Sunday, April 29, 2018

Nontheists Need Not Participate

In Brevard County, FL., the Board of County Commissioners’has a policy that prohibits nontheists from delivering invocations at boardmeetings. On April 27th, advocates urged the 11th U.S. Circuit Court of Appeals to rule this practice as a violation of both the Free Exercise Clause of the First Amendment and the Establishment Clause, as the District Court already had. The federal lawsuit was initially filed in 2015 on the behalf of those who objected to the policy of not allowing atheists, Humanists or other nontheists to deliver secular invocations during public meetings but allowing those with monotheistic beliefs to solemnize. The US District Court had agreed that this policy and practice were unconstitutional and stated, “[T]he great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation. Regrettably, religion has become such an instrument in Brevard County.” The plaintiffs, five nontheist individuals and three nontheist organizations, reported feeling coerced into participating in the theistic prayers and felt excluded from the meetings, suffering emotional damages. The Commissioners posted on social media exhibiting severe hostility toward religion, posting messages such as, “It’s either ‘One Nation Under God’ or bite my ass and just leave!” and “…Atheist[s] do not count.” The brief from the decision of the U.S. District Court for the Middle District of Florida in 2017 also stated, “[T]he policy violates the Establishment Clause of the First Amendment. The Supreme Court and this Court have both held that the Establishment Clause prohibits governmental bodies from discriminating based on religion in deciding who may give opening invocations. The County’s policy does exactly that.”

This case presents the issues of whether a governmental body can exclude citizens from the opportunity to offer invocations at meetings because they do not believe in God, and whether government officials can direct citizens to rise for invocations at legislative meetings. I think this is a clear case of establishment as well as a violation of the free exercise of religion. People are being coerced in these meetings to rise for prayers, partake in prayers and to subscribe to a theistic faith. There is open hostility toward other religious viewpoints, to the extent where people are being harassed on social media for their beliefs and are being barred from giving invocations at the meetings if they are advertising any beliefs that contradict those of the majority. This is encouraging the excessive entanglement of government and religion, as the members of the County Board are deciding which religions are legitimate enough to be involved in the invocations. The permitted invocations at the meetings are also paid for using tax dollars, according to the appellee’s brief, and using tax dollars in a religiously discriminatory way has already been ruled unconstitutional by the Supreme Court. Additionally, this was already ruled by the District Court as unconstitutional and the exclusionary practice was ordered to stop. Based on this and the clear violations of the First Amendment, I would assume the Court of Appeals would also rule this practice as being an unconstitutional establishment of religion as well as a violation of the free exercise clause. Even if one were to invoke the ruling of Marsh v. Chambers (1983) in which public prayer was allowed before legislative sessions by a chaplain, this case differs in that certain religions are blatantly being excluded and a policy has been created that prohibits other viewpoints from speaking. In Marsh v. Chambers representatives from other religions were allowed to speak, and although some were still uncomfortable and felt coerced by the mere presence of religious speech in a government setting, as Ernie Chambers reported, it was to a much different extent than in this case. In Town of Greece v. Galloway (2014), prayer was permitted before legislative meetings, but it was determined there was no proof of discrimination of minority religions occurring or coercion. This is clearly not the case in Brevard County. Not ruling this as a violation of the Establishment and Free Exercise clauses would set an extremely dangerous precedent of preferencing monotheistic religions, the government sponsorship of specific religions, and the blatant allowance for exclusion of religions that are not deemed as being worthy of receiving the same benefits and protections as majoritarian religions.

Targeting Good Work

The Little Sisters of the Poor are a Roman Catholic organization focused on providing care to the elderly through the work of nuns, but their work has come under legal scrutiny by Pennsylvania Attorney General Josh Shapiro. Shapiro filed a lawsuit demanding that the Health and Human Services invalidate the exemption for organizations like Little Sisters’ and force them to provide contraceptives or pay millions of dollars in fines. The Sisters fought for the right to personally stand trial, but Shapiro initially refused until a court of appeals recently overruled him and permitted them to get there day in court to defend themselves.

This argument has already been heard in part by the Supreme Court in Zubik v Burwell (2016) and was sent back as the Court wanted to “afford the parties the opportunity to determine how to proceed in a manner that grants employees full contraceptives while also respecting the organization's religious exercise.”

Post Hobby Lobby the Little Sisters argue they shouldn't be forced to provide contraceptives and do not discriminate against employees who seek to get them elsewhere. Shapiro is seeking to remove their specific exemption as there are specific protection for church employees but in October 2017 the HHS allowed groups such as Little Sisters and religious nonprofits from refraining from required Obamacare contraceptives that specifically violated their faith. Shapiro filed suit and won court protection preventing members of the organization from taking part in the case let alone be in the courtroom which is creating a substantial burden on the rights of the women to advocate for their rights. Justice Alito wrote in Hobby Lobby that “the least restrictive means standard is exceptionally demanding and HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases.”

By this standard in which they protected for-profit large secular-minded corporations, it would be shocking that Pennsylvania fails to protect a not for profit organization that would be significantly burdened with the levying of hefty fines against the group committed to serving the elderly. In weighing the burden of the Little Sisters versus the ability of employees to receive the contraceptives the court would likely side with Little Sisters because there is a stronger burden on the Sisters side.

Overall Pennsylvania has little interest in putting a substantial burden amongst the Little Sisters, and it’s not imperative for a small nonprofit to provide specific contraceptives like a public corporation would need to do for its employees. The court has argued for  an accommodationist view for religious organizations concerning the definition and value of life. In a post-Citizens United society, organizations are permitted the same individual freedoms as any citizen no matter the discriminatory nature of the policy, even religious ones. Whether Shapiro likes it or not The Little Sisters had specific protection from the HHS and there undeniable status as a private non-profit permits them to religiously object to supplying certain contraceptives, as long as it isn’t a substantial burden on its employees. It seems unlikely any employee who is in need of contraceptives could not go elsewhere to receive them as there is no direct coverage for employees, yet  no restriction saying they can’t get it elsewhere. This already established precedent with the specific HHS exemption and Hobby Lobby ruling will make it nearly impossible for Pennsylvania to remove the exemption granted to the Little Sisters. Attorney General Shapiro might fight to remove this specific exemption for The Little Sisters yet there held the status of non-profit permits them to act in a religiously discriminatory nature as long as the accused discrimination comes under the tenets of their faith.

The Little Sisters of the Poor are a Catholic organization that is committed to serving the elderly, and religious traditions of refusing to provide specific contraceptives should not be seen as a substantial burden for the employees in need of it, though they might argue financial burden. Following Hobby Lobby, a well-intentioned group like this should not lose HHS exemptions simply because one State Attorney General deems the actions to be discriminatory as their committed religious background is enough to be granted immunity. The substantial fines that the government would levy on this group if they lost their exemption would prevent them from doing their amazing work with the elderly poor who are in need of assistance, no matter their religion. Following Hobby Lobby companies with existing exemptions should not be stripped of them no matter if a few deem them discriminatory.

License Plates: Private Speech or Government Speech?

