Sunday, December 4, 2011
The Army has recently settled in a suit that banned Rabbi Menachem Stern from being an army chaplain due to his Hasidic faith that prohibits him from shaving his beard, violating Army regulations restricting facial hair. In 2009, Stern received approval for a reserve commission slot in the Army but was later rejected due to the issues over his beard. This is not the first time the Army has faced a decision regarding a person’s religious duty and the strict standards of the military. Colonel Jacob Goldstein, also a bearded Chabad-Lubavitch rabbi was granted an exemption for his facial hair and has served in the US Army Reserves and the National Guard for the past 33 years. Two Sikh captains were also granted a religious exemption that allowed them to wear a turban and have a beard while in uniform. When Stern was not granted this same exemption he filed a federal lawsuit accusing the Army of violating his free exercise and equal protection rights. According to Stern, “The Army rules, which only apply on entering service and can be waived for those who cannot shave for medical reasons, are discriminatory and violate the Constitution, especially because waivers have been granted to Sikh and Muslim soldiers.” The settlement allows for Rabbi Stern to join the military, which currently has a shortage of Jewish chaplains.
In my opinion this case is clear. The Army cannot grant an exception to some based on their religion and then restrict others based on the same issue. Their decision to withdraw the commissioning of Stern blatantly infringes upon his free exercise and that is why they finally allowed him to serve. In my opinion they were correct in setting a precedent approving beards for religious reasons and there is no excuse for why that precedent was ignored. It is indeed a slippery slope when dealing with religious exemptions and once given, the institution in charge needs to be prepared to offer them to all religious groups.
A legal battle is looming in Montana over a six-foot statue of Jesus located along a ski run at the Whitefish Mountain Resort. The statue, fittingly referred to as "Big Mountain Jesus," was erected more than 50 years ago by the local chapter of the Knights of Columbus – the world’s largest Catholic fraternal service organization. The purpose of the statue was to honor soldiers who had seen similar shrines of Jesus in the mountains of Italy during World War II. Big Mountain Jesus has caused a stir recently because the Freedom From Religion Foundation, an atheist group, believes that the statue violates the constitutional principle of separation of church and state because it stands on United States Forest Service property. The special-use permit for the Jesus memorial is currently up for renewal, and the Freedom From Religion Foundation is urging the Forest Service not to reauthorize it. Both sides in this issue over Big Mountain Jesus claim they will go to court depending on what the National Forest Service decides. According to deputy chief for the National Forest System Jim Peña, “Because of the historic and cultural significance of the statue, we’re going to have to relook at it and figure out the right way to go.” The Forest Service is expected to make a decision on the statue in early 2012.
The legal question in this case is whether the existence of Big Mountain Jesus on U.S. Forest Service property violates the constitutional principle of separation of church and state.
Advocates of the statue’s removal claim that because the statue stands on United States Forest Service Property, it violates the principle of separation of church and state. According to the Freedom From Religion Foundation’s co-president Annie Laurie Gaylor, the decision should be a “no brainer.” Gaylor claims that, “A violation doesn’t become less egregious because it’s gone on a long time.” She adds that if the statue stood on private property her foundation would not have a problem with it.
On the other side of this debate are those who want Big Mountain Jesus to remain right where it is. These people argue that the statue should be viewed as a military memorial rather than a religious shrine, and that because the statue has not caused a problem for the past 50 years, it should not suddenly become controversial now. These people are so passionate about saving Big Mountain Jesus that they have created a “Save Big Mountain Jesus Statue” facebook page and recently held an “Occupy Big Mountain” rally with supporters hiking up to the statue in solidarity.
As we have seen throughout the semester, establishment clause cases involving public displays are complicated, and the Supreme Court has ruled differently in cases with seemingly identical situations. For example in Van Orden v. Perry and McCreary County v. ACLU, the court ruled differently regarding the public display of the Ten Commandments. Justice Breyer was the deciding vote in each of these cases, voting with the majority in both. In McCreary County v. ACLU, Justice Breyer ruled that the displaying of the Ten Commandments in courthouses and public schools in Kentucky violated the Establishment Clause, claiming that their sole purpose was to enhance and endorse religion. In Van Orden v. Perry, however, Breyer allowed the display of a monument inscribed with the Ten Commandments to remain on Texas State Capitol grounds, acknowledging its historical significance and claiming that removing it and other monuments that have stood for decades without challenge would be considered an assault on religion.
