Religion & American Law

Last month, Governor Chris Christie signed a bill that bars all religious groups that own or manage a cemetery from selling headstones and family crypts. The law also prevents religious groups from owning funeral homes and mortuaries. The new law chiefly affects the Roman Catholic Archdiocese of Newark. The Archdiocese of Newark is the largest single provider of in-ground burials in New Jersey and after entering the headstone business two years ago, the Archdiocese of Newark has become a major source of competition for the New Jersey headstone business community as their market share has grown to 36%.

The Monument Builders of New Jersey heavily lobbied the New Jersey legislature to enact legislation which would give monument builders a level playing field. The president of the trade association, John Burns Jr., insisted that private firms could not compete with tax-exempt groups like churches. Burns claimed that within the first 18 months that the archdiocese started selling headstones, some of his colleagues saw business drop off by 40% and that without this law, the archdiocese would develop a monopoly on the market.

I believe that the archdiocese or any other religious group interested in producing headstones has grounds to file a lawsuit against the state of New Jersey over this headstone law as it violates the Free Exercise Clause of the First Amendment. The law is not neutral towards religion, both facially and in practice. The law could have attempted to convey neutrality by barring and nonprofit organization who owns a cemetery from selling headstones but the language of the law plainly says that it is specifically targeting groups that are religious. It appears that secular organizations who could have similar tax benefits as churches would be able to market headstones without any restrictions.

While the facial discrimination towards religious groups is enough for a court to justify striking down this law, some might argue that this law is in fact neutral because is facially neutral towards all religion. While the law imposes the same limits on all religious groups, the law in practice targets religions who hold in-ground burials in high regard like Catholicism. While the trade association expressed concern that any religious group could participate in the headstone business, their main concern was immediately stopping just one group in the Archdiocese of Newark. If the Supreme Court eventually hears a case involving this law, they would do well to follow the president set in Church of Babalu v. Hialeah where the city of Hialeah passed a law outlawing unnecessary killings of animals in public or in private as a part of a ritual. This law was not passed until the church leased land in the city and the public demanded that legislation prohibiting animal sacrifice be passed. Writing for the majority opinion, Justice Kennedy asserted that Haileah’s law was not neutral and therefore should be subjected to rigorous scrutiny and would need to be justified by a compelling state interest.

In Church of Babalu v. Hialeah, the Court ultimately did not buy the city’s argument that there was a compelling state interest to reduce unnecessary animal death since multiple provisions were made to allow animal eradication by private companies. Ultimately, it was a case where one minority religion’s religious practice was targeting by the majority. Like Church of Babalu, I don’t think New Jersey has a compelling enough state interest to justify passing such an unneutral law. The law is narrowly tailored so that it only acts on behalf of the Monument Builders of New Jersey. The law does not attempt to prevent religious groups or nonprofit groups in general from participating in business practices in general but only specifically in headstones and funeral homes. This law is not at all neutral towards religion and is not designed with a clear compelling state interest and therefore is not constitutional.

Is New Jersey’s law constitutional? Should religious groups be able to compete with other firms? Please share your thoughts in the comment section below.

It started as, "enough is enough".  Brian Klawiter, the owner of a car repair shop in Grandville, Michigan, wrote on his company's Facebook page this past week not only encouraging gun owners to visit his shop with the promise of discounts on car services, but Klawiter also publicly announced that he would refuse service to any openly gay person or persons showing public affection towards each other because "Homosexuality is wrong. period". After receiving many threats to the post, Klawiter later wrote another post defending his actions, stating that "the voices of American conservatives are not being heard by the government" and even threatened those that wished to voice their opposing opinions that were customers of his that he would "put their vehicle together with all bolts and no nuts and they can see how that works".

When later asked about the disruption his post caused, Klawiter stated, "Apparently if you are white, you have a job, go to church, and own a gun...That translates into racists, privileged, bigot, conspiracy theorist. Too many of us say nothing. Well, freedom of speech isn't just for liberals". Needless to say, Klawiter has continued to receive threatening messages through his company's Facebook account and even requested the security of local authorities at his home, to which he was denied.

It was later discovered that Klawiter does not have a city license, as he believes requiring a license is a violation of his constitutional rights because it would allow city inspectors to enter his shop without a warrant. The license would also request all of Klawiter's personal information, including his home address, details about his property, and an inside access to his alarm system. This, Klawiter also claims, is disregarding the voice of conservative Americans. "I cannot and will not give up my civil rights, especially when requested by a government entity for which the Constitution was designed to limit the power of. Would you sign something giving me the right to search your home as I pleased?".

As of today, Michigan is one of many states that prohibits discrimination based on sexual orientation. Several municipalities within the state do have laws against it, but Grandville, the town where this particular case is taking place, is not one of them.

