Sunday, November 27, 2011

Group fails to convince federal appeals court that God’s protection is better than health insurance

A U.S. Court of Appeals has rejected the arguments offered by five plaintiffs that the Affordable Care Act violates their religious freedom. The court ruled that Congress did not overstep its authority in requiring people to buy health insurance or in the alternative pay a shared responsibility payment beginning in 2014. The Affordable Care Act, which President Barack Obama signed into law on March 23, 2010 seeks to curb rising health care costs and provide greater coverage for the more than 45 million Americans who are uninsured.  The ACA calls for a requirement that each individual obtain health care coverage or pay a monetary penalty.  It is this mandate that the plaintiffs, who are represented by the American Center for Law and Justice, claimed in a 2010 lawsuit was unconstitutional. The ACLJ is a conservative legal group founded by evangelist, Pat Robertson.
The group argued they could afford health insurance coverage but chose not to purchase it because they believe God protects them from harm and therefore they have no need for health insurance. To purchase health insurance, they said, would conflict with their faith by insisting they perform an act “that implies they doubt God’s ability to provide for their health.” One plaintiff insisted that he so firmly believes in the importance of relying on God to maintain his health that he has instructed his family and friends that should he be stricken with a serious health issue they should pray for him and God will heal him of any conditions or diseases that may affect him.
The appeals court rejected this argument after finding the Act places no pressure on the plaintiffs to modify their behavior or to violate their beliefs because the ACA permits them to pay a shared responsibility payment in lieu of actually obtaining health insurance. The group claims the shared responsibility payment is a penalty for declining to “violate their faith.”
The government countered that health care is a unique market and that even though the plaintiffs allege they do not need health insurance, they can't ensure that an emergency might occur down the road where they will need medical care that could cost thousands of dollars. It pointed to studies that show the uninsured cost other market players nearly $43 billion in 2008. The appeals court determined that the Act does not place any substantial burden on the plaintiffs’ exercise of their faith and noted that even if it did, the requirement that they purchase health insurance or pay the penalty is the least restrictive means of serving a compelling governmental interest.
In my opinion, I feel the federal appeals court was correct in finding that the Affordable Care Act does not infringe on anyone's religious freedom. Anyone can choose not to participate, whether it be for religious or for other reasons.  If an individual decides not to buy insurance then they pay a fee not to participate.  That "shared responsibility" payment is something anyone, not just someone belonging to a religious group, will have to pay.  There is no undue burden on those who, for alleged religious reasons decide not to buy insurance. Individuals are still free to believe whatever they want.  The act does not force them to go to a doctor or to see medical specialists, but rather is mandating that all Americans share in the responsibility of working together to help get control over medical and health expenses that have been spiraling out of control.
            It is interesting to note that the complaint and all of the subsequent court decisions do not mention what religion the plaintiffs who brought the case belong to. However, the arguments brought forth against the Affordable Care Act can be related to the views of the Christian Scientists. Like we learned in class about this group, they do not believe in medical intervention. To the Christian Scientists, God is the sole healer, thus in times of sickness, this group turns to prayers of healing rather than any form of medical aid. Whether or not the Christian Scientists are the group behind this case, I feel they, too would reject the ACA. Even though groups like the Christian Scientists exist, I stand behind the Federal Appeals court and believe that the Affordable Care Act is neither inhibiting religion nor infringing on beliefs, thus their religious freedoms are not being violated.

Does a Sheriff's Ad in a Local Paper Violate the Establishment Clause?

