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Sunday, April 5, 2015
Sunday, April 5, 2015
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This article addresses a relatively recent change to a New York City education policy that will now allow preschools, both religious and nonreligious, to spread out the 6 hours and 20 minutes of instruction per day over 6 days, rather than 5 days. The main reason for this change is that it will now allow time for “non-program activities” during a short break that does not go towards the 6 hours and 20 minutes of secular schooling per day. The new policy also allows these schools to remain open on federal holidays, which may make it easier for the preschools run by religious organizations to close to observe their own religious holidays. It’s important to note that some of these preschool programs are tax funded and that Mayor Bill de Blasio enacted this policy in an attempt to encourage Orthodox Jewish organizations to open preschool programs.
This is a clear case of accommodation versus separation. Mayor de Blasio’s approach is to accommodate the religious views of organizations that may open preschool programs in order to increase overall enrollment in preschool. A separationist would argue that this action is clearly furthering religion by encouraging religious instruction during school and that it excessively entangles the government with religion.
Although many Supreme Court Justices have seemed to move away from using the Lemon test as a way to measure the constitutionality of laws such as this one, I do think it is a valuable tool in approaching these issues. It does, however, face many complications and interpretations in cases that have such competing interests. While some may say that this policy does not have a secular purpose (considering that it has been specifically enacted to further the participation of particular religious groups), it’d be hard to deny that increasing enrollment of preschool programs is not a secular goal. It has been proven that early childhood education can have a significant impact on later performance of students. This would clearly serve the state’s compelling interest of creating an educated population, which would help with reducing crime rate and improving the conditions of some neighborhoods. I think that this rule would pass the first prong of the Lemon test, even if it is religiously tainted, because early childhood education is part of a compelling state interest that leads into a predominantly secular purpose.
In regards to the second prong, it does seem as though this advances religion because it is blatantly encouraging religious organizations to open up preschool programs. There’s no doubt in my mind that this new rule will further religion via religious education and prayer time. Not having this policy does not inhibit the religion either. Although it may present a slight burden, the religious organizations are still free to open up preschools even without this policy in place. But by implementing this policy, Mayor de Blasio is directly advancing the religious doctrines of Orthodox Jews by making it easier for them to create these programs.
Although the Supreme Court would usually stop once the policy violates one of the Lemon statements, analyzing this case with the third prong is still valuable. This case would certainly foster excessive entanglement between religion and government. This new rule essentially allows for prayer and religious activity during the school day with a loophole that would not count this as school time. Donna Lieberman, the executive director of the New York Civil Liberties Union, says that adding this policy ”add[s] up to a religious school funded with taxpayer money.” Even though the city does not directly run these preschools programs, it is still connected to the situation deeply enough that it does foster entanglement between the secular and the non-secular.
Unlike some of the cases we’ve most recently encountered, such as Church of the Lukumi Babalu Aye vs. the City of Hialeah, this policy does not present an issue that is intentionally stepping on the Establishment and Free Exercise Clauses. Rather, it’s a case where state interest has overridden constitutional concerns about government interaction with religion. Even though I believe the city is enacting this rule with secular purposes and interests in mind, it advances religion and creates entanglement that cannot sit justly with the previous Court rulings.
Despite controversy regarding Indiana’s recently passed, “Religious Freedom Restoration Act,” Arkansas governor Asa Hutchinson signed a similar bill into law on April 3, 2015. The governor originally refused to sign the bill into law, which prompted the House to amend the bill quickly in order to get it passed. The bill in its original form was, “the most extreme version of a religious freedom act in the country,” and it was amended so that it appeared closer to the federal bill already in place.
Bill 975 was passed with a 26 to 0 vote and allows businesses to refuse service to customers if the actions of those customers violate the religious beliefs of the religious business owners. One of the Bill’s sponsors described the Bill’s purpose as, "We're going to allow a person to believe what they want to believe without the state coming in and burdening that unless they've got a good reason to do so." The intention of the Bill is to protect religious citizens from being forced to participate in activities that go against their beliefs.