Ben Hart, a retired postal worker who now resides in Kentucky, received some good news earlier this April. His lawsuit, filed by the ACLU in November of 2016 on his behalf, will now move forward to trial after a 2-year wait. The case centers around the issue of Hart’s vanity license plate, which reads “IM GOD.” Although he had displayed this message on his license plate in Ohio for 12 years, Kentucky’s Motor Vehicle Licensing agency denied his request, deeming the message “vulgar or obscene.” After a challenge by the Freedom from Religion Foundation, the licensing agency stated the message “would create the potential of distraction to other drivers and possibly confrontations.” Hart denies this assumption however, stating the only incident the license plate has ever caused was a woman coming up to him and saying “Well, you’re not God” at an RV Park in Texas.

In an interview, Hart said he became an atheist at the age of 15. He claims the license plate is simply a reflection of his view that religious beliefs are subject to individual interpretations. Hart also suggests that there is a difference between using a curse word to describe God and saying, “I am God.” ACLU-KY Legal Director William Sharp echoed this sentiment, stating “Under the First Amendment, government officials do not have the authority to censor messages simply because they dislike them…Just as others may select religious messages, Ben Hart, an atheist, has a right to comment on religion.”

In order to decipher my thoughts on the case, I turned to another case involving messages displayed on license plates- Walker v. Texas Division, Sons of Confederate Veterans Inc. In a 5-4 decision, this case held that Texas’ specialty license plates were a form of government speech and therefore not a forum open to private speech. Because the messages on the plates are the government’s speech, the majority argued, choosing what content is allowed on the plates is not viewpoint discrimination because the expression is a product of the democratic election process. In Judge Alito’s dissent however, he made an argument for license plates being categorized as private speech rather than that of the government. Alito stated, “You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver. As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?”

The precedent established in Walker v. Texas Division, Sons of Confederate Veterans Inc. would likely lead me to favor Kentucky Motor Vehicle Licensing agency’s side over that of Hart. However, I find myself siding with the logic used in Alito’s dissent previously mentioned, and therefore I believe Hart should have the right to display a license plate that states “IM GOD.” All license plates obviously contain some forms of government speech (as they list the state name and vehicle identification), but the very fact that license plates can be customized suggests a degree of private speech on every plate. I do not think one would see Hart’s license plate and perceive it as a message the government endorses, especially given the vast amount of specialty license plates that exist now. Given that I believe the license plate’s message is clearly private speech, the government may not discriminate in favor of one viewpoint over the other as established in Rosenberger. Kentucky already has an option for citizens to buy license plate templates that say, “In God We Trust,” and disallowing Hart to express his viewpoint on religion while allowing another religious message to prevail would clearly be viewpoint discrimination. For these reasons, I believe Hart is protected under the First Amendment to display this message on his vanity license plate.

Teaching Religion in Public School

A family from Maryland claims that their public high school violated the students First Amendment rights by requiring them to study Islam as part of a World History course. World History is a required course mandated by the Maryland State Department of Education. One of the topics is called “Muslim World” in the unit on Middle Eastern Empires. The Muslim World curriculum was "designed to explore, among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it 'along with politics, culture, economics, and geography contributed to the development of those empires.” One of the assignments was to complete a fill in the blank worksheet on the “Five Pillars of Islam” and the Plaintiff argues that she was being compelled to confess the Shahada. Students were not required to memorize or even recite the Shahada. The students were taught factual, Islam related material, including the relevant continents, biographical information about the Prophet Muhammad, and the fact that Muslims, Christians and Jews all trace their ancestry to Abraham. The Plaintiffs emphasized a single inappropriate statement made by the teacher who told his class that the faith of most Muslims is “stronger than the average Christian.” The Plaintiffs argued that the purpose of the comparative faith statement was to advance religion.  

This case is similar to but different from Edwards v. Aguillard. Here the court found that teaching creationism along with evolution did not have a secular purpose due to the legislative history. Instead, the purpose was “to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief.” Teaching about religion in public high school absolutely has a secular purpose. The separation of church and state does not forbid learning about religion in the public school curriculum. Teaching students basic religious literacy about the major faiths of the world can help improve interfaith dialogue and understanding when done properly. Also, there was no suggestion that anyone from the school board or the teacher held any bias for or against religion, or that the explanation of the curriculum was a cover up for a religiously-motivated purpose like that in Edwards.

Since this is an Establishment Clause issue I will run it through the Lemon Test from Lemon v. Kurtzman to determine if the class is unconstitutional. 

The Plaintiffs argue that the statement has no secular purpose because it doesn’t teach any verifiable and objective facts about Islam. In the context of the class, the statement is not entirely motivated by a purpose to advance religion. It not only doesn’t attack any religious belief, but the statement was given by Mr. Bryden who is a Christian. The fact that the statement was made by a Christian negates the possibility that its purpose was to advance the Islamic faith.
The effect of the statement was not seen as the school endorsing a religion. No one drew the conclusion that because Muslim’s purportedly have a stronger faith the school views Islam as a superior religion. A single reference to a Muslim’s strength of faith does not mean that the Defendants have endorsed Islam. Since the Plaintiffs are devout Christians, they found the statement offensive but that does not warrant an Establishment Clause violation.
The statement also did not create any entanglement between government and religion. First off, the school didn’t rely on any Muslim clergy to deliver the material. Furthermore, the Defendants did not provide any direct benefit to Muslims, did not aid Muslims, and did not suggest any relationship between the school and any Islamic organization. Both the curriculum and the comparative faith statement therefore survive all three prongs of the Lemon Test.

I think it is clear that the purpose of this World History class is to teach *about* religion and not to advance religion in anyway. It is very different from Bible study courses that some school districts have instituted that courts find unconstitutional. These courses are unconstitutional because they teach the Bible as religious truth and are designed to instill in a particular religious sentiment. In contrast, the World History course is critical of religion and not devotional. I also don’t think there is an issue with the fact that this is a mandatory course for all 11th graders throughout the state of Maryland. The course does not compel anyone to express certain views, rather students are learning basic religious literacy. Therefore, I think that the court was right to dismiss the claims that this course violated the First Amendment rights of the students.

Stop Abortion Now

How far should free speech go and should there be some limitations on it? The ACLJ just gained a big victory for the freedom of speech of anti abortion protestors.  They recently sued the City of New York over a preexisting city law that stated that it is unlawful to “follow and harass” another person within fifteen feet of a “reproductive health care facility”.  The law, Administrative Code §8-803,  if broken could result in a fine of up to $1,000 and six months in jail for first-time violators. The ACLJ invoked the Supreme Court Case McCullen v. Coakley in order to support their claim that the city’s law was unconstitutional.