Based on Justice Breyer’s opinion for the majority in Van Orden v. Perry, I believe that the removal of Big Mountain Jesus would cause an excessive entanglement between the U.S. government and religion and should not be allowed. In my defense I would use Breyer’s concurring decision in this case, where he claimed that the removal of a Ten Commandments monument would “lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions” and could “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.” Removing Big Mountain Jesus from Whitefish Mountain in Montana would express the same hostility towards religion as the removal of the Ten Commandments monument from State Capitol grounds in Texas would have. This hostility would cause an excessive government entanglement with religion, and would threaten the legitimacy of the Establishment Clause in American law.
However, this monument contains not only the Decalogue, but also an admonition which reads “Love God and keep his commandments.” One woman involved in the rally carried a sign reading “If you don’t like what our USA was built on, GET OUT.”
The Florida ACLU filed suit against the county in federal district court and won; the county then appealed. Americans United subsequently filed an amicus brief in support of the strict separation of church and state. They “argued that Commandments displays have become weapons of choice in the Religious Right’s crusade to make America an officially Christian nation.” Joseph L. Conn, for Americans United, adds that America was not built on the Ten Commandments, but on “the constitutional separation of church and state.”
This case is important for us to consider so that we may gain some clarity over where the court stands on these issues. As we have seen, the rulings of the court in Ten Commandments cases are seemingly contradictory. However, I disagree with the ACLU and Americans United for several reasons, and I believe that the court’s rulings in this area are not as contradictory as one might think.
First, Americans United argues that America was founded on the constitutional separation of church and state, but this separation is nowhere mentioned in the constitution. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” Therefore, if the constitution merely asserts that no federal religion shall be established, then certainly no private funding of religious monuments can possibly be considered establishment even if the structure is on government property. However, this is not the only basis on which I disagree with Cobb’s position.
I accept the court’s reasoning that the Ten Commandments are an important part of America’s history as a state. Therefore, the Decalogue’s importance is not only religious, but historical as well, a significant part of the decision in both Pleasant Grove v. United States and Van Orden v. Perry. This means that, if we accept the Lemon Test, there is a secular purpose to display such a historical monument.
Finally, as Scalia notes in his concurring opinion in the Van Orden Case, the government cannot exhibit any hostility toward religion. Instead, it must exercise benevolent neutrality so as not to directly benefit or inhibit any one religion (again, according to the Lemon Test).
In McCreary v. ACLU, the Supreme Court ruled that a government sponsored display of the Decalogue in a Kentucky Courthouse violated the Establishment Clause, and rightly so in regard to precedent since it appealed to the Lemon Test to show that there was no secular purpose for the government’s sponsorship of this display. On the same day, in Van Orden v. Perry, the court ruled that a privately funded display of the Ten Commandments outside of a Kentucky Courthouse did not violate the Establishment Clause on the basis of the criteria I have already mentioned. The difference in the sources of funding and status of sponsorship in these cases was pivotal in the court’s rulings. I therefore believe that these decisions were not as contradictory as we might believe at first glance.
Into which of these two categories, then, does our current case fit? The Decalogue was privately funded by a local businessman, and therefore it would seem the correct precedent to consider is Van Orden. I do not believe that this case constitutes a violation of the Establishment Clause for the reasons mentioned above. However, there is one thing left to consider.
In Pleasant Grove v. United States, the court appealed to a reasonable observer to argue that the Ten Commandments would not be understood as a form of proselytizing. As I mentioned, however, this monument contains the admonition “Love God and keep his Commandments.” An important question therefore arises: does this constitute a form of proselytizing that goes beyond the scope of the Decalogue itself?
