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Sunday, December 8, 2013
Sunday, December 8, 2013
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In Maryland, state law describes how public school holidays should be timed with Christmas and Easter. Many county public schools have since then also provided days off in recognition for Jewish holy days. Montgomery public schools made this adjustment in the 1970s. In light of two religions receiving their holy days as school holidays, today, Muslims in Montgomery County are calling for public schools to recognize one of the two major Islamic holy days as well.
Montgomery County public school officials have explained that high rates of absence on a day are necessary for consideration as to whether to add it as an official school holiday. One of the two major Muslim holy days, Eid al-Adha, saw that 5.6 percent of students and 5 percent of teachers were absent this year. To compare, the previous Tuesday had absence percentages of 3.2 (students) and 4.2 (teachers) respectively. Some Muslims, however, are calling these figures insubstantial because the percentages of other public school workers that were absent (like bus drivers and cafeteria workers) are missing and would help show that enough people are absent to warrant a school holiday.
It is important to note that Muslim kids are not directly harmed when exercising their religion and not attending school on either major holiday. Muslim holidays are labeled as non-testing days and related absences are excused. The Superintendent, Joshua P. Starr, also explained that the schools and teachers help students complete any work that was missed. Muslim families still feel that their kids should not have to make a choice between exercising their religious beliefs and missing instruction.
School holidays in observance of religious holy days raise some very important questions as the situation above demonstrates. On one hand, there is a potential establishment issue of designating certain holy days as holidays while others go unremarked. The majority opinion of the establishment clause in Everson v. Board of Educationexplains that the establishment clause at least means that “Neither a state nor the Federal Government…can pass laws which aid one religion, aid all religions, or prefer one religion over another.” A definitive argument can be made that giving Christian and Jewish holy days off either aids these religions or preferences these religions above others, like say Islam. In light of this, some schools, like SUNY Stony Brook, a public university, are simply not giving any religious holidays off. This however, has been met with much anger. Some other school districts like that of New York City are moving in the opposite direction, toward ‘respecting’ Islam holy days and having them off. But would this just add Islam to the list of religions that are aided/preferred?
On the other hand, a free exercise case could be made for having Muslim holy days as designated school holidays. As the Muslim parents noted, missing school in order to observe Eid al-Adha and other days places a burden upon their free exercise. The burden is that the kids potentially miss important instruction and also may feel anxiety upon making a choice between school and religion.
Overall, I believe that the Montgomery County Schools should not make any of the Muslim holy days school holidays due to the current available statistics. For example, if the Christian holiday of Christmas was no longer a school holiday and Christians decided celebrate this day and not go to school, over 50% of Montgomery County School students, teachers, and other workers would most likely be absent. Operating schools with this many people absent is not only economically/socially useless but also probably ridiculously difficult, so the school might as well coincide this date with winter break. Unfortunately, while 5-6% could constitute a lot of people missing depending on overall numbers, it is not large enough nor outside the norms of non-holy days for the school to shut down and deem this day a holiday. Now the precise percentage that warrants shut down is obviously another issue for debate, but I think that if the public school system bases its decision on percentages, then the absences on days like Eid al-Adha must be higher. Absence rates are a secular determining factor and basing school holidays off of them might have the effect of giving preference to certain religions in society, but it is not the purpose. As McGowan v. Maryland, which challenged Sunday closing laws, pointed out, “it is equally true that the "Establishment" Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions.”
With regards to the free exercise issue, there is certainly a burden upon Muslims in this community. Unfortunately, I think that accommodating Muslim students’ absences is the best that can be done because if the school system gives an Islamic holiday off because ‘its only fair,’ then the slippery slope principal comes into effect. If other religious groups start making cases for their holy days to be school holidays, then how much longer is the school year going to be drawn out?
In conclusion, I believe that the establishment issues raised in this situation are moot so long as the school continues to give days off based on these rates. Accordingly, perhaps days will eventually have to be re-evaluated given the changing nature of religious affiliations and people over time. With regards to free exercise, accommodation is the best the Montgomery School Systems can provide at this point in time. Due to the 98,328 public schools, the issue of religious holidays as school holidays has many important widespread ramifications.
Friday, December 6, 2013
Friday, December 6, 2013
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In Kansas, a seventh-grade student at Robert E. Clark Middle School wanted to distribute and post fliers that advertised a religious event. The event is called “See You at the Pole,” involving a student-led prayer performed around the flagpole before the school day. Even though many other fliers have been allowed to be distributed and posted in the school, this student was prohibited from doing so.
The Alliance Defending Freedom filed a lawsuit for the student, as her First Amendment rights concerning freedom of religion and free speech had been violated. They argued that students should not have to surrender their constitutional rights in the public school. The freedom of speech cannot be discriminated based on its viewpoint, which in this case was religious. The school allows all kinds of fliers to be posted within the school, including a poster of Lil’ Wayne that contained the phrase “Good Kush and Alcohol.” Also, the religiously oriented fliers did not have any great impact that would hinder the progression and order of the school day. Alliance Defending Freedom, therefore, believed that the school policy should be altered to allow the students their constitutionally protected rights.
The issue here is whether this school policy of banning the distribution of religious materials violates the students’ rights of free speech and free exercise of religion as stated in the First Amendment. Although the school is allowed to set policies to monitor the students’ behavior, students should not be expected to give up their constitutionally protected rights while in the school domain. While the rules set are formed to maintain order throughout the school, the students should still be allowed some freedom, especially in situations concerning their constitutionally given rights.
