Sunday, October 23, 2011
The B110 bus in Brooklyn travels between Williamsburg and Borough Park and serves the Hasidic Jews of these communities. The line is run through a private company, Private Transportation Corporation, which pays the city for it’s right to operate and provide this public service. The company has a board of consulting Rabbis who declared that males should ride in the front and females in the back in accordance with their religious belief that prohibits physical contact between the two sexes.
The bus line is a private franchise that provides a public service and is thus considered a public accommodation. Therefore they cannot set different standards for different groups of people. Anti-Discrimination laws at the city, state, and federal levels prevent gender discrimination even though this is a private company, it was granted it’s route through a public process and serves many residents who are not Orthodox Jews.
This case is important in evaluating the complex relationship between free exercise of religion and discrimination. We have come across many cases where these two laws, both central to what many believe to be basic American principles, conflict. In Bob Jones University v. United States the court ruled that there is no religious exemption for schools practicing racial discrimination. This case cited the compelling state interest in ending segregation. The case also draws similarities to our discussions of faith-based initiatives. Although this is a private company and the government is not funding its services, as it does with faith-based initiative, they are providing a public service in accordance with one religious group’s beliefs specifically.
Using the Lemon test I believe that this practice passes each of the requirements. The secular legislative purpose is to provide transportation for the citizens of these townships. Its principal effect may only slightly advantage those who are practicing Hasidic Jews but I believe it does so to no clear advantage. Finally, because this run by a private company and the state is not funding this bus route I see no excessive government entanglement with religion.
Although it seems to pass the Lemon test, this shows that these requirements may be an insufficient test in determining free exercise cases. It has been ruled and used as precedent in the Bob Jones case that “the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.” In this case, we must ask if this anti-discrimination law hinders the Orthodox Jews religious free exercise. Furthermore, even if it does violate their free exercise, is there enough of a compelling state interest that an exemption should be denied.
I believe that on a basic level it does violate their free exercise of religion. Forcing them to disregard this tenet of their religious practice does place a burden on them. Yet as the court ruled in Bob Jones University v. United States, this burden will not make it impossible to practice their religious beliefs.
The compelling state interests in outlawing any forms of gender discrimination outweigh the burden placed on this religious group. The unequal rights of men and women are still struggling to be overcome in the workplace and in the assumptions about duties in the home. The government cannot afford to ignore any issues that support gender segregation in public places.
This will not outlaw the practice in a private setting but does eliminate segregation on these bus routes open to the public. As Mayor Michael R. Bloomberg stated, the group can instead rent a bus in which practicing this religious belief is permitted. This way, those men who truly feel uncomfortable sitting near women may ride this bus where they know their religious values will be enforced. On the other end, those who wish to continue riding this bus open to the public may do so and follow the anti-discrimination laws that all other bus routes follow.
The counties of Williamsburg and Borough Park in Brooklyn New York have an interesting situation with their public bus system. Instead of using a government run public transportation system, a Private Transportation Corporation has purchased the rights from the city to act as a public bus system. The buses look and function just like any public bus system. Although these buses may seem like all public buses, there is one major difference. On these buses female passengers must sit in the back while males must sit in the front.The New York World reported this week that a bus that serves two Hasidic communities in Brooklyn, NY is segregated by sex: men in front, women in back. According to the article, nearly all of the passengers are "Orthodox Jews with full beards, side curls and long black coats." One woman, who was not a part of the community, sat down in the front and was asked to move to the back of the bus. She was told that the bus is a "private bus."
Saturday, October 22, 2011
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.
The main issue in this dispute concerns the religious free exercise rights of the residential homeowners. They are attempting to practice their religion as they see fit and are not infringing on anyone else's constitutional rights. The additional people at these meetings are not being loud or inconveniencing the neighborhood in any way. Even so, the local ordinance holds that any religious meeting, regardless of the number of participants, is not allowed in residential neighborhoods. The city manager believes that the meetings have transformed the residential home into a place of public assembly in violation of local ordinances. Establishment is not an issue in this case because the ordinance passes the Lemon Test by having a secular purpose, its primary effect does not advance or inhibit religion, and there is no excessive entanglement. The ordinance has the primary purpose of maintaining the desirable qualities of residential neighborhoods and treats religious meetings the same as any other group meeting.
The ordinance in question directly restricts the way in which citizens can exercise their religious beliefs within private homes as is their constitutional right. As discussed in Reynolds v. US (1879), many actions typically allowed can be restricted in order to protect compelling state interests such as maintaining peace and order within our society. The city manager in the ongoing California case stated that the meetings "erode the policy of preserving the spacious, low-density residential character of the property and neighborhood." While protecting the desirable qualities of residentially zoned areas is important, this goal does not rise to the level of a compelling state interest. Birthday parties or other social gatherings which would not be restricted under this ordinance would in all likelihood disrupt the serenity of residential neighborhoods much more than group meetings held within one's home. The California homeowners did not inconvenience the neighborhood due to the ample parking space available as well as the unobtrusiveness of their actions. Additionally, even if one elevated this interest to the level of a compelling state interest, the argument could be made that the meetings in question do not hinder this interest.
Supporters of the ordinance may look to Employment Division of Oregon v. Smith (1990) for legal support. The decision written by Justice Scalia for the 6-3 majority held that laws which are valid regarding general practices cannot be justifiably violated based solely on religious beliefs. In this case, laws prohibiting the use of the hallucinogen peyote were determined to override religious beliefs supporting the ingestion of peyote. The majority opinion discussed how a contrary ruling would place religiously motivated actions beyond the reach of criminal law. The neutrality and general applicability of the peyote law was an important factor which influenced the majority decision written by Justice Scalia. Justice O'Connor's concurring opinion focused on the impact of the respondents' actions on the compelling government interest of preventing harm caused by peyote consumption.
While the ordinance prohibiting residential religious gatherings is both neutral between religions and generally applicable, Employment Division of Oregon v. Smith (1990) should not be used in support of the ordinance. The level of the state interest being discussed is much more compelling in Employment Division of Oregon v. Smith (1990) while the state interest being discussed in California may not even be undermined by the gatherings in question. A ruling in favor of the homeowners would not inappropriately place religious actions beyond the reach of criminal law nor protect any compelling state interest as was a concern in Employment Division of Oregon v. Smith (1990). Such a ruling would instead provide free exercise rights to individuals attempting to practice their religion as they desire within the privacy of their homes without infringing on the rights of anyone else. This ordinance directly violates the free exercise clause of the Constitution by mandating how individuals can practice religion within their homes.
Sunday, October 16, 2011
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.
