Religion & American Law

There is one big concern for Republicans: the religious implications of a bill like this. If there is a concern for Republicans, there is a concern for everyone because the bill will not be passed through the House without the consent of both political parties. The Catholic faith is leading the loudest protest to the bill, saying that their constitutional guarantee of free-exercise is infringed upon if they are not offered an exemption from the implications of this bill. Catholic’s state that they are vehemently against “unjust discrimination,” including those who experience same-sex attraction. The Church basically says that the same-sex attraction is okay, but if one actually acts of the attraction that is a whole other story, and the church is asking for the right to discriminate based on “conduct,” rather than just “status of sexual attraction.” A murky distinction if you ask me…

Three bishops from the Catholic Church wrote a letterto the US Senate explaining the problems they see in the ENDA bill. The Church wants an exemption from the bill because they believe it has five fundamental flaws and ultimately impedes on Catholic followers’ free-exercise of religion. The five flaws are that the ENDA bill: lacks a BFOQ exemption, needs status/conduct distinction, supports marriage redefinition, rejects the biological basis of gender, and threatens religious liberty. For our purposes, only the first and last points are relevant towards the constitutional debate, however the other points are well articulated and entertaining if you’d like to read them in the hyperlinked letter above.

The second complaint is that the Catholic religious liberty and constitutional right to free-exercise is being challenged by the nature of the ENDA bill. The Catholic Bishops argue that ENDA could be a way to punish what many religions – including the Catholic religion – teach. Thus, arguing that the bill, and therefore the government, is implying that follower’s of the Catholic faith will be punished if they act in accordance to their religious doctrines.

As for the BFOQ argument, it is compelling and something I did not know before. However, once I researched more I found out that this statue is rarely used, and courts have interpreted it very narrowly. According to Title VII, race or color is not included in the BFOQ because the state acknowledged that there couldn’t be any reason that would justify discrimination on the basis of race of color. These are the basis that allow discrimination under the BFOQ:

The court has made these guidelines specifically strict and very hard to apply. One of the few cases where a BFOQ was awarded was in International Union, UnitedAutomobile, Aerospace & Agricultural Implement Workers of America, UAW, et.al. v. Johnson Controls, Inc.  In that case, the employer established a policy excluding fertile women from working in a position that required exposure to high doses of lead, in order to protect the possible unborn fetuses from damage due to the lead exposure. The courts have never approved this BFOQ exempt status to a group of people, and it is hard to believe that the state could award it to a group as large and as powerful as the Catholic Church.

For the second argument the Church makes, I can see that there may be a burden on the  religion. However, their free-exercise burden is outweighed by a compelling state interest to end discrimination on the basis of sexual orientation. If the Catholic Church were to receive this exemption, it would apply to other religiously affiliated institutions beyond just churches, such as hospitals. The state also has a compelling interest here to intervene to ensure that the hospital has, let's say a heart surgeon, who is most qualified for the job of saving people’s lives, regardless of his or her sexual orientation.

It was found that there are roughly 8.2 million gay and lesbian employees nationwide according to estimates released by the Williams Institute at UCLA in which researchers drew their estimate from U.S. Census data on the public- and private-sector workforce. If the government offers the Catholic Church an exemption, there could be 8.2 million Americans without a job due to discrimination—that doesn’t sound very American to me. Therefore, the state has a compelling interest to deny the Catholic Church this exemption because human rights and equality are secular American values that, in this case, trump religious free-exercise. 

This is a question that the Supreme Court of India is currently wrestling with when deciding whether schools can teach yoga.

This is also a question that has been raised in the past few years in the United States, most recently in July in California. In the Encinitas Union County School District, children are required to attend 2-30 minute sessions of yoga per week. Should the students wish not to participate in yoga, they do have alternatives that would fulfill the health and wellness school requirement instead. On top of this, yoga poses now have basic kid-friendly names like peacock pose or crisscross applesauce pose. Even with the offered alternative and the renamed poses, parents of two-children in the district decided that teaching yoga has a religious component and thus has no place in schools. They thus proceeded to sue the school district.

