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Sunday, December 1, 2013
Sunday, December 1, 2013
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On November 21stof this year, oral arguments were held in the District Court for the Eastern District of Kentucky- Covington on a case where Atheists challenged the constitutionality of IRS exemptions for religious organizations and argue that all religious organizations and churches should be expected to meet the same financial requirements as secular nonprofit organizations.
As it turns out this is not the only exemption that is in full effect today. There is also a clergy tax-free housing exemption that benefits many ministers, rabbis, etc. and this gives them a 5-10% cut on their take-home pay, in other words this allows any clergy to shield part of their salary from federal income taxes. For example,
“Churches routinely designate a portion of a pastor’s salary as a housing allowance. So, a minister that earns an average of $50,000 may receive another third of income, or $16,000, as a tax-free housing allowance, essentially earning $66,000. Having to pay taxes on the additional $16,000 ($4,000 in this case) would mean a 6 percent cut in salary” (Bailey, Religious News).
In Wisconsin, this has been clergy tax allowance was challenged and a District Court judge ruled that this exemption violates the Establishment Clause because it only benefits religious people and therefore is unconstitutional.
I couldn’t help but look at both these exemptions and see that there is no such thing as separation of church and state. I think that religious organizations and churches should meet the same requirements as secular non-profits including reporting their finances by filing Form 990 and states should not offer a clergy housing allowance. I think that everyone should comply with the federal law and there should be no preferential treatment towards any religion. As explained in the court opinion in Employment Division v. Smith, Justice Scalia argued that religious beliefs should not be an excuse from complying with the law that is conducted and regulated by the government. And in this particular case, I think that if these exemptions continue there could be a slippery slope. Think about it, any nonprofit organization could claim to be religious affiliated and would not be required to file Form 990. It just seems as though there is no secure process of checking on these religious organizations and churches to see if they are in fact following their goals or helping the public and greater community. I also think that having these exemptions entails that there is entanglement between church and state. There is no clear separation and that is perceived as the federal government aiding the religious. Although, I believe that all religions have the same capability and opportunity to obtain these benefits, the state prefers religion to non-religion. And the only way to maintain neutral would be to have religious organizations and churches comply with the law and properly file Form 990.
I also believe that clergy housing allowances should not be given. From what I understand, these allowances first originated when clergy were actually residing in “church-owed parsonages.” Today not many clergy reside in their facilities and having this allowance becomes somewhat useless because there is no way of tracking whether the clergy is using the money towards their churches or facilities. In Walz v. Tax Commission of City of New York, Walz sued the state of New York for aiding religious groups with an exemption from taxes on property and argued and this kind of exemption provides a financial benefit only to the religious and therefore violates the Establishment Clause. The Court in this case ruled that the exemption was intended to avoid interference with religious beliefs and practices. But the exemption alone is in fact interference because it is a financial benefit that only religious organizations, churches and clergy are able to enjoy and therefore disregards the nonreligious.
Do you agree or should these exemptions continue to be used?
Since the early 2000s in Mount Carmel, Pennsylvania, Mount Carmel Area football teams have concluded the pre-game warm up routine with a full-team quarterback sneak to the end zone where each player could optionally kneel to pray before going back to the locker room while the band played. This past season, head coach Carmen DeFrancesco decided to remove the option for players to pray claiming that it was a way for players to draw attention to themselves. Parents of players, former players, and current players were all outraged due to the team losing its option to pray. The area is heavily populated with Catholics but is also home to different groups of Protestants and occasionally Jewish, Muslim, and Asiatic religious followers. Another reason the public finds this change strange is due to the history of the act. In the short history of the prayer at the end of the warm-up, the Red Tornadoes added two state titles (2000, ’02) to go along with the previous three (1994, ’96, ’98), an Eastern Conference Championship (’09), and four District Championships (’00, ’02, ’08, ’11). This was DeFrancesco’s fourth year as head coach and after a first round playoff elimination there was suspicion that he would be removed due to lack of success causing the parents to not take action believing the next coach would allow the action. Recently however, it has been hinted that DeFrancesco will be returning for a fifth season causing the parents of players to return to expressing their displeasure towards the coaches ruling of removing the end of warm-up routine.
