Religion & American Law

The state of Mississippi has introduced a bill redefining the word ‘person’ to include “every human being from the moment of fertilization, cloning, or the functional equivalent thereof”. This would not only make abortions illegal, but would also bring into question the ability to get in vitro fertilization and many types of birth control. Although on the outside, it looks blatantly unconstitutional, Personhood USA (the group heading up these campaigns) has gained enough momentum and signatures to put this issue on the ballot. If such measures were passed, it would be a clear violation of the establishment clause, both aiding one religion, while very clearly hindering others. Many devout Catholics believe that abortion, as well as many forms of birth control. are sins and should be illegal. The very group that is spreading this movement, Personhood USA, is a Christian group promoting a pro-life world where abortion is illegal. However, our law states that it is not only illegal to ban abortions, but it is illegal to establish any one religion.

It should be noted that these types of movements are not only in Mississippi, but in all 50 states, as shown on their website. Mississippi however, is only the second state to have received enough signatures to put the issue on a ballot. The first was Colorado, in which the bill was quickly shot down.

The matter at hand is one of establishment. By passing such a bill, the country would be establishing the belief of some Christians about when life begins. Les Riley, the leader of the Mississippi movement, stated, “We think that God has already told us when life begins... and the court has just not dealt with it”. This is a clear example that the groups goal is to further a particular religious belief. There is no secular purpose at all and it would create extreme entanglement between law and religion. It would also very blatantly aid one religion over another, thus failing every step of the Lemon test. The Supreme Court has already ruled against the banning of abortions in Roe v. Wade, and it would be unconstitutional to reverse such a decision.

While the movement is gaining momentum, it seems very unlikely that any state would ever pass such a law. While the vote was quite close in Mississippi, it ended up not passing. If it had, it would have most likely forced the Supreme Court to get involved and take away something that so clearly violates the first amendment. Members of the ACLU have already filed two lawsuits against the personhood movements across the country, defeating efforts to ban abortions, as well as IVF and stem cell research.

This movement is obviously one that goes directly against the establishment clause. This type of law would not only encourage one religion over another, but would put those in potential harms way if they do not hold the same beliefs (such as black market abortions/IVF, etc). I believe that if any law of this type were to pass anywhere in the country, it would be a clear violation of the first amendment and must be taken away immediately. Although Personhood USA is gaining impressive amounts of signatures, it will never be enough to overthrow one of the most important aspects of our consitution.

Danquah v. University of Medicine and Dentistry of New Jersey

Two weeks ago, a group of nurses filed lawsuit against the University of Medicine and Dentistry of New Jersey (UMDNJ) claiming the hospital was requiring them to undergo training that involved assisting in the procedure of abortion. These nurses claimed that this requirement violated their free exercise rights. The nurses stated that refusal to take part in the procedure would lead to their termination. Attorneys for the hospital notified a federal judge in Newark on Thursday that the University of Medicine and Dentistry of New Jersey will not require the nurses to participate in the training if they object on religious grounds before a November 18^th court hearing.

I believe that there was no violation of the free exercise clause here. UMDNJ requires all students to undergo a complete training process that is not specifically tailored to one’s religious affiliation. Most training programs are set up in a way that if not all the areas are completed or passed, the individuals are unlikely to be hired or considered for employment. If there is a profound objection to participating in the actual abortion procedure itself due to a religious belief, the University should perhaps develop a means of communicating this requirement to students and employees more effectively before they enroll into the school.

I believe UMDNJ could have and should have handled this situation better and not threatened termination of nurses if they refused the practice. However, these individuals are expected and held to the standards of being fully trained in all areas (including abortion procedures). The University is responsible for training their students, and it would be a slippery slope to start making exemptions to the training process based on people’s religious beliefs. We would then all be stuck with doctors and nurses who are unequally trained in different areas limiting the effectiveness of the system. If there is such a profound objection to participating in the training of abortions alone, in addition to the actual procedure, then these individuals should reconsider the field in which they are pursuing. There are other medical positions they may take up that do not require participation in abortion procedures. In the actual instance of an abortion procedure, if the nurse on staff refuses to take part in the process then the hospital will be inadequately able to provide public assistance. This is a scenario likely to exist if doctors and nurses have the opportunity to choose who and what they provide help for.

Hospitals are public institutions, many of which receive state funding. Allowing doctors and nurses to opt out of procedures based on religious beliefs would be entangling itself within the separation of church and state. In this situation, I am going to need to support a strict separationist attitude and say that any exemptions made on a religious basis would be unconstitutional. I could see the policies of this hospital being ridiculed for threatening the termination of employees based on their religion; however, I do not see this case falling in full support of the nurses because it would be unconstitutional and go directly against the separation of church and state. What do you think? Do you feel that UMDNJ has violated the free exercise clause by threatening the termination of employees who refuse to take a part in the abortion procedure?

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.