The parents’ attorney, Dean Broyles, apparently argued in court that yoga is inherently religious and thus teaching it in public schools violates the constitutional separation of church and state. While it is important to remember that “the separation of church and state” is not explicitly in the constitution, the argument that teaching yoga in schools helps to establish religion can be made.

In American culture today, one might laugh at the idea that yoga is a religious practice. Yoga classes are taught in most gyms and there are studios all over the country, teaching a variety of forms of yoga from vinyasa to bikram. In the past decade, the fitness world has even seen the creation of yoga hybrid classes, where yoga is combined with other exercise disciplines like kickboxing and pilates. The American College of Sports Medicine and many doctors even stand behind yoga as a form of exercise. Studies have found that yoga can lower stress and blood pressure, improve balance and flexibility, and provide an array of other health benefits. Most American people would agree that they view yoga as a form of exercise, one that around 20 million Americans practice.

But yoga still has religious affiliations. Yoga is practiced as a part of Hinduism, Buddhism, and Jainism. Yoga appears in all three of these major world religions’ religious texts/associated works. The Hindu American Foundation even claims that yoga and Hindu philosophy cannot be separated and that yoga is "a Hindu way of life." Religious practice aside, few deny that there is a spiritual component to yoga, the word itself meaning basically “to unite” or “to join together,” and this component is definitely entwined with philosophical and theological thought of Asian religious traditions.

A prominent Southern Baptist Minister, Albert Mohler, particularly views yoga as a religious practice and even wrote an article in which he explained how yoga contradicts the Christian religion. In the article, Mohler says that, “when Christians practice yoga, they must either deny the reality of what yoga represents or fail to see the contradictions between their Christian commitment and their embrace of yoga.” The contradictions apparently rest in the spiritual goals of many poses. So are many Christians simply denying the reality of what yoga represents?

Going on the American Yoga Association website also yields very interesting results for the religious nature of yoga. The general information page claims that yoga does not have a creed and thus it is not a religion, but in the preceding paragraphs talks about how the first step of classical yoga, yama, entails refraining from violence, casual sex, hoarding etc. While obviously no one practices yoga as a religion, such beliefs could easily reflect a religious creed. Besides this, relevant to this case in particular is the author of this posts’ claim that yoga should not be practiced by children under 16.

Despite all the information that points to a definitive link between yoga and religion, I believe that because yoga is primarily strictly an exercise in America that it can be taught in public schools. I do agree that the alternatives and changes that the school district offered/made are necessary to protect the constitutionality of the yoga requirement, however. Should an alternative to yoga not have been made, then I think that an establishment case could have been made (although it still would have been difficult). On a separate note though, I do think that the school district should look into the safety of kids practicing yoga.

So what do you think? Is yoga religious in nature? Should it be taught in public schools? If it is taught, should there be alternatives and alterations made to its practice?

There have been many tricky court cases involving the establishment clause in our nation’s history. Recently in October of this year, a new situation has been brought to light. Records have shown that in the city of Cincinnati, there has been a 51 percent increase in homicides from 2012 to 2013. This is disturbing news for many and as a result, community members will participate in multiple prayer walks involving fourteen different communities in the area. The prayer walks themselves are not the issue at hand, but the fact that the Cincinnati Police Department issued a statement, along with several pastors in the community, inviting all citizens to participate in the prayer walks. In response to this invitation by the Police Department, the Freedom From Religion Foundation (FFRF) wrote a letter in which they openly criticize the police department for their support of the initiative. The FFRF used many strong and critical statements in their letter such as the phrase, “Public officials should get off their knees and get to work.”

The issue, which the FFRF states, is the actions of the CPD conflicting with the first amendment and the rights of the citizens. The first amendment prohibits the establishment of a religion and the FFRF holds the view that the establishment of religion is indeed occurring here. In the FFRF’s written letter, Andrew L. Seidel states, “It is a fundamental principle of the Establishment Clause jurisprudence that the government cannot in any way promote, advance, or otherwise endorse religion.” The statement comes from the Supreme Court’s commonly held stance that there must be neutrality between religion and religion, and between religion and non-religion. According to the FFRF, the CPD’s support of these prayer walks is not only coercive, but offends and excludes citizens who do not believe prayer to be the proper response to this situation. The letter asks that the police department responds to the letter with the changes they are enacting to remedy these constitutional violations.

