Religion & American Law

On Monday, October 31^st 2011, in an 8-1 ruling the Supreme Court rejected to listen to an appeal of a ruling on the placement of religious symbols alongside a state highway. Along interstate fifteen in Utah, there are dozens of crosses that have been erected to honor fallen state troopers. These crosses are white, twelve feet tall, with six-foot crossbars. These structures were donated by the Utah Highway Patrol Association and placed near where the troopers died. The Utah Highway Patrol Association is a private group and since 1998 has paid for and erected fourteen memorial crosses, created to honor state troopers who have died while on duty. Of these fourteen, eleven are on state property while three are on private property. Not only do these crosses display the name of the deceased trooper, but also their picture, badge number, biographical information, as well as the symbol of the Utah Highway Patrol.

In 2005 the Texas-based American Atheists Inc. along with three Utah members sued the state of Utah for violation of the establishment clause. The American Atheists Inc. believed that there was an improper mixing of government and religion because the shield of the Utah Highway Patrol is on the crosses. At a federal appeals court in Denver in 2010 the crosses were deemed an unconstitutional endorsement of Christianity by the state government. The crosses were too be removed from public property immediately. The basis of this decision, as the three judge panel stated was the crosses would leave any “reasonable observer” with the impression that “Christians are likely to receive preferential treatment”. Although this state court ruled against the crosses, the Supreme Court side stepped the entire problem. The Supreme Court refused to listen to the appeals for this case. In his dissent, Justice Clarence Thomas stated that this case would allow the court to clear up the confusion over how to determine whether or not the Establishment Clause has been violated. Since the Supreme Court has declined to make a decision, the case will now go to a federal judge in Salt Lake City for an order to have the state take down the crosses.

This case has brought up a large amount of criticism of the Supreme Court. The purpose of the Supreme Court is to settle debates over constitutional rights, and if the Court can’t make a decision how are the lower courts supposed to know what to follow. By refusing to address the problem, the Supreme Court is not following its duty. Justices are supposed to handle complicated constitutional issues and determine a ruling, by not picking a side it leaves all lower courts confused. Not only that, but by not setting a standard the Court leaves room for greater discrepancy between cases. Another problem with the Supreme Court’s decision is that they did not even bother to utilize their favorite tool, which they have often used to determine establishment clause cases. The Lemon Test has been a useful instrument used by the Court for many different cases, so why did the Court choose not to use it now? Although this case is certainly not simple, by reviewing it with the Lemon Test it is clear that these crosses create government entanglement with religion. The cross is widely recognized as a religious symbol and by allowing it to be placed on public property with a state organization’s shield; the crosses clearly violate the establishment clause. Had the Court chosen to review this case, it should have ruled the crosses to be unconstitutional. To that effect, the Supreme Court would determine another way that those who have died could be honored, such as putting the crosses on private property or by creating different memorial structures without religious implications. Overall it is apparent that the Court could have made an effective decision, but instead they decided to not get involved.

In its entirety, by refusing to listen to the appeals the Supreme Court has forgotten the key issue here, separation of church and state. The Supreme Court should have addressed this issue, which would have an effect taken away much of the gray area surrounding establishment clause issues. How do you think the Supreme Court should have handled this case? Do you believe not taking an active role in this case was the right decision? If you believe the Supreme Court should have heard the appeals, what do you think their ruling would be?

Belmont Abbey College, a private Catholic liberal arts college in Belmont, North Carolina is suing the government due to their opposition against a new regulation requiring employer health insurance plans to provide coverage for contraceptives and sterilization. As a Catholic school the college feels that this is an infringement on their right to free exercise of religion, as the regulations violate their religious beliefs.

The mandate behind this issue is part of the Patient Protection and Affordable Care Act of 2010, which is supposed to come into effect in August of 2012. This act sets up preventative health care coverage for women with no cost and covers mammograms, prenatal care and cervical cancer screenings. In addition it provides contraception, sterilization and drugs such as “Plan B.”

In order for the school to be exempt from offering these services mandate they must first, have the inculcation of religious values as its purpose, second they must primarily employ people who share their religious beliefs, third, they must primarily serves people who share their religious beliefs, and four they must be a nonprofit organization under specific section of the Internal Revenue Code. Unfortunately for the college they fail to meet these requirements.