This Bill, like the Indiana one, appears facially neutral. Nowhere in the bill does it say anything about discrimination towards the LGBTQ community. However, many people, gay or not, believe it is implied. Bill 975 gives justification to many of the current events we’ve been talking about in class recently such as the baker in Colorado, the doctor in Michigan, and the videographer in Ohio. Under this Bill, all of these individuals would have been protected from being forced to serve the same-sex couples in each case. In addition, this Bill was passed just before the Supreme Court is expected to make a ruling regarding same-sex marriage. Many view this Bill as a preemptive measure put in place to protect religious business owners from the ruling the Supreme Court may make soon.
Although I do think that this Bill is discriminatory, I do think it is constitutional. The Free Exercise Clause was designed to protect the religious beliefs of individuals. I think forcing private business owners to do something that directly goes against their religious beliefs violates the Free Exercise clause. Their ability to freely practice their religion is compromised if they are forced to act in ways that violate their religious beliefs such as catering a same-sex wedding or making a floral arrangement for a same-sex couple.
This bill to me brings up the question of whose rights are more important? Is it the rights of people who live their lives in conjunction with their religious beliefs or the rights of people who want to be treated equally? I think it’s an extremely tough question to answer with no answer being the “right” one. What’s right for one group of people is not what’s necessarily right for another group which makes a Bill like this extremely difficult to pass judgment on.
Should this Bill have been passed? Is the right of Free Exercise more important than the rights of the LGBTQ community—who are citizens of this country too? Are the two even comparable?
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| Image retrieved from Google which can be access here |
Last year Cranston School Committee made calendar changes that had negative effects on individual’s religious freedom. According to an article published by the Providence Journal, which can be accessed here, Cranston (Rhode Island) Public Schools has given teachers Good Friday, Yom Kippur and Rosh Hashanah off for the last 25 years. Due to these new calendar changes the previously mentioned religious holidays were no longer days off. However, under the labor contracts for teachers, Public Staff can take two religious holidays of their choice off. Yet when teachers started to request Good Friday off, Cranston denied their requests. Consequently a number of teachers filed a law suit against Cranston School Department. Recently, a Superior Court Judge allowed the teachers that had requested Good Friday off to be absent from work while the case goes through court. According to an article published by the Daily News, which can be accessed here, the school allowed Jewish teachers to take Rosh Hashanah off. The School Department argued that unlike Rosh Hashanah, Good Friday does not prohibit work nor does it require a religious service. It is reported that if teachers are found under a violation they would have to pay back the State for the day off.
In Sherbert v. Verner (1963), the appellant was a member of the Seventh-Day Adventist Church, which believed that no work should be done on Saturday. For this reason, Sherbert refused to work on Saturday and got fired from her job. After Sherbert was unable to find another employment, she applied for South Carolina unemployment benefits. However, South Carolina refused to give her unemployment benefits because she refused to accept “suitable work when offered”. The Court was asked to consider whether Sherbert’s 1st Amendment right to freely exercise her religion had been violated by the State of South Carolina. The Court ruled in favor of Sherbert and believed that the State had directly burdened Sherbert’s right. Justice Brennan who delivered the Court’s opinion stated:
Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities; nor employ the taxing power to inhibit the dissemination of particular religious views
Furthermore, the Court believed that Sherbert was being pressured into choosing between work and her religion which burdens her freedom of religion.
In this case the School Department has burdened teacher’s religious freedom by pressuring teachers to decide between their religion and their job safety. If the teachers are found to have violated the contracts then they will be penalized simply for following their religious practices. The most concerning fact about this case is that the schools have decided what a “religious day off” consist of, and they have unfairly defined it as “must prohibit work and attend a religious service”. Whether the individual can go to work or attend a religious service should not concern the School Department. Like Justice Brennan stated in Sherbert v. Verner (1963) it is not up to the government to decide whether there is a compelling religious interest nor to define religion. If the teachers are allowed to take two religious days-off then they should not be denied this right simply because the School Department has defined what constitutes as a religious days off. The school has clearly denied the individual right to freely exercise their religion belief. In addition, allowing teachers who believe in Rosh Hashanah to take a day off but not those that would like Good Friday off, the school is permitting only a few religions to practice their religious.
