constitution. In Engel v. Vitale (1961) the Court found it unconstitutional for state officials to compose an official school prayer and require its recitation in schools. While Cranston West is not requiring the recitation of this prayer, the mural is prominantly displayed in the school auditorium, and is labelled “School Prayer”. In Engel v Vitale, the Court found that the school’s promotion of a religion, even if its recitation is voluntary, constitutes a violation, and that the vague wording of the religious aspects of the prayer is not a sufficient defense.

Cavanagh claims that the prayer in question is displayed in a secular setting, not a religious one, and that the mural serves no religious purpose. However, this claim about the “secular setting”, a public high school, gives more support for removing the mural than allowing it to remain. The context of the religious display does not make its presence more appropriate, it does just the opposite-- displaying a large religious artifact in a school instead of a Church doesn’t make it secular, it makes it inappropriate.

Additionally, the contents of the prayer in question can in no way be considered secular. While some of the prayer includes nonreligious language like “Grant us each day the desire to do our best”, the prayer is remarkably similar to the language of the prayer banned in Engel v Vitale, which read; “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.” Both prayers contain language that emphasizes morals and academic success, but both explicitly ask for these successes from a deity, which makes them both inappropriate for public school.

Using the Lemon Test, it’s evident that Cavanagh’s claim that the mural clearly serves no religious purpose is not actually clear. His argues that the prayer’s “secular legislative purpose” is to preserve the historical tradition of the school, but the history he aims to preserve is not secular; it’s that the school was established with religion in mind.

The second prong of the Lemon test, which requires no advancement of religion, is also violated for a number of reasons. The school gives a clear endorsement of religion that uses prayer by prominently displaying a prayer, and the contents give the impression that historically, the school believes that by addressing “Our Heavenly Father” one can achieve academic and moral success. This address also shows that the school supports theistic religions over non-theistic religions, which constitutes a violation.

All contents of the mural aside, a major problem with the display of the mural is its clear declaration as a “prayer”. Cavanagh claims that this prayer is secular, but even if the religious content of the prayer was removed (Our Heavenly Father and Amen), the heading of “School Prayer” would remain inappropriate. A prayer by definition is something directed at God or a deity, a religious observance, or a spiritual communion, which makes it impossible for any type of prayer to be secular, no matter its contents.

While support for the historical tradition aspect of this display may be found in Marsh v Chambers, this case doesn’t quite fit under that precedent. Marsh v Chambers found the opening of a legislative session by a chaplain constitutional because of the “unique history” of the legislation of the United States, but the only historical aspect of the Cranston West mural is that it was written by a student of the first graduating class. Allowing the mural to remain on historical grounds provides dangerous precedent for further cases--this could lead the way for depictions of artifacts like the Ten Commandments or Golden Plates of the Mormons to be displayed in Courts, town squares, or schools because, like the mural, they are “historical documents”, despite their clear religious messages.

Ironically, the school prayer was hung on the auditorium wall the same year the Abington School District vs. Schempp was concluded, in which the Supreme Court ruled that reading Bible verses in a public school is considered unconstitutional. So what is the difference between having students read religious passages or hanging one up on the wall? Since this prayer, starts with “Our heavenly father” and concludes with the word “Amen” I agree with Jessica in her opinion that it is a violation of her constitutional rights. This prayer establishes a religion within the public school by using terms such as those previously mentioned. Also, the banner is blatently titled “School Prayer”. The banner has religious intent, which is supported by the community in their argument that the removal of the banner violates their religious freedom. On her blog Jessica says that people told her if she did not like their Christian nation she could leave rather than try to change it and on another occasion one of her peers said, “If you don’t like it, too bad, we get to do what we want!” The issue here is that you cannot establish a public school as a Christian nation. By doing so, students like Jessica who are atheist, or of any other religion, are going to feel pressure to conform to the “norm” of the community in which they are submerged. Much like in Abington vs. Schempp this Rhode Island school is favoring a single religion and trying to force it upon the student body that seems to already be predominantly Christian, which still does not pose as an acceptable excuse.

I agree with Jessica in the aspect that her rights are being violated and that the prayer is an establishment of religion, however I do not believe it needs to be removed entirely from the school. Rather, the prayer could be altered so that the words “School prayer… Our heavenly father... amen” are removed therefore making it moreso of a mission statement. The entirety of this prayer does not have religious connotation, and by simply removing these religiously affiliated portions, people could choose to view the banner as they please whether its remembering it as the school prayer from 1963, or simply seeing it as a mission statement.