This past Tuesday, the Freedom from Religion Foundation announced they had sent a letter to the Onslow County, North Carolina Board of Commissioners regarding an ad that the county sheriff placed in a local newspaper. The ad was put in a form of a letter and addressed to the town. The ad read, “All Decent and Respectable Citizens…Our society is in a big mess today because good, decent and respectable citizens have ignored the Truth of God, good common sense, and a decent standard because of an opinion given by someone with a doctrinal degree who has no wisdom… Remember, there are no loop holes or places for opinion in the Law of God, The Ten Commandments.” The local news reported that the Sheriff paid for the ad from his personal funds and has done so for numerous ads for the past 21 years. However, the Freedom from Religion Foundation included in their letter that by having the sheriff’s badge and seal, it is in violation of the Establishment Clause as it has a clear religious purpose and is carried by the backing of the Sheriff’s Office.
I believe that the sheriff should be granted the freedom of speech as he is permitted to discuss his religious beliefs on public forums with his private funds. However, I feel that in order to not confuse the public, there should not be his sheriff’s badge and seal included in the ad. He can discuss his religious views all he wants as long as it is not connected back to the Sheriff’s department. By having the badge and seal located in the ad, it can confound the public who could believe that his views represent the department. The FFRF has a valid point in stating the sheriff’s signature is, “meant to carry the weight and authority of the Sheriff’s office and of Onslow County.” The sole purpose of the letter is to urge the readers to “stand and be counted for the Cause of God”. By including his position in law enforcement in his ad he is indirectly establishing religion views for the rest of his colleagues. The Establishment Clause was enacted to separate church and state by not allowing any part of the government to promote, advance or endorse any religion. Throughout his ad there is a clear message of promoting his religious views.
In 2005, the American Civil Liberties Union (ACLU) sued three Kentucky counties in federal district court for exhibiting copies of the Ten Commandments in courthouses and in public schools. The justices concurred that this was in violation of the Establishment Clause as to a reasonable observer it would seem that the government was endorsing certain religious views. In doing so, there was an establishment of religion. This court ruling along with many others that are linked to government’s establishment of religion in public forums further proves my point that the Sheriff’s “message” to the town is inherently religious and innately establishment. Any average person reading this paper would note the seal of the sheriff’s department on the side and would assume that the message was not only coming from the Sheriff but the entire department. If the sheriff wishes to continue with his ads then he should simply remove his seal from the letter. He is completely entitled to his own religious beliefs and is allowed to voice them in a public forum but not while creating the impression of establishment, that the government and his department have the same beliefs.

The Sheriff Demands God in Citizens' Lives

Recently an ad that a Sheriff from Onslow County, North Carolina posted in the local newspaper has alerted the Freedom from Religion Foundation of a possible violation of the Establishment Clause. The ad, for “all decent and respectable citizens of a decent and respectful society”, urges citizens to look to God for wisdom and to obey his law. The quarter page ad uses the word God eight separate times, with very clear and blatant religious overtones. The Sheriff, Ed Brown, believes that his ad is justified, as he paid for it with his own money. The upper corner of the ad has the official seal of the Sheriff on it, which the Freedom from Religion Foundation sees as a blatant endorsement of religion by the government. Brown has been placing ads like this one in the paper for the last 21 years, all with his own money. He refuses to see this as a case of establishment, but rather an exercise of free speech. The Freedom from Religion Foundation believes that the sole purpose of the ad is to proselytize and to bring people to the ‘Truth of God.’

One of the biggest issues to overcome if this is not a violation of the establishment clause is the seal of the Sheriff on the advertisement. Placing the seal on any document definitely seems to be a seal of government endorsement. Even though the Sheriff used his own funds to pay for the ad, any reasonable observer looking at the ad would not think this because of the seal. Also, this ad is not simply a statement of religious belief, but rather a plea from the Sheriff to the citizens urging them to look to god for answers and to obey his law. This ad was displayed publicly in a newspaper that anyone can read.

I believe that the Freedom from Religion Foundation is correct in this instance and that the ad is indeed a violation of the Establishment Clause. This is for two main reasons. First, the seal of the Sheriff is on the document, making it obvious to the reader that the message is endorsed by the Sheriff himself. Second, the message conveyed in the advertisement is one of strong religious background and has a clear purpose to proselytize. The Sheriff’s argument that he paid for the ad with his own personal funds, so it is not a statement from the government, doesn’t sit well with me. His official seal is placed on the document. Even if his seal weren’t placed on it, I would still argue that a message from the Sheriff of a county would be a message from the entire police department of that county, seeing as he is the head of it. An elected public official such as the Sheriff should not be proselytizing his religion to his citizens, regardless of who pays for it. The President of America doesn’t go around telling U.S. citizens to pray and find God in their lives, so neither should the Sheriff of a small county. The situations are analogous in my mind, and should be treated with the same gravity.