This case is extremely similar to that of the baker that refused to make a cake the videographer that did not want to film for a same-sex marriage. What sets this case apart is that, not only did Klawiter display his opinion on his company's (not personal) social media site and in an unprofessional fashion, but he also openly threatened the voices of those that did not agree with him and blatantly stated that he would damage their cars if they were to ever receive service from him; service from a repair shop without a license. Even though Klawiter's car repair shop is privately owned by himself, he is not licensed and he still is in an area of Michigan that does not allow discrimination, therefore Klawiter should not have the right to publicly state that he will not provide business to homosexuals. To me, that is all too similar to a "Whites Only" sign on a storefront. I also do not think it is right for him to provide discounts to gun-owners, as that is discriminating against personal choices AND religions; not just sexual orientation.

Do you think Klawiter has the right to deny service to homosexuals or the right to give discounts to those that support the right to bear arms? Should this statement be allowed to be displayed on public forums/online advertisements? Should Klawiter be allowed to continue his business without a license under the claim that it is a violation of his Fourth Amendment?

Article can be read here: http://www.religionnews.com/2015/04/16/okla-attorney-general-wants-private-citizens-distribute-religious-literature-schools/

This past week, the Oklahoma attorney general Scott Pruitt announced an initiative he plans to carry out that would allow private citizens to distribute religious literature in public schools. This policy, which Pruitt says would be neutral and would allow all of Oklahomans to distribute material regarding any religion, comes in response to an incident that occurred earlier this month. A third-grade teacher distributed Gideon Bibles to her students at an Oklahoma public school. This led to a Satanist church asking permission from the government to distribute Satanist literature at public schools and from there, debate sparked.

Those who believe that Pruitt's initiative and the teacher's actions were wrong claim that the First Amendment specifically denies the government from allowing public, government-funded institutions to advance religion in such a way. The role of public schools, they claim, is to teach in ways that do not include religious propaganda or messages.

Those who take the other side, like Pruitt, argue that the Free Exercise Clause, along with the Free Speech Clause, allows for any citizen to share any religious material in public. “Under the United States Constitution, school districts can permit private citizens to distribute to students religious literature, including bibles,” [Pruitt] wrote. “To allow private citizens to do so,  the school should simply enact a neutral policy that allows equal access for all Oklahomans to engage their free exercise rights.” The key here that Pruitt emphasizes again later in the article is that so long as the policy is neutral and does not exclude any religion or place any one religion above other religions, then it is constitutional for anyone to distribute religious materials in public schools because they have the right to share and practice their religions in public.

This issue is an interesting one and while it is similar to many of the cases we have read and discussed, it reminds me of two cases in particular. The first one is Town of Greece v. Galloway.
In that case, the Court ruled that legislative prayer is constitutional so long as clergy of all different religions are allowed to come lead prayers. This is a similar case because Pruitt is calling for a neutral law that would allow followers of all different religions to distribute religious materials to public school students. So in that sense, I believe the Court would agree with Pruitt and rule his initiative as constitutional.

Pruitt's initiative also reminds me a lot of Employment Division of Oregon v. Smith, albeit in a much different way. In that case, the majority ruled that Oregon's ban on peyote is neutral and generally applicable and thus, even if it burdens some religion(s), it is still constitutional. The law that most, if not all, states currently have in place bans the distribution of religious materials in public institutions, a law that is neutrally applied among all religions. So even though it may burden some religions, I believe the Court would rule Pruitt's initiative unconstitutional. While a case could be made that the initiative is neutral and generally applicable, the majority in Employment Division would likely believe that since the effect of distributing religious materials could very well lead these young students to ignore laws because of religious requirements or practices, the initiative should not pass.

The issue at hand, however, is also a much different case than the one in Town of Greece. In Town of Greece, the Court distinguished between something being offensive and something being coercive. The Court ruled that legislative prayers may be offensive, but they are not coercing any of the legislators to believe in one religion or another. This issue is different because when the material is being distributed to such young children, coercion is very likely to occur. These third-grade students could realistically and reasonably read the material and decide that it is true since young children often believe much of what they read. And since this would all be happening in public schools, which are funded by tax-payers, I believe this would be an example of government becoming excessively entangled in religious affairs. I understand the decision in Town of Greece, but the people involved in this case and the situation is much different. When religious coercion reasonably could occur or is likely to occur, the government must then take action to prevent this.

Additionally, the fact that these students could read some of a religion's practices and then carry those practices out, even if the practices are illegal in their state, leads me to believe that Pruitt's initiative is not constitutional. For example, if the students read about a pamphlet written by members of the Native American Church and decided that they wanted to use peyote since they were so interested in the religion, then the effect would be more and more people ignoring laws banning illegal practices.

For these reasons, I believe Pruitt's initiative is unconstitutional. What do you think? Do you think that if a law is neutral among all religions, it should be passed? Or do you think the issue at hand is an example of excessive government entanglement?