In this case, the ACLJ’s client, Mary Devine, participates in “sidewalk counseling” outside of an abortion clinic in the Bronx. She was told by police that she had to stay at least fifteen feet away from the clinic otherwise she would be breaking city law.  As the ACLJ pointed out, this case is very similar to McCullen v. Coakley, and in that case the Massachusetts state legislature created a 35-foot safe zone outside of abortion clinics where people, like Mary Devine, could no longer participate in their “pro-life counseling.”  In that case, the U.S. Supreme Court ruled that the law denied the pro-life protesters their right to engage in conversation and protest on public streets, which in turn prevented them from the exact dialogue that the First Amendment is supposed to protect. In addition, Justice Scalia noted that the blanket prohibition of speech in areas such as abortion clinics where only one type of specific politically or religiously politically charged speech is likely to occur is not content independent. The ACLJ utilized this precedent by the Supreme Court to move their own case forward. After suing the city of New York, the ACLJ received the result they desired. The City of New York amended their Administrative Code §8-803 by stating the the law “does not restrict peaceful sidewalk counseling, leafleting or other First Amendment expression within fifteen feet of an entrance to a reproductive health care facility.”  This was a victory for Mary Devine, the ACLJ and other “sidewalk counselors” in New York City.

This case addresses free exercise of religion and freedom of speech, two major components of the First Amendment.  In McCullen v. Coakley, the Supreme Court decided that the First Amendment is meant to protect conversation and expression of religious ideals freely on public streets and sidewalks.  In the case of Mary Devine, the City of New York had to assess whether the ruling in McCullen v. Coakley applied to Mary Devine and the other sidewalk counselors in New York City.  I believe that the speech that the Supreme Court protected in McCullen v. Coakley is the same type of speech that should, and is, being protected in this case. I think the City of New York took the Supreme Court case a step farther and clearly identified in their interpretation of the law which types of speech are protected within fifteen feet of an abortion center.  They directly communicated this to local law enforcement.

Taking a broader look at the issue of freedom of speech and free exercise of religion and whether or not the Supreme Court ruled correctly in allowing religious groups and others to express their beliefs in a public forum, I do believe that the Court ruled correctly for the following two reasons. First, I believe that if the Court did not allow pro-lifers, many whom are pro-life based on religious beliefs, to speak their minds and communicate their beliefs, it would be prohibiting their free exercise of religion which would be unconstitutional.  Those who are going to the clinic do not have to heed the advice of the pro-life advocates, but the protesters do have the right to speak their minds and their beliefs, particularly since many of them believe it is their religious duty to do so. The second reason I believe the Court ruled correctly is because regardless of whether the message was religious or not, public debate and speech should be protected at the highest standard. The First Amendment protects all speech whether it is religious or not. In the case of Snyder v. Phelps, it was ruled that despite the message delivered by members of the Westboro Baptist Church, which many believed to be hateful and inappropriate, their speed was protected by the First Amendment.  Justice Roberts wrote in the majority opinion that “Speech is powerful. It can stir people to to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.” He added that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values.”  I agree with Justice Roberts interpretation that just because speech can be offensive does not mean it should not be protected. By silencing a group in a public forum, the door is opened for other restrictions of free speech. Based on these reasons, I believe the Supreme Court ruled correctly in the case of McCullen v. Coakley and The City of New York correctly utilized this Supreme Court precedent in clarifying their law.

How much does your state seal mean to you?

The Freedom from Religion Foundation is currently fighting the Lehigh County over the official seal and flag of the county.  The Freedom from Religion Foundation and other Lehigh Country residents are filing under the Establishment Clause, they believe that the cross on the official symbol is an endorsement of Christianity.

The Lehigh County seal and flag was commissioned on December 28, 1944.  The Historical Society Commissioner stated that the cross signifies the “Christianity and the God-fearing people which are the foundation and backbone [Lehigh] Country”.  The other images represent various other aspects of the Lehigh County, including a read heart as the “emblem of the City of Allentown, and the two books and the lamp “represent the education system”.  The seal is seen on County documents, and around the County Courthouse and has been in use for over seventy years with no complaint…until now.

The Freedom from Religion Foundation is arguing that the depiction of the cross is a clear establishment of religion, and thus in violation of the establishment clause.  The county argues that the seal, as a whole, represents the history of the region.  They also argue that it is not unconstitutional to recognize and symbolize the religious history of the region, just because it is religious, rather it is hostility to religion.  Lehigh county also argues that the cross represents religious minorities who settled the region and have played a major role in history of the county.  Current Commissioner, believes that the cross is a “secular symbol representing just the history of the early settlers”.

The case, Freedom from Religion v.Lehigh County, is currently in the Third Circuit Court of Appeals, they are given the task of deciding if the use of a cross is forcing Christianity on the citizens of Lehigh County, or if the cross is a symbol of the history of the town and may remain in use.  This case will create a precedent including the protest against the use of God on the United States currency.

In deciding this case, the Lehigh County should not be punished nor prevented from symbolizing their history just because it is religious.  The seal is not being used to coerce citizens, neither forcing prayers and religious attendance.  The Supreme Court has not been consistent in their application of the Lemon Test, created in in Lemon v. Kurtzman, yet if used today the seal would not pass the three-pronged test.  The first prong questions if the cross has a secular purpose, although the county may argue that the purpose is to symbolize and recognize the religious groups that first colonized the area and are prominent in the Lehigh County history, many without the knowledge of the county’s history could see the cross as the establishment of religion within the county.

If we were to remain dedicated with past precedent the decision in Town of Greece v. Galloway, shows the courts willingness to protect the religious traditions in the United States.     In Town of Greece v. Galloway the Supreme Court determined that the legislature could begin session with a prayer because of the historical significance and traditional founding.  Lehigh county is arguing to protect their religious history and traditions as well.

Although there may be a secular purpose to recognize the county’s long and rich history, the use of a cross a clear religious symbol and should not be on a government seal.  While Greece v. Galloway creates a precedent that protects religious traditions.  The use of a cross on the county seal is an establishment of religion because one difference between the Greece v. Galloway case was the fact that there was an opportunity for prayers to be nondenominational and was also open to any type of religion.  The cross on the seal is a clear symbol of the Christian faith and it is this promotion of one religion that is violating the Establishment Clause.

Monday, April 23, 2018

You Have the Right to…

Two Muslim women were arrested on two separate occasions but unfortunately had a similar experience. Jamilla Clark, from Cedar Grove, New Jersey, was arrested on January 9, 2017, and the other woman, Arwa Aziz, from Brooklyn, New York, was arrested on April 30, 2017.  Both were arrested for protection order violations that may or may not have been legitimately necessary. The women claimed that these protection orders were filed by manipulative and vindictive people in their life. When they were arrested they were taken to a New York Police Department They were taken in for processing and were asked to remove their head coverings for the mugshots. Since they were asked in a public space they both said that they could not remove the covering. This led to both cases the women’s head coverings being forcibly pulled off in front of male officers and inmates which cause significant distress to Clark and Aziz. It was also added that an officer in the room mocked the Islamic faith during this event. Even though these reports were not connected at all, both recorded that the women sobbed during this event. The two women filed a case against New York City saying that they failed to protect the rights of Clark and Aziz. The report also clarified that “Requiring a Muslim woman to remove her hijab in public is akin to demanding that a secular person strip naked in front of strangers…”. The New York City Police Department said in response “We are confident that the police department’s religious head covering policy passes constitutional muster. It carefully balances the department’s respect for the customs of all religions with the legitimate law enforcement need to take arrest photos…” The policy also states that there are places set apart for people who do wear religious head coverings to go in, however, this accommodation was not provided for Clark or Aziz. They decided to file a lawsuit against the New York City Police department with women’s advocacy group, Turning Point for Women and Families. The city said in response that they will review the policy and the lawsuit but are confident that the police department was following the guidelines. This lawsuit is not affecting these women’s journey through the legal system and have already had hearings for the crimes that they allegedly committed.

