Sunday, October 23, 2011
Hertz rental car company has fired 26 of its employees at a Seattle airport branch because they refuse to clock out during their prayer times. The Associated Press reports that a local workers union which represents a large portion of the Muslim employees at Hertz does not find this action to be constitutional. According to spokesman Tom Zilly of the union Teamsters 117 feels that Hertz did not follow their own internal policy, as they agreed to allow the workers to be paid during their prayers a year ago. Hertz claims that the workers were violating a settlement with the Equal Employment Opportunity Commission reached two years ago. The company stated that the work environment was tarnished when workers would often take more time with their prayers than necessary.
Constitutionally, this brings up the question of whether or not the Muslim workers were discriminated against because of their religion. Technically, they are allowed to leave work to pray but they cannot be paid for the time when they are out of work. Are the employees’ constitutional rights to freely exercise their religion being violated? Should employees be paid for prayer time?
Personally, I find that Hertz has not discriminated against these Muslim workers. I agree with the company that the employees could be taking advantage of the paid free time to do other things that were not work. Even if there were no work related issues, I still think that paying people to pray does not make much sense to me. Companies should constitutionally oblige to allow their employees time out of work to pray, but it should not have to be paid. In Sherbert v. Verner we saw that the court gave unemployment compensation to a woman who could not work on Saturdays due to her religion when she could not find a job. While this is similar in nature to this instance, it differs in the fact that Muslims do not have to miss a significant amount of time to pray. Financially, I feel that they would not be burdened as much as the woman in Sherbert.
Tom Zilly feels that Hertz should not have given such a harsh ultimatum and could have instead sat down with their employees and reached some sort of compromise. I feel that this is not a good argument. Hertz has the right to fire and hire employees at will, just like all other companies. Nowhere in most contracts of employment does it say that the company must negotiate with an employee instead of fire them. While it may be courteous to do so, it is not a legal obligation.
At the end of this argument, I find Hertz is doing nothing wrong legally and the workers union is blowing things out of proportion. The workers are allowed to leave work to pray, so they can freely exercise their religion. Unfortunately for them, their religion may take away a little bit of their pay, but I don’t feel that it would amount to be enough to place a heavy financial burden on them.
A statue of Jesus that sits on a 25 foot by 25-foot patch of public land atop the Whitefish Mountain Ski Resort in Whitefish, Montana may be “ski booted” off the mountain if the Freedom From Religion Foundation has its way. The icon in question is a large, painted stone statue of Jesus Christ, which was placed there in 1953 by the local Knights of Columbus to honor returning veterans of World War II. The statue was selected and placed on the mountain to honor, in particular, members of the 10th Mountain Division, many of whom were instrumental in establishing the local and national ski industry. The veterans spoke of seeing religious shrines in remote mountain communities in northern Italy. The Knights of Columbus were granted a special use permit from the U.S. Forest Service and the statue was erected on a concrete pad. It has stood there since looking over the mountainside and greeting skiers as they descend the mountain.
In August, under pressure from the Freedom From Religion Foundation, the U.S. Forest Service rejected the renewal of the 10-year lease and ordered the Knights of Columbus to move the statue by the end of the year. The Foundation, which promotes the separation of Church and State, filed a claim with the Forest Service seeking the removal of the statue arguing that allowing it to remain would be in violation of the Establishment Clause of the U.S. Constitution.
The Knights of Columbus appealed the decision, stating that the removal and movement of the nearly 60-year-old statue would likely destroy it and that the statue’s historical, not religious significance, mandated that it be allowed to remain in place.
U.S. Representative, Denny Rehberg (R. Mont.) intervened on behalf of the local community and the Knights of Columbus. In a letter to the U.S. Forest Service, Rehberg noted that “This memorial is an irreplaceable part of our state's history and a unique and colorful part of the local culture…the Forest Service's denial of the lease defies common sense." Rehberg also went on to say that the statue is a symbol of hope and faith, and removing it would be an insult to the sacrifices the soldiers made for this country.
Local residents and supporters were also angered by the initial denial of the permit and voiced concerns that moving the statue to nearby private land would demean the longstanding piece of history of the mountain and thus should be left where it is.
The controversy did not remain local. The newswires picked up the story and the statue’s fate has prompted national debate. On Friday, the U.S. Forest Service, in response to Rep. Rehberg’s letter and the outcry from local and not so local supporters of the statue, rescinded its order to move the statue and has announced it will take comments and allow a more meaningful dialogue on the issue. Coinciding with the Forest Service’s announcement, local community leaders said they were advised that the statue is eligible for listing in the National Registry of Historic Places. Its placement on the National Registry might help but it does not guarantee that the statue will remain.