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| (Eric Joraskie - Former MCA Tornado) |
Coach DeFrancesco’s main claim for stopping post warm-up prayer is that this prayer ritual gives the individual player the opportunity to draw attention to his self. As a former player in this program being from Mount Carmel, I felt as though coach DeFrancesco’s decision to remove this prayer opportunity very troubling. I felt as though the removal of the prayer opportunity was not justified as players would remove their helmets, take one knee, and silently pray. Once they finished their personal prayer the player would put his helmet on and jog back to the locker room. In no case was there ever a player drawing attention to his self, not even the last person off. This really upset me because I had been the last player off my entire senior year and the thought that one would interpret my practice of religion as an attempt for attention made my religious activity seem like a show. This is the same point brought forth by parents as a reason for their disliking. For a coach to insinuate that players would use religious activity in order to gain attention is to call the religious activity into question as sincere. Secondly, I found this act to have two consequences in religious freedoms. The first reason is that by eliminating this religious act could be viewed as hostility to religion. The removal of this action keeps players from having an opportunity to express their religious duties and practices. The second reason is the preference of one religion over another. Being a mainly Catholic community, the team recites the Hail Mary prayer together. This prayer is primarily a Catholic tradition and forcing a team to participate without the opportunity to practice their individual religion is insensitive to other religions that team members may be a part of. I believe that the practice should be reinstated because it gives a player a chance to make a personal religious connection before a game in which one may pray for safety, success, or whatever he pleases. While I believe that the coach’s choice should be obeyed as a player, I do not believe that this matter should be dropped. Players should have the opportunity to take that time to pray personally, especially in the hectic pre-game ritual, this opportunity may be the only chance one gets to make a personal connection with their religious beliefs before engaging in competition.
The Jaros Family of Oneida County in Wisconsin have been planning to open up Eagle Cove Camp, a Christian affiliated Bible study camp, for over ten years. However, the previous zoning standards put forth by the town prohibit them from building the camp in the location they want. After many attempts at negotiating some type of construction, the Jaros family has brought the case to federal court claiming that this zoning law prohibits their free exercise.
In 1998, the area surrounding Squash Lake was legally zoned for low density families and single parent families. The reason for this was to limit the residents on these water front properties and maintain the quaint and rustic feel that the town was known for. Since 2001, the County Ordinance has allowed for 60% of the county’s property and 40% of the towns property for religious schools and churches. In addition, the Ordinance allows 72% of the County land for recreational camp use, 36% of that for bible study camps. However, in the zoned properties surrounding Squash Lake, no recreational camps were permitted.
But the Jaros family believed that Eagle Cove Camp was an exception, their religion required the camp to be built on 34 acres of land specifically on Squash Lake property. The land that they desired was partially zoned for the single parent families and partially zoned for residential farming, and they filed to petition against the zoning laws in 2005. The county denied their request, stating that the presence of a camp on Squash Lake would interfere with the quaint and rustic feel that the area was known and loved for.
In 2010, Eagle Cove sued the County, town and US District Court for the Western district of Wisconsin claiming that denying them an exemption from the previously established permit application was a serious burden on their free exercise.
“In the Seventh Circuit, a substantial burden “is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable. The burden must be truly substantial, to hold otherwise would permit religious organizations to supplant even facially-neutral zoning restrictions under the auspices of religious freedom.” Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7thCir. 2007).”
According to the Seventh Circuit, keeping the previous zoning law was not a substantial burden to Eagle Cove because they could very well build the camp grounds on nearby property. They were allowed to practice religious assembly in public but not on property that had to be rezoned against previous conditions set forth by the town.
Eagle Cove has continued to appeal their case and bring it to higher courts claiming that the zoning law violates the RLUIPA (Religious Land Use and Institutionalized Persons Act) and ArthurJaros claims that he will not hesitate to bring the case to the US Supreme Court if necessary. The RLUIPA protects religious groups from being excluded or favored by their governments in terms of land use and is neutral in terms of who can build where in terms of civil laws already in place. In response to Eagle Cove, the RLUIPA has not served as a ‘get out of jail free card’ for religious groups to override the law because they have first amendment rights. It is a valid method of analyzing these entangled situations and and in turn, notes the value that the Squash Lake property zoning has for the reputation and tradition of the town.