What do you think? Has Cranston School Department favored one religion over another? Has the teacher’s freedom to exercise religion been violated?
On Friday, April 3rdPresident Obama and the White House will host its annual Seder. This is the traditional Jewish ritual feast that marks the beginning of Passover. This tradition originated in 2008 with one of Obama’s campaign aides Eric Lesser. Lesser, in an attempt to appeal the Jewish community for Obama’s presidential campaign, organized and hosted a Passover Seder in a hotel basement. This was a small feast with only kosher wine, matzo, and some other generic Seder supplies. They were unexpectedly joined by surprise guest Barack Obama himself. At the end of the 2008 Seder one of the guests toasted and said “next year in Jerusalem!” Obama then added, “Next year in the White House!” He held true to his word, ever since Obama’s election he has made a point to host a Passover Seder in the White House and also makes sure to include some of the original attendees like now Senator Eric Lesser.
The ceremony at the White House includes the traditional foods and practices of the Jewish Seder. For example, there is a tradition of opening the front door of the home at the end of the feast. The opening of the door is accompanied by a traditional song as well. This is a symbolic way of welcoming in the profit Elijah. In the Jewish tradition, Elijah precedes the coming of the Messiah so one would want to welcome him into the home. To adapt this tradition to the White House they simply opened the door to the hallway. According to some of the original organizers of this feast Obama has always been curious of the significance of many of the practices and often inquired into what each signified.
The issue in this case is whether or not hosting a Seder and having President Obama be an active participant is a violation of the Establishment Clause of the First Amendment. The main issue I would take with this practice is the fact that Seder is inherently only a Jewish tradition. It seems as though the White House, and in turn the state, is endorsing the Jewish faith.
However, the White House has been open to a multitude of ritualistic practices from multiple faiths. The First Family traditionally has hosted a Christmas celebration. They have also hosted the Iftar dinner at the White House. This is the traditional feast the marks the beginning of Ramadan for the Islamic faith. At this dinner there was even a copy of the Koran owned by Thomas Jefferson on display. In addition to the Seder dinner, the White House also invites individuals to a Hanukkah celebration at the White House.
However, the White House has been open to a multitude of ritualistic practices from multiple faiths. The First Family traditionally has hosted a Christmas celebration. They have also hosted the Iftar dinner at the White House. This is the traditional feast the marks the beginning of Ramadan for the Islamic faith. At this dinner there was even a copy of the Koran owned by Thomas Jefferson on display. In addition to the Seder dinner, the White House also invites individuals to a Hanukkah celebration at the White House.
In my opinion, as long as the White House is open to hosting celebrations from all faiths they are treating each the same and not endorsing one over another. The White House must also recognize secular celebrations as well as to not endorse religion over non-religion. These could be things like Valentine’s Day and (debatably) Thanksgiving. On condition that all religions are treated equally and non-religion is considered equal as well I take no issue with the President hosting these celebrations and do not believe it violates the Establishment Clause. As the Head of State, the President needs to maintain neutrality. I actually like the idea of the President hosting these dinners and celebrations. It allows him to understand a little about the each of the plurality of faiths in the country that he presides over.
Based on precedent, the US Supreme Court has taken a more accommodationist approach to establishment cases involving state officials. In Marsh v.Chambers the Court upheld that legislative prayer was in fact constitutional. They extended this ruling in Town ofGreece v. Galloway where they ruled that legislative prayer was also constitutional before local town legislatures start their sessions. They cited that these practices were vital to uphold tradition within government. Seder, Iftar, Christmas are all historic practices within the country and have played some role in shaping this country. In fact, Christmas is now a state holiday.
