Religion & American Law

On Monday, October 31^st, 2011, the Supreme Court did not grant the petition for certiorari for the two cases, Utah Highway Patrol Association v. American Atheists and Davenport v. American Atheists, both which pertained to standards for judging public displays of religious symbols. In this 8-1 ruling, the Supreme Court rejected an appeal from the Utah Highway Patrol Association to display donated crosses along interstate 15 in commemoration for patrolman who died in the line of duty, each of which are represented by individual crosses with a brief bibliography and picture for each trooper. Earlier in 2005, American Atheists Inc. and three Utah state citizens sued Utah, contesting that the memorials conveyed state endorsement of Christianity and was therefore in violation of the Establishment Clause, reasoning which was upheld by the federal appeals court in 2010.

Justice Thomas stated in a rare 19-page dissent to the Supreme Court’s decision to reject the case, “today the Court rejects an opportunity to provide clarity to Establishment Clause jurisprudence in shambles.” Consequently, the Court has not examined the endorsement test’s consistency with the 10^th Amendment which states that jurisdiction not given to Congress belongs to the states. Since Utah has made no law that infringes on the rights of the citizens of the United States by putting up memorial crosses to fallen state troopers, nor have citizens been directly coerced, Congress has no right to “prohibi[t] the free exercise [of religion]” by forcing the removal of these crosses.

The sizes of the crosses, in addition to the presence of the Utah Highway Patrol shield on the crosses, were the primary factors in deciding that the memorial could be perceived by a “reasonable observer” that the government is endorsing Christianity by the federal appeals court, thereby evoking precedent from Lynch v. Donnelly (1984). According to the appeals court, the crosses, each twelve feet tall with six-foot crossbars, conveys “a message of endorsement, proselytization, and aggrandizement of religion that is far different from the more humble spirit of small roadside crosses.” Given that these crosses are located along a highway, with cars passing at high speeds, one could argue that the memorials should be this large to honor the troopers who died in service to the state. The lower court also found that the structures used “the pre-eminent symbol of Christianity” and “conspicuously bears the imprimatur of a state entity, the UHP [Utah Highway Patrol].” In the previous week, the Utah Highway Patrol Association had removed the UHP’s insignia in an attempt to prevent the court-ordered removal of the 14 monuments. Therefore, the appeals court’s concern about a “reasonable observer’s” fear of preferential treatment toward Christians by state-funded officers should not be a burden to the state.

Furthermore, since the Utah Highway Patrol Association had removed the UHP’s logo from the crosses, the government should not discriminate against the organization, that used private funds to erect non-invasive memorials. The placement of 11 of these crosses on public land however, is contentious because by allowing these large crosses, the state may be construed as providing Christianity preferential treatment and a means of evangelizing state highway drivers. Yet family members of deceased troopers must give permission to have the memorial erected and are offered the opportunity to request a different symbol, thus, the state is technically neutral toward religion. Similarly, the Department of Veterans Affairs at Arlington National Cemetery currently offers 39 authorized faith emblems that can be placed on gravestones. If Arlington National Cemetery is permitted to determine which symbols can be “authorized” to be placed on markers, then why should the Utah Highway Patrol Association not be granted the same right?

Nonetheless, in 2006, the Utah legislature passed a joint resolution that declared the cross is a secular symbol of death. The cross is still, as the federal appeals court attested in 2010, “the pre-eminent symbol of Christianity.” The cross, which was selected by the Utah Highway Patrol Association, is an unavoidable allusion to the crucifix. Both symbolize death, remembrance, sacrifice, honor, and gratitude for those who died to protect innocent people. Though these Christian underpinnings cannot be removed from a cross, this memorial, with a secular purpose to commemorate the sacrifices of state troopers, does not establish religion.

In Charleston, South Carolina, an outpatient facility declared that they would no longer be allowing Frank Cloyes, an elderly volunteer, to dress up as Santa Claus and visit children sitting through chemotherapy treatments. The hospital spokesperson explained that; “Because of our state affiliation, we decided not to have a Santa presence this year”. She credited efforts to express consideration for the people who frequent the cancer center that many be of non-Christian faiths and who might be offended by the Santa presence. After outrage from the community, the hospital reversed their decision two days later and decided to “welcome Santa again this year”. Reports claim that the hospital has decided to allow all traditional holiday activities reflecting all beliefs, including Santa, to make appearances because of the recognized emotional benefits to patients.

While the issue of whether this practice of allowing a Santa to make appearances as a state medical facility wasn't considered by a court because the decision was reversed so quickly and no lawsuit has begun, the question still remains: Does allowing a volunteer dressed as Santa Claus to visit children at state medical facility to offer “Christmas cheer” violate the Establishment Clause? Was the hospital valid in its concerns that, as a state institution, Santa visits might be seen as inappropriate?

I believe that if the Court ruled on the constitutionality of the volunteer’s Santa visits the practice would not be found to violate the Establishment Clause of the First Amendment. In Lynch v. Donnelly, the Court acknowledged that it was possible for a religious symbol, a crèche, to be present without advocating a particular religious message, or violating the Establishment Clause. I argue that Santa Claus is an even less directly religious symbol than a nativity scene; a nativity scene explicitly displays Jesus and the birth of a theistic idol, while Santa Claus professes no specific religious message. Many equate Santa Claus as a generic symbol of cultural Christmas; a mythical creature comparable to the Tooth Fairy. Even the PR rep for the hospital was quoted saying that; “We are very well aware that Santa is not a religious figure”.

Also in Lynch v. Donnely, the Court found that the display had “legitimate secular purposes”. Like the crèche Pawtucket, Frank Cloyes shares the purpose of spreading holiday cheer, arguably in an even more compelling state interest since this Santa serves to entertain patients at a cancer center while receiving chemotherapy.

Important to the constitutionality of this practice is that Frank Cloyes is not a hospital employee, nor is he paid. He paid for his own costume rental, and presumably, anyone who decides to dress up in a costume and visit patients in this hospital would also be welcome. I argue that if volunteers are allowed to dress up as clowns or rabbits to visit patients with the goal of cheering them up, then there shouldn’t be an issue with a Santa Claus, or another secular-ish (?) symbol of Hannukah or Kwanzaa, as suggested by Fox News.

While the Santa visit appears constitutional under the Establishment Clause, at issue here is the way the Cancer Center reacted to and reversed the ban. An article explains how Hollings Cancer Center reversed the decision after “a firestorm of yuletide controversy”. Although the ban may have not been necessary in the first place, it’s even more disrespectful to the patients at the hospital who may have been bothered by the Santa visits because of their religious beliefs that their discomfort was overruled by the majority. In any Establishment case regarding a majority religious celebration like Christmas, the decision would quickly be reversed if the State gave in to protests by the majority. The Establishment Clause exists to protect the minority, not the majority.

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.