Sunday, December 4, 2011

Prayer in County Council Meetings

A case has been filed in Federal Court concerning the recitation of the Lord’s Prayer in county council meetings. The tradition of saying the Lord’s Prayer started back in 1971. The prayer has since been said at the beginning of every county council meeting and is led by the Council President. Americans United, a religion liberty watchdog group based in Washington, D.C., has filed a case against the Sussex County Council claiming that the saying of the prayer is an establishment of religion and that violates the First Amendment of the Constitution.

The plaintiffs argue that, “Sussex County’s promotion of the Lord’s Prayer shows favoritism towards the majority religion and excludes those residents who don’t share that faith”. They also claim that the prayer pressures those attending the meetings to participate in the recitation of the prayer since the council members can see who is and who is not participating in the recitation of the prayer. The Americans United group also claims that the prayer is incredibly specific towards not only one religion, but one denomination of religion. The rendition of the Lord’s Prayer that is recited is an Episcopalian one. They believe that this particular rendition would be “unfamiliar and disagreeable” to other denomination of Christians such as, Catholics or Congregationalists. Therefore, they argue that this specific rendition of the prayer is not only offensive to non-Christians but also to other denominations of Christians.

I agree with the filing of this case and believe that the recitation of the Lord’s Prayer is an establishment of religion by the County Council. I understand that the saying of the Prayer is a Tradition that dates back 40 years, but that does not mean that it is not an establishment of religion. The continual recitation of a prayer, specifically the Lord’s Prayer, at county council meetings is an endorsement of religion by the state and therefore the court should rule that the prayer is no longer said at the beginning of council meetings.

In Marsh v Chambers the U.S. Supreme Court held that opening legislative sessions with a prayer by a Chaplain was constitutional, mainly because it was something that is a part of the unique history of the United States. However, this case is different from that of the Sussex County Council meetings because the prayer in Marsh v Chambers was read and recited by a Chaplin and not the members in the Nebraska Congress. Therefore, I feel that the Federal Court in the Sussex County Council case will not rule the same way that they did in Marsh v Chambers. The recitation of the Prayer is said by all attending the meeting and the forum in which the meetings are held adds pressure for those attending to recite the prayer. Also, since the Prayer is so specific towards one denomination of Christianity, I believe that the Federal Court would consider the recitation of the Lord’s Prayer an establishment of religion.

Currently, the Americans United group is asking the court to put a preliminary injunction blocking the recitation of the prayer at the meetings, at least until the court reaches a verdict. Do you believe that the federal court will side in favor of the Americans United group? Or do you feel that the court will follow the precedent set in Marsh v Chambers and argue that the prayer is a part of our nation’s unique history?

Tiny Church Awaits Big Decision

A small Christian congregation of just 48 members is awaiting a Supreme Court decision that would overturn a ruling outlawing the use of public schools for their Sunday services. Currently, the policy of the New York Board of Education regarding public school usage allows all community groups, including religious ones, to utilize the property; however, the only restriction is that worship services are not allowed to be held. This case involving the Bronx Household of Faith has lasted 17 years, when the church was first denied a permit to hold their worship services at a local public school by the New York Board of Education in 1994. In 1995 church pastor Robert Hall heard Alliance Defense Fund attorney Jordan Lorence talking about barriers to religious rights on the radio. Hall called up Lorence, informed them of their current situation. The ADF, which champions “the legal defense of religious freedom, the sanctity of life, marriage and the family,” took the case, and the case has been ruled on, appealed, reversed and then reversed again since 1995. In 2002, however, the Board of Education stopped enforcing the regulation, and the Household of Faith has been holding their Sunday services at P.S. 15 ever since.

