Religion & American Law

The Freedom From Religion Foundation claims Onslow County Sheriff Ed Brown of North Carolina violated the establishment clause by purchasing an ad in The Daily News. The ad is addressed to “All Decent and Respectable Citizens of a Decent and Respectful Society” and preaches that wisdom does not come from books but only from God. “When America turns back to God’s Law… good and decent things will turn around for All Americans.” He signs the ad, “A caring and serving Sheriff, Ed Brown.”

The FFRF, an association protecting atheists and agnostics, requested that Brown no longer be allowed to take out ads in the future. In addition, they questioned exactly where the money for the ad came from. Brown responded in the article that he paid directly out of pocket. Yet the FFRF had more concerns. They said the ad’s only purpose is to proselytize religion and it is unconstitutional for the government, with Sherriff Brown as an agent, to be endorsing religion.

This case is a perfect example of when the Establishment Clause and the Free Exercise Clause conflict. If this case were viewed through the Establishment Clause, one would need to question whether this ad constituted the government endorsing religion or one religion over others. If this case were viewed through the Free Exercise Clause, one would need to question whether preventing Sherriff Brown from purchasing ads in the future limits his free exercise of religion.

If this case were being analyzed through the lens of the Establishment Clause, with attention to avoiding the state becoming involved in religious affairs, he may decide that the Sherriff proselytizing is too close of a connection between law enforcement and religious endorsement. This fails the Lemon test in that there is no secular purpose for the ad. Sherriff Brown does not deny the religious intent and the multiple mentions of God make the endorsement of religion clear.

This case would pass the excessive entanglement component. He wrote the letter and used personal funds from his salary. Although his salary comes from the government, the money was first given to Sherriff Brown to dispense as he pleased. This indirect transfer of funds from the government to “support” religion has been deemed acceptable in cases like Everson v. Board of Education (buses to parochial schools) and Cochran v. Board of Education (school books for parochial schools.) This separation between government funds and involvement allows us to see another side to this case.

Seeing no direct connection between the government and religious endorsement here, I choose to approach this case evaluating his right to free exercise. He is employed by the government but is not using government funds to sponsor this advertisement. It is up to Sherriff Brown to decide how he spends his money, and taxpayers cannot ask someone to be unreligious when they enter a public office or service sector. Yet when does it cross the line to use a power position to endorse religion? In other words, is he writing as Sherriff Brown or ordinary citizen Ed Brown? And does it matter which?

This question has been raised when examining the religiosity of schoolteachers, inside and outside of the classroom. We have questioned whether teachers, in their daily lives outside the classroom should be able to express their religious beliefs in a public manner. This is a more sensitive issue than the current case in question.

Sherriff Brown took out an ad in a media outlet directed toward adult members of the community. The reasonable observer would know that he is not speaking for the entire department or the United States government. As an individual he is entitled to having his own religious beliefs even if the government employs him. In addition, it is unconstitutional to ask to him to give up rights that members of the rest of the community have.

Although his message is clearly religious, it does not speak of his governmental role in provide religion for the public. He urges members of the community to believe in God just as people can preach in public places, write religiously inspired letters to the editor, or openly participate in religious groups in the community. If he were forbidden to send other ads his free exercise of religion would be limited.

A group of New York lawmakers and public officials were demanding a taxpayer-funded museum in Brooklyn remove an art exhibit that includes a film depicting ants crawling on a crucifix. They believe that this is one of the repeated attempts of the museum to bash the Christian faith. This group of individuals believes that the Brooklyn museum is trying to make religion bashing fashionable. Before this controversial piece of artwork, there was another one in 1999, which featured an exhibit that depicted Mary with African features and included clumps of elephant dung and cutouts of female genitalia. Mayor Rudy Giuliani tried to cut the funding of the 1999 exhibit, however, it was unsuccessful. Representative, Michael Grimm, said, “It’s an issue of how we spend our taxpayer dollars. Everyone has a right to express themselves. At the same time, it doesn’t necessarily mean you have the right to go around offending massive groups of people and have other people pay for it.” It is the first amendment that allows the artists freedom of speech and the ability to create whatever they want, however, once it becomes religiously offensive does it violate the first amendment?

