Religion & American Law

According to a September issue of The Wall Street Journal, there are over 60 churches in New York City who use public school for religious purposes on weekends, outside of school hours.

Currently, a church in The Bronx is taking their case to court, after being told they were not allowed to hold their Sunday worship service in a middle school building. The Bronx Household of Faith church used this middle school up to 1994, until the New York City Department for Education developed a policy banning public schools as "religious worship services, or otherwise using a school as a house of worship." This policy was written after the Ney York law that said that a public school may be used for, "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," as long as those uses are "non-exclusive and ... open to the general public." The Bronx church took their case to court but the court ruled in favor of the NYC Department of Education.

(Video of Bronx Household of Faith Church)

In 2001, in the case of Good News Club v Milford, the court ruled in favor of the religious group. The Good News Club wanted to use public school space, after school hours, to teach children bible verses, sing songs pray, and teach Bible stories. The court ruled that it was unconstitutional for the school to exclude "a private Christian organization for children."

After the ruling in favor of The Good News Club, the Bronx church went back to court and the court ruled in favor of the church and they were allowed back in the public school. However, last June, the 2^nd US Circuit Court of Appeals reversed that ruling and the Bronx church asked the Supreme Court to review the case. The Supreme Court will decide whether or not to hear this case in November.

Can the government ban worship services on public school property? By doing this, does it enforce the separation of church and state or does the First Amendment protect religious worship as a freedom of expression?

The majority in the Bronx case states that the ban on religious worship does not discriminate against religion since it is neutral and supports the public school system in avoiding an establishment clause violation. Also, when churches rent out space in public schools, they pay less than renting other places. By allowing churches to use public schools, is that giving religious groups an advantage?

The opposing view sees this ruling as a violation from freedom of speech and does not see a legitimate compelling state interest in the case. Also, by allowing other social groups in the public schools, outside of school hours, the ruling is not neutral but discriminating against religious groups and violates the free exercise clause.

The Bronx Household Church’s pastor, Pastor Bob Hall, sees the church in battle against the secular society trying to silence their efforts. Unless the Supreme Court reverses the Circuit Courts ruling, Pastor Hall says it, “will put us out on the street, literally."

Especially since the New York City law allows for social meetings that are non-exclusive and work for the welfare of the community to use the public schools outside school hours, the Bronx Church should be allowed to use The Bronx Middle School. The worship services are open to the general public and are not turning the public school into a house of worship. Rather, the church community is gathering in a space to worship and pray, just like The Good News Club does with children on the weekends. If the courts ruled in favor of the Good News Club, then they should also rule in favor of The Bronx Household of Faith Church.

Earlier this month, a woman named Melissa Franchy entered a Brooklyn bus and sat down in the front. However, as time passed she noticed she was getting odd stares. After the bus began to reach capacity, men insisted she move to the back of the bus. The men were Orthodox Jews and they explained the confused woman that she was on a privately owned Jewish bus. Their reasoning was solely, “If God makes a rule, you don’t ask ‘Why make the rule?’” Melissa then complied with their demands and went to the back of the bus.

The B110 bus travels in Brooklyn between the towns of Williamsburg and Borough Park. The bus is open to anyone as it has a specific route number and bus signs like any other bus. The bus line is privately owned and operated, as its purpose is to serve the Hasidic residents in these two neighborhoods. It is a Hasidic tradition for men and women to avoid physical contact and in order to preserve this tradition; the bus requires women to sit in the back.

Private Transportation Corporation owns the bus company and it pays the city for the ability to provide this public service. Instead of passengers using Metrocards, they pay their $2.50 fare in dollars or coins. Last year the franchise paid New York City’s Department of Transportation $22,814 to keep the ability to provide its service.

However, there are laws prohibiting the discrimination of gender in public accommodations such as public transportation. Although the bus service is privately owned it still is a public service. This company’s gender discrimination is unconstitutional. A public accommodation is considered, “anyone who provides goods and services to the general public.” In addition, it is seen as illegal for public accommodations to, “set different terms for obtaining those goods or services to different groups.” Although this is a religiously owned private bus company I feel that this company should not be granted an exception to the anti-discrimination law.

Public accommodations can either be governmentally owned or privately owned. Privately owned businesses that offer goods and services to the public are viewed as public accommodations in terms of federal and state anti-discrimination laws. Under federal law, public accommodations are not allowed to discriminate, as they are open to the public. I strongly believe that this type of discrimination is unconstitutional. Even though the bus company is privately owned, it is still considered a public accommodation. Public accommodations do not allow any sort of discrimination regardless of religious purpose. If the religious group feels so strongly about segregating women and men on transportation, they should use different methods such as utilizing a separate transportation that does not go through city money. By the bus being available for pubic use, there cannot be any type of discrimination whatsoever. The bus company does not have the right to not follow the anti discrimination laws if they obtain any sort of public funding or accommodation. If they wish to live with a completely different set of rules than they should provide their own private bus lines. No one in this modern day society is going to want to ride a bus that requires them to sit in the back. If they wish to live like this they can do it in private spaces not public services that are privately owned. This scenario reminds me of 1955 when Rosa Parks was told to give up her seat in order for a white passenger to sit down. This discrimination is unconstitutional as it goes against the 14^th amendment and should not be allowed to continue.

