Religion & American Law

Looks like taxation on toys and trimmings during the Christmas season has extended to the beloved tree as well. Over the past week, President Obama’s Agriculture Department announced that there would now be a new 15-cent tax on all fresh Christmas trees, which will support a new federal program aimed to improve the image and marketing of Christmas trees. Christmas tree growers support the tax because they wish to build a stable source of revenue in order to fund a marketing campaign. The 15-cent tax was created by the Christmas tree industry, not by the Obama administration despite all of the provocative headlines and outrage.

The new Christmas tree tax attracted complaints from Rep. Scalise and many others. To Scalise, the fee was a “Grinch move by the Obama administration” and promised to challenge it. Matt Lehrich, White House spokesman, informed Fox news that the administration was putting a stop to the proposal due to the controversy of the program. In his interview, Lehrich announced that the Obama administration was not taxing Christmas trees but that an industry group was deciding to impose fees upon itself in order to fund a Christmas tree promotional campaign that would be comparable to the “Got Milk” campaign. He informed viewers that the USDA was going to delay the program but it would be revisited.

The new program and fee was proposed earlier this year and would have reflected on the yearlong efforts by the fresh Christmas tree industry. This program was aimed to help promote the Christmas tree industry in times of increasing competition from producers of artificial trees. There were previous efforts to collect voluntary contributions to help create a fresh-tree marketing campaign but these contributions were not enough. The government then felt the need to help mandate a fee to support the Christmas tree board.

If passed, the government would impose the15-cent-per-tree charge on producers and importers of fresh Christmas trees. However, there were two problems found with the new fee. It was believed that the new 15-cent tax would be passed on to consumers of the trees, as well as thought the government was helping out the fresh-tree sellers and not the artificial tree sellers, which has been deemed inappropriate. The Agriculture Department continued to defend the program by saying that the fee does not count as a tax because the industry is imposing it on itself.

I agree with the outrage and the complaints surrounding the issue of the Christmas tree tax. I support the decision of the White House to sideline the proposed fee on Christmas trees. This case is an example of the government working with a private industry to promote a religious symbol. Christmas trees are identified by the Supreme Court to have secular and religious meanings. Therefore the government is then violating the Lemon test. Its involvement in supporting the Christmas tree board by mandating a fee advances the Catholic faith and creates excessive entanglement. Even though there are taxes on other objects of religious symbols such as a Menorah, the tax created here was going to be used to build a program to promote the Christmas image. This creates direct involvement of the government supporting the Catholic religion. There would have been no issue with voluntary contributions to support the program but the entanglement of government is inappropriate and creates an establishment of religion. If there is a promotional campaign supported by the government for one religious symbol, there must be one for other religious symbols as well.

In Jacksonville Florida, Pastor Ron Baker has held morning prayer sessions outside of the schools of Clay County School District for the past decade. The school board recently told the Pastor that holding prayer sessions on school grounds is unconstitutional. The Pastor’s praying, however, is an exercise of his religion and furthers a secular purpose: “why wouldn’t I want to pray for the safety and security of that school, pray for all those teachers and administration, pray for all those students.”

Earlier this school year, Clay Hill Principal Larry Davis issued a letter to District families urging students and community members to join in the prayer circles held by Pastor Baker. This prompted the Freedom From Religion Foundation to urge the school to ban the prayer sessions. The Liberty Council responded to the FFRF’s demand as unconstitutional. Clay Hill’s superintendent’s reaction was to ask Pastor Baker to hold the prayer session earlier in the day when school grounds were largely vacant.

There are two major issues that require mention: can a public school allow a Pastor to pray on campus, and can a public school’s administration urge students and community members to join in on these prayers. To allow both may violate the Establishment Clause and to disallow both – particularly the former – may violate the Free Exercise Clause.