The Non-Public Forum of a Public School

In the town of Roswell in New Mexico, another controversial case concerning religion, free speech and public schools has been brought to the federal court.  Several students in the Roswell Independent School District are members of a religious group that is not affiliated with the school called ‘Relentless in Roswell’.  Relentless in Roswell would often distribute food to the school community.  They had distributed chicken sandwiches to the teachers, hot chocolate to the students, and candy canes with religious messages to the communities.  In all of these instances the students did not ask for permission to distribute the treats, and they were never reprimanded for doing so.  One day in January, 2010, the members of Relentless decided to hand out small rubber figurines of a fetus.  The fetus had a verse from the bible, and also contact information for a pregnancy center inscribed on it.   After children began throwing the figures at each other the principle of the school told the distributors to shut it down because people were getting offended.   Nevertheless, two weeks later the group attempted to pass out the figurines once more.  That morning though the school announced that in order to pass things out students needed school approval, and anyone who did not get it would be subject to disciplinary measures.  The students were later given suspensions for handing out bracelets with religious messages without approval.  This case brings up several points, but the controversy I will discuss is whether the school district is within its right to infringe upon the students free exercise rights through the policy that requires all students to get permission before distributing objects in the school.
            An important aspect of this case was the court deciding the type of forum a public school is, because if it were deemed a public forum, than the government could not limit speech at the school.  The court first said that the school could not be classified as a public forum because although students are required to be at school by law, the teachers are charged with providing a “safe and secure” learning environment”.  The court then says that since both limited public forums, and non-public forums subject governments to the same requirements in order to limit speech, they do not have to distinguish between the two.  By looking at Good News Club v. Milford Central Sch, the court shows that the government can limit speech in these forums as long as the limitations are viewpoint neutral and reasonable.
            In order for the students to win this case they would have to prove that the school district was either unreasonable or discriminatory in practice.  The court first addresses the reasonability of the distribution law of the school district.  Using precedent from several similar cases the court shows that there are five reasonable justifications the school has in limiting distribution.  These include, shielding students from vulgar speech, maintaining security, and preserving a proper education environment.  I believe that these justifications are all reasonable because of the specific responsibilities and expectations of public schools.
The court is able to prove that the policy is not viewpoint discrimination because of the exact wording of the policy.  It gives specific circumstances when the superintendent can limit speech in the school and the wording of these circumstances do not suggest at all that it is aimed at any single religious belief or view.  Since the wording of the requirements in this policy is clear and does not single out any viewpoint I believe the policy to not be viewpoint discriminatory.
I believe that the school district is absolutely in their rights to create this policy that requires students to get approval before distributing items in school.  The school district must retain the right to create a safe learning environment for all students.  The distribution of items has the ability to cause major disruptions in a school.  On most cases I am all for the free exercise of all religion, but since this is taking place in a school I feel more strict rules must be applied.  If the school did not retain the right to limit this form of speech, then what would stop students from handing out extremely offensive objects that may have a huge influence over children?  Public schools are unique places, and in order to allow each student to feel safe and not feel offended or threatened, the district must be able to limit speech as long as the limitations are reasonable and non-discriminatory.  Since I believe that the school district abided by these requirements I think that the policy is constitutional.

Saturday, November 26, 2011

Memorial for fallen Marines or endorsement of religion?

The LA Times reported this week that leadership in the Marines is considering removing a large cross from Camp Pendleton in California. Camp Pendleton serves as the Marine Corps' primary west coast base and amphibious training facility. Upon learning of the 13-foot cross, the Military Association of Atheists and Freethinkers filed a complaint with base officials, arguing that the cross violates the establishment clause of the constitution. On the other side, the American Center for Law and Justics (ACLJ) has asked that the cross be allowed to remain.

There is context to the cross that complicates matters. In 2003, a group of Marines put a first cross up that burned down in a brush fire in 2007. The new cross was put up on Veterans Day of this year to memorialize four Marines who had passed, three of whom were a part of the group that put up the original cross. Carrying the cross up the large hill and and raising it were not officially sanctioned Marine activities, but rather were an individual effort of a retired Marine chaplain and few friends and widows of the Marines that had died.

I do not believe this cross violates the establishment clause. The important question here is whether or not a reasonable person would think that the presence of the cross constitutes a government endorsement of religion. There are two reasons why I don't think this would be the case. I should qualify my answer with the condition that if any other religious symbol (within reason) were put up in a similar situation, I assume the Marines would treat it the same way as the cross, and my answer would be the same for those as well.