Not only is Belmont Abbey fighting this battle but also along with them are the U.S. Conference of Catholic Bishops, and Catholic universities and schools, hospitals, and charitable organizations and all have a strict opposition to this mandate. This team against the mandate is attempting to avoid the exemption rules making a point that unless the college restricts enrollment to Catholic students and begins to only hire those who believe in the Catholic faith, then and only then will they qualify for the religious exemption. By only allowing Catholics into their school or only hiring employees based on religion would be prejudicial, and will help them prove their point.

A Washington-based nonprofit, public interest law firm, the Becket Fund for Religious Liberty is representing the school. They filed the lawsuit on November 10^th. The senior legal counsel on the case for the Becket Fund, Hannah Smith said, "A monk at Belmont Abbey may preach on Sunday that pre-marital sex, contraception and abortions are immoral, but on Monday, the government would force the same monk to pay for students to receive the very drugs and procedures he denounces." The Becket Fund is trying to illustrate that the schools teachings should agree with their actions.

The lawsuit states, "The government's mandate unconstitutionally coerces Belmont Abbey College to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The mandate also forces Belmont Abbey College to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one's religion or controlling one's own speech is un-American, unprecedented, and flagrantly unconstitutional."

This issue presented is obviously a matter of free exercise. The question is: Should Belmont Abbey College be exempt from the health care mandate? Although I am sympathetic to the college and their beliefs, I will have to disagree with their opposition. As they admitted they do not just employ employees of the Catholic faith and they do not have only students that consider themselves Catholic, which is why I feel they should not have an exemption. By denying those they provide health care for certain services I feel it is an infringement on those people’s rights. When it comes to health care for Americans there needs to be strict guidelines for all. There should be no exemptions to deny hard working citizens access to health care regardless of the religious affiliation of where they work or whom they work for. Setting strict guidelines will prevent any disturbance in society. In Reynolds v. United States the court ruled against Reynolds because it would be in violation of social duties and order. I think that by allowing the college this exemption it will be denying people things they need and could possibly cause a disturbance in social order.

In order to boost citizen engagement in everyday political activities, the Obama Administration created a section of the White House website called “We the People” which allows citizens to create and sign petitions. Once these petitions reach a certain amount of signatures, the White House will review them and make a decision on them. The Obama Administration recently rejected two of the more salient petitions: one for the removal of “In God We Trust” from our nation’s currency and the other for the removal of “One nation under God” from the pledge of allegiance.

These petitions are of particular interest because what they have inadvertently hit on in their quest for complete governmental secularization is a very good example of the limits of the establishment clause. While the phrases “In God We Trust” and “One nation under God” do not necessarily establish one particular religion, in the petitioners’ eyes it places a premium on religion over non-religion.

I personally disagree with this blogger’s view on the matter. While he clearly sees an issue with the Obama Administration rejecting these petitions, I think that the white house made the correct decision in this case. This particular incidence falls into the category of justifying church and government entwinement based on legacy and history as well as the extent of the entanglement. This rationale has been used before by the Supreme Court to decide on issues such as the town of Pawtucket’s inclusion of a crèche in their state sponsored Christmas display (Lynch v. Donnelly) and the constitutionality of state funded chaplains opening state legislatures with a daily prayer (Marsh v. Chambers). In both of these instances, the Supreme Court ruled in favor of the inclusion of the religiously affiliated acts (crèche and chaplain). They maintained that history/tradition as well as the extent of the entanglement were deciding factors. In Marsh v. Chambers, Chief Justice Burger states that “The opening sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From the colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.” In Lynch v. Donelly Burger again stated that “… it is clear that Government has long recognized – indeed it has subsidized – holidays with religious significance.” However he continues with his lack of entanglement argument (which I personally think holds more water in this case): “Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court’s findings on the absence administrative entanglement.”

Ultimately, history, tradition and the extent of the entanglement is what this case comes down to. These two phrases have been used to describe the United States government for long enough now that they have become secularized. When I say those phrases I don’t feel that I am appealing to a higher power or some supreme deity, rather I feel like a patriotic American. Moreover, even if people dispute the fact that “One nation under God” is not really historical since it was added in the 1950s; there just is not a case of excessive entanglement. I simply cannot see how an American citizen could legitimately claim damages merely against saying or reading a simple phrase. I could understand if it was occurring on a special occasion, or if the religious entanglement was of some heinous degree, however the fact that these phrases are used so regularly (and have been so for more than 50 years) and that the entanglement in practice is so minor, I cannot sympathize with the undersigned.

