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Monday, February 16, 2015
Monday, February 16, 2015
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In Tennessee v. Crank, Jacqueline Crank was convicted of child neglect and sentenced to one year of probation. Crank, a member of the Universal Life Church, relied solely on prayer to heal the cancer that was killing her 15-year-old daughter. There is a state law that prohibits parents from failing to provide medical for children. When her daughter died, Crank claimed she was protected by Tennessee's spiritual treatment statute which covers anyone who "provides treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment."
However, the trial court concluded that her church was not a “recognized church or religious denomination”. Crank relied on Ariel Ben Sherman, another member of her church group, as the daughter's "spiritual father". Sherman was an accredited member of the Universal Life Church, which will accredit anyone who fills out an application. The Department of Child Services described the church as a “cult-like” atmosphere with about 30 members living under one roof. In fact, Sherman was caught seeking out medical attention for the cancer he had, which ultimately ended his life, as well.
Crank then claimed that Tennessee’s spiritual treatment statute was unconstitutional because it was naming some prayer as legitimate and some as criminal. The Court of Appeals stated that they did not need to answer that question because striking down the law would collapse her initial argument.
Her final claim was that this statute violates the Establishment and Equal Protection Clauses of the Constitution.
The Supreme Court of Tennessee stood by the trial court and the court of appeals in rejecting Crank's appeal. The majority stated that the statute was intended for "established institutions with doctrines or customs that authorized healers within the church to perform spiritual treatment via prayer in lieu of medical treatment." Clearly, they did not recognize the Universal Life Church as an established institution and they did not recognize Sherman as an authorized healer, considering he went back on their beliefs himself.
I agree with the narrow ruling in this case because I believe any other ruling would be unrealistic. Ultimately, I would like to live in a world where the health of all children comes first and people trust modern science. A great deal of evidence over the years has shown us that modern medicine is usually a safer bet than prayer when it comes to cancer and various other illnesses. However, I also understand that many people hold strong religious beliefs, values and traditions that they wouldn’t be ready to give up on overnight. Therefore, I am okay with this Tennessee law as long as it is referring to recognized institutions. Striking down the law entirely would bring a whole mess of religious lawsuits into court for people who use spiritual healing. On the other hand, if the state didn’t regulate which prayer was legitimate and which prayer is criminal it would create a slippery slope for any child abuser to claim spiritual healing. Although Sherman was technically qualified by filling out the application, he breached his beliefs when seeking medical attention for his cancer. This proves some invalidity within the Universal Life Church and degrades its establishment as a recognized institution.
Justice Stewart’s interpretation of Abington Township v. Schempp can justify the decision in this case. The Establishment clause was created in an effort to restrict the national government from imposing any particular religion on the country. However, states are free to establish any religious values they would like. Therefore, the Supreme Court of Tennessee has the right to determine which prayer is legitimate and which is criminal in this case.
Sunday, February 15, 2015
Sunday, February 15, 2015
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Currently as most of us know, there is a legal prohibition of electioneering for such organizations and/or entities. This current prohibition is termed the "Johnson Amendment," which was established in 1954. For those of us who are either unfamiliar with electioneering or just need a quick refresh, electioneering occurs when an organization publicly endorses or opposes a political candidate who is up for (re)election.
The American Humanist Association who, under this proposed bill, would also be allowed to employ electioneering practices, is not happy that this would allow churches more free speech and "untold" influence in politics. The AHA released a statement which says, "This is fundamentally un-American, and weakens the state of our democracy by giving religious leaders untold influence."
It is important, however, to keep in mind that the diction of the bill itself does not appear to favor religious organizations/churches. The most relevant section of the bill to us is stated as follows: "Paragraph (3) of section 501(c) of the Internal Revenue Code of 1986 (relating to list of exempt organizations) is amended by striking “, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." This wording demonstrates that all 501(c)(3) tax-exempt groups would truly be included, not just churches and other religious organizations. The proposed bill can be viewed in its entirety here.