I am aware that these cases do not set a precise precedent for the actions of the President, but Presidential action has yet to be challenged in the Supreme Court. Previously, we have examined cases of religious language in Obama’s speech. The question raised there was when, if ever, is the President not representing the State? Regardless, in this case I believe it is Constitutional for the President to be representing the state during the Seder as long as he does the same for other religious ceremonies and does not privilege religion over non-religion.
What do you think?
Sunday, March 29, 2015
Sunday, March 29, 2015
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http://www.nationalreview.com/bench-memos/415819/first-amendment-scotus-case-could-bring-much-needed-clarification-what
Recently the Sons of Confederate Veterans, tried to display Confederate battle flags on their specialty license plates. The state of Texas excluded this particular design from its specialty-plate program. The Confederate flag style plate was excluded from the program because it violated their policy against “offensive” messages on specialty plates. The states that allow these specialty license plates are permitting private organizations to create special plates that vehicle owner’s purchase for their car. In most cases a portion of the proceeds goes to the private company that sponsors the plates. Walker v. Texas Division, Sons of Confederate Veterans, gives the Supreme Court the opportunity to clarify whether the First Amendment is applied when state and private actors work together to produce speech. The Court also has a chance to elaborate on what qualifies as “government speech” which is not subject to the First Amendment at all. Lower Courts have had trouble discerning whether states are presenting and supporting government messages through their involvement in the specialty-plate programs. Or, could these states simply be promoting private messages and views of citizens in their state? This confederate flag case is a bit out of character for license plate disputes across the U.S. Mainly, these cases consist of national discussion of abortion-related speech and the national use of the “Choose Life” License plate, which is available in 29 states.
I believe it goes against the Sons of the Confederate Veterans First Amendment right of freedom of speech to not allow them the specialty-license plate exemption. These specialty plate programs are only designed to create revenue for the state and the organizations creating them. It is up to the individual how they would like to express themselves in their own car or truck. Walker v. Texas Division, Sons of Confederate Veterans and the license plate programs create a newfound public forum in my opinion and therefore must be protected by the First Amendment. The state and the organizations involved in the specialty plate programs must judge all requests for specialty-plates with neutrality and decide accordingly. In my opinion, this is not “government speech” just because it is a state license plate. This is just a glorified bumper sticker that people can so choose to have. By having the specialty-plate option, the state is inviting the public to join in a public forum of expression and allowing the plates to say what the public wants. This could open a slippery slope because the state of Texas would be required to allow plates that may bear a swastika or other “offensive” signs. The states that do allow specialty plates should either judge all requests for license plate alterations neutrally or not allow any difference in appearance and require complete uniformity of the license plates. This issue is important because it speaks to a new and up and coming public forum that is beginning to come about. The Court has made rulings in the past regarding the treatment of license plates as private property. Historically in Wooley v. Maryland the court ruled that motorists could not be compelled to carry the New Hampshire motto “Live Free or Die.” This case may set a new precedence in how license plate space is treated in the future and to what lengths the First Amendment will stretch to cover expression. The distinction that must be made here is whether you view the license plate as the driver’s speech or as the states.
Where do you stand?
Article: http://www.theglobaldispatch.com/freedom-from-religion-group-targets-ncaa-basketball-teams-for-having-chaplain-82735/
Recently, the Freedom from Religion Foundation threatened to file lawsuits on a handful of public universities that have religious chaplains assigned to sports teams. The list of schools includes some big names like Louisville, Wichita State, Kansas, Maryland, Oklahoma and Virginia. Some schools openly fund a team chaplain while other universities use techniques to avoid suspicion of religious establishment. Some schools try to give more secular meanings to these job titles. For example, Virginia has a coach listed as the “Director of Player Development” who spoke later at Liberty University on the importance of people finding themselves through Jesus rather than perseverance and hard work. In addition, Oklahoma has Scott Thompson listed as a Character Coach. At first glance, this title might appear to mean a coach devoted to keeping team spirit high. However, character coaches are associated with the religious organization “Nations of Coaches” which has bible verses on its website and a whistle with a cross as its logo. Wichita State also has a coach associated with the Nations of Coaches organization. The head coach of the Louisville basketball team named his friend, who happens to be a priest, the team’s unofficial chaplain. Kansas University has a chaplain who retired from the NBA to change the lives of athletes “with the message of Jesus Christ”. The University of Maryland also openly employs a pastor as their chaplain. He happens to be associated with the Nations of Coaches, too.