I believe the FFRF makes valid points and seems persuasive in regards to its interpretation of the first amendment. It correctly cited the Supreme Court’s decision in the Epperson v Arkansas case in which a law that forbade the teaching of evolution in a public school was declared unconstitutional. In the majority opinion the court mentioned the fact that the government must remain neutral in regards to religion. Clearly in the case at hand, the government represented by the CPD, has declared its support of a religious cause by involving itself in the invitation. One might even cite the Lemon test, that has been commonly used in establishment cases, stating that this clearly violates the second part of the test forbidding a promotion of religion over non-religion. The FFRF also incorporates alarming statistics regarding religious areas and non-religious areas. Among the statistics, the FFRF states that the least religious areas of the world have the lowest reported homicide and violence rates. Therefore, people should see this declaration of prayer in order to alleviate violence as a ridiculous and unsupported notion. The FFRF seems convincing, along with the majority of establishment cases that have be ruled in concordance with its opinion, however I am not persuaded.

I see this issue as an opportunity to return the original intentions of the founders of this nation. I’m persuaded by the fact that, despite the very Christian undertones written into the constitution, the fathers were concerned with religious freedom for all. I read the first amendment as an invitation to people of all religious convictions and therefore as a constitutionally proscribed positive relationship between the government and religion.  Justice Reed makes a compelling argument while dissenting in McCollum v Board of Education. The case concerns an Illinois law allowing religious groups to come into the public school to teach religion for a half hour during the school day. The court ruled this unconstitutional even though students were not coerced into attending these religious classes. Justice Reed states, “The prohibition of enactments respecting the establishment of religion do not bar every friendly gesture between church and state.” In this case, the CPD is merely a “connector” allowing multiple like-minded groups the ability to come together. It is important to note that the CPD, in the two walks that have been held thus far, have not participated as uniformed police offers in the walks. This shows the CPD’s commitment to its governmental separation from religious support. In addition, in more recent cases involving the first amendment the Supreme Court has chosen to focus on the idea expressed in the first part of the Lemon Test, that a secular purpose must be present. Clearly the focus of the CPD’ invitation is the prevention or curtailment of crime. The CPD’s hope is that these prayer walks may bring the community together, encourage peace, and discourage violence. Furthermore, if we must judge sincerity, we may consider the fact that members of the CPD have not even participated in the prayer walks as governmental officers.

While I do think the FFRF makes valid points, and I think that the Supreme Court would indeed side with the FFRF here, that decision seems wrong to me. I agree with Justice Rehnquist in his opinion that the wall of separation must be put aside. We must destroy the hostility that exists between the government and religion. Were the FFRF to win this case before the Supreme Court I think those religious individuals who live in America should be concerned for their religious freedom. What are your opinions?

           JBS is a food processing company located in various areas of the United States. One of its places of operation is in Grand Island, Nebraska. In past years, there has been some contention between the company and its Somali Muslim employees. The Muslim employees believe they should be granted exemptions during the work day to practice their religion, as granted by their rights in the Free Exercise Clause of the First Amendment, but JBS believes this burden on their religion is not as great as the burden the exemptions would have on the company.

            In 2007, about 80 to 100 of the Muslim employees protested working at JBS because the company had denied the Muslim employees’ request to use their “informal breaks”, such as bathroom breaks, to pray. Instead, JBS expected them to pray during scheduled breaks. In addition, in 2008, JBS refused to move the scheduled meal break to a time that corresponded with the sunset prayer time in order to accommodate for the observance of Ramadan.