First, the video referred to in the article shows the cross and its location - it is quite remote. From atop the hill, you can see some buildings of the Marine Base, but other than that, it's not clear that anyone at all can actually see the crosses. Given the fact that the land on which the cross stands is both hard to see and hard to get to (one assumes not just anyone can walk into a Marine Corps training base), it seems to me that there would be no effect on the general public.

Second, the raising of the cross was the effort of a few people - not in an official event - to memorialize their fallen friends. Their friends had put up a similar cross eight years prior, and in their honor, a group of Marines and a retired Marine Chaplain decided to re-raise the cross. On top of the informality of the event, the cross itself is hardly ornate. While large, it is not bronze, granite, or any other permanent material, but it appears to be just painted wood. There is no plaque; there are only a few emblems from the uniforms of the Marines and a few folded American flags.

What do you think? It is undisputed that there is a religious symbol on government property. But given the personal meaning of the cross to about a dozen or so Marines, the non-permanent nature of the cross (the first one did burn down, after all), and the remote location of the cross, is this something that needs to be scrutinized?

An Invitation to Restrict Religion

A fifth-grader in Pennsylvania attempting to invite fellow students to a church Christmas party was prevented from doing so by school officials. While students are allowed to hand out invitations to birthday parties or other private activities, the school superintendant restricted this type of invitation. The superintendant claimed that the invitation was solicitation from a third-party as opposed to personal speech by the student. The student's father challenged this restriction and was victorious in the district court.

There are multiple issues which must be considered in this case. The religious free exercise rights as well as free speech rights of the student are at stake and there is the potential for an Establishment Clause violation by the school. From the student's perspective, she was acting within her free speech as well as free exercise rights to invite classmates to the church party. The superintendant disagreed, feeling that the invitations represented the views of a third party, the church, and that the student's right to free speech was therefore not restricted. Another issue which was not directly discussed by the superintendant but is certainly germane is the potential establishment issue. The superintendant may have felt that granting permission to hand out the invitations would constitute school endorsement of the religious party thereby violating the Establishment Clause.

An important precedent to consider regarding the constitutional rights of students in public schools is Tinker v. Des Moines (1969). In this case, students protested the Vietnam War by wearing black armbands to school. School officials were concerned that the armbands would cause a disturbance in the school and suspended the students when they came to school wearing them. The Supreme Court ruled that the armbands constituted speech deserving of First Amendment protection unless the school could prove that the speech posed a threat to school discipline.

The Tinker precedent suggests that the distribution of invitations to a church Christmas party would classify as constitutionally protected free speech. Since the superintendant did not make a claim that the invitations caused a disturbance, the Tinker precedent leads one to believe that such speech should not be restricted. Additionally, the fact that the student is distributing invitations as opposed to verbally inviting classmates to the party does not limit her Constitutional protections. The printed invitations convey the exact same message as this verbal discussion would convey, and it would be inappropriate to restrict either of these two types of speech. While the Tinker case considered a purely secular message, there is no reason to expect that the religious focus of the church party invitations would not deserve the same legal protection. The student has the religious free exercise right to promote her church’s Christmas party without the religious content of her message being restricted. Such restrictions would constitute viewpoint discrimination, and it is this potential hostility towards the religious aspect of the student’s speech which Stephen Carter finds so disturbing about the American culture in The Culture of Disbelief.

The superintendant may try to base his restriction of the student's invitations on the basis of Santa Fe Independent School District v. Doe (2000). Here, the Supreme Court found a student-delivered prayer before a high school football game to be an unconstitutional violation of the Establishment Clause. However, Santa Fe is too different from the case at hand to provide support for the superintendant's actions. The majority in the Santa Fe decision found the prayer to have direct government support. The public school provided the platform, audience, and venue for the prayer. Based on these facts, a reasonable observer would find the school to be endorsing the religious message presented by the student at the football game. Regarding the church Christmas party invitations, the student's message would not have received school sponsorship simply by being allowed to be distributed. The school does not endorse the birthday parties of its students anymore than it would have endorsed the church party, and a reasonable child would not infer school sponsorship of either invitation. Just as any student can invite their schoolmates to a birthday party, they have the right to invite their friends to a church party and should not have such actions restricted based solely on the religious content of their message.

