Religion & American Law

Two California homeowners have been fined multiple times in recent months for holding religious meetings within their home which are in violation of a local ordinance. The ordinance in question requires individuals to obtain a 'conditional use permit' in order to have religious, fraternal, or non-profit group meetings in residential neighborhoods. Up to fifty people would meet twice a week at a private home, and this practice has been declared to be in violation of zoning codes as covered by the ordinance. The homeowners who are the organizers of the meetings are challenging this ordinance in court.

Time and time again, we are told that there is nothing like the separation of church and state in order to keep a moral society. Though I agree with the previous, it seems as though not everyone does. Within her news post, Michele Somerville makes it a point to make this evident as she exposes the actions of two Catholic Bishops who fail to realize that they are called to be “teachers and priests, not Emperors”.
New York Archbishop and United States Conference of Catholic Bishops president Timothy Dolan recently wrote to Barrack Obama asking him to sign the Defense of Marriage Act (DOMA). DOMA consists of two sections, “one defining “marriage” for purposes of federal law, and the other affirming federalism principles under the authority granted by Article IV, Section 1 of the Constitution, the Full Faith and Credit Clause. The first section states that for purposes of federal law, marriage means a legal union between a man and a woman, the second section reaffirmed the power of the states to make their own decisions about marriage”.
As a Catholic, Timothy Dolan claims that his desire to have DOMA signed has a lot to do with the fact that he will not sit around and be silent while there are federal steps being taken against marriage, the laws which defend it and religious freedom as well.Though I understand that within Catholic beliefs, same sex marriage is deemed a sin, I do not see DOMA as a constitutional addition to society in anyway shape or form. It is nothing new to see someone within a religious leadership position like the one Dolan is in to expect his followers to have the same political views as his own. Even with that, Dolan fails to take into consideration two things, first and foremost the fact that there are even some Catholics who partake in enjoying the freedom which is entitled to everyone through the first amendment, and second the fact that even those who do wish to go through with a homosexual marriage have the same constitutional rights as anyone else to fulfill their needs for happiness.
DOMA is undoubtedly discriminatory because if it were to be implemented as Dolan wants it; it would restrict the marriage and reproduction rights of any non-Catholic person and it would thus be considered a religious law. Sadly, Dolan is not the only Catholic bishop who is attempting to utilize his works of mercy as a means a leverage. Similarly, Bishop Nicholas DiMarzio has utilized his column and leadership within the religious system, to urge those around him to vote against the Child Victim's Act which helps the children who have been abused by priests. DiMarzio even went as far as threatening to close the parishes of those who failed to vote in the way he favored.
In short, I believe that though everyone is entitled to the First Amendment, Dolan and DiMarzio take it too far as to where imposes on the freedom of others. If they are not wise in the path they take from here forth, they can lose a lot of the benefits they receive as a mean of being exempt from paying taxes to the government. The fact that they are intertwining secular law with canon law is risky as well. They are crossing the fine line that lies between the separation of church and state, while simultaneously taking credibility away from Catholicism worldwide. If bishops like these do not cease their actions pertaining to the church/state divide, they will ultimately lead to the downfall of their parishes.

Jessica Ahlquist is a 16-year-old high school Junior, who strongly believes in her religion of Atheism. Ahlquist attends Cranston High School West, in Rhode Island, where a prayer banner is hung on the wall of the auditorium inside of the high school. Ahlquist has been an atheist since she was 10 and feels very strongly about the prayer banner being taken down and is suing the school because the banner is offensive to non-Christians and “it’s the right thing to do.” However, the school and the attorney that is defending the city of Cranston believes “the mural is a historical artifact from the school’s early days in the 1960’s and serves no religious purpose.” Although the banner is a sentimental, historical artifact to the town of Cranston, it is challenging to argue that something is secular when the words “Amen” and “Our Heavenly Father” are mentioned. The mural has been hung since 1963 and developed school traditions such as their mascot, creed and their school colors. In opposition to the mural, Ahlquist created a Facebook page to provoke support in removing the mural from the school. Ahlquist’s supporters were limited, given the school’s strong sense of patriotism for the prayer, however, her lawyer’s stand on the matter is airtight, "The prayer is not…anything like a Pledge of Allegiance. In contrast, this is a prayer, it's a religious communication and it's in a public school."