Nathan Henderson, a Muslim, is suing the American Bottling Company because he believes that he was fired due to his religious practices. In September 2007, Henderson was pulled aside by his boss to discuss reports that Henderson had been taking time during the workday to say his five daily prayers. Since these prayers only lasted approximately two minutes his boss said that he did not have a problem with Henderson saying his prayers during the workday. After this meeting Henderson then asked his boss if he could take his lunch break to match up with Jumma prayers, which is a Friday only congregational prayer. Henderson’s request was denied. Henderson then suggested that he could make up the hours he missed by working on Saturdays, however the supervisor told him that working on Saturdays were reserved for employees with the “most seniority”. Henderson was also told by his supervisor that he should have disclosed his religious beliefs during the interview because he would not have been hired. A few days after meeting with his supervisor Henderson was fired for “not meeting the job requirements”.

This case brings up the right to free exercise of religion. Henderson is allowed to freely practice his religion and he is not allowed to be discriminated against based upon his religious beliefs and practices. A company cannot discriminate against their employees based on religion; they must make all reasonable attempts to accommodate the religious beliefs of their employees.

I believe that Henderson has a legitimate case of his right to free exercise of religion being denied and that the company did discriminate against him based on his religious beliefs and practices. Henderson, prior to accepting the job, should have informed his employer that he would be taking five short breaks during the work day to pray. Even though he did not do this, and after some complaints were filed about it, his supervisor did the right thing by saying that Henderson could take those breaks since they were short and did not interfere with his overall productivity. Henderson then requested to change his lunch break time to coincide with a congregational prayer period so that he could attend the prayer session. I feel that the Company was right it not allowing Henderson to change his lunch break time to coincide with the Jumma prayers. If the company allowed this request than they would have to start allowing many other religious based requests to take time off. This specific request impacts the flow of the workday too much so it was right for the company to deny it, even though Henderson offered to make up the time missed on Saturdays. The real problem comes however, with the firing of Henderson. From the article, it does not seem like there was any reason besides Henderson’s religious beliefs for him to be fired. Also, the fact that the supervisor told him that if he would have known prior to hiring Henderson of his religious beliefs that he would not have hired him, showing that the firing of Henderson a couple of days later was purely discrimination based on religious beliefs. Henderson was not refusing to work during the Jumma prayers on Fridays; instead he just put in a request to change his lunch break so that he could attend them. If he would have said that he would not work during that time on Fridays then we get into a situation like the Braunfeld v Brown case. The questions that this case raises are; where do we draw the line for religious accommodation? And what is considered to be a disruptive religious practice to the day of work?

The state of Kentucky has been at the center of many legal battles involving religious issues over the years. Recently, Kentucky has made the news with a case involving Kentucky’s Office of Homeland Security and the role that the establishment clause plays in our legal system.

On October 23, 2011, the Kentucky Court of Appeals ruled in a split decision that the Kentucky Office of Homeland Security has the right to publicly declare a dependence on "Almighty God" as being vital for the security of the Commonwealth of Kentucky.

Two important cases in Kentucky led this most recent case, both involving religion and the establishment clause. The first was a legislative finding in 2002 that claimed the security of the commonwealth cannot be achieved without reliance upon Almighty God. The second was an act from 2006 that required the executive director of the Office of Homeland Security to publicize a “dependence on Almighty God” in various training and educational materials. The act also allowed a Bible verse to be displayed on a plaque located at the entrance of the department’s emergency operations center. The verse on the plaque reads: "Except the Lord keep the city, the watchman waketh but in vain."

This October the court ruled in a split decision that 1) the Homeland Security director is not required to believe in an "Almighty God" and 2) no one is required to read the plaque at the entrance of the department’s emergency operations center. The decision stressed that the preambles to 44 states reference "a Supreme Being," while three other states have establishment clauses that refer explicitly to God or "speak approvingly of religion."

The ruling added that there has been no Kentucky case that has “prohibited a statutory reference to God of the sort embodied in the statutes in question… That rationale would place this section at odds with the (Kentucky) Constitution’s Preamble.” (The preamble of the Kentucky Constitution thanks “Almighty God” for the welfare of the commonwealth)

This most recent decision made by the Kentucky Court of Appeals in 2011 overturned a 2009 ruling by a state circuit judge who found that legislation requiring the state to recognize the Almighty “created an official government position on God,” that violates both the Kentucky and U.S constitutions’ bans on state-established religion.

The conflict in this Kentucky court case is a testament to the important and often controversial role that religion plays in contemporary legal, political and public issues. The inherent issue in this case involves the establishment clause of the First Amendment, and questions whether publicly acknowledging a dependence on “Almighty God” for homeland security and publicly displaying a Bible verse at a state-run department demonstrates an establishment of religion.