Freedom From Religion or The Free Exercise Of…

The Freedom From Religion Foundation claims Onslow County Sheriff Ed Brown of North Carolina violated the establishment clause by purchasing an ad in The Daily News. The ad is addressed to “All Decent and Respectable Citizens of a Decent and Respectful Society” and preaches that wisdom does not come from books but only from God. “When America turns back to God’s Law… good and decent things will turn around for All Americans.” He signs the ad, “A caring and serving Sheriff, Ed Brown.”

The FFRF, an association protecting atheists and agnostics, requested that Brown no longer be allowed to take out ads in the future. In addition, they questioned exactly where the money for the ad came from. Brown responded in the article that he paid directly out of pocket. Yet the FFRF had more concerns. They said the ad’s only purpose is to proselytize religion and it is unconstitutional for the government, with Sherriff Brown as an agent, to be endorsing religion.

This case is a perfect example of when the Establishment Clause and the Free Exercise Clause conflict. If this case were viewed through the Establishment Clause, one would need to question whether this ad constituted the government endorsing religion or one religion over others. If this case were viewed through the Free Exercise Clause, one would need to question whether preventing Sherriff Brown from purchasing ads in the future limits his free exercise of religion.

If this case were being analyzed through the lens of the Establishment Clause, with attention to avoiding the state becoming involved in religious affairs, he may decide that the Sherriff proselytizing is too close of a connection between law enforcement and religious endorsement. This fails the Lemon test in that there is no secular purpose for the ad. Sherriff Brown does not deny the religious intent and the multiple mentions of God make the endorsement of religion clear.

This case would pass the excessive entanglement component. He wrote the letter and used personal funds from his salary. Although his salary comes from the government, the money was first given to Sherriff Brown to dispense as he pleased. This indirect transfer of funds from the government to “support” religion has been deemed acceptable in cases like Everson v. Board of Education (buses to parochial schools) and Cochran v. Board of Education (school books for parochial schools.) This separation between government funds and involvement allows us to see another side to this case.

Seeing no direct connection between the government and religious endorsement here, I choose to approach this case evaluating his right to free exercise. He is employed by the government but is not using government funds to sponsor this advertisement. It is up to Sherriff Brown to decide how he spends his money, and taxpayers cannot ask someone to be unreligious when they enter a public office or service sector. Yet when does it cross the line to use a power position to endorse religion? In other words, is he writing as Sherriff Brown or ordinary citizen Ed Brown? And does it matter which?

This question has been raised when examining the religiosity of schoolteachers, inside and outside of the classroom. We have questioned whether teachers, in their daily lives outside the classroom should be able to express their religious beliefs in a public manner. This is a more sensitive issue than the current case in question.

Sherriff Brown took out an ad in a media outlet directed toward adult members of the community. The reasonable observer would know that he is not speaking for the entire department or the United States government. As an individual he is entitled to having his own religious beliefs even if the government employs him. In addition, it is unconstitutional to ask to him to give up rights that members of the rest of the community have.

Although his message is clearly religious, it does not speak of his governmental role in provide religion for the public. He urges members of the community to believe in God just as people can preach in public places, write religiously inspired letters to the editor, or openly participate in religious groups in the community. If he were forbidden to send other ads his free exercise of religion would be limited.

Monday, November 21, 2011

Is Christian Bashing Being Funded by the Public?

A group of New York lawmakers and public officials were demanding a taxpayer-funded museum in Brooklyn remove an art exhibit that includes a film depicting ants crawling on a crucifix. They believe that this is one of the repeated attempts of the museum to bash the Christian faith. This group of individuals believes that the Brooklyn museum is trying to make religion bashing fashionable. Before this controversial piece of artwork, there was another one in 1999, which featured an exhibit that depicted Mary with African features and included clumps of elephant dung and cutouts of female genitalia. Mayor Rudy Giuliani tried to cut the funding of the 1999 exhibit, however, it was unsuccessful. Representative, Michael Grimm, said, “It’s an issue of how we spend our taxpayer dollars. Everyone has a right to express themselves. At the same time, it doesn’t necessarily mean you have the right to go around offending massive groups of people and have other people pay for it.” It is the first amendment that allows the artists freedom of speech and the ability to create whatever they want, however, once it becomes religiously offensive does it violate the first amendment?