       I believe that the policy that is said to be enacted is constitutional. It allows members of a particular faith that requires head coverings to not forced to commit a sin or feel exposed while still accomplishing what the state truly has an interest in, processing people who have supposedly broken the law. However, when the police department was faced with an issue that required the use of this policy, they chose to ignore it and photograph Jamilla Clark and Arwa Aziz in a public area. This put a substantial burden on them because they were forced to choose between whether they listen to their god or to the civil magistrate that is telling to remove it. Like I previously quoted, “Requiring a Muslim woman to remove her hijab in public is akin to demanding that a secular person strip naked in front of strangers,” this was not as simple as the physical act being forceful and demeaning but it also is a very emotional encounter. While the state has an interest in making sure that people who are reported to have broken the law are properly documented, this forced public removal of the hijab puts a substantial burden upon these women’s right to freely exercise their religion. The polices actions based on the Sherbert test fail on two accounts because it puts a substantial burden on religion, and there were less restrictive means. It does pass on the fact that there is a compelling state interest to allow the policy to photograph those who are accused. Because of the fact that the process did not stop for Jamilla Clark and Arwa Aziz, I do not see this as a way to get out of going through the system but rather as a sincere violation of their religious rights. If the original policy had been enacted then there wouldn’t be an issue because a religion wouldn’t have been restricted or mocked so openly. But since it wasn’t and these women had to endure this discrimination against them and their region, I believe that the lawsuit will be ruled in their favor if it goes to court.

Chaplains Need Protection Too

Army Chaplain, Scott Squires, was ordered to lead a marriage retreat for soldiers and their significant others in February. The North American Mission Board (NAMB) of the Southern Baptist Convention (SBC) specifically prohibits its chaplains from endorsing same sex relationships in any way, including by leading relationship counseling or retreats. In order to be a chaplain for the army, the army requires that Squires have ecclesiastical endorsement from the Southern Baptist Church. In order to stay in accordance with his religion, Squires changed the date of the retreat and found another chaplain to lead it. A same sex couple filed an equal opportunity complaint, and after army investigation, Squires was found guilty of discrimination. This discrimination was determined on the basis that Army EO policy reads, “No service will be denied to army member of the armed service regardless of race, color, national origin, gender, religious affiliation, or sexual orientation.” Squires is now asking the army to reverse their findings because he believes it is within his free exercise rights to have found another chaplain for the retreat. For the purpose of this blog post, I will be examining the free exercise issue at stake. This blog post will not address the overarching issue of whether it is an establishment of religion to employ army chaplains. I would first like to invoke the Sherbert test in order to demonstrate that the army is violating Squires free exercise rights by punishing him for his actions in regard to the retreat. Squires clearly has a sincere religious belief, as he is a minister and his job centers around preaching his beliefs. Specifically regarding same sex relationships, Squires’ devotion to his religion and his acceptance of the credentials set before him by his church, illustrate that he sincerely thinks it would be a sin to lead homosexuals in a retreat. The army is definitely placing a significant burden onto Squires if they force him to lead the retreat because he would be made to deviate from what his religion sees as the path of god. The NAMB of the SBC determined that no chaplains of their faith could participate in anything that could be seen as an affirmation of homosexual relationships. The army is asking Squires to completely disregard not only his religion but also his endorsers’ job requirements. Moving on, although there is a government state interest in providing all army employees with equal opportunity and access to services such as marriage retreats, there was a less restrictive means of accomplishing this interest than forcing Squires to perform the retreat. The less restrictive means occurred in this case and should have been accepted by the army as legitimate; Squires simply asked another chaplain to lead the retreat.

Although there has never before been a supreme court case regarding army chaplains specifically, there is precedent for this case set by Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commision. In this unanimous supreme court decision, it was found that the government was not allowed to require religious entities to act in accordance to government regulations (such as EEOC) when determining the credentials for their ministerial positions. Therefore the army, which is government agency, must accept the credentials that the Southern Baptist church requires of their ministers. One of these credentials being that their ministers specifically cannot lead homosexuals in a marriage retreat. As a result of this precedent, I am determining that it is unconstitutional for the army to attempt to conform ministers, with the consequence of unemployment, to their EO policy if it contradicts with the criteria set forth by the minister's church. Further, Squires’ employment with the army is hinged upon his good standing with his church. If Squire disregarded his ministerial requirements from the Southern Baptist Church he could also be fired from his position with the army as a result of not having his religion’s endorsement. In this sense, Squires was faced with two choices that would lead him down the same path, unemployment. This should not be the case, as the army should comply with the precedent set by Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commision and agree that when hiring ministers, they should not be bound to government policies that conflict with their endorsers’ religious tenets.

The Garden State's Religious Identity Crisis

In the Garden State, there is an ongoing dispute over the entanglement between the church and state and the allocation of state funding for the repairs of religious institutions. The use of the taxpayer funds for the reparations of religious institutions has been permitted within Morris County legislature for the past 16 years, as the restorations have been deemed appropriate so long as the intended use was for the restoration of historical monuments. However, in December of 2015, the Freedom from Religion Foundation filed suit against the Morris County Board of Freeholders stating that the use of taxpayer dollars to repair religious institutions creates a blatant promotion of religious establishment by the state. In response, the Morris County Board of Freeholders justified their application of taxpayer dollars for the repairs, claiming that all of the religious institutions receiving the aid had met the proper qualifications that allowed them to be formally recognized as historical landmarks. Additionally, the board of freeholders stated that the repairs being made to the religious institutions were either to address structural flaws the threatened the integrity of the building, and damages that subtracted from the historical accuracy of the institution (namely mending bell systems and resurfacing the façade). The court ruled in favor of the Board of Freeholders, as it found no establishment of religion being promoted through the state’s assistance. Additionally, the court found that the Freedom from Religion Foundation failed to recognize the other sections of the Constitutional article being questioned, stating that no individual may be deprived of public services (including funding for repairing historical monuments) due to their religious affiliation. The court then turned to the decision rendered in Everson v. Board of Education while formulating their decision, explicitly citing the ruling of taxpayer dollars being issued to the parents of parochial school children as a constitutional practice.