Personally, I do not agree with the ruling in this case. Although it is often tough to discern what does/does not violate the establishment clause of the First Amendment, the references to religion by the Kentucky Office of Homeland Security are blatant violations of this clause in my opinion. Simply saying that the director of the Office of Homeland Security “doesn't need to” believe in an Almighty God and saying that visitors to the agency's emergency operations center "don't need to look" at the Bible verse on the plaque at its entrance are not legitimate excuses against the establishment clause.

The decision made in Stone v. Graham (1980) that we discussed in class helps in assessing this case in Kentucky. In Stone v. Graham, the court held that the posting of the 10 commandments in public school classrooms was “plainly religious in nature,” and thus a direct violation of the establishment clause. In my opinion, by publicly declaring a “dependence on Almighty God” and by displaying a verse from the Bible in a public place, Kentucky’s Department of Homeland Security is violating the establishment clause. No government or state-run organization should publicly impose any faith-based material in any aspect of their operations on the public.

It will be interesting to see how the court's decision will influence the relationship between church and state in the United States, and how cases involving the establishment clause are dealt with in the future.

Additional sources:

http://www.therepublic.com/view/story/bbcb103beee74c7aa96b3dd3916955db/KY--God-Reference/

http://www.foxnews.com/story/0,2933,460889,00.html

http://www.youtube.com/watch?v=2Tl5NhdtL8Y

There are some concerns of rights of Muslim students at Catholic University. The Washington DC Office of Human Rights is currently investigating. These concerns are over questions of whether or not Catholic violated their human rights by not allowing them to form a Muslim student group and furthermore not offering them a room free of Catholic symbols to perform their meeting and required prayer. The symbols that are currently in the school include: “a wooden crucifix, paintings of Jesus, pictures of priests and theologians” that most Muslim student found inappropriate; some noted that they had to pray in the school’s main chapel.

The office explains that this investigation is not going to be instantaneous. A complaint was filed by John Banzhaf and that is how the investigation began. He is an attorney as well as a professor. He was involved in previous cases against the university regarding same sex residence halls and treatment of Muslim females.

A spokesperson from the university did state that their religion allowed for an open home for all religions. The school explained that they offer rooms and chapels for the students to pray, and that they even offer meats that conform to Halal regulations (Muslim eating rules) allowing the students to “do what they want”.

Although Banzhaf does explain that it is not illegal for the school to not offer rooms for the prayer, this situation does bring up some concerns of the constitutionality of what’s occurring. This could actually be a situation of both establishment and free exercise. But before one can unpack the specifics, it is important to recognize that this article is a bit troubling because of the lack of clear information. Nothing seems to have been confirmed. The school has not issues a public statement about the entire investigation, the Office of Human Rights has not disclosed what is currently happening. So, these rumors could be over-exaggerations.

This could be viewed as concern over establishment, because it is a Catholic university that is “purposing” not allowing their (like a) minority group of Muslim individuals practice what their religion requires. Because of this the university is establishing their religion on all of its students.

But what seems like might be more feasible is these Muslims inability to freely exercise their religious freedom. They are being directly prevented from having an accessible room to pray. They could pray in the middle of the hallway or classroom, but they would likely get charged for disrupting the piece. It is understandable them not being allowed to form this students group, if, and only if, the school has a strict policy against religious and atheist groups being formed through the school. If there are currently Catholic or any other religious/non-religious groups a part of campus, the university not allowing the Muslim students to do the same is not ok.

This is important because it is regarding a minority and because there is precedent. We have been exposed to other cases and investigations over students wanting to form religious group. A great example is the case of West Side Community School vs. Mergens where students want to have a bible study group, yet the school will not let them because they do not want their faculty to be there (which is a rule for student groups) because of the school’s concern over establishment. Students say this is unacceptable because it is against the equal access act. The court ruled with the students on this saying that it was ok because: it was outside of class hours, it was voluntary, the sponsor wasn’t paid, other clubs were allowed to meet, these were mature kids, and because of the Lemen test. If the court follows this precedent, then the Muslim students have to be allowed to meet. Lastly, the implications of how this case is ruled could prove that the country embodies islamaphobia. This is extremely important to how the Supreme Court and the educational system view Muslims let alone religious minorities in general. This case is also important because it involves both the free exercise clause and the establishment clause. It looks how they relate and intertwine. This would be an interesting case to have the Supreme Court rule on; wonder if they would side in favor of the minorities? The precedent for that has been no.

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.