Even though this case has been going on for three years, I do not think Eagle Cove will get the exemption from the zoning laws and be able to build exactly where they wanted to. I understand that the waterfront property is important to their religious message but there are many other properties nearby that can work just as well, especially since the Jaros family has provided little evidence to the religious meaning of the property. Additionally, the RLUIPA protects religious freedom and the zoning laws set in place but does not guarantee that all religious groups get exemption from these laws that had been set years ago.
I empathize with the Jaros Family and Eagle Cove Camp because they can not get the location that they originally wanted but there goal shouldn’t be shattered there! I don’t think the various courts in Wisconsin are targeting their religion, they just see more value in the traditional landscape around Squash Lake and the RLUIPA makes that totally okay.
Do you think this case will ultimately make it to the Supreme Court?
In October 2012 Victoria Milewski was pulled over for speeding by the Greenwood police. Once she was pulled over, the officer smelled marijuana coming from her car but she claimed that someone else had smoked marijuana in her car earlier. She even presented him with a small container of marijuana from under her front seat that she said also belonged to the person who smoked in her car. Ultimately the officer did not believe her story and arrested Milewski for operating while impaired. He then asked her to submit to a blood test under the state’s implied consent law, which claims that any person arrested for a DUI must submit to a blood, breath, or urine test in Wisconsin. The law states that if the officer has probable clause to believe that the driver was under the influence, he or she must consent to taking one or more of these chemical tests. Milewski declined a blood test claiming that as a Christian Scientist, allowing a needle to enter her body was against her religion. She asked to take a urine test instead, which the officers declined because the Greenwood police policy only allowed breath and blood tests for intoxication. In the end, two officers held her shoulders down while a phlebotomist drew her blood.
When the case was reviewed, the Assistant District Attorney dropped the misdemeanor THC possession charges against her and she pleaded no contest to a noncriminal traffic offense (operating with a restricted controlled substance). The Clark County Circuit Judge also revoked her driver’s license for six months. During the case’s review, Milewki’s attorney argued that her objection to the blood draw was based on her constitutionally protected religious beliefs. Additionally, her refusal seemed reasonable because she was willing to submit to a urine test instead of the blood draw. The Assistant District Attorney shot down this argument first by claiming that the attorney did not notify the state attorney general about the constitutional challenge to the implied consent law (protocol set forth by a state statute), so the Counsell could not consider this argument. The District IV Court also agreed that the Counsell could not rule on her constitutional rights because it hadn’t been addressed in the Wisconsin courts. Additionally in the majority opinion, the Judge wrote that the police officer was not required to comply with Milewski’s request to have a urine test instead. Apparently the type of test used is completely up to the officer making the arrest.
So ultimately, the case was only reviewed by the District IV Court of Appeals, where it was ruled that the arguments presented by Milewski were “misframed and underdeveloped,” especially because she did not choose to further argue the constitutionality issue. The state appeals court in Wisconsin refused to view the case at all on November 27thbecause of the aforementioned issues. In the end, Milewski was forced to have her blood drawn against her will and had her license revoked for sixth months for minor offense.
In reviewing her case, it is clear that there are some discrepancies in how Wisconsin legislative and law enforcement officials interpret the implied consent law. Sometimes there is a discrepancy between how a law is supposed to work in theory and how it is actually practiced, as we have seen in multiple cases throughout this semester. But even more important than the flaws of this particular statute is that the state forced this woman to do something that she believed was against her religion and prevented her from freely exercising her religious rights. There have been many Supreme Court cases in the past that have granted religious exceptions to people who sincerely believed that participating in a particular act would violate their religious beliefs. For example, in West Virginia State Board of Education v. Barnette (1943), the Gobitis decision was finally overturned and students in public schools were no longer required to salute the flag and say the Pledge of Allegiance in school if those actions conflicted with their religious beliefs.
I think Milewski’s First Amendment rights to freely exercise her religion were explicitly violated in this case. The implied consent law of Wisconsin clearly states three different tests to determine intoxication levels and even though Milewski did not want to give a blood sample, she was very willing to give another type of sample. I feel like this situation could have been handled better in that the police officers could have given her more options and been slightly more accommodating. The only reason for her refusal to cooperate was because she felt that her rights to practice her religion freely were being violated in that moment, but shouldn’t that be enough?