Hertz rental car company has fired 26 of its employees at a Seattle airport branch because they refuse to clock out during their prayer times. The Associated Press reports that a local workers union which represents a large portion of the Muslim employees at Hertz does not find this action to be constitutional. According to spokesman Tom Zilly of the union Teamsters 117 feels that Hertz did not follow their own internal policy, as they agreed to allow the workers to be paid during their prayers a year ago. Hertz claims that the workers were violating a settlement with the Equal Employment Opportunity Commission reached two years ago. The company stated that the work environment was tarnished when workers would often take more time with their prayers than necessary.

Constitutionally, this brings up the question of whether or not the Muslim workers were discriminated against because of their religion. Technically, they are allowed to leave work to pray but they cannot be paid for the time when they are out of work. Are the employees’ constitutional rights to freely exercise their religion being violated? Should employees be paid for prayer time?

Personally, I find that Hertz has not discriminated against these Muslim workers. I agree with the company that the employees could be taking advantage of the paid free time to do other things that were not work. Even if there were no work related issues, I still think that paying people to pray does not make much sense to me. Companies should constitutionally oblige to allow their employees time out of work to pray, but it should not have to be paid. In Sherbert v. Verner we saw that the court gave unemployment compensation to a woman who could not work on Saturdays due to her religion when she could not find a job. While this is similar in nature to this instance, it differs in the fact that Muslims do not have to miss a significant amount of time to pray. Financially, I feel that they would not be burdened as much as the woman in Sherbert.

Tom Zilly feels that Hertz should not have given such a harsh ultimatum and could have instead sat down with their employees and reached some sort of compromise. I feel that this is not a good argument. Hertz has the right to fire and hire employees at will, just like all other companies. Nowhere in most contracts of employment does it say that the company must negotiate with an employee instead of fire them. While it may be courteous to do so, it is not a legal obligation.

At the end of this argument, I find Hertz is doing nothing wrong legally and the workers union is blowing things out of proportion. The workers are allowed to leave work to pray, so they can freely exercise their religion. Unfortunately for them, their religion may take away a little bit of their pay, but I don’t feel that it would amount to be enough to place a heavy financial burden on them.

A statue of Jesus that sits on a 25 foot by 25-foot patch of public land atop the Whitefish Mountain Ski Resort in Whitefish, Montana may be “ski booted” off the mountain if the Freedom From Religion Foundation has its way. The icon in question is a large, painted stone statue of Jesus Christ, which was placed there in 1953 by the local Knights of Columbus to honor returning veterans of World War II. The statue was selected and placed on the mountain to honor, in particular, members of the 10^th Mountain Division, many of whom were instrumental in establishing the local and national ski industry. The veterans spoke of seeing religious shrines in remote mountain communities in northern Italy. The Knights of Columbus were granted a special use permit from the U.S. Forest Service and the statue was erected on a concrete pad. It has stood there since looking over the mountainside and greeting skiers as they descend the mountain.

In August, under pressure from the Freedom From Religion Foundation, the U.S. Forest Service rejected the renewal of the 10-year lease and ordered the Knights of Columbus to move the statue by the end of the year. The Foundation, which promotes the separation of Church and State, filed a claim with the Forest Service seeking the removal of the statue arguing that allowing it to remain would be in violation of the Establishment Clause of the U.S. Constitution.

The Knights of Columbus appealed the decision, stating that the removal and movement of the nearly 60-year-old statue would likely destroy it and that the statue’s historical, not religious significance, mandated that it be allowed to remain in place.

U.S. Representative, Denny Rehberg (R. Mont.) intervened on behalf of the local community and the Knights of Columbus. In a letter to the U.S. Forest Service, Rehberg noted that “This memorial is an irreplaceable part of our state's history and a unique and colorful part of the local culture…the Forest Service's denial of the lease defies common sense." Rehberg also went on to say that the statue is a symbol of hope and faith, and removing it would be an insult to the sacrifices the soldiers made for this country.

Local residents and supporters were also angered by the initial denial of the permit and voiced concerns that moving the statue to nearby private land would demean the longstanding piece of history of the mountain and thus should be left where it is.

The controversy did not remain local. The newswires picked up the story and the statue’s fate has prompted national debate. On Friday, the U.S. Forest Service, in response to Rep. Rehberg’s letter and the outcry from local and not so local supporters of the statue, rescinded its order to move the statue and has announced it will take comments and allow a more meaningful dialogue on the issue. Coinciding with the Forest Service’s announcement, local community leaders said they were advised that the statue is eligible for listing in the National Registry of Historic Places. Its placement on the National Registry might help but it does not guarantee that the statue will remain.

The historical aspect of the statue, I believe overrides any religious symbolism the statue is perceived to have. By history, we know it was placed in the mountains in honor of veterans who recalled seeing similar icons in the mountains of Italy. The statue was not placed there so that skiers could stop and pray. Religious services are not held there. In fact, photos contained in the news articles I read, show the statue wearing ski goggles, a helmet and a scarf. Veterans of all religions passed through the mountains of Italy and were equally subjected to the Italian statues. Because the statue was erected to honor men who served in World War II, it cannot be assumed that the statue is there to promote one religion over another. Residents have upheld the tradition of this statue for 60 years, with the knowledge and secular belief that the statue is a memorial to the men who fought at war and is not a means to establish or support religious beliefs.

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 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."