Although I have many concerns over the practice of invoking a reasonable observer in these cases from the beginning, it is largely irrelevant in this instance since I believe that this statement is no more than a summary of the Commandments, which themselves profess what they say. If the Decalogue itself is not seen as a form of proselytizing, then I do not feel that this admonition can be seen in this way either.
On Tuesday, December 6, Rhode Island Governor Lincoln Chafee will host the annual State House holiday tree lighting at the State House Rotunda at 5:30 p.m. All Rhode Islanders are invited to attend to see the 17-foot Colorado blue spruce tree lit for the first time, which was donated by Big John Leyden’s Tree Farm in West Greenwich, Rhode Island. Santa Claus and Mrs. Claus will be available for visits with children during the lighting. Although this is an annual event, this year the event has been surrounded by controversy. Gov. Lincoln Chafee proclaimed that the tree must be referred to as a “holiday tree” rather than a “Christmas tree.”
Gov. Chafee, however, is ignoring a resolution recently passed by the State House Legislature that proclaimed trees during this season would be called “Christmas trees.” He claims it cannot be called a “Christmas tree” because that counters Rhode Island’s founding as a haven for religious tolerance, where government and religion were kept separate. Critics of Chafee’s seasonal semantics thought that he was taking political correctness too far- and defying the will of the state legislature. In particular, John Leydon, the owner of the Christmas tree farm, is disappointed with Chafee’s yuletide word choice because he wanted to promote Christmas tree sales with other Rhode Island Christians. He states, “We’re a Christmas tree farm. That’s what the name is.”
This case is important in evaluating the complex relationship between the Establishment Clause and the legality of holiday decorations on town property. In Lynch vs. Donnelly (1984), the court ruled that display of a crèche in Pawtucket, Rhode Island’s shopping district has a legitimate secular purpose to celebrate the season and the origins of Christmas, which has long been part of Western culture. Although placing a nativity scene on public property may plainly have a religious purpose, Chief Justice Berger saw that “like a painting, the crèche is passive.” By labeling the tree as a “holiday tree,” Governor Chafee attempts to make the lighting ceremony passive and give it secular purpose. He wants to ensure the state is neutral towards all religions, and so makes an effort to make the ceremony a holiday one, not just a Christmas tree lighting event. Furthermore, he asserts that if the tree was labeled as a “Christmas tree”, one may view that as a state endorsement of the Christian faith.
I understand Governor Chafee’s attempt to respect all religions in Rhode Island. However, I think it is obvious that the “holiday tree” is in fact a “Christmas tree.” A Christmas tree farm donated the tree, and the ceremony also entails time with Santa Claus, a tradition associated with Christianity. If the state did not want to endorse the Christian faith, Santa would not be present, and there would be no lighting ceremony to begin with. In order to obtain neutrality, there would be no holiday celebrations using tax funds on state property.
The state violated the Establishment Clause by mandating that trees during the holiday season should be called Christmas trees through a resolution. With this legislation, the state undoubtedly endorses the Christian faith. It is important to recognize, that not all spruce trees are used as Christmas trees.
Obviously the tree lighting event has historical tradition and significance for the people of Rhode Island, despite this controversy. In order for the state to avoid endorsing one particular faith though, people should celebrate their holiday traditions privately.
Sunday, November 27, 2011
This past Tuesday, the Freedom from Religion Foundation announced they had sent a letter to the Onslow County, North Carolina Board of Commissioners regarding an ad that the county sheriff placed in a local newspaper. The ad was put in a form of a letter and addressed to the town. The ad read, “All Decent and Respectable Citizens…Our society is in a big mess today because good, decent and respectable citizens have ignored the Truth of God, good common sense, and a decent standard because of an opinion given by someone with a doctrinal degree who has no wisdom… Remember, there are no loop holes or places for opinion in the Law of God, The Ten Commandments.” The local news reported that the Sheriff paid for the ad from his personal funds and has done so for numerous ads for the past 21 years. However, the Freedom from Religion Foundation included in their letter that by having the sheriff’s badge and seal, it is in violation of the Establishment Clause as it has a clear religious purpose and is carried by the backing of the Sheriff’s Office.