Taxpayer’s money has funded a religious exhibit in the past, like in the court case Lynch v Donnelly. Their money went towards not only a Christmas scene with Christmas trees, snowflakes and Santa Claus, but also a nativity scene of Jesus Christ’s birth. Therefore, shouldn’t the law remain the same in all-religious tax-funded exhibits? If a nativity scene is okay, why not a religious film?

I believe there is a huge difference between funding a nativity scene and funding artwork that mocks the Christian religion. Taxpayers money should not be contributed to something that is religion offensive. I usually argue that courts should stay consistent with their court case rulings, however, this is a situation where I strongly disagree, public taxes should not be funding this religious exhibit, nor should it even be their for all of New York City to see. I understand that the artist has freedom of speech, but if this is allowed then what next? What if there was a painting that incorporated the KKK, is that still freedom of speech, or is that offensive yet?

Taxpayer’s money should only be permitted to fund religious exhibits if they can somehow be secularized. Like the Christmas scene in Lynch v Donnelly, it brought customers into town, which helped the local businesses. However, there is absolutely no secular purpose to the film in the Brooklyn museum. I understand New York City is known for its creativity, edginess and diversity, however, offending a religion with taxpayer’s money is completely unacceptable and the museum should stop being funded by taxpayers immediately. This would be an entirely different scenario if the museum were privately funded.

Sunday, November 20, 2011

Catholic Bishops and their Religious Liberty

This past year has brought about a multitude of altercations and debates between the Roman Catholic Church and the United States Government. The church claims that their religious liberty is under attack due to the fact that their religious beliefs are being challenged by the reproductive health care policies and government funding. The U.S Bishop believes that the fact of the matter is that contradict church doctrine is being overlooked by legislation.

On November 14th through the 16th, there was a fall assembly of the U.S. Conference of Catholic Bishops held in Baltimore, Maryland, at which Bishop William Lori led the campaign. With hundreds of bishops in attendance, Lori opened with, "For some time now, we have viewed with growing alarm the ongoing erosion of religious liberty in our land,", these few and simple words served as a catalyst to the rebellious thoughts of the numerous amounts of Roman Catholic Bishops against the U.S Government.

Lori is the chairman of the conference's Ad Hoc Committee on Religious Liberty. The Committee was created after the U.S. Department of Health and Human Services decided to cancel a contract with Migration and Refugee Services. This Catholic organization is one that helped victims of sex marketing. The main concern here is that the contract was terminated due to the fact that the group strongly repudiated referring marketing victims for any form of contraceptive or abortion, all with the hopes of promoting their Catholic beliefs.

Lori believes that the previous as well as the same-sex marriage laws which have been ratified in at least a half-dozen U.S. states are part of an overarching inclination within America to limit religious liberty. On the other hand, I believe that in accordance to the Constitution and thus, the rights granted to every citizen within the U.S, each individual should be able to freely decide on any matter that will lead them to be happy, so long as it does not infringe on another’s safety or wellbeing. Due to the fact that the new health care policies mandate that contraception be provided, I can see why the Catholic Bishops would be wrathful and thus in turn lobby so that Obama’s health care campaigns could be overturned, but if you look at the facts and logistics, the Catholic Church has a lot of work to do within their multitude of believers. Jon O'Brien who is the president of Catholics for Choice recently testified before a congressional committee that “98 percent of Catholic women ignore the church's ban on contraceptives”, this percentage rate is astounding and it should serve as a clear indicator that not all people are in accordance to the Catholic creed.

In short, the idea of having the Roman Catholic Bishops dictate what happens within the American households is absurd. Though I am strongly for respecting others beliefs and their freedom to pursue them, topics like teenage pregnancy shall not be overlooked. The rates are steadily escalating and if contraception can help, I believe it should be an accessible option. What’s most important here is the freedom of the people to choose an option that will best suit them individually. Let us also keep in mind that the women that were being “helped” by the Ad Hoc Committee on Religious Liberty were denied abortion and contraception though they were sexually abused.

State Trooper Memorial Crosses Un-religion-ized?