Another concern is that by passing this bill into law, there would be more open support and/or opposition from churches and religious groups which creates a large window of opportunity for government and politics to be influenced and also for general coercion.
In my opinion, it would be wrong for Congress to pass this bill. Not only does it slightly violate the Establishment Clause by providing religious groups with a tax benefit, it also allows for more religious influence in government and legislation, which Thomas Jefferson and James Madison explicitly told us to avoid. Remember the wall of separation between church and state? It does not seem to be too high here.
Some might point out that the function of the bill is actually neutral, with which I am not inclined to totally disagree. However, it seems to me that this bill functions more as a slippery slope rather than a totally neutral bill in practice, even if it may be neutral in regards to intent. The author of the article I read said that passing this bill would "make things worse for secular Americans," and to an extent, I would agree.
The Republican members of South Carolina’s congress recently wrote a letter in an attempt to give religious groups on college campuses the ability to choose who can join their respective organizations. Membership is currently regulated by colleges through the “all-comers policy” that states that these clubs must grant everyone the option to join, regardless of whether or not they follow and/or agree with the beliefs of said religion.
This policy came about due to the Christian Legal Society v. Martinez case in which the Christian Legal Society of The University of California, Hastings College of the Law fought against having to let students join if their beliefs differed from those of the group. The Supreme Court stated that they must treat all people equally; therefore making it mandatory for the CLS to allow anyone the option to join.
In order to avoid the all-comers policy, religious organizations have the option to move off campus and disaffiliate from any connections with the university. However, this puts the group at an extreme disadvantage because they will then not be able to receive benefits from these connections such as money, the use of campus buildings, etc. This raises the issue of whether or not schools should have the right to regulate aspects of religious organizations. It is understandable to want to limit or restrict possible discrimination by making it mandatory for groups to allow anyone membership, but the worry is that these new members will be against the religious beliefs and merely be joining in order to cause problems or be unfriendly to the members. This leaves the clubs having to choose between having focused members dedicated to the beliefs and standards of said religion, or receiving the benefits the school has to offer.
I think religious oriented groups at colleges should be able to choose who can join, and that not allowing it is a breach of freedom of association. A strong purpose of these clubs is to come together to further understand and discuss the common beliefs, but how can this be possible if the constituents are not faithful followers? However, I would also count it as discrimination to not let someone join because his or her thoughts go against the religion. It is possible that said person is actually interested in learning more about a different faith, so they want to join and gain a better perspective. Problems with this occur when dissenting members are rude to the organization and their beliefs, so I think a better way to handle this would be to have it mandatory for religious groups on campus to follow the all-comers policy, but grant them the option to remove said dissenter if he or she begins being rude and disruptive.This issue is important because it once again brings up the idea of how intertwined, if at all, schools and religions can be. Considering the religious group is located on a college campus, I believe that the school has some control over what the club is able to do because they are affiliated with said university. However, I strongly believe that taking away one’s freedom of association by not allowing groups the right to work towards commonly desired goals is clearly unconstitutional. It is true that they could avoid this policy by going off campus, but this then makes the members have to choose between gaining benefits from the school and having fully committed members, a decision they should not have to make. These groups consist of people who want to pursue their religious goals and beliefs surrounded by people with the same interests, and it is unconstitutional to disrupt this process by forcing them to take people in. This would then lead to the issue of deciding who is truly following the religion and would therefore be granted the ability to join, along with who actually gets to make this decision. There is clearly no definitive solution to the issue, but I think religious organizations have the right to choose who is able to join in order to best follow the interests of the group as a whole, and that taking this away is completely disregarding freedom of association.
What do you think? Is it constitutional for universities to have control over who can join on-campus religious affiliated organizations?
The article can be found here.