Fast-forward to April 2018, where the same article is being questioned yet again. The American Civil Liberties Union filed suit against the Morris County freeholders this past week arguing that the aid provided from taxes fosters a relationship between the church and state as the repairs had no secular intent evident to the reasonable observer. The ACLU specifically addressed the renovations made to the roofs, towers, ventilation systems, and stained glass windows depicting religious imagery as their primary concerns. In response, the Morris County Board of Freeholders stated that taxpayers voted to allow the churches to receive the aid, and thus their voice should be represented through the state’s Constitution. Additionally, the board of freeholders made note that all of the religious institutions granted aid were selected through a neutral process with consideration given to all of the other historic organizations within the county. The Supreme Court of New Jersey overturned their prior ruling in 2015 with a 7-0 decision in favor of the ACLU, finding the $4,200,000 aid provided by the state to be a direct promotion of the establishment of religion by the state. Chief Justice Rabner of the New Jersey Supreme Court delivered the opinion of the court on the matter, stating that the provision of aid to the religious institutions must be found unconstitutional as the repairs were being made specifically so religious worship services could be held in the respective locations. Justice Rabner further explained the court’s stance on the matter, agreeing with the claims made by the ACLU that there is no secular intent apparent in these renovations. To this point, Justice Rabner explained that there is a difference between repairing stained glass windows and renovating a playground that happened to be on church property. In response to the ruling, Kenneth Wilbur, the attorney for the board of freeholders and religious organizations stated that the historical significance of these institutions significantly outweighs the potential religious advancement caused by the funding. Specifically, the renovations made to the stained glass were only warranted to increase the historical accuracy of the original state of the window rather than to increase the visibility of the religious message.

This issue raises a significant level of concern for myself as the church I have attended for twenty years has lost funding through this ruling. However, all personal considerations put aside, I find myself in agreement with the argument presented by the ACLU on this matter. While I understand that there are historical considerations that call for renovations to be administered to these establishments, I fail to see how they may be deemed neutral while the congregations are active. The establishment of religion provided through state funding in this matter is also extremely apparent through the repairs made to the stained glass windows depicting religious messages. This only promotes religious messages through state funding, as the reasonable observer would be tasked to find any historical significance of the stained glass on the side of a church. This promotion of religion additionally causes the original legislature to fail the second prong of the Lemon test, provided through the case of Lemon v. Kurtzman, a practice that is strictly prohibited under the First Amendment. Finally, I feel as though the interpretation of the article itself was grossly misinterpreted during the case of Freedom from Religion Foundation v. Morris County Board of Freeholders, as the proscription explicitly states that no person be obliged to pay for reparations of any kind made to churches and other religious establishments.

Drawing a Line: Public Funds Aiding Religious Institutions

Trinity Lutheran v. Comer seems to have set the precedent for modern court cases, involving public funds going towards non-secular institutions. Trinity Lutheran Church was originally denied funding for resurfacing their playground because the playground was on church property, even though they were a qualified applicant. The case made it to the United States Supreme Court. Where it was held, a Church cannot be denied funding that is “generally applicable”, and could not be denied just because of the religious affiliation. How that precedent is interpreted can be dangerous, at times. It was used in the ruling for Council of Organizations and Others For Education About Parochiaid v. The State of Michigan. The Michigan Court of Claims denied funding for Parochial School to help aid the costs of complying with State health and safety mandates. They justified their holding of denying Parochial schools funding by claiming the statute did not disfavor any religion and it fell under the category of “neutrality”. Where in the Trinity case, it singled out religion for “disfavored treatment”. A “similar” case was decided by The New Jersey Supreme Court on April 18th, 2018. In 2002, Morris County granted four entities to apply for historic preservation funding. Those four entities include municipal governments within Morris County; Morris County government; charitable conservancies whose purpose includes historic preservation; and religious institution. All funding comes from a county property tax. From 2012 to 2015, 41.7% of the $11,120,370 in total grants were given to 12 churches. A majority of the churches claimed, “funds were needed to allow the church to offer religious services.” The money was used specifically to repair stained glass window, slate roofs, building towers and ventilation systems.  The Freedom From Religion Foundation and David Steketee sued Morris County on December 1, 2015. They claimed, the grants violate Article I, Paragraph 3 of the New Jersey Constitution, "nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right." They believed, providing any sort of public funding going directly towards advancing the practice of one’s religion to clearly violate the Constitution. C.J. Rabner offered the opinion of the court, he used the Religious Aid Clause of New’s Jersey’s State Constitution to justify his holding. He also claimed the grants violate Article I, Paragraph 3 of the New Jersey Constitution. Meaning, there should not be any exemption for “historic preservation”. He referenced how Locke v. Davey was a better comparison than Trinity Lutheran v. Comer. The State of Washington did not allow taxpayer funds to go directly towards the training of clergy, they had an interest in keeping their anti-establishment clause, intact. Which was much different than Trinity Lutheran, they were denied funding because of their church status, not their intended uses of funds. In Morris County, public funds went towards Churches with the intent of furthering their religious practices. Therefore, they would not be denied, on the basis of being a Church rather, they should be denied because of the fund's intended uses. Thus, there is no violation of the Free Exercise Clause. For me, it was much tougher for me to formulate an opinion for this case compared to the “Trinity Lutheran” and “Michigan” cases. First, I thought, it was justified by the State to grant public funding to “places of worship” because they have a genuine interest in preserving historical sites. Whether it is preserving a church or government building.  The purpose would be considered neutral and the State should have the power to decide where the funds are allocated. Therefore, this case should be ruled the same as, Trinity. Then, after applying the Lemon Test, I realized these cases are vastly different. While I recognize there is a secular purpose in preserving historical architecture. The non-secular purpose of having the taxpayer money further the practice of one’s religion significantly outweighs its secular purpose. These are active Churches with active members. Providing funding enables such religions to further their practice; using the citizens of Morris County’s money to enable the practice of one’s religion, clearly violating the New Jersey’s State Constitution. There needs to be a line drawn somewhere; I do not believe the Trinity precedent can be used to justify this case. In the Trinity case, there was a clear secular purpose. It was to promote the safety of children in an impoverished area. They were being denied by the fact, they were religiously affiliated, not based on their intended use of funding. Using public funds to remodel a playground on church grounds is vastly different than using public funds to preserve the actual church. The fact it advances religion to such an extent, it enables churches to keep operating. With the use of public funds is enough for me to decide the holding is not in violation of the Free Exercise Clause.

Sunday, April 22, 2018

New Jersey: Establishing Religion Brick by Brick

Historic buildings are obviously old, and many are in disrepair, but have inherent beauty that is hard to and or rarely replicated today. With that in mind, Morris County, New Jersey formulated a program to award grants to applicants with the goal of preserving the historic and beautiful buildings within their county lines. To receive these grants, funded by property taxes, applicants were required to cite the historic significance of their building. The grant is open to any building, religious or non-religious. However, religious buildings, like churches and synagogues, are only allowed to use funds to address structural and façade problems, as well as mechanical systems like church bells. This clause was created to prevent an establishment of religion by the program. Between 2012 and 2015, the state approved 55 applications, consisting of both religious and non-religious buildings.

The Freedom from Religion Foundation (FFRF) got wind of this policy and decided to take action. In December of 2015, they filed suit in the case FFRF v. Morris County Board of Freeholders.The FFRF suit claimed that the Morris County policy constituted an impermissible establishment of religion by providing funds to renovate some religious buildings. They cited the New Jersey Constitution whose Article One, Section Threestates: “Nor shall any person be obliged to pay tithes, taxes, or other rates for buildings or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry […].” In January of 2017, a New Jersey District Court sided with Morris County.