What do you think? Were Milewski’s First Amendment rights violated or did the police do the right thing in getting the information they needed to keep the roads and their county safe from drivers under the influence?
Monday, November 18, 2013
Monday, November 18, 2013
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Walk into any mall clothing outlet and you’ll notice that employees often conform to a distinct and often narrow style of dress. While some store employees might find the dress code annoying, what happens when some find it a strain on their religious free exercise? Two such cases were decided recently, both involving Abercrombie & Fitch. In one case, Umme-Hani Khan was fired from her position in an Abercrombie stockroom for refusing to remove her hijab, a religious headscarf worn by women in the Islamic tradition. The second case also dealt with a hijab, where Halla Banafa alleged she was not hired because of it. A third case is also cycling through the court of appeals and is identical to the latter case above.
Abercrombie has defended itself by arguing that its employees must follow its “look policy”, a strict dress code that perpetuates the company’s brand and image. It is considered an important component of their marketing strategy, and they justify its enforcement because it is constituted as “commercial free speech”.
The question at heart here is two-parted. For one, does “commercial free speech” trump individual free speech, and secondly do the religious overtones of the case indicate that a violation of the free exercise clause has occurred? To address the former concern first, Abercrombie’s look policy dictates that no headgear may be worn by any employee. That is a generally applicable policy that appears neutral. However, as pointed out by the dissent in Oregon v. Smith, a generally applicable law does not protect the minority and does not automatically make it immune to amounting to religious discrimination. Banning headgear in general is acceptable commercial free speech, but not accommodating an individual because of their religion appears as a blatant violation of free exercise. Wearing the hijab is a fundamental religious practice to the plaintiffs, and thus this case more closely deals with free exercise and accommodation.
The ninth circuit court utilizes two tests in order to determine religious accommodation cases:
A plaintiff must first establish a prima facie case. If successful, the burden then shifts to the employer to show that it “initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.” (Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004).
The plaintiff accomplished the first facet by establishing that they would incur significant burden by complying with Abercrombie’s dress policies. Accommodation was not made as the employer fired the plaintiff for non-compliance. Abercrombie could only claim undue hardship, but ultimately that was found to be unsubstantiated. The court did not find the “look policy” to be so crucial to the company’s marketing success as they were unable to provide any evidence that the wearing of the hijab bore any detriment to the store’s sales. Abercrombie also argued that its employees are “living advertisements” and thus they have a right to force conformity amongst their employees’ dress. The court argued that since the plaintiffs in this case amounted to stockroom workers, they were not in the public eye and thus could not be classified as “living advertisements”. Subsequently, judgment was in favor of the plaintiffs.
Is this the correct decision? The argument that supports Abercrombie is that businesses are allowed to discriminate based on characteristics that would be considered “bona fide occupational qualifications”. This loophole in the employment discrimination law dictates that otherwise discriminatory practices can be overlooked if they would prove undermining to a particular business model. Companies such as Hooters or Catholic colleges utilize this practice when hiring female waitresses or Catholic faculty members, respectively. The latter example shows that religion can be used to legally filter employees. I ultimately agree with the Court in that both the “undue hardship” and “living advertisement” arguments seem weak. In Wilson v. Southwest Airlines, bona fide occupational qualifications were analyzed and it was determined that customer satisfaction alone cannot be a determination in cases utilizing the law as a defense. In essence, this is the core precept of Abercrombie’s argument and thus is invalid through precedent. The plaintiff, or rather anyone, should have an equal opportunity to work wherever they want, and by refusing to accommodate a hijab Abercrombie is practicing religious discrimination under the free exercise clause. Looking at the broader implications of these cases, do you think a private business has a right to tailor their policies to this extent, even if it excludes certain religious groups? Keep in mind that they only believe they are doing what is best for their economic success and survival (although I personally disagree with that belief).
Here is the full complaint.