Principal Davis’ encouragement of the prayer seems to draw parallels to several cases, the precedents of which indicate that Principal Davis violated the Establishment Clause because his encouragement of the prayer dances closely to state sponsorship of the prayer. In Engel v. Vitale, the Court ruled that the New York Regents Board in creating, recognizing, and allowing for prayer effectively gave preference to religion over non-religion and influenced the religion of the people thereby violating the Establishment Clause. For Jacksonville, the Principal’s encouragement of the prayer acts the same way as the Board’s establishment of the prayer for both involve an agent of the state encouraging religion over non-religion. In Wallace v. Jaffree the Court maintained that a moment of silence to begin the school day was unconstitutional because it constituted an effort to encourage religious action. Lee v. Weisman also ruled against prayer by a religious figure at graduation ceremonies because the practice represented state endorsement and support of religion over non-religion. Santa Fe v. Doe went further and ruled against student-initiated prayer at school events. In this case, the Court ruled that the school could not permit this type of speech on its grounds because the speech, being on school grounds and marking the beginning of a school sponsored event, was considered public speech and thus state-sponsored state. The precedents set by these cases demonstrate that the Court holds that prayer or a chance for formalized prayer on public school grounds – even if not initiated by the school but simply allowed by the school – violates the Establishment Clause. Therefore, according to these precedents, Principal Davis, in encouraging the prayer and acting as an agent of the state, violates the Establishment Clause. As concerns Pastor Baker, the ruling of Santa Fe v. Doe may indicate that Pastor Baker’s speech is not private speech, but public speech because he utilizes school grounds, and effectively uses each school day to initiate his prayer sessions. According to Santa Fe, his speech is not allowed. The significant deviation from Santa Fe is that Baker has no connection to the school, whereas in Santa Fe the student speaker represented the student body.

Conversely, the Court ruled in the Good News Club v. Milford that the exclusion of a religious club from school grounds violated the Establishment Clause. According to this ruling, to ban Pastor Baker from praying on school grounds would violate the Establishment Clause. Furthermore, according to Good News Club, the school in allowing the prayer sessions does not risk a perception of school endorsement – for the Court is not interested in the “perceptions of particular individuals.” However, considering that not only is the Pastor praying, but also that the Principal is encouraging, and thus endorsing the prayer, the precedent of the Good News Club may not stand. Furthermore, whereas the Good News Club met after school in an obscure room, the Pastor prays in a very public space while campus is mostly occupied: early arrivals enrolled in YMCA daycare begins at 6:30 am, student supervision by school personnel begins at 8:00 am, and school commences at 8:30 am. Pastor Baker begins prayer at 8:15 am. Based on Court precedents where clubs are allowed to convene so long as there is no confusion about endorsement (i.e. the session is not sponsored or encouraged by the school and is held after school hours while classrooms are mostly vacant) the Pastor’s praying on school grounds may be deemed a breach of the Establishment Clause. N.B. the Court utilizes Lamb’s Chapel to determine Good News Club.

I find all but the last two mentioned rulings incorrect, and I conclude that Pastor Baker’s right to free speech and free exercise must be protected and that Principal Davis in encouraging the community to attend the prayer did not violate the Establishment Clause because there was no establishment of a national religion. Whereas the Court holds that religion and non-religion should be held as equals and that neither should be asserted over the other, I contend that to ban religion from the public sphere is hostile to religion and that to uphold religion does not violate the Establishment Clause because religion has been central to the history of our great nation and reference to religion does not demonstrate a preference for any specific religious sect. For these reasons, Clay Hill District is in no conflict with the First Amendment.

Clifton Williams has been a practicing Muslim for 20 years but is currently incarcerated at State Correctional Institution Mahanoy. During one of his scheduled work times in the kitchen he had not yet been given any assignments, so he decided to complete one of his five daily prayers. He found an isolated corner away from the working area where he could pray, but prisoners were not permitted to occupy unauthorized areas on their own. After five minutes of prayer he was ordered to return to his duties in the kitchen but he refused; he was eventually removed from the kitchen and taken back to his cell. Williams was punished for refusing to obey an order, and for occupying an unauthorized area. Williams pleaded guilty to the misconduct charges because, in the Muslim faith, once a prayer has commenced one must continue until it is finished. Williams filed a civil rights action pursuant against SCI Mahanoy for violating the Free Exercise Clause of the First Amendment. In order for there to be a violation, he must show that the facility prevented him from “engaging in his religion without any justification reasonably related to legitimate penological interests.”