In the decision, Justice Margaret Goodzeit held that the program did not establish any religion, citing the failure of the FFRF to consider other sections of Article One, which state that no religion shall be preference over another and no one shall be denied enjoyment of public services because of, among other things, their religion. Likewise, the Justice claimed that their interpretation of Section Three was far too literal. In addition to the misinterpretations of New Jersey’s Constitution, the justice cites Everson v.Board of Educationin the opinion. Everson, which also occurred in New Jersey, ruled that it was constitutional for the state to reimburse parents for their children’s transportation costs to parochial schools. In the majority opinion for Everson, Justice Black remarked that if the purpose of government funding towards religious institutions was, “separate and so indisputably marked off from the religious function,” then it would be constitutional. Although this case does not deal with a school, the principle remains the same; this aid was separate of any religious function, and the law appears to be facially neutral and generally applicable. Frankly, it would be hostile towards religion and against legal and historic precedent to deny the constitutionality of this act.

Further, pertinent precedent to apply would be Trinity Lutheran Church v. Comer. This case is similar because the church, Trinity Lutheran, applied for a state grant for playground equipment, but was denied because the Missouri Constitution had a similar clause to Section Three of New Jersey’s Constitution. The case allowed the Supreme Court to answer the question of whether excluding religious institutions from otherwise neutral aid programs was constitutional. The court sided in favor of the church, holding that a generally applicable and neutral law that discriminates against otherwise eligible institutions only on the basis of religion is impermissible. While the law in question did not prevent religious practice, it denied a group a general benefit from the government that a secular institution would have qualified for, which was sufficient enough to garner a tag of religious discrimination.

When Trinity precedent is applied to the case at hand, the parallels are readily apparent. Both laws are facially neutral and generally applicable, and in both cases, the government or plaintiffs seek to restrict benefits for organizations solely based on their religious affiliation, even when the government benefits would not directly impact benefit the practice of religion. In Trinity, the Supreme Court ultimately sided with the church for the aforementioned reasons, and in this case, the New Jersey Supreme Court should ultimately rule in favor Morris County.

However, just this week, the New Jersey Supreme Court reversed the district court’s decision, ruling the program unconstitutional. In the majority opinion, Justice Stuart Rabner reasoned, “The churches are not being denied grant funds because they are religious institutions; they are being denied public funds because of what they plan to do […] use public funds to repair church buildings so that religious worship services can be held there.” The court found serious issue with the idea that the funds would be supporting churches with active congregations, and those congregations and their religious warship would be the primary beneficiaries of the repairs, opposed to the intended purpose of the act, which is to preserve the aesthetic beauty of the county. The justice argued that it would be different than giving a religious organization funds for a playground, which could not be used for warship (theoretically), in an attempt to dispel the precedent from Trinity.

I firmly believe this case should be ruled in favor of Morris County. Their policy is supported by strong legal precedent from a landmark case and has strong parallels with another important, recent decision. Justice Lee Solomon, in his dissent, explained, “The majority decision fails to recognize that the purpose of these grants is not to aid religion but to advance the government's secular interest in historic preservation.”In no way is this policy directly aiding religion, it is simply aimed at preserving the aesthetic beauty of Morris County which is a legitimate compelling interest. If the government is providing aid to groups, it should be doing so in a facially neutral and generally applicable manner, which this law does. If the state were to deny a group funding solely based on religion, that would constitute not only hostility towards religion, but discrimination, which is protected against in the 14thamendment. In my mind, the continuance of this policy inflicts no harm to the principles of the First Amendment, given the precedent that has been set in the cases of Everson, Trinity, etc.

All Prisoners Created Equal?

The question regarding the extent to which prisoners should be protected by the First Amendment Free Exercise and Establishment Clauses has been in question for years now. In Kansas, inmate Shari Webber-Dunn, serving time for a murder charge, claimed her First Amendment rights were violated by ‘Christian Propaganda’ imposed by the prison. In the lawsuit, Topeka Correctional Facility in Kansas had allegedly embraced Christianity by “displaying an eight-foot-tall wooden cross in its basement, publicly posting prison-related prayers, soliciting book donations for a spiritual library and offering prayer request submission on a Christian bulletin board. Christian movies are also broadcasted on facility televisions and spiritual quotes are posted at the laundry room workplace.”

Webber-Dunn believed that the correctional center was “imposing strong Christian values on inmates” and creating “a coercive atmosphere where inmates are pressured to spend their time in a highly religious atmosphere and to participate in religious activities and prayers.” The inmates are prohibited from removing anything from the public bulletin boards. Webber-Dunn sees this as a violation of the Establishment Clause with, “no valid reason why Christian materials should be displayed [there] in a state-owned and operated correctional facility.” Inmate Webber-Dunn is requesting the religious items be removed and the eight-foot cross covered when it is not being used to religious services. Despite these concerns being brought up to the facility administrators and team managers, “no action has been taken to correct the problems.”

In fighting this lawsuit, Webber-Dunn is partnering with the American Humanist Association (AHA), a nonprofit organization dedicated to advancing the separation of church and state. The group reflects constitutional rights that align with humanists and atheists, and seeing that Webber-Dunn is registered with the prison as a practicing Thelemite, a system that encourages people to follow their true will and not interfere with the true will of another person, the pairing seemed natural. David Niose, the AHA legal director gave in a statement that, “prisoners are not exempt from the Constitution. Prisoners do not lose the shield from state-sponsored religion provided by the Establishment Clause.”

I do not see there being any question about the constitutionality of these religious oriented practices; the Topeka Correctional Facility is clearly in violation of Shari Webber-Dunn’s First Amendment Establishment Rights and the rights of the government. Removing the propaganda and covering the cross statue, as Webber-Dunn requested, would create no substantial burden on the prison. However, pressuring inmates to spend time around these religious symbols can be seen as a coercive attempt by the government to impose values of this particular religion. These practices and displays clearly hold no secular value, and to make it worse, they cannot be deemed neutral either as they focus on promoting Christianity. This not only poses excessive entanglement by the government as this a state-owned and operated facility, it also does not allow for fair separation between church and state, as requested by our Founders in the Constitution.

Who Said Words Could Never Hurt Anybody?