            This issue was brought to the court by the EEOC, and the decision was made on October 11, 2013. The court decided in favor of JBS, denying the Muslim employees of the exemptions. Judge Camp had to decide whether the accommodation would generate a larger cost for the employer and other non-Muslim employees, or if it would generate a larger religious burden for the Muslim employees. After reviewing the case, Judge Camp decided that the use of “informal breaks” for prayer and the change in meal time would both result in a greater “undue hardship” for JBS than for the Muslim employees. With respect to prayer during informal breaks, if operation of the production lines were not stopped entirely during the prayer breaks, the remaining workers would have the pressure of working faster and harder, which would be hazardous for them. If the production were slowed down during these prayer breaks, the meat would be contaminated after being exposed to the air for a longer span of time. With respect to the change in meal time, JBS argues that a 30-minute break for all employees would provide a situation where the cattle would remain on the “kill floor” for more than 45 minutes, meaning a decrease in the meat’s value, and ultimately a financial loss for JBS.

            The question here is whether this case was decided correctly. Should the Muslim employees have been provided the accommodation for their religious practices during work time? Everyone is entitled to the free exercise of his or her religion, as granted by the First Amendment and the Muslim employees are clearly denied the ability to exercise their religious practices in accordance with their beliefs. Is the “undue hardship” incurred by JBS a great enough concern compared to the burden imposed on the Muslim employees?

            This issue is similar to the matter of contention seen in Goldman v. Weinberger (1986), with regards to hindrances on free exercise of one’s religion. In that case, the Supreme Court decided that Goldman would not be allowed the exemption to wear his yarmulke while on duty in the hospital for the Air Force. The Court argued that there was a compelling state interest for uniformity among the members of the Air Force. They believed the burden imposed on this mission as a result of Goldman wearing the yarmulke was greater than the burden imposed on Goldman’s right to free exercise of religion. Since this court ruling, though, the decision has been altered, in which members of the Air Force are now allowed to wear yarmulkes. In light of this understanding, was the decision in EEOC v. JBS USA the correct one, or is the religious burden great enough to garner an accommodation?

            Though both Goldman v. Weinberger (1986) and the present case appertain to the issue of free exercise of religion while on the job, I believe there is a difference in how they should be decided. While Goldman should have been allowed the exemption to wear his yarmulke, the Muslim employees still should not be granted the accommodation. Knowing that religious discrimination is a significant issue concerning constitutional rights, the employers at JBS needed sufficient reason and evidence to deny the Muslims’ ability to participate in their religious practices while at work. In that respect, JBS had adequate grounds to impose the religious burden on the Muslim employees. The accommodations would not only be detrimental to the success of the company as a whole, but would also burden the non-Muslim employees that would have to make up for the work missed while the Muslim employees left for prayer. While I do see that the Muslims feel this decision denies them of their constitutional rights, the accommodations for the Muslim employees would have too large a harmful, though unintended, effect on the company and employees that ultimately outweighs the Muslim employees’ rights to practice their religion.

The Sacrament of Reconciliation is a sacrament of the Catholic Church where one anonymously confesses his or her sins to a priest. The confidentiality of these confessions are paramount, and failure of the priest to uphold the confidentiality would result in excommunication of the priest. Fortunately for the Catholic Church, some United States laws have provisions that prevent the government from requiring information from confessions. In thinking about issues of religious establishment, I assure you that concerns of a slippery slope are not necessary, because as you will soon see, we have already slid to the very bottom of the slope.

In 2000, a family with a minor daughter moved from Baton Rouge to Clinton, in Feliciana Parish, where they began attending “Our Lady of the Assumption Catholic Church”.  The family soon became well acquainted with a Parishioner named George Charlet Jr., who the daughter viewed as second grandfather from 8 years old through her adolescence. Eventually, Charlet allegedly kissed and fondled their daughter.

Confused, the daughter then decided to seek spiritual guidance through the Sacrament of Reconciliation on three separate occasions. After she relayed to the priest the abuse she suffered at the hands of Charlet, the priest merely responded that the daughter needed to handle the situation herself, or else “too many people would be hurt”. The daughter eventually confessed to her parents, after which they ordered Charlet to cease contact with their daughter. The following Sunday, however, the parents witnessed Charlet “approach their daughter after church and hug her openly against her will”. They then filed a formal complaint against Charlet at the sheriff’s office. On February 9^th 2009, during the investigation, Charlet died unexpectedly after suffering a heart attack while in recovery following a knee replacement surgery.