A bill was recently overwhelmingly passed by the State Representatives in Oklahoma that would allow protection for church clergy members whom refuse to perform marriages for same-sex couples. The bill is deemed to, "protect clergy members from any civil claim or cause of action if they refuse to recognize the marriage of same sex couples". David Brumbaugh, the bill's sponsor, stated that, "It's not about discrimination or anything like that, its just we want to make sure [the clergy] are protected".
Although there has been some out-lash from Oklahoma's L.G.B.T community, most claim that while the bill is "unnecessary, it is not discriminatory". This is because as Reverend Walke explains, "No one is forcing anyone to officiate same sex marriages". The first amendment provides the clergy the freedom to practice their own faith, even if that entails denying a couple marriage.
The salient point that this article brings up is whether it should be constitutionally legal for people to refuse or deny service to a group of people whose rights are allowed by law? Should we expect everyone to put away their beliefs in the name of the State? Or should people with objections based on religions reasons be allowed exemptions? If we allow exemptions, for whom do we stop allowing exemptions for?
The article particularly reminded me of the baker who refused to bake a cake for a same sex couple in Colorado. The couple took their complaint to court and argued that it is their "constitutional right" to not be denied service on a bases of their sexual orientation. On that first day of class, I originally agreed with the same sex couple and thought that it was wrong of the baker to not bake the cake for the couple. Upon further reflection although, it is clear to me that it is within their first amendment right to refuse service to anyone they please.
Does this then mean that clergy have the right to refuse service as well? Well, upon further research it is clear that while Colorado has a non-discrimination law in place meaning that it, “bars discrimination based on sexual orientation or gender identity” (aclu.org), Oklahoma does not. And so, private entities are allowed to refuse service based on these factors.
This non-discrimination law in general is what I think is at the heart of this argument. Basically, the bill that would give clergy extra protection is an unnecessary step that only furthers Oklahoma from adopting policies such as non-discrimination laws. That being said, are the non-discrimination laws themselves within our first amendment rights? Although it is certainly a progressive step and I by no means think that anyone should be discriminated against, is it okay to punish people whom have a religious reason they want to deny service? If we have the freedom to practice out religions, and this is within our religious, does it make sense that people have the right to refuse service even if it appears to be discriminating against a certain group?
Oklahoma’s L.G.B.T community even claimed for themselves that “freedom means freedom for everyone” and despite the nuisance of such a bill, it is only a reaffirmation of the first amendment right.
In my opinion, the bill is not unconstitutional, but it is just unwarranted. Oklahoma has no anti discriminatory laws, and the clergy should have the right to deny officiating a marriage that they do not want to be involved in. Similar to the man who did not want to bake a cake for the gay couple, although it is unfortunate, it is within his first amendment right to deny service or his own private entity.
What do you think? Should clergy have protection from persecution if they refuse to acknowledge a same sex marriage?
Sunday, February 8, 2015
Sunday, February 8, 2015
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Article can be found here: http://www.deseretnews.com/article/865621202/Californias-ban-of-Scout-affiliated-judges-flies-in-the-face-of-religious-freedoms.html
California judges must abide by a code of ethics that dictates their professional and personal lives. One section of this code speaks directly to this issue: “A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.” The Court argues that prohibiting BSA membership will ‘promote the integrity of the judiciary’ and ‘enhance public confidence’ in the system.
I believe that preventing California State Supreme Court judges from participating in the Boy Scouts of America is a blatant infringement on their constitutional rights of free association, free speech, and the free exercise of religion. California judges should not be prevented from being leaders in the BSA. These judges are permitted to gain membership to organizations such as The National Rifle Association, the Council on American-Islamic relations and even the North American Man/Boy Love Association. Many of these permitted organizations have strong political and social values just as the BSA does.
As we have discussed in class, being a member of an organization does not necessarily mean that all of your values are determined by that organization. For example, just because you are a Catholic does not mean that a juror will disagree with the death penalty. Being a leader in the Boy Scouts does not mean that a judge will be biased against homosexuals in their court.