In the state of Colorado, a Mennonite woman named Greta Lindecrantz was jailed for 12 days on Contempt of court charges during early March.  Greta had been working with defense attorneys regarding a case wherein the defendant, Robert Ray, allegedly ordered the murder of a witness from a separate trial.  Greta cited the Free Exercise Clause from within the First Amendment when she claimed that she could not serve as a witness in a death penalty case due to her religious affiliation.  While standing before the judge, she remarked, "I feel like I'm having to choose between you and God," and decided it was in her best interest to stick to her beliefs than testify for the case she acted as an investigator for.  Like many of the previous cases we have studied before, Greta was deeply entrenched in her beliefs and did not believe there was any possibility that she could testify.
Greta felt that if she was to partake in giving her testimony, she would be violating the beliefs she held due to the possibility that the defendant could receive the capital punishment directly from the words she would be uttering in court.  However, the judge in the case, Judge Brauchler did not share any sympathy towards Greta.  The judge was perplexed that a person who was hired as an investigator for what he believed to be $390,000 of taxpayers money could then shy away from the stand.  Especially since she had already received a subpoena from the state, and was expected to act in a concurring manner.  Judge Brauchler stated, "Now we have a person who injected herself into the case, took a ton of taxpayer money and now that she's asked to stand up and testify, she says she just can't do this," and found her in contempt of the court.  The judge believed it was indispensable for him to hear her testimony, as her investigation had been criticized and called into question by Ray, earlier in the case.  
Greta received a lot of support from fellow Mennonites.  People commended her for her willingness to deal with the jail time in order for her to maintain her morals.  Vern Remple, who serves as one of the pastors of the Beloved Community Mennonite Church stated, "It's been one of [our] key practices that we do not kill people for any reason. That means not going to war but the death penalty also comes into that," agreeing with her decision to refrain from testimony.  It seems that there is at least an agreement in the Mennonite community, that her testimony may indeed go against her right to free exercise.
Although Greta has since departed from her short stay at the Arapahoe County Detention Center, a question regarding subpoenas and free exercise has arisen.  Can a person's faith subordinate the mandatory nature of a subpoena, which forces any person of all faiths to have to testify.  A subpoena acts as a mandate for a person to testify in court, and while specific information can be expunged from the testimony, it is within the right of the court to not only expect, but enforce the action of testimony by Greta in this case.
While religious exemptions are an important facet of public policy, a subpoena involving an investigator, whom is directly affiliated with a case should not be given an exemption as the information during the testimony pertains the good of society in which a murderer could potentially be set free.  Since the information Greta learned through her investigation is what is being subpoenaed and not her beliefs or what she deems is right, there would be no reason for the court to allow her to be exempt from testifying.  Judge Brauchler showed how relieved he was when Greta decided to testify when he told NBC News, "She is now going to do what every other person who has ever received a subpoena to testify has been expected to do, and I appreciate that."  While definitely a backhanded comment, it is comprehendible to see where the judge is coming from as his perspective is understandable.  Greta would not be harming a person directly, as her information should not be biased or slanted.  Telling the truth in order for there to be a chance of justice in a murder case is more important, and subjugates her free exercise rights.  If what she has to say in court is that influential, it must be stated for it to be a fair trial.  Whether she is a Mennonite or not should not influence the substantial weight of a subpoena.

Tuesday, April 17, 2018

Michigan Mandate has Catholics Cross

Immaculate Heart of Mary, a Catholic School in Michigan, is filing lawsuits to challenge the State over its public health mandate, with no public funds being provided to help meet that standard.  The School says that it should not have to burden itself to comply to public mandates while not enjoying public benefits. They argue that they are disadvantaged by this arrangement, stemming from the Blaine Amendment. The Blaine Amendment is an amendment that has at this point be added to 38 states constitution, which states that no money from the public may not go to religious schools. The Michigan version is particularly strict in that it does not allow for vouchers. The ACLU is engaged in a court battle from last year over a passed 2.5 million appropriation to  help private schools met their mandate, they and public school plaintiffs say that the appropriation could serve as a "gateway" to vouchers and violates the state's no aid to private instruction policy. The Immaculate Heart of Mary wants to join this lawsuit, adding that the Blaine Amendment was created with the intent to disadvantage Catholic schools, citing experts from newspapers at the time of the amendment's passing and earlier at its conception. The school also started another lawsuit to prove the  aid ban unconstitutional because it violates the free exercise, free speech and equal protection clauses of the first and fourteenth amendment.
The two positions boil down to if it is constitutional to aid religious schools for the sake of meeting public mandates.  Bursch, a former Michigan solicitor general said, “When you’re talking about funds for hundreds of thousands of private school students for the public purpose of safety and welfare, that’s clearly a public purpose.” On the flip side is the right of the state to not fund private schools and expect them to meet public criteria. The public and ACLU supporter claim to not target the religious schools, Steven Norton, an executive director of Michigan Parents for Schools, said his group joined the ACLU’s lawsuit because the $2.5 million for private schools appeared to be an attempt to chip away at the rules about public funding. “The question isn’t whether schools belong to or are affiliated with any religious organization,” Norton said. “The question is whether the schools are accountable to the public or not.”

I do not agree with the anti-Catholic sentiment of the amendment, as the motion is equally prohibitive to all religions, and all private institutions. The school is not being discriminated against due to religion, not is it disadvantaged from being religious, it is disadvantaged for being private. For the argument of the school receiving aid to  adhere to public mandate, it is a religious school, so on top of the private argument, they must defend their other status. I find the Blaine amendment to be constitutional, as it does not burden or advance religion, the school is burdened by its mandated public safety requirement, but that is not part of the Blaine Amendment.  I agree with the Justice Jackson opinion of No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion,” although I have to disagree with his conclusion in Everson v. Board of Education.  If we take this statement from  Justice Jackson and the Lemon test we can find that any sort of reimbursement of money given to the Catholic school will aid its religious instruction and establish it.  In order to be an accredited and safe institution under Michigan law, you must adhere to public mandated ordinances, even if not a publicly funded school.  

Monday, April 16, 2018

Religion on the Marquee

The city of Grand Rapids, Minnesota has an established practice of using a large electronic marquee to publicize upcoming community events by allowing nonprofit organizations to advertise their events. The city has placed certain restrictions on the content of the advertisements and one of these restrictions prevents religious content from being featured on the marquee. Recently a local Christian organization had submitted a request to advertise on the marquee for an upcoming concert that it was hosting in the community, however their request was denied because they are a religious organization. The city believed that because the organization was religious in nature advertising the concert would therefore violate the religious content restriction as well as the Establishment Clause of the First Amendment, however the group believed that the decision and advertising policy was unlawful and religiously discriminatory. The group then turned to the American Center for Law and Justice (ACLJ) for help resolving the matter. The ACLJ sent a letter to the city where they outlined that there is a distinction between government speech and private speech and that the marquee advertisements acted as a public forum for private speech of local citizens and organizations. Because of this the ACLJ argued that the city’s policy preventing advertise from religious groups was a form of viewpoint discrimination which is an unconstitutional violation of the First Amendment rights to freedom of speech. The ACLJ stated on their website that “To ensure that our client, and other religious organizations, would not suffer further discrimination, we asked that the City remove the offending provisions from the Readerboard Policy and that it treat religious nonprofit organizations in the community in the same manner as it treats nonreligous groups for purposes of posting on the Readerboard”. The city has since agreed to the ACLJ’s request and is currently rewriting its policy for advertising on the readerboard marquee.

I agree with the ACLJ’s assessment of the issue in Grand Rapids. By allowing the public access to postings on the marquee they have in fact created a limited public forum which prevents them from discriminating against groups based on viewpoint or the content of their speech. This concept is backed in precedent by the Supreme Court Case Good News Club v. Milford Central School in which the court produced a similar ruling stating that “When Milford denied the Good News Club access to the school’s limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment”. The ruling in this case directly applies to the issue in Grand Rapids as they both involve viewpoint discrimination against religious groups in a limited public forum, therefore allowing the ruling to be used in the context of the Grand Rapids case to support the efforts of the ACLJ.