Balancing the rights of the incarcerated and maintaining a safe environment for the inmates as well as the guards is a complex topic. Based on the ruling, it was determined that there was no violation of the Constitution because the guards have an obligation to maintain safety and security within the prison. With nearly 400 inmates and just 26 guards, the inmates cannot be left alone in an unauthorized area. Prisoners also have plenty of time to pray in their cell, that is why they are not permitted to pray during work hours. The conflict here is whether or not the prison should make accommodations for Muslim inmates so that they can have access to a clean room for prayer. In the past, during Ramadan, the facility provided a separate room for Muslim inmates to pray. In the meantime, prisoners are supposed to use the break room and or their cells to practice Salah. Williams complained that the break room did not suffice because other inmates tracked dirt and urine on the floor. I feel that making a special room for prayer would be an accommodation that violates the Lemon Test, because it would favor Islam and it would not serve a secular purpose. Another solution would be to implement a new ‘leave and return’ policy which would allow inmates to leave work in order to go and pray. This would require the inmates, like Williams, to be removed from work with an escort. However, this could cause further conflict by weakening the security force overlooking the inmates in the kitchen, and other prisoners would take advantage of this accommodation to get out of work. I feel that in order to maintain a maximum security level, without making special religious accommodations, and enabling the Muslim inmates to practice their religion with relative freedom; their five prayers must take place in their designated cells or in the break room. This would not interfere with their labor hours, nor would it jeopardize the level of security within the prison.

A few days ago Americans United, a group “committed to church-state separation and individual freedom” announced that a settlement was made in the case Stewart v. Johnson County, Tennessee. Ralph Stewart got the attention of the court when he sued the Johnson County Commission after their decision to refuse him the right to display his literature about the historic role of church and state separation in American law within the lobby of the county courthouse. The county had created a limited public forum in which individuals or organizations can donate displays that “directly relate to the development of law…” The items did not need to secular as evident with the Ten Commandments and a 26-page pamphlet entitled “From Biblical Morality to Modern Law” already present within the display. The county declined to include Stewart’s literature, “On the Local Heritage on the Separation of Church and State” and “The Ten Commandments Are Not the Foundation of American Law” on the grounds that it did not fall within the subject matter of public forum. The settlement was in favor of Stewart and required the Johnson County Commission to display the posters in a prominent place, payment of $75,000 in legal fees, and a modification to its policy to establish that county commissioners may not reject a display because they dislike the content.

The constitutionality of the county’s actions is in question. Did they violate the establishment clause by solely allowing Christian material to be publically displayed within the courthouse? In my opinion yes they did. Although Stewart’s literature may lean towards being non-religious rather than solely secular, it still deserves equal representation within the governmental display. “I’d prefer for government to stay out of the business of promoting religious documents altogether,” said Barry W. Lynn, executive director of Americans United. “But if government officials choose to go down this path, they must at least play fair and treat all citizens equally.” By allowing the Ten Commandments to be displayed but not allowing literature that opposes this viewpoint and credits the common and statuary law of England to be the basis of American law benefits Christianity over non-religion.

In my opinion Johnson County decided to settle on this case rather than see it out because they knew they were in the wrong by allowing an official to disallow equal representation based upon their personal religious views. Stewart’s presentation clearly fell within the “subject matter of the public forum” by utilizing many of the same historical sources of the other Christian displays. Due to the apparent favoritism towards the religion the county decided to settle and alter the requirements for future displays. The settlement requires all rejections to be accompanied with a written explanation with valid reason not simply because commissioners don’t like the content. County officials also included a disclaimer stating that the “displays are sponsored by private citizens, not the county” to hopefully alleviate and future legal trouble.

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.