Sunday, November 17, 2013
Sunday, November 17, 2013
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A charter school by definition is an alternative education system in which the school itself receives public funding, but operates independently. This article from the New York Times deals with a charter school in San Antonio, Texas called the Eleanor Kolitz Hebrew Language Academy. The classes are taught entirely in Hebrew in addition to classes on Israeli culture.
The school is on the campus of the San Antonio Jewish Community Center, is the first Texas charter to offer Hebrew, and one of two charters awarded by the state to open in a Jewish center. The school officials take issue with some of the leasing arrangements and the specific population that they serve, but the schools continue to ensure the state that religion is being kept out of the class room, and they are focused on diversifying the student body. 
Much of the criticism is rooted in the number of religious schools that are converting to charter schools. The process is legal, but it forces the state to question how students are getting accepted into the school, and the involvement of the state and state funding. Interestingly, charter schools receive the same state funding that traditional public schools do. This means that schools can adopt their own philosophies, while being funded by tax payers. The principal of Kolitz Academy, Kathryn Davis, claims that Hebrew is a modern language and is spoken secularly, just like any other language in the world.
The Kolitz Academy opened as a K-8 public charter school was funded through an educational grant worth $600,000. Additionally, the academy shares a building with the Jewish community center, a Holocaust museum and is located in in a affluent area, which the state feels may limit the diversity of the student body. The school, like all charter schools, is publicly funded but privately run.
I think that this was a particularly interesting article because it raises the question of whether or not these state supported schools, that were previously religiously affiliated, are changing just so they can be considered for state funding. I would have to question whether or not this would be considered an establishment of religion. To me this seems like a legal loophole to attain funding.
Prior to becoming the Eleanor Kolitz Acamemy, the same campus housed a private Jewish day school. After the transition from Jewish day school to Hebrew charter school, the majority of students, staff members, and head of school remained the same. This makes me question the why these changes are occurring, and the morals behind these changes. I feel that this is a case of religious entanglement. I think that in the state funding these converted schools, in essence tare supporting a religiously affiliated education. However, on the other hand, denying these converted schools could be considered discriminatory towards religion.
I question that amount of changes that are occurring in the curriculum, considering the staff and student body from the Jewish day school remain the same. The article also references another charter school eight miles from Kolitz Academy that is located on the property of Temple Beth-El, which is San Antonio's largest Jewish congregation. Next year, the temple will lease part of their building to start the Great Hearts Academies. The superintendent of the Great Hearts Academies claims that there will be no affiliation between the school and the temple aside from landlord and tenant. This is a school that will be using space in a Temple, in one of the largest Jewish congregations and Jewish populated areas in Texas; seems a little fishy to me.
I think that this is an issue of establishment of religion because the funding is coming from the state. I think that many of these converted schools are still religiously grounded, and that state funding should not be provided.
NYPD Sued Over a Beard: Litzman v. New York City Police Department
Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish community, has passed required tests to be accepted into the NYPD Police Academy
The NYPD Police Academy
The NYPD’s position is that it cannot accommodate Plaintiff’s one-inch beard because newly graduated police officers must shave at least once each year to be certified to use an MSA Millennium model respirator, providing the NYPD a health argument to the beard length limit. For this process the officer must go through a fit-test which is a series of seven one-minute tests to determine whether the respirator properly seals the officer’s face. Proper sealing can not be capable with facial hair, a test that is giving to all police officers on the force. The NYPD use one example in case of an emergency when officers must apply a gas mask, the respirator, to their face and having a long beard would make that process difficult leading to injuries. This example that could lead to the injuries of others as well it carried a burden of showing that an accommodation would create "undue hardship." The New York City Human Rights Law similarly requires accommodation, but has a definition of "undue hardship" that creates a much higher hurdle for the employer.
"Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The ... NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals.... Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards.... Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate."
The federal court ended up siding with Litzman on the NYPD infringing on his Free Exercise. I agree with the court and the defendant on this issue. Even though Litzman knew what he was getting into from the very beginning the NYPD did not present a very good case. One issue I saw that gave the defendant the right to fight against this is the exception the NYPD gives. Making it neutral to all religions making the guideline Constitutional, the issue arrived when they provided a length limit. By having a limit will give the NYPD the right to discriminate against certain people and religion practices. Such as Muslims and Orthodox Jews that has a history and practice of growing out long intensive beards.