Sunday, April 15, 2018

Montana's Constitutional Dilemma

Montana Supreme Court heard arguments on April 6th, on which they determined whether Montana Constitution will allow for public funds to be given to private, religious education. The ACLU of Montana has filed under “friend of the court” in support of the defendant, the Department of Revenue. The Department of Revenue is arguing that tax-credit scholarships for religious schools violate Montana’s Constitution. The decision for this case is a landmark one for the state of Montana because of previous rulings by the DOR that tax credits for religious education scholarships are prohibited. They deem that these credits violate the state Constitution’s “No-Aid” clause.

Alex Rate who works for ACLU says that “Montana students and their parents have the right to choose a religious education, but taxpayers are not and should not be required to fund that decision. Religious freedom flourishes best when religion is funded privately, without support from taxpayers and the state.” ACLU Montana makes six points to defend why aid should not be allowed. They list the same reason Alex Rate said, as well as it being unconstitutional because of the express ban of public dollars to religious schools by Article X, Section 6 of Montana’s Constitution. They additionally say that religious coercion and discrimination could be funded, the state is indirectly paying for religious education, the state would be potentially allowed to dictate the curriculum of religious schools and that Montana’s public schools will be weakened if their already limited funding is diverted.

This issue is important in finding determining factors and evaluating the Establishment Clause for the future. Montana’s Constitutional Convention, previously in 1972, rejected allowing indirect state aid to fund religious education. However, in 1968, Board of Education v. Allen challenged the New York state’s program that required school boards to loan textbooks to public and private school students. The amount of Catholic schools that were attended caused various school board to address this as a violation of the Establishment Clause. In a 6-3 decision, the Supreme Court ruled that this was not a violation of the Establishment Clause. This was seen as aid to private and schools, but it served a legitimate secular purpose for promoting education. The same goes for a case that took place in 1947. Everson v. Board of Education touched upon New Jersey reimbursing money to parents who sent their children on buses operated by the public transportation system. 5-4, the court ruled that it did not violate the Constitution because it did not pay money to parochial schools directly. These two cases were perennial for cases that touched upon public funding to parochial schools.

With past precedent, Montana still denied the indirect aid of state funding to religious education. I understand where their decision was when they chose to deny indirect aid to private schools, however I don’t think it is the right decision. I think on case-by-case it is important to evaluate, but if there is reason for them to promote the general state of education then it is necessary. This is on display with Zelman v. Simmons-Harris. In 2002, Zelman v. Simmons-Harris incorporated the same debate, but this time with an emphasis on Ohio’s school voucher program.

Ohio’s Pilot Project Scholarship program provided people with tuition aid, so they could pick their educational preference. It was on a financial need basis, and it was the parent’s decision as to where their children went to school. It just so happened that 96% of the individuals that took part in this program chose religiously affiliated schools. Sixty percent of the individuals came from just at or below the poverty line. In a 5-4 decision, the Court held that it did not violate the Establishment Clause.  This is an important interpretation because it again reaffirmed that indirect aid to parochial schools helped advance the states agenda to provide sufficient education to children. Along with these cases, The US Supreme Court dismissed a lawsuit filed by taxpayers in Arizona who also challenged a state tax credit program. This resulted in another 5-4 decision too.

These cases provide many backings on the side of aid to private schools. I believe that allowing individuals to receive a tax credit does not harm anyone who decides not to aid private schools. Justice Kennedy in the Arizona case said that, “When Arizona taxpayers choose to contribute, they spend their own money, not money the state has collected from respondents or from other taxpayers.” This is my standing on this case, as well because I consistently agree across all the court cases that I presented that the claims that their is a violation are not sufficient enough to cause a violation of the Establishment Clause. Past precedents and more recent ones have helped me to build an argument in favor of the defendants in this case. The establishment clause should be deemed to not have been violated during this.

Imprisoned for Religion

Greta Lindecrantz is a practicing Mennonite woman who witnessed the brutal murder of two individuals. When asked to testify against the suspect who is now facing the death penalty, she refused, citing a conflict with her religious convictions. The Mennonite religion practices specific beliefs in regards to life or death situations, as they do not believe in capital punishment nor practices such as abortion or war, which they feel devalue and threaten the sanctity of life. Mrs. Lindecrantz, by refusing to testify, feels no longer responsible for the potential death of Mr. Ray. On the contrary, through corroborating her story in court, she would feel personally accountable for the life of Mr. Ray, were he to be sentenced the death penalty.  

Judge Michelle Amico, the Arapahoe County, Colorado district judge, detained Mrs. Lindecrantz on account of her refusal to provide testimony. Her choice to testify (or not testify) is protected by the Free Exercise Clause of the First Amendment. It is unconstitutional for Ms. Lindecrantz  be placed in a position where she is forced to violate her religious beliefs just to avoid incarceration.

The actions of the court can be proved unconstitutional through the Sherbert Test from the case Sherbert v. Verner. The Test stipulates that the court must decipher if the free exercise of religion in the given situation is burdened. If the practice is burdened, the court must present a compelling state interest or determine the least restrictive means towards the observed religion. Ms. Lindecrantz faces a clear indirect burden, as practicing her religion has placed her behind bars. Judge Amico ordered Ms. Lindecrantz to answer particular questions while testifying, to which she responded: “I feel like I’m having to choose between you and God.” The burden here is clearly outlined. Sherber v. Verner additionally provided a definition of a “burden”, in which it is stated if:
The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.
As Ms. Lindecrantz clearly states, she is choosing between her religion and the regulations of the government, facing an indirect burden imposed upon her through the court’s actions. Continuing with the other components of the Sherbert Test, the compelling state interest to uphold justice and demand fairness within the legal system can be reasonably observed and understood.  However, the burden placed upon Ms. Lindecrantz for practicing her religion is substantial, and she faced detainment, arguably not the least restrictive means. Overall, using the Sherbert Test it is clear the court’s actions are not constitutional.

Dealing with extremely similar components as Ms. Lindecrantz’s case, In Minersville School District V. Gobitis, Jehovah’s Witnesses were obligated, by the policy of public school district, to recite the Pledge of Allegiance despite religious objections. The original Supreme Court ruling forced all students to recite the Pledge of Allegiance, however this decision was later overturned by West Virginia Board of Education v. Barnette. In both cases of the Jehovah’s Witnesses and Ms. Lindecrantz, the government cannot compel individuals to violate their religious beliefs and inhibit their free exercise; the act of speech in these situations violates their religious core principles.  

Recently, after spending a total of twelve days behind bars, Ms. Lindecrantz changed her mind and agreed to testify, realizing that her refusal could negatively impact Mr. Ray’s legal proceedings, and ultimately his life. Testifying could mean a chance to save a man’s life, which was ultimately what her religious convictions ask of her. Judge Amico clarified the terms of her release, stating that if she refuses again to testify, however, she will immediately be returned to custody.

Despite the recent news of her release, the precedence still stands: Ms. Lindecrantz was denied her Free Exercise rights to practice her religion. Judge Amico had no constitutional means to punish and imprison Ms. Lindecrantz on behalf of simply observing and practicing her religion.