The historical aspect of the statue, I believe overrides any religious symbolism the statue is perceived to have. By history, we know it was placed in the mountains in honor of veterans who recalled seeing similar icons in the mountains of Italy. The statue was not placed there so that skiers could stop and pray. Religious services are not held there. In fact, photos contained in the news articles I read, show the statue wearing ski goggles, a helmet and a scarf. Veterans of all religions passed through the mountains of Italy and were equally subjected to the Italian statues. Because the statue was erected to honor men who served in World War II, it cannot be assumed that the statue is there to promote one religion over another. Residents have upheld the tradition of this statue for 60 years, with the knowledge and secular belief that the statue is a memorial to the men who fought at war and is not a means to establish or support religious beliefs.
The B110 bus in Brooklyn travels between Williamsburg and Borough Park and serves the Hasidic Jews of these communities. The line is run through a private company, Private Transportation Corporation, which pays the city for it’s right to operate and provide this public service. The company has a board of consulting Rabbis who declared that males should ride in the front and females in the back in accordance with their religious belief that prohibits physical contact between the two sexes.
The bus line is a private franchise that provides a public service and is thus considered a public accommodation. Therefore they cannot set different standards for different groups of people. Anti-Discrimination laws at the city, state, and federal levels prevent gender discrimination even though this is a private company, it was granted it’s route through a public process and serves many residents who are not Orthodox Jews.
This case is important in evaluating the complex relationship between free exercise of religion and discrimination. We have come across many cases where these two laws, both central to what many believe to be basic American principles, conflict. In Bob Jones University v. United States the court ruled that there is no religious exemption for schools practicing racial discrimination. This case cited the compelling state interest in ending segregation. The case also draws similarities to our discussions of faith-based initiatives. Although this is a private company and the government is not funding its services, as it does with faith-based initiative, they are providing a public service in accordance with one religious group’s beliefs specifically.
Using the Lemon test I believe that this practice passes each of the requirements. The secular legislative purpose is to provide transportation for the citizens of these townships. Its principal effect may only slightly advantage those who are practicing Hasidic Jews but I believe it does so to no clear advantage. Finally, because this run by a private company and the state is not funding this bus route I see no excessive government entanglement with religion.
Although it seems to pass the Lemon test, this shows that these requirements may be an insufficient test in determining free exercise cases. It has been ruled and used as precedent in the Bob Jones case that “the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.” In this case, we must ask if this anti-discrimination law hinders the Orthodox Jews religious free exercise. Furthermore, even if it does violate their free exercise, is there enough of a compelling state interest that an exemption should be denied.
I believe that on a basic level it does violate their free exercise of religion. Forcing them to disregard this tenet of their religious practice does place a burden on them. Yet as the court ruled in Bob Jones University v. United States, this burden will not make it impossible to practice their religious beliefs.
The compelling state interests in outlawing any forms of gender discrimination outweigh the burden placed on this religious group. The unequal rights of men and women are still struggling to be overcome in the workplace and in the assumptions about duties in the home. The government cannot afford to ignore any issues that support gender segregation in public places.
This will not outlaw the practice in a private setting but does eliminate segregation on these bus routes open to the public. As Mayor Michael R. Bloomberg stated, the group can instead rent a bus in which practicing this religious belief is permitted. This way, those men who truly feel uncomfortable sitting near women may ride this bus where they know their religious values will be enforced. On the other end, those who wish to continue riding this bus open to the public may do so and follow the anti-discrimination laws that all other bus routes follow.
The counties of Williamsburg and Borough Park in Brooklyn New York have an interesting situation with their public bus system. Instead of using a government run public transportation system, a Private Transportation Corporation has purchased the rights from the city to act as a public bus system. The buses look and function just like any public bus system. Although these buses may seem like all public buses, there is one major difference. On these buses female passengers must sit in the back while males must sit in the front.The New York World reported this week that a bus that serves two Hasidic communities in Brooklyn, NY is segregated by sex: men in front, women in back. According to the article, nearly all of the passengers are "Orthodox Jews with full beards, side curls and long black coats." One woman, who was not a part of the community, sat down in the front and was asked to move to the back of the bus. She was told that the bus is a "private bus."
Saturday, October 22, 2011
Two California homeowners have been fined multiple times in recent months for holding religious meetings within their home which are in violation of a local ordinance. The ordinance in question requires individuals to obtain a 'conditional use permit' in order to have religious, fraternal, or non-profit group meetings in residential neighborhoods. Up to fifty people would meet twice a week at a private home, and this practice has been declared to be in violation of zoning codes as covered by the ordinance. The homeowners who are the organizers of the meetings are challenging this ordinance in court.
The main issue in this dispute concerns the religious free exercise rights of the residential homeowners. They are attempting to practice their religion as they see fit and are not infringing on anyone else's constitutional rights. The additional people at these meetings are not being loud or inconveniencing the neighborhood in any way. Even so, the local ordinance holds that any religious meeting, regardless of the number of participants, is not allowed in residential neighborhoods. The city manager believes that the meetings have transformed the residential home into a place of public assembly in violation of local ordinances. Establishment is not an issue in this case because the ordinance passes the Lemon Test by having a secular purpose, its primary effect does not advance or inhibit religion, and there is no excessive entanglement. The ordinance has the primary purpose of maintaining the desirable qualities of residential neighborhoods and treats religious meetings the same as any other group meeting.
