Religion & American Law

The entire Cadet Wing of the Air Force Academy received an e-mail earlier this week from members within the wing, encouraging them to participate in Operation Christmas Child. Operation Christmas Child is an organization that sends gifts in shoeboxes, to impoverished children throughout the world in over 100 countries. Air Force Officials have publically recognized that the e-mail should have been sent through the Chaplain Corps which is “responsible for advertising faith based programs and events.” Soon after, a second e-mail was sent to the Cadet Wing retracting and apologizing for any offense taken to the original message. It also explained that the original message would be sent out to the appropriate audience via the Chaplain Corps in the future. Not only has the original e-mail become a controversial topic, but also the program as a whole, including the involvement of the Air Force, is now being questioned.

Michael Weinstein, a former cadet in the Air Force and founder of the Military Religious Freedom Foundation, believes that no cadets should be eligible to participate in Operation Christmas Child. He claims that it is a promotion of Christianity partially because in every shoebox along with the gifts comes a religious message and also because of the specificity of the religious holiday. Weinstein believes this organization does not serve solely to provide children with a form holiday spirit, but rather to incorporate and persuade children into Christianity and therefore, the Air Force should not be involved seeing as it is governmentally affiliated.

The Air Force claims that typically, only specific people choose to be on a religiously affiliated mailing list, run by the Chaplain Corps, would have received a message promoting involvement in the OCC. The Air Force Academy corrected their mistake to the best of their abilities, explaining that the Academy is “religiously pluralistic” and feels that those on the Christian mailing list should still be given the option of working with Operation Christmas Child.

I do not believe that the original e-mail, or the Air Force Academy’s involvement with Operation Christmas Child is in violation of the Constitution. I highly doubt that any member of the Air Force would be coerced into Christianity because of the original e-mail sent out to the Cadet Wing seeing as those in the Air Force have reached an age where coercion is no longer a pressing issue. Also, the e-mail was not sent with religious intent, but rather a secular purpose with the intentions of supporting an organization that benefits the lives of less fortunate children. All Air Force members should be presented with the opportunity to participate in this sort of program, not just those on a religiously affiliated mailing list. Cadets were not being forced to accept nor become active in the program, but instead were being given the chance to help those in need. It seems to me that this is more of a community service opportunity for those making the gifts. The religious aspect of the program comes into play solely for the receivers of these gifts, when they open their box and find the message, which Air Force members would not be placing inside the boxes anyways. Therefore, I believe the program should be allowed in the Air Force Academy because in no way is the program forcing any form of Christianity upon it’s volunteers.

In Santa Fe, New Mexico, Paul Weinbaum is concerned about the state financially supporting religious schools. In the past two years, the New Mexico has spent $1.8 million a year on school textbooks for religious schools. Over 40% of the overall money that the state spends on textbooks for private schools goes to religious schools.

Is it unconstitutional for public funds to provide textbooks for religious schools?

Weinbaum believes New Mexico is misusing state taxpayer’s money for religious reasons and he states, “It's against the law to use taxpayer money to support religious organizations, any religious institution. . . It has always been that way, as far as I know - except in crooked courts."

However, Connie Limon, the principal of Las Crices Catholic School and St Mary’s High School (neither of which has received textbooks from the state in the past two years) says that the teachers do not only teach the students how to pray but, “we teach the pledge of allegiance, the Star Spangled Banner, America the Beautiful. We teach students to be patriotic, to be thankful for this nation we live in. We also pledge our allegiance to the state of New Mexico.” Just because private school students learn the pledge of allegiance, show patriotism along wit saying prayers, does that justify their state funded textbooks?

New Mexico’s Public Education Department spokesperson, Larry Behrens raises the ten year old Instructional Materials Act. This act states, “. . . any qualified student or person eligible to become a qualified student attending a public school, a state institution or a private school approved by the department in any grade from 1-12th grade of instruction is entitled to the free use of instructional material.” Under the Instructional Material’s Act, New Mexico is following the guidelines os public aid and not violating the law.

Now the question is, is the Instructional Materials Act advancing or supporting religion and violating the First Amendment?