On October 31 the US Supreme Court determined that a series of memorials in the shape of crosses designed to memorialize Utah Highway Patrol who died in the line of duty were a violation of the establishment clause. Justice Thomas wrote a lengthy dissent stating that this would have been an ideal way to further define the boundaries of the establishment clause.
Several weeks later now, this article explains that the state has redesigned the crosses to be allowed to be placed along the roadside. Changes include stripping the Highway Patrol logo off the 12 foot tall crosses, but still bear the name each one was built to memorialize. The opinion of the association that erected the crosses is that it is not a memorial unless it is a cross, and will do everything in their power to maintain as much of the original design as possible.
The American Atheists Inc. believe that the cross remains a strictly religious symbol and has no place in memorials for fallen officers who are of various religious faiths. The Atheist association asserts they have no qualms with the idea of memorials for the officers and suggest secular alternatives such as an obelisk.
In response to the Atheist organization, the Highway Patrol Association says that they will add a small disclaimer to each cross stating it is not meant to be a religious endorsement or represent any one religion over any others. The association representative asserts that the sign would be large enough to be read by passing motorists.
In my opinion there is no reason to use the cross except to directly incorporate God. I think the Atheist incorporation has a perfectly justified claim that the crosses are still an establishment, and the use of an obelisk rather than the cross should be completely satisfactory for all parties involved. This clearly promotes Christianity and the Catholic faith over less mainstream religions or no religion. I do not expect that this compromise will be accepted and I wager that the entire design will have to be changed, as suggested the first time this went to the supreme court.
Do you think this is an establishment of religion? Is memorializing fallen officers an acceptable use of the cross by the state? If not, do you think there are any acceptable uses of the cross by the state?

Messages of Death and Sacrifice

On Monday, October 31st, 2011, the Supreme Court did not grant the petition for certiorari for the two cases, Utah Highway Patrol Association v. American Atheists and Davenport v. American Atheists, both which pertained to standards for judging public displays of religious symbols. In this 8-1 ruling, the Supreme Court rejected an appeal from the Utah Highway Patrol Association to display donated crosses along interstate 15 in commemoration for patrolman who died in the line of duty, each of which are represented by individual crosses with a brief bibliography and picture for each trooper. Earlier in 2005, American Atheists Inc. and three Utah state citizens sued Utah, contesting that the memorials conveyed state endorsement of Christianity and was therefore in violation of the Establishment Clause, reasoning which was upheld by the federal appeals court in 2010.

Justice Thomas stated in a rare 19-page dissent to the Supreme Court’s decision to reject the case, “today the Court rejects an opportunity to provide clarity to Establishment Clause jurisprudence in shambles.” Consequently, the Court has not examined the endorsement test’s consistency with the 10th Amendment which states that jurisdiction not given to Congress belongs to the states. Since Utah has made no law that infringes on the rights of the citizens of the United States by putting up memorial crosses to fallen state troopers, nor have citizens been directly coerced, Congress has no right to “prohibi[t] the free exercise [of religion]” by forcing the removal of these crosses.

The sizes of the crosses, in addition to the presence of the Utah Highway Patrol shield on the crosses, were the primary factors in deciding that the memorial could be perceived by a “reasonable observer” that the government is endorsing Christianity by the federal appeals court, thereby evoking precedent from Lynch v. Donnelly (1984). According to the appeals court, the crosses, each twelve feet tall with six-foot crossbars, conveys “a message of endorsement, proselytization, and aggrandizement of religion that is far different from the more humble spirit of small roadside crosses.” Given that these crosses are located along a highway, with cars passing at high speeds, one could argue that the memorials should be this large to honor the troopers who died in service to the state. The lower court also found that the structures used “the pre-eminent symbol of Christianity” and “conspicuously bears the imprimatur of a state entity, the UHP [Utah Highway Patrol].” In the previous week, the Utah Highway Patrol Association had removed the UHP’s insignia in an attempt to prevent the court-ordered removal of the 14 monuments. Therefore, the appeals court’s concern about a “reasonable observer’s” fear of preferential treatment toward Christians by state-funded officers should not be a burden to the state.