I believe that the sheriff should be granted the freedom of speech as he is permitted to discuss his religious beliefs on public forums with his private funds. However, I feel that in order to not confuse the public, there should not be his sheriff’s badge and seal included in the ad. He can discuss his religious views all he wants as long as it is not connected back to the Sheriff’s department. By having the badge and seal located in the ad, it can confound the public who could believe that his views represent the department. The FFRF has a valid point in stating the sheriff’s signature is, “meant to carry the weight and authority of the Sheriff’s office and of Onslow County.” The sole purpose of the letter is to urge the readers to “stand and be counted for the Cause of God”. By including his position in law enforcement in his ad he is indirectly establishing religion views for the rest of his colleagues. The Establishment Clause was enacted to separate church and state by not allowing any part of the government to promote, advance or endorse any religion. Throughout his ad there is a clear message of promoting his religious views.
In 2005, the American Civil Liberties Union (ACLU) sued three Kentucky counties in federal district court for exhibiting copies of the Ten Commandments in courthouses and in public schools. The justices concurred that this was in violation of the Establishment Clause as to a reasonable observer it would seem that the government was endorsing certain religious views. In doing so, there was an establishment of religion. This court ruling along with many others that are linked to government’s establishment of religion in public forums further proves my point that the Sheriff’s “message” to the town is inherently religious and innately establishment. Any average person reading this paper would note the seal of the sheriff’s department on the side and would assume that the message was not only coming from the Sheriff but the entire department. If the sheriff wishes to continue with his ads then he should simply remove his seal from the letter. He is completely entitled to his own religious beliefs and is allowed to voice them in a public forum but not while creating the impression of establishment, that the government and his department have the same beliefs.
Recently an ad that a Sheriff from Onslow County, North Carolina posted in the local newspaper has alerted the Freedom from Religion Foundation of a possible violation of the Establishment Clause. The ad, for “all decent and respectable citizens of a decent and respectful society”, urges citizens to look to God for wisdom and to obey his law. The quarter page ad uses the word God eight separate times, with very clear and blatant religious overtones. The Sheriff, Ed Brown, believes that his ad is justified, as he paid for it with his own money. The upper corner of the ad has the official seal of the Sheriff on it, which the Freedom from Religion Foundation sees as a blatant endorsement of religion by the government. Brown has been placing ads like this one in the paper for the last 21 years, all with his own money. He refuses to see this as a case of establishment, but rather an exercise of free speech. The Freedom from Religion Foundation believes that the sole purpose of the ad is to proselytize and to bring people to the ‘Truth of God.’
One of the biggest issues to overcome if this is not a violation of the establishment clause is the seal of the Sheriff on the advertisement. Placing the seal on any document definitely seems to be a seal of government endorsement. Even though the Sheriff used his own funds to pay for the ad, any reasonable observer looking at the ad would not think this because of the seal. Also, this ad is not simply a statement of religious belief, but rather a plea from the Sheriff to the citizens urging them to look to god for answers and to obey his law. This ad was displayed publicly in a newspaper that anyone can read.
I believe that the Freedom from Religion Foundation is correct in this instance and that the ad is indeed a violation of the Establishment Clause. This is for two main reasons. First, the seal of the Sheriff is on the document, making it obvious to the reader that the message is endorsed by the Sheriff himself. Second, the message conveyed in the advertisement is one of strong religious background and has a clear purpose to proselytize. The Sheriff’s argument that he paid for the ad with his own personal funds, so it is not a statement from the government, doesn’t sit well with me. His official seal is placed on the document. Even if his seal weren’t placed on it, I would still argue that a message from the Sheriff of a county would be a message from the entire police department of that county, seeing as he is the head of it. An elected public official such as the Sheriff should not be proselytizing his religion to his citizens, regardless of who pays for it. The President of America doesn’t go around telling U.S. citizens to pray and find God in their lives, so neither should the Sheriff of a small county. The situations are analogous in my mind, and should be treated with the same gravity.
