Religion & American Law

A Georgia Pastor is crying foul after he was repeatedly arrested while protesting outside Warner Robins High School (located in Warner Robins, Ga.). The Pastor, who was protesting the school’s mascot, a Demon, claims his first amendment rights pertaining to free speech and freedom of assembly were violated by his repeated arrest and that he was being singled-out due to the religious tone of his protest.

The issue began in August 2010 when Pastor Donald Crosby, leader of God’s Kingdom Builders Church of Jesus Christ, learned that his son would be attending Warner Robins High School. Pastor Crosby took issue with the school being “Home of the Demons” and felt that the demonic mascot did not send the right message to impressionable adolescents. He and 20+ of his congregation decided to picket outside Warner Robins on the first day of school and voice their displeasure.

Shortly into the protest, however, local police dissolved the crowd and arrested Crosby for picketing without a permit (he was quickly released on bond). Several days later, Crosby obtained a permit from the city and held another protest outside the school. Again, police arrived and arrested Crosby, even though he and his congregation had all of the necessary paperwork this time.

Now, more than a year later, Crosby has decided to take legal action against the city of Warner Robins for his repeated arrest. On Monday, October 24, 2011, Crosby filed a lawsuit in Federal District Court, “claiming false imprisonment, false arrest, malicious prosecution, battery and harassment.” The city, along with the two arresting officers, were named as defendants in the case.

The city, on the other hand, maintains its innocence in any wrongdoing and claims the arresting officers followed all of the proper procedures. James Elliot, the attorney representing the city of Warner Robins, argues the city “had the right to regulate protests in order to maintain the public order.”

Up until the point when Crosby was arrested for the second time, everything was running relatively smoothly; Crosby tried to stage a protest but was arrested for not having a permit. He then received said permit from the city government in compliance with local ordinances in order to stage a second, lawful protest. The question at hand here is “did Pastor Crosby’s second protest constitute a great enough threat to public order to warrant police action?” There is little evidence to support that idea.

Looking at the evidence in this case, it is apparent that Crosby was rearrested not because his protest was threatening law and order, but because it’s religious argument was unpopular. The school adopted the mascot during WWII to honor the 7^th Fighter Squadron, better known as the “Screamin’ Demons,” which at the time was based at nearby Robins Air Force Base. Many townspeople were unhappy with Crosby’s protest, seeing it as unpatriotic and trying to undo close to 70 years of tradition. Because the mascot came from the Screamin’ Demons, many townspeople also maintained that Crosby’s religious argument that the school was promoting something akin to devil worship did not make any sense, as the mascot was not religious in nature.

Regardless of the feasibility of the Pastor’s argument, he should have been allowed to voice it without harassment by local police. Just because an argument is unpopular does not give the government the right to silence it. That’s the whole reason the first amendment exists in the first place; to protect all speech, not just popular speech. Pastor Crosby is unequivocally within reason to file a lawsuit against the city and the arresting officers. His most basic constitutional rights were violated, and he deserves justice.

John Banzhaf, an attorney and professor at the George Washington University Law School filed a complaint against the Catholic University of America (CUA) for violating the human rights of Muslim students. In a 60-page complaint against the private university, Banzhaf charged that the CUA infringes on Muslim students’ rights by not allowing them to form a Muslim student group and by not providing them rooms without Christian symbols for their daily prayers. This investigation contends that Muslim students must perform their prayers surrounded by symbols of Catholicism – a wooden crucifix, paintings of Jesus, pictures of priests, etc.

This case is important in evaluating the complex relationship between the establishment as well as the free exercise clause and the operation of private organizations, specifically a university. The first issue to examine is whether the Muslim students have a right to charter their own student organization. If the court were to remain consistent with it’s ruling in Westside Community School vs Mergens (1990), then the court would mandate that the CUA should allow the formation of the student organization. Because the school allows other religious groups (not just Catholics) to meet, then it should allow Muslim student unions as well. The university cannot set different standards for different groups of people. The issue would be one of neutrality rather than endorsement; if the university refused to let a Muslim religious group use facilities open to others, then it would demonstrate hostility toward one specific religion. Furthermore, just as in Westside, University students are mature and are far less impressionable than elementary school students, and can therefore decide what student religious organizations they would like to participate in.