Taxpayer’s money has funded a religious exhibit in the past, like in the court case Lynch v Donnelly. Their money went towards not only a Christmas scene with Christmas trees, snowflakes and Santa Claus, but also a nativity scene of Jesus Christ’s birth. Therefore, shouldn’t the law remain the same in all-religious tax-funded exhibits? If a nativity scene is okay, why not a religious film?

I believe there is a huge difference between funding a nativity scene and funding artwork that mocks the Christian religion. Taxpayers money should not be contributed to something that is religion offensive. I usually argue that courts should stay consistent with their court case rulings, however, this is a situation where I strongly disagree, public taxes should not be funding this religious exhibit, nor should it even be their for all of New York City to see. I understand that the artist has freedom of speech, but if this is allowed then what next? What if there was a painting that incorporated the KKK, is that still freedom of speech, or is that offensive yet?

Taxpayer’s money should only be permitted to fund religious exhibits if they can somehow be secularized. Like the Christmas scene in Lynch v Donnelly, it brought customers into town, which helped the local businesses. However, there is absolutely no secular purpose to the film in the Brooklyn museum. I understand New York City is known for its creativity, edginess and diversity, however, offending a religion with taxpayer’s money is completely unacceptable and the museum should stop being funded by taxpayers immediately. This would be an entirely different scenario if the museum were privately funded.

This past year has brought about a multitude of altercations and debates between the Roman Catholic Church and the United States Government. The church claims that their religious liberty is under attack due to the fact that their religious beliefs are being challenged by the reproductive health care policies and government funding. The U.S Bishop believes that the fact of the matter is that contradict church doctrine is being overlooked by legislation.

On November 14th through the 16th, there was a fall assembly of the U.S. Conference of Catholic Bishops held in Baltimore, Maryland, at which Bishop William Lori led the campaign. With hundreds of bishops in attendance, Lori opened with, "For some time now, we have viewed with growing alarm the ongoing erosion of religious liberty in our land,", these few and simple words served as a catalyst to the rebellious thoughts of the numerous amounts of Roman Catholic Bishops against the U.S Government.

Lori is the chairman of the conference's Ad Hoc Committee on Religious Liberty. The Committee was created after the U.S. Department of Health and Human Services decided to cancel a contract with Migration and Refugee Services. This Catholic organization is one that helped victims of sex marketing. The main concern here is that the contract was terminated due to the fact that the group strongly repudiated referring marketing victims for any form of contraceptive or abortion, all with the hopes of promoting their Catholic beliefs.

Lori believes that the previous as well as the same-sex marriage laws which have been ratified in at least a half-dozen U.S. states are part of an overarching inclination within America to limit religious liberty. On the other hand, I believe that in accordance to the Constitution and thus, the rights granted to every citizen within the U.S, each individual should be able to freely decide on any matter that will lead them to be happy, so long as it does not infringe on another’s safety or wellbeing. Due to the fact that the new health care policies mandate that contraception be provided, I can see why the Catholic Bishops would be wrathful and thus in turn lobby so that Obama’s health care campaigns could be overturned, but if you look at the facts and logistics, the Catholic Church has a lot of work to do within their multitude of believers. Jon O'Brien who is the president of Catholics for Choice recently testified before a congressional committee that “98 percent of Catholic women ignore the church's ban on contraceptives”, this percentage rate is astounding and it should serve as a clear indicator that not all people are in accordance to the Catholic creed.

In short, the idea of having the Roman Catholic Bishops dictate what happens within the American households is absurd. Though I am strongly for respecting others beliefs and their freedom to pursue them, topics like teenage pregnancy shall not be overlooked. The rates are steadily escalating and if contraception can help, I believe it should be an accessible option. What’s most important here is the freedom of the people to choose an option that will best suit them individually. Let us also keep in mind that the women that were being “helped” by the Ad Hoc Committee on Religious Liberty were denied abortion and contraception though they were sexually abused.

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.