Additionally, California’s code of conduct contains exceptions for some organizations that discriminate- namely religious ones. For example, Californian judges can be members of the Catholic Church even though it discriminates against women by preventing them from becoming priests. Likewise, Orthodox Jews ban women from becoming rabbis. However, judges in California are permitted to gain membership to these churches and congregations. Despite these discriminatory practices, the state does not believe that membership with these organizations will make judges biased based on gender. Clearly, the ban on organizations that discriminate on the basis of gender has some exceptions.
To me, this almost seems like the state government is preferencing religion over non-religion. To make such blatant exceptions to this discrimination rule shows a partiality to religion. While the Boy Scouts of America have values deeply connected with religion, it is not a religious organization. It doesn’t seem fair to grant exceptions to religious institutions but not to private organizations.
Furthermore, a person’s values do not necessarily change depending on which organizations they are a part of. Judges are expected to be fair and impartial at all times. These attributes should be clear and unquestionable before they are appointed as judges. If a judge is somehow homophobic, restricting his or her admission to the Boy Scouts of America will not change his or her mind. This could also lead to a slippery slope for judges and their restrictions. If we prevent them from joining an organization that has an unpopular opinion, what is to stop the government from preventing judges from joining a certain political party or volunteering for a nonprofit organization that works to empower women, for example? Many organizations take stances on issues such as gender and race. Would we bar judges from joining these organizations because of this?
The Boy Scouts of America are legally protected in prohibiting homosexuals from being leaders in their organization due to their religious preferences. Though it is an extremely unpopular opinion to many, the BSA is exercising its freedom of religion right granted in the First Amendment. This issue is extremely important because judges are the ones that society expects to be upholding constitutional rights. Instead, they are having their rights restricted in order to keep their jobs.
Do you think the government has a right to restrict its judges from joining certain organizations based on their values?
Article can be found here: http://www.indystar.com/story/news/politics/2015/02/02/indiana-senate-poised-allow-hiring-based-religion/22759821/
A proposed bill in Indiana had created great controversy. Senate Bill 127 is intended to allow those who run religious-affiliated organizations to have greater protection in hiring, specifically when it comes to religion. Religious-affiliated organizations that receive public funding, including hospitals and universities, would be allowed to discriminate in hiring based on the organization's religious views and beliefs. Additionally, the bill would allow these organizations and employers to require that employees follow the organization's religious creeds and tenets.
Social Conservatives have generally supported the bill, which is set to be voted on this week. They claim that an organization with religious ties should not be directed or influenced by the state. They say that the First Amendment protects religious organizations by allowing them to hire whomever they want with no government interference or burden. If an organization does not want to hire someone who doesn't support their mission, then why should they? Religious-affiliated organizations and businesses should be able to maintain their religious identity while providing social services using public funding.
Liberals have, for the most part, opposed the bill. They claim that an organization receiving public funding should not be allowed to discriminate against those who do not share the organization's religious views. If a religious-affiliated organization is using money that the public and state have funded, the organization has a responsibility to treat all people of all kinds equally. The government has an interest in overseeing that organizations that are run with the help of the public are not discriminating against any group, an interest that does not conflict with any First Amendment protections.
I think that the most important part of the bill to take into consideration is the fact that these organizations are receiving public funds. If these organizations are going to use state funds, I believe that they have an obligation to support the public as a whole. If these organizations were to use only private money for their endeavors, then they should be allowed to run as they please. Once they take money from the public, however, they should be forced to run as public businesses do. A homosexual, for example, should not have to help fund an organization's project while that organization has the freedom to reject that homosexual's application based on his/her personal or religious beliefs. The First Amendment protects religions and religious organizations from state interference when those groups are practicing or organizing privately, but the same does not hold true for when those religions or organizations are connected to the public monetarily. These organizations have a duty to hire people of all beliefs and religions if those people are to pay for the organization's projects. The government has a compelling interest to make sure that everyone is treated equally in a case like this.