The second issue at stake is whether or not the fact that the Muslim students are compelled to perform their prayers surrounded by Catholic symbols violates their free exercise of religion. If I were conducting this investigation, I would explore whether there are even rooms on the CUA campus that are devoid of religious icons. Although this question is not addressed in any article I have read on this controversy, in a 2010 interview with National Public Radio, university president John Garvey acknowledged that they don’t set aside prayer rooms for Muslim students. Instead, the CUA makes chapels and classrooms available so the Muslim students can pray. In terms of this issue, I think it is important to recognize that the CUA is a private, Catholic university. Students who apply to this university are aware of both of these characteristics. Therefore, I think the university has done a fair job in accommodating Muslim prayer by opening up classrooms and chapels to these students. If the University were to designate specific rooms for only Muslim students, I would see that as an endorsement of a particular faith. Thereafter, the CUA would also have to designate specific rooms so that other religious groups could congregate, in order to give all religious organizations equal access. It is also important to recognize that as a Catholic university, the school maintains a right to operate according to Catholic practices- which may include hanging wooden crucifixes or pictures of Jesus. Consequently, if these Muslim students feel uncomfortable with these religious symbols, they should have made a different choice when applying to schools. Therefore, I believe on a basic level that praying in rooms filled with Catholic symbols does not violate their free exercise of religion. Perhaps only opening a limited number of rooms is done as a security measure. Thus, opening up a few rooms, does not place a significant burden on these students.

On Wednesday, the Pennsylvania State Senate approved a measure to extend taxpayer-dollars to offer vouchers to impoverished students in failing public schools that would theoretically give them the “choice” of attending private schools, both religious and secular. The purpose of the measure, according to Governor Tom Corbett, is to “help improve opportunities for thousands of school children throughout Pennsylvania.” Pennsylvania, however, is not the only state that is considering such options. Ohio and Tennessee are also planning to institute similar programs in the future.

Writing for Americans United, Joseph L. Conn, in his article entitled ‘Educational Choice’ and Hooey: School Vouchers Help Religious Schools, Not Families, expresses concern with the idea of “choice” being a realistic aim of this proposal. He states that the choice truly lies with the private schools, since the bill does not force schools to change their admission qualifications. In fact, the Senate shot down an amendment offered by Senator Daylin Leach that would ban private schools from discriminating based on sexual orientation in admissions. Leach states, “Schools can cherry-pick the best or perhaps the most athletic kids and reject the rest.”

Conn also expresses concern over the fact that the money used for these vouchers will come directly from the public schools left behind. Such an injustice, claims Leach, would leave these public schools with even worse financial burdens than those with which they began. The voucher program passed by the Senate, according to Conn, is a clear and imminent threat to the “wall of separation” that does, or should, exist between church and state.

The issue that incorporates these concerns expressed in Conn’s piece is the one which on which I will focus here. Does the offering of these vouchers for students to attend private schools, some of which are religious, constitute an establishment of religion? Joseph Conn, and Americans United, would seem to be clear in answering this question affirmatively, and, in fact, if the definition of establishment were anything that threatens the “wall of separation” between church and state, then I would be inclined to agree, but it does not.

As Justice Rehnquist contended in his dissenting opinion in the 1985 Supreme Court Case of Wallace v. Jaffree, this clause in the constitution has been grossly broadened and misinterpreted. Establishment means exactly that: establishment, and the constitutions holds that the government is not to establish a federal religion. To say anything more than this, without the enactment of a valid law by the legislature is itself unconstitutional.

Therefore, it is my strong belief that helping impoverished students reach their potential by offering them the opportunity to attend a private school, either religious or otherwise, does in no way constitute establishment. This, of course, depends strongly on the basis of choice and the lack of coercion. In this way, Conn may respond to my argument by stating, as he does in his article, that this is where my reasoning is fundamentally flawed, for no choice exists for the students, but only for religious schools. This is simply not the case, for no student is being forced to attend a religious school. Of course the school has the ability to accept whomever they choose, for this is partly what it means to be private. This does not mean that students should not have the ability to apply to these schools. The article assumes that the schools will only accept the best students or the best athletes, and this may indeed be the case. However, it overlooks the fact that students who were previously unable to afford quality education are now in a better position to achieve their goals.

Epperson v. Arkansas was ruled, at least in part, on the basis of neutrality between religion and non-religion. The vouchers in this program allow students to attend private schools in general (both religious and secular). The bill is therefore neutral in this regard, and in no way attempts to establish one religion or to preference religion over non-religion.

Finally, in Cochran v. United States, the Supreme Court reflected the concept of what would come to be known as the “child-benefit theory.” It was ruled that tax dollars could be used to purchase secular textbooks for students attending private school. Because it helped defray the costs of attending such a school, the court ruled that the state law allowing such appropriation of funds was not unconstitutional. The case in question here is substantively similar in that students are being aided by the government to ensure quality education, a benefit both to the students and to the state. Though religious schools may benefit, this in no way constitutes establishment as the Framers intended, and therefore no such law should be ruled unconstitutional.

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.