This issue is extremely important because it challenges the idea of whether a religious object can be secularized or not. In addition, this matter also challenges the acceptability of religion in a public institution. If I were to put myself in the position of a student at Cranston High, I would probably be very upset with Ahlquist for trying to take something from the school that has proved to mean to much to the school’s history, and has not provoked any issues for over forty years until now. Unfortunately, Ahlquist has a valid point, and something cannot be secular if it refers to religious terms, and especially if it refers to one specific religion. Hanging up a Christian banner in a public institution is not acceptable, because it is not fair to all the people who believe in other religions or no religion at all. In order to make Cranston High a non-religiously controversial school, the banner must be taken down, or a banner must be hung up of every other religion, therefore no religion is ostracized, however, this option is almost impossible.

The school says that they force no student to recite the prayer; it just simply hangs there for students and the community to see and be proud of. Therefore, I understand Ahlquist’s lack of support for the notion to sue the school. First of all, Cranston High is a public school, suing a public institution will only result in less money trickling down towards the education the students at the High school will receive. Also, I feel as though Ahlquist is aggrandizing the situation a bit more than necessary; she only has another year left in Cranston High, the ending of her high school career would be manageable in a school with one religious banner.

Several days ago, the city of Douglasville settled a lawsuit with the American Civil Liberites Union, who filed on behalf on a Muslim woman, Lisa Valentine. In December of 2008, Valentine had accompanied her nephew to the Douglasville Muncipal Courthouse for a standard traffic hearing. Valentine, a practicing Muslim, was told by a security officer that she had to remove her hijab in order to enter the courthouse. Despite explaining the importance of the headscarf in regards to her religious beliefs, Valentine was continually blocked from entering the courthouse. After protesting and attempting to leave, she was arrested and sentenced to 10 days in jail for contempt of the court. Valentine was forced to remove her hijab during her time in jail. Fortunately, due to pressure from the Council on American-Islamic Relations, Valentine was released later that same evening; however the humiliating experience stuck with her. She stated, “Maybe it's hard for some people to understand how I can compare to having to remove my headscarf in public to being disrobed. Wearing the hijab is an expression of my faith and it is a practice that I have adhered to for over 13 years. My headscarf is as much a protective piece of clothing as a shirt or pants or any other article of clothing that one may find embarrassing to be without.”

In December 2010, the ACLU officially filed a civil lawsuit against the city and the officers involved in the incident, claiming that the former parties violated her First Amendment Rights, in particular, her right to free exercise of religion.

Now, nearly ten months after the initial complaint was filed, the two parties have managed to reach a settlement, primarily in favor of Valentine. Douglasville has agreed to allow head coverings in courtrooms if they are for medical or religious reasons, and in the case that a security search is necessary, it will take place privately by an officer of the same sex. Yet despite Valentine’s favorable outcome, cases similar to hers are transpiring throughout the United States. In Michigan, a Muslim woman petitioning for a name change was forced to remove her hijab in court. Likewise, in Georgia, a Muslim man was denied entry to a court for wearing a kufi, religious headgear for Muslim men. For this reason, I think it is important to analyze Valentine’s case, as this has become a recurring issue.

In my opinion, it seems clear that not allowing religious exceptions to the “no headgear” court policy is a fundamental violation of the First Amendment. There are several cases that have created a precedent in favor of the free exercise clause, most importantly, Sherbert v. Verner. From this case, the Sherbert Test arose to determine whether an individual’s free exercise rights have been violated. If the court decides that an individual holds a sincere religious belief and the government is burdening that belief, then the government must show not only that it has a compelling state interest, but also that it has pursued this state interest in the “least restrictive manner”. In the majority opinion of Sherbert v. Verner, the court wrote that compelling state interest refers to “only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” It is apparent that in the case of restricting hijabs in courts, the notion of compelling state interest does not hold up. If this is so, why do courts across the nation continually fail to acknowledge the unconstitutionality of this headgear restriction?

It is interesting to note that throughout my research on this headgear restriction, I never once found a case where a nun was forced to remove her habit. It very well may be that nuns either complied with this restriction or did not find it such a grievous action as to file a suit and thus draw attention to the incident; however it also may be that this restriction is more often enforced in situations with Muslims. This might be a broader reflection on our society and our notions of what constitutes a “good’ religion. The majority of our nation is Christian and we have internalized Christian norms, thus making it difficult to see how forcing a Muslim women to remove her hijab in court might affect her emotionally and spiritually. Furthermore, in many of the cases that have historically dealt with free exercise, a positive outcome for religious freedom normally occurs when the religion is a branch of Christianity. The free exercise of the Amish and the Seventh Day Adventist Church was upheld in Wisconsin v. Yoder and Sherbert v Verner, yet was denied for Mormons and Jews in Reynolds v. United States and Braunfield v. Brown. This unfortunate trend should not be disregarded, and I can only hope that as these head covering restrictions lawsuits continue to be filed, the court upholds free exercise for all religions.

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.