In Virginia’s case, I believe the Freedom of Religion Foundation would need more evidence to support their case for an Establishment violation here. Accusing the school of using a misleading job title to portray secular purposes might be true. However, saying the coach spoke at another university on his belief of Jesus is not enough evidence to support any violation here. I believe they must find inconclusive proof, such as forced team prayers, to have a case for an establishment violation here. In addition, if the coach has all the necessary credentials, like the Kansas chaplain that quit the NBA, it would be even harder to prove any violation. There is no law against hiring a coach with the necessary credentials and allowing him to speak his mind on religion matters. However, Kansas listed this man as a chaplain. Therefore, I believe the Freedom from Religion Foundation would have a case here for an establishment violation because it is for the purpose of further aiding religion. I believe they also have a case for a violation by Oklahoma as well as Wichita State, who both chose to use more secular job titles like Virginia did. The reason these are better cases for establishment is because these coaches are listed as Character Coaches. Although this title might seem facially secular, it is directly linked to the religious organization Nations of Coaches. Therefore, the public university’s funds, which come from the hard work of people from all different religious and nonreligious backgrounds, shouldn’t cover the salaries for these coaches. This is why the Freedom from Religion Foundation would also have a great case for an establishment violation against the University of Maryland. Here is a case of a publicly funded university openly paying a pastor as their chaplain who happens to be associated with the Nations of Coaches, as well. Finally, I do not think the Freedom of Religion Foundation would have a great case against Louisville. Although he is a priest, it is unofficial because the school does not pay him. I believe it is fine to have an unofficial team chaplain if some of the players and coaches enjoy having one to go to when they feel the need. However, like I said about the Virginia case, any evidence of forced prayer or similar activity could bring lawsuits for violations of the Establishment and Free Exercise Clauses, whether this particular chaplain is officially connected to/paid by the school or not. Any coach hired by a school must be there for the secular purpose of coaching basketball.
What is interesting is that Harper was actually found in violation of the Equal Opportunity Policy, which is outlined in the university's Employee Handbook. There have been obvious complaints about this, since Harper is a student and not an employee. In addition to this rationale, the university officials also told Harper that he could not distribute the fliers because "other students found them offensive and he didn’t receive prior approval."
However, the most surprising rationale that Harper received from the university came from an Equal Opportunity Officer named Thomas R. Russell, who told Harper that the policies of the university are above "those amendments to the Constitution," and that the rights outlined by the First Amendment are merely "foundations," and that the university's policies serve to build off of them, but not necessarily to abide by them.
This case sounds similar to one of the cases we have discussed in class, Rosenberger v. University of Virginia. Student Ronald W. Rosenberger's case was somewhat different in that he was asking the university to provide the funding for the publication "Wide Awake," which contained a religious viewpoint. As we know, the Supreme Court ruled in favor of Rosenberger, claiming that the university's denial of funding constituted viewpoint discrimination, which violated the Free Exercise Clause of the Constitution. The situation is the same here: Cameron University is using viewpoint discrimination against Daniel Harper's fliers, which is unconstitutional.
I would definitely say that Harper's free exercise rights were violated here. I was also appalled at the fact that Russell blatantly stated that the university's policies went above the amendments of the Constitution. That is obviously not right. So what do you guys think? Should Daniel Harper be allowed to distribute his fliers even though they may be offensive? Or should Cameron University's policies be upheld and kept as they are?