In a similar case, Cochran v Louisiana State Board of Education, Louisiana passed a statute that allowed state funded secular books to be distributed to both public and private schools. Even though public funds were being used to benefit private institutions, Justice Hughes clarified that the intent was to benefit the student rather than the school itself.

Even though, in both the New Mexico and Louisiana cases, the private schools are spared the expense of purchasing textbooks, the statute and acts focus on the children. In many court cases, the court seems to have different standards when deciding student’s or children’s rights. If this were a case over the state funding books for a private Christian University, this would be a completely different matter and the court would not rule in favor of the University.

I believe that even though the court justifies their actions as benefiting the children and students rather than the institution, the Instructional Materials Act violates the First Amendment. There is no way around the fact that the state is indirectly giving money to the private schools. Since the private schools do not have to pay for textbooks, they in the end are the one’s benefiting since the students would receive the textbooks one way or another.

In 2002, a boy in East Lansing was cornered after school by upperclassmen students. They covered him in syrup, cracked eggs on his head and beat him. The police never formally investigated the incident, and it was brushed off as a rite of passage. Welcome to high school- to being openly gay in a conservative town. Welcome to the only life Matthew Epling ever knew.

The bullying continued without respite. Relentlessly and unmercifully depriving a fourteen year old boy of his very will to live. Making him believe that he was worthless, that no one wanted him alive. Three weeks later, Matthew committed suicide.

Since his death, Matthew’s parents have pushed for legislation that would protect kids from bullying in schools, and with the Michigan Senate’s passage of “Matt’s Safe School Act” several days ago, one might think that this was achieved. Yet, in a cruel and ironic twist of fate, Matt’s name has actually been attached to a bill that gives teachers, students, and parents a “license” to bully. Senate Bill 137 compels schools to adopt a policy that prevents harassment, yet provides an exemption to bullies that have “a sincerely held religious belief or moral conviction”. Essentially, in the wake of dozens of gay teens committing suicide, this bill justifies their deaths and justifies further anti-gay bullying so long as the offender can claim a sincere religious belief. Since proponents of the bill scramble behind the free exercise clause of the First Amendment to defend the policy, the pivotal issue to evaluate is whether the clause does in fact warrant this religious exemption to bullies.

For years, the Supreme Court has struggled to determine what constitutes a justifiable limitation on an individual’s free exercise rights. It is for this reason that the Court introduced the idea of a “compelling state interest” in Sherbert v Verner, stating that in order to restrict free exercise rights, the government must have a necessary or crucial reason for doing so. Consistently, the Supreme Court has interpreted this interest very generously. In Reynolds v United States, Goldman v Weinberger, Employment Division of Oregon v Smith and Braunfeld v Brown, the Court made broad interpretations of what substantiates a compelling state interest. Braunfeld v Brown particularly exhibits the Court’s tendency to employ compelling state interest carelessly. If the Court can honestly claim that a day of rest on which “people may visit friends and relatives who are not available during working days” constitutes a compelling state interest, then it’s for damn sure that protecting children from bullying in schools represents a crucial interest as well. And while I don’t always agree with many of the interests the Court has previously deemed as compelling or necessary, I do believe that this is one of the very few circumstances that justifies a limit on free exercise. Any action that violates essential human rights or subjugates another should not be given a free exercise exemption. All humans are entitled to dignity, and stripping another human being from this most essential entitlement is absolutely dehumanizing and an unjustifiable offense.

Matthew’s bullies took from a fourteen year old boy his will to live. They tormented him into taking his own life and there is simply no excuse for that. As Michigan Senator Gretchen Whitmer perceptively stated, “Not only does this [bill] not protect kids that are bullied, it further endangers them.” The Courts have already recognized in cases like Yoder and Everson that both schools and children are particularly sensitive topics, since school is not voluntary and the protection of children is a paramount concern. Thus, I am hard pressed to think of a case in which there has been a compelling state interest so great as the one present in this instance. I recognize that much of the tension over this law comes from the fact that Michigan’s decision on the religious exemption will be interpreted as the state’s endorsement of either pro-gay or anti-gay sentiment, yet there should be a bipartisan interest in providing every child with the ability to attend school free from circumstances that actively deprive him or her of the will to live. It pains me to see that this is the law we have in memory of Matt Epling.

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.