Furthermore, since the Utah Highway Patrol Association had removed the UHP’s logo from the crosses, the government should not discriminate against the organization, that used private funds to erect non-invasive memorials. The placement of 11 of these crosses on public land however, is contentious because by allowing these large crosses, the state may be construed as providing Christianity preferential treatment and a means of evangelizing state highway drivers. Yet family members of deceased troopers must give permission to have the memorial erected and are offered the opportunity to request a different symbol, thus, the state is technically neutral toward religion. Similarly, the Department of Veterans Affairs at Arlington National Cemetery currently offers 39 authorized faith emblems that can be placed on gravestones. If Arlington National Cemetery is permitted to determine which symbols can be “authorized” to be placed on markers, then why should the Utah Highway Patrol Association not be granted the same right?

Nonetheless, in 2006, the Utah legislature passed a joint resolution that declared the cross is a secular symbol of death. The cross is still, as the federal appeals court attested in 2010, “the pre-eminent symbol of Christianity.” The cross, which was selected by the Utah Highway Patrol Association, is an unavoidable allusion to the crucifix. Both symbolize death, remembrance, sacrifice, honor, and gratitude for those who died to protect innocent people. Though these Christian underpinnings cannot be removed from a cross, this memorial, with a secular purpose to commemorate the sacrifices of state troopers, does not establish religion.

Santa vs the Establishment Claus

In Charleston, South Carolina, an outpatient facility declared that they would no longer be allowing Frank Cloyes, an elderly volunteer, to dress up as Santa Claus and visit children sitting through chemotherapy treatments. The hospital spokesperson explained that; “Because of our state affiliation, we decided not to have a Santa presence this year”. She credited efforts to express consideration for the people who frequent the cancer center that many be of non-Christian faiths and who might be offended by the Santa presence. After outrage from the community, the hospital reversed their decision two days later and decided to “welcome Santa again this year”. Reports claim that the hospital has decided to allow all traditional holiday activities reflecting all beliefs, including Santa, to make appearances because of the recognized emotional benefits to patients.

While the issue of whether this practice of allowing a Santa to make appearances as a state medical facility wasn't considered by a court because the decision was reversed so quickly and no lawsuit has begun, the question still remains: Does allowing a volunteer dressed as Santa Claus to visit children at state medical facility to offer “Christmas cheer” violate the Establishment Clause? Was the hospital valid in its concerns that, as a state institution, Santa visits might be seen as inappropriate?

I believe that if the Court ruled on the constitutionality of the volunteer’s Santa visits the practice would not be found to violate the Establishment Clause of the First Amendment. In Lynch v. Donnelly, the Court acknowledged that it was possible for a religious symbol, a crèche, to be present without advocating a particular religious message, or violating the Establishment Clause. I argue that Santa Claus is an even less directly religious symbol than a nativity scene; a nativity scene explicitly displays Jesus and the birth of a theistic idol, while Santa Claus professes no specific religious message. Many equate Santa Claus as a generic symbol of cultural Christmas; a mythical creature comparable to the Tooth Fairy. Even the PR rep for the hospital was quoted saying that; “We are very well aware that Santa is not a religious figure”.

Also in Lynch v. Donnely, the Court found that the display had “legitimate secular purposes”. Like the crèche Pawtucket, Frank Cloyes shares the purpose of spreading holiday cheer, arguably in an even more compelling state interest since this Santa serves to entertain patients at a cancer center while receiving chemotherapy.

Important to the constitutionality of this practice is that Frank Cloyes is not a hospital employee, nor is he paid. He paid for his own costume rental, and presumably, anyone who decides to dress up in a costume and visit patients in this hospital would also be welcome. I argue that if volunteers are allowed to dress up as clowns or rabbits to visit patients with the goal of cheering them up, then there shouldn’t be an issue with a Santa Claus, or another secular-ish (?) symbol of Hannukah or Kwanzaa, as suggested by Fox News.

While the Santa visit appears constitutional under the Establishment Clause, at issue here is the way the Cancer Center reacted to and reversed the ban. An article explains how Hollings Cancer Center reversed the decision after “a firestorm of yuletide controversy”. Although the ban may have not been necessary in the first place, it’s even more disrespectful to the patients at the hospital who may have been bothered by the Santa visits because of their religious beliefs that their discomfort was overruled by the majority. In any Establishment case regarding a majority religious celebration like Christmas, the decision would quickly be reversed if the State gave in to protests by the majority. The Establishment Clause exists to protect the minority, not the majority.