On July 6, 2009, the parents filed a petition for damages suffered by them and their daughter, naming the deceased George J. Charlet, Jr., Charlet Funeral Home, Inc., where Charlet was the president; the priest, whom they alleged was a mandatory reporter who failed to report the abuse; and the church, alleging liability for the priest’s misconduct. In February 2013, the priest and the church filed a motion in limine to exclude all evidence regarding the confessions, including testimony by the child herself.

The defendants argues that the damages that child suggested were due to Charlet, not the priest, and that the priest attained knowledge of the abuse through the Sacrament of Reconciliation, meaning that the communication was confidential. La. Children Code art. 603(15)(c) provides that a priest is not required to report knowledge gained from “confidential communications.” The article states “communication is confidential when relayed to a clergyman when it is made in private and not intended for further disclosure”. The defendants also argue that had the priest violated the confidentiality of the Sacrament of Reconciliation, he would be subject to excommunication. They therefore argued that if the law were to require them to provide information from the Sacrament of Reconciliation, it would impair their freedom to exercise their religion.

The trial court denied the defense’s motion, claiming that the priest could have acquired certain knowledge regarding the abuse outside of the confessional, and that such knowledge should be permissible. In addition, the court claimed that according to the Code of Evidence Art. 511, the privilege to confidentiality belongs to the communicant, the daughter, who in this case waived the privilege. Therefore, the court found that the testimony of the daughter was relevant, and she was entitled to waive the privilege. The Court of Appeals unfortunately reversed the trial court’s decision, claiming that the priest was not a mandatory reporter as the information was acquired during the Sacrament of Reconciliation. In addition, the Court of Appeals granted “No Cause of Action” and dismissed the plaintiff’s suit.

The Court of Appeals’ questionable handling of this case is only a small part of the problem. The larger problem is the severe establishment of religion found within the Children’s Code. The provisions fail two of the criteria of the Lemon test, which is useful in this particular instance for demonstrating establishment. First, there is no secular purpose of allowing priests to withhold information important for bringing child abusers to justice. In addition, it creates excessive entanglement, as it presents an image of the government protecting criminals associated with religious institutions. While the provision’s primary effect isn’t one that advances or hinders religion, it certainly favors religion over non-religion, as it provides religious ministers with the power to withhold information that individuals holding secular jobs, such as physicians or psychologists, do not have. The establishment clause says that neither state nor federal governments can “ pass laws which aid one religion, aid all religions, or prefer one religion over another.” Therefore, the provisions in the Children’s Code are clear violations of the establishment clause.

For argument’s sake, let’s say that the provisions for religious ministers in the Children’s Code are not an establishment of religion. In Sherbet v. Verner (1963), Justice Brennan said that infringing on freedom of religion is justifiable if there is a compelling state interest to do so, and there have been cases where the Supreme Court has decided that infringements upon free exercise were justified by a compelling state interest. For example, in Goldman v Weinberger (1986), the Supreme Court ruled that the compelling state interest of creating a strong military was enough to warrant violating Goldman’s free exercise of religion by not allowing him to wear his yarmulke while on duty at an Air Force base. Therefore even if the provisions were not establishments and even if removing the provisions would hamper the free exercise of religion, there is a compelling state interest to stop child abuse. This compelling state interest is enough to warrant the restriction of religious freedom that removing these provisions would cause.

This situation clearly demonstrates how establishments of religion can become problematic. By providing the Catholic Church with a provision that allows their priests to withhold confidential information from the Sacrament of Reconciliation, in order to protect their freedom of religion, we have slipped so far down the slippery slope the point where the government protected the Catholic Church from taking accountability for its actions, and prevented an abused child from finding justice.  In situations like this there is a compelling state interest to restrict religious freedom, as the safety of a child should take precedence over the Catholic Church.