The ordinance in question directly restricts the way in which citizens can exercise their religious beliefs within private homes as is their constitutional right. As discussed in Reynolds v. US (1879), many actions typically allowed can be restricted in order to protect compelling state interests such as maintaining peace and order within our society. The city manager in the ongoing California case stated that the meetings "erode the policy of preserving the spacious, low-density residential character of the property and neighborhood." While protecting the desirable qualities of residentially zoned areas is important, this goal does not rise to the level of a compelling state interest. Birthday parties or other social gatherings which would not be restricted under this ordinance would in all likelihood disrupt the serenity of residential neighborhoods much more than group meetings held within one's home. The California homeowners did not inconvenience the neighborhood due to the ample parking space available as well as the unobtrusiveness of their actions. Additionally, even if one elevated this interest to the level of a compelling state interest, the argument could be made that the meetings in question do not hinder this interest.
Supporters of the ordinance may look to Employment Division of Oregon v. Smith (1990) for legal support. The decision written by Justice Scalia for the 6-3 majority held that laws which are valid regarding general practices cannot be justifiably violated based solely on religious beliefs. In this case, laws prohibiting the use of the hallucinogen peyote were determined to override religious beliefs supporting the ingestion of peyote. The majority opinion discussed how a contrary ruling would place religiously motivated actions beyond the reach of criminal law. The neutrality and general applicability of the peyote law was an important factor which influenced the majority decision written by Justice Scalia. Justice O'Connor's concurring opinion focused on the impact of the respondents' actions on the compelling government interest of preventing harm caused by peyote consumption.
While the ordinance prohibiting residential religious gatherings is both neutral between religions and generally applicable, Employment Division of Oregon v. Smith (1990) should not be used in support of the ordinance. The level of the state interest being discussed is much more compelling in Employment Division of Oregon v. Smith (1990) while the state interest being discussed in California may not even be undermined by the gatherings in question. A ruling in favor of the homeowners would not inappropriately place religious actions beyond the reach of criminal law nor protect any compelling state interest as was a concern in Employment Division of Oregon v. Smith (1990). Such a ruling would instead provide free exercise rights to individuals attempting to practice their religion as they desire within the privacy of their homes without infringing on the rights of anyone else. This ordinance directly violates the free exercise clause of the Constitution by mandating how individuals can practice religion within their homes.
Sunday, October 16, 2011
Time and time again, we are told that there is nothing like the separation of church and state in order to keep a moral society. Though I agree with the previous, it seems as though not everyone does. Within her news post, Michele Somerville makes it a point to make this evident as she exposes the actions of two Catholic Bishops who fail to realize that they are called to be “teachers and priests, not Emperors”.
New York Archbishop and United States Conference of Catholic Bishops president Timothy Dolan recently wrote to Barrack Obama asking him to sign the Defense of Marriage Act (DOMA). DOMA consists of two sections, “one defining “marriage” for purposes of federal law, and the other affirming federalism principles under the authority granted by Article IV, Section 1 of the Constitution, the Full Faith and Credit Clause. The first section states that for purposes of federal law, marriage means a legal union between a man and a woman, the second section reaffirmed the power of the states to make their own decisions about marriage”.
As a Catholic, Timothy Dolan claims that his desire to have DOMA signed has a lot to do with the fact that he will not sit around and be silent while there are federal steps being taken against marriage, the laws which defend it and religious freedom as well.Though I understand that within Catholic beliefs, same sex marriage is deemed a sin, I do not see DOMA as a constitutional addition to society in anyway shape or form. It is nothing new to see someone within a religious leadership position like the one Dolan is in to expect his followers to have the same political views as his own. Even with that, Dolan fails to take into consideration two things, first and foremost the fact that there are even some Catholics who partake in enjoying the freedom which is entitled to everyone through the first amendment, and second the fact that even those who do wish to go through with a homosexual marriage have the same constitutional rights as anyone else to fulfill their needs for happiness.
DOMA is undoubtedly discriminatory because if it were to be implemented as Dolan wants it; it would restrict the marriage and reproduction rights of any non-Catholic person and it would thus be considered a religious law. Sadly, Dolan is not the only Catholic bishop who is attempting to utilize his works of mercy as a means a leverage. Similarly, Bishop Nicholas DiMarzio has utilized his column and leadership within the religious system, to urge those around him to vote against the Child Victim's Act which helps the children who have been abused by priests. DiMarzio even went as far as threatening to close the parishes of those who failed to vote in the way he favored.
In short, I believe that though everyone is entitled to the First Amendment, Dolan and DiMarzio take it too far as to where imposes on the freedom of others. If they are not wise in the path they take from here forth, they can lose a lot of the benefits they receive as a mean of being exempt from paying taxes to the government. The fact that they are intertwining secular law with canon law is risky as well. They are crossing the fine line that lies between the separation of church and state, while simultaneously taking credibility away from Catholicism worldwide. If bishops like these do not cease their actions pertaining to the church/state divide, they will ultimately lead to the downfall of their parishes.