From the school’s viewpoint, I can see that this policy may have been put in place in order to avoid any sort of establishment or endorsement of religion. However, this policy functions more closely to an act of hostility towards religion. The policy singles out religion as the only subject of materials that is banned from dispersal. Therefore, the concern of this case is based on the individual students’ rights to free speech and free exercise of religion as opposed to any issues of establishment.
There have been several cases that have dealt with free speech and free exercise of religion within the school setting. One example is Westside Community School v. Mergens (1990). In this case, a group of students was prohibited from forming an after-school Christian club. The Supreme Court ruled that the formation of this club was not a form of establishment and the students were protected by the Equal Access Act, which provides all students the ability to express themselves as they please, whether it is religiously related or not. If all other clubs are allowed, the school cannot deny a religious group to form a club as well. Similarly, in Rosenberger v. University of Virginia(1994), a student group that distributed publications from the Christian perspective was denied finance for publishing costs. The Supreme Court decided that denying financial subsidy to the religious publication violated the students’ First Amendment rights. Because the University funded all other publications promoting free speech, it was unconstitutional to discriminate against this specific group based on the religious content.
These two cases and the one described here all commonly pertain to the issue of viewpoint discrimination. In these cases, the policies that had been established and the actions of the schools were prejudiced against a religious view. Even though all other groups or clubs were allowed to convene or distribute materials advertising their events, the religious groups were specifically discriminated, which is a violation of the students’ First Amendment rights. All students are entitled to their rights to free speech and the free exercise of their religions. The student at Robert E. Clark Middle School should be allowed to distribute pamphlets and advertise the religious ideas and events just as any other student is allowed to express his or her views on any other type of subject matter. Even though in some cases, such as Westside Community School v. Mergens, the school authorities might fear establishment, the overriding issue is the violation of appropriately allowing the students their First Amendment rights. The actions of the students are a reflection of the students themselves, and the schools should encourage the sharing of their diverse beliefs instead of regulating them.
No decision on this case has been reported yet, but how do you think the court should decide? Do you think that the school policy should be changed to allow distribution of religious materials in school? Or do you think that the policy should remain the way it is because there is a legitimate fear of establishment?
Monday, December 2, 2013
Monday, December 2, 2013
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The issue of putting G-d in our patriotic rites has long been debated, and even discussed on this blog before - along the lines of our money, the Pledge of Allegiance, and the Bible oath. Each of these occurrences happen within the United States and can therefore be looked at as internal issues between various American identities. But what happens when the collective American identity is labeled as theistic to the rest of the world?
That is what the Freedom From Religion Foundation (FFRF) has determined the government has done with the introduction of a new United States passport. The debut of a new passport means the designs needed to be revamped, of course, but this time around the U.S. State Department decided to include some rather prominent quotes with theistic meanings. Examples of such quotes include:
"May G-d continue the unity of our country as the railroad unites the two great oceans of the world." - inscribed on the Golden Spike, Promontory Point, 1869
"We have a great dream. It started way back in 1776, and G-d grant that America will be true to her dream." - Martin Luther King, Jr.
"This nation, under G-d, shall have a new birth of freedom." - Gettysburg Address by Abraham Lincoln
"The G-d who gave us life, gave us liberty at the same time." - the Jefferson Memorial, Thomas Jefferson
"We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." - excerpt from the Declaration of Independence
To most this may seem like a non-issue, but there are many American citizens who do not identify as theistic, do not believe in solely one G-d, or do not wish to declare such views to others and the FFRF believes that the new passport violates the rights of those American citizens to have a separation between their church and state. In selecting these specific quotes the state has not only established itself as a theistic entity, but a monotheistic one, effectively shutting out a large portion of the American "melting pot". One argument is that many of the quoted have said other inspiring and important messages that do not mention G-d, so why couldn't the State Department have chosen those?
Others, however, are not so swayed by the FFRF's argument. Many feel that the quotations on the passports represent America's history, and because they are quotes, it should be viewed as the state recognizing its past leaders and important moments, not necessarily establishing or endorsing a certain religious viewpoint. Even the American Center for Law and Justice (ACLJ) did not take issue with the new passport, viewing them as perfectly Constitutional. Jordan Sekulow, ACLJ's executive director, said "the Establishment Clause [...] was not designed to prevent 'benign' references to G-d or faith from being made in government" and that these quotes are okay because they "endorse neither a specific faith nor a specific denomination".
Both sides present fair arguments that have me swaying between the two. While I have never been a fan of the historical argument, I believe it may actually have some relevance to this situation, but I still feel that it is wrong to have the government declaring a monotheistic belief, as I have throughout previous discussions of this manner. In addition, this document is not something you can opt out of if you do not agree with the material, like you could with the Pledge of Allegiance or the Bible Oath. If you wish to leave the country and travel as an American citizen, you must present this document, quotes and all, to the customs agent in any and every country you visit. It could potentially then be argued as a burden to someone's free exercise of his or her religion.
Personally, I believe that while these quotes undoubtedly play a role in our country's history, they are not necessary to have in our passports. They add a nice touch, but could just as easily been replaced by quotes of equally historical precedence and American value that do not have theistic themes.
How do you feel? Does this case differ from others that we have talked about? If so, in what way? Are the quotes enough to constitute an establishment of religion, or place a burden on free exercise?
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?