As for the part of the bill that would allow these organizations to force employees to follow its practices and beliefs, how can it be decided if an employee has properly or successfully followed the organization's tenets? It seems as if the religious organization would have to delve into its employees' personal lives to an extent that boarders on privacy invasion if it wanted to see if the employee truly followed religious tenets. How can the organization know whether the employee took birth control or not? How about if the employee attended church or not?
This bill seems both unconstitutional and confusing. Do you believe that all religious-affiliated organizations should be able to discriminate in hiring, no matter where there funding comes from? Are these organizations protected by the First Amendment? And should the employees have to conform to religious tenets, or is would this requiring too much of employees?
In 1942, the United States Congress officially adopted the Pledge of Allegiance but the phrase “under God” was not officially added to the pledge until 1954. The court noted that the House Report for that amendment to the pledge indicated the intent to emphasize that political authority comes from God but that the language “under God” was not attempting to establish a religious institution. The House Report states that “A distinction must be made between the existence of a religion as an institution and a belief in the sovereignty of God. The phrase ‘under God’ recognizes only the guidance of God in our national affairs.” The court stated that following the Plaintiff’s reasoning, the very Constitution that they are appealing to could be deemed unconstitutional due to the acknowledgement of a God. The court stated that this would be “an absurd proposition which the Plaintiffs do not and cannot advance here.”
During the preceding, the court heard from Samantha Jones, a high school student who argued that students have the right to say under God in the Pledge of Allegiance. In response to the court’s decision, Jones said, “We all have the right to remain silent, but nobody has the right to silence anybody else.” Eric Rassbach from the Becket Fund, which supported Jones, argued “The Pledge is not a prayer to God, but a statement about who we are as a nation. Dissenters have every right to sit out the Pledge, but they can’t silence everyone else.”
I disagree with the arguments put forth by Jones and Rassbach and believe the court was wrong in dismissing this case. The language under God may not be establishing a particular sect of religion but it does establish the sects of religions that believe in God. Therefore, it excludes those who do not have that same belief. The writers of the amended Pledge may not have had the intent to establish religion but the intent is largely irrelevant to its actual effect. One can be a firm believer in a certain principle but can be imperfect in applying that principle. The fact that the phrase under God and other language have been accepted as religiously tolerant in the past should not be an excuse to avoid taking steps to ensuring greater religious freedom today.
As noted above, it has been argued that removing under God from the pledge would be a violation of the rights of students who wish to remain reciting the current version of the Pledge. A similar argument was made in Engel v. Vitale (1962) in the defense of the daily recital of a prayer in a New York school district. In the court’s ruling that this practice was a violation of the Establishment Clause, the court reminded us that it is “neither sacrilegious nor antireligious” for the government to stay out of writing or sanctioning prayers. Taking under God out of the Pledge would not be an attack on anyone’s freedom. Students do not need the school to lead them in the Pledge in order for them to say it. Individuals would still be able to freely say their own version of the Pledge on their own time. The fact that the government does not sponsor something does not mean that they are attacking it.
In Samantha Jones’ defense of the current version of the Pledge, she says “The phrase ‘under God’ protects all Americans – including atheists – because it reminds the government that it can’t take away basic human rights because it didn’t create them.” While the dialogue in court decisions has a different take on the purpose of the Pledge, I would suggest that the use of under God is not necessary to remind the government of the natural freedoms we have. The version of the Pledge before the amendment in 1954 reads as follows:
"I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all."
I believe that this version of the Pledge accomplishes all the same goals of promoting freedom and patriotism without establishing any religion. Since the original version of the Pledge did not have the phrase under God it would be natural for the country to readopt an older version of the Pledge
Do you think that the phrase under God violates the Establishment Clause? Please share your thoughts in the comment section below.