Once again, we come to a crossroads: do we enforce the establishment clause at the extent of limiting free exercise; or do we champion the free exercise of religion while potentially violating the establishment clause? Due to the fact that the current policy allows “prayer, singing hymns, religious instruction, expression of religious devotion or the discussion of issues from a religious point of view,” but does not allow religious worship services to take place in public schools, it ultimately comes down to drawing a line and distinguishing between the former and the latter. The ADF maintains that this distinction between religious expression and worship is arbitrary. “You can have singing and prayer and Bible study, with all the elements of what people traditionally understand a worship service to be, but you can’t have a worship service?” Lorence asks. However, on the other side of the spectrum, the New York Civil Liberties Union believes that, “when a church sets up shop in a public school in a manner that conveys the appearance that the church is part of, or officially favored by, the school, it seems to run afoul of the separation of church and state.” Furthermore, many others in favor of the policy prohibiting worship services from public schools maintain that when a church holds a worship service in a school auditorium, that auditorium is transformed into a church for the duration of the worship.

Personally, I side with the NY Board of Education. I find the policy to be extremely fair and, quite frankly, more inclusive and sympathetic to religious groups than I would personally be if I was writing the policy. I know we have brought a similar issue like this up in class, and I think the distinction between religious expression and religious worship to be far from arbitrary. Churches, in particular, are known as “Houses of God.” Services are held in “Houses of God.” I truly believe that once you hold a worship service in a public school auditorium, you are metaphorically transforming the meeting space into a “House of God.” Also, since the children that attend these public schools are impressionable, they may not be able to tell the difference between the church and the school. In the article we read in class regarding these similar issues, one girl asked her father if “the church was part of [her] school.” They effectively run the risk of having the children see the two institutions as one in the same. Furthermore, if this policy is overturned and churches are allowed to hold services in public schools outside of school hours, it would not be neutral in practice. While technically, all religious groups are allowed to apply for permits, schools facilities are often only available on Sundays when other school groups are not using the facilities. This, in reality, only caters to Christian groups, since Muslim and Jewish groups hold their worship services on days that are not Sunday.

Ultimately the best way to maintain equality across all religions (which I believe to be the most important tenet of religious and political/legal interaction) is to restrict religious services from occurring in public schools. The propensity for perceived establishment is too high, and the “neutrality” of the policy, if it were to allow worship services, is terribly lacking. Worship needs to be kept in houses of worship, and out of public schools.

Evangelizing Through School Email?

A Florida school administrator is crying foul after receiving a string of religiously and politically oriented emails sent to him by his immediate superior through official channels.

Patrick Capriola, the assistant principal of the Bannerman Learning Center, a public alternative school in Green Cove Springs, Fla., has filed suit against the Clay County School District and Bannerman’s principal, Linda Turner, claiming his constitutional rights were violated when Turner sent him and other school employees emails containing religious and political messages. In his lawsuit, which was filed in the US District Court in the Middle District of Florida on Nov. 18, Capriola claims Turner violated the Establishment Clause by using her official school email account to send a majority of the emails in question, which he argues were designed to “impose her religious views” on the school’s staff.

The emails mentioned in the lawsuit cover a variety of topics, ranging from an encouragement for all school staff to “to pray for rain in the name of Jesus for the State of Texas” to “an explicitly religious and proselytizing sermon-like viewpoint” on 9/11. Other emails are more political in nature and make fun of President Obama.

In filing his lawsuit, Carpriola seeks monetary damages for emotional pain and suffering. He has also requested that an injunction be granted that would bar Turner from sending any more emails to school employees containing “prayer and other religious proselytizing,” which would end what he calls Turner’s “endorsement and promotion of specific political [and religious] doctrine.”

Capriola’s lawsuit has two main claims: 1.) That his constitutional rights were violated when Turner sent him religiously and politically oriented emails; and 2.) That Turner violated the Establishment Clause of the US Constitution when she sent said emails using her official school email account.

The problem with Capriola’s first claim is that he has failed to highlight which of his constitutional rights were violated when Turner sent him the emails in question. Last time I checked, the Constitution did not include protections against being offended or annoyed by the actions of others. Unless he can highlight specific instances of Turner violating his rights, Capriola is unlikely to receive anything other than nominal damages (typically $1).

Capriola’s second claim, however, is much more interesting. Did Turner violate the Establishment Clause by sending religiously oriented emails to her subordinates using her official school email account? To answer this question, two other questions must be answered first: 1.) Are there any regulations or policies in the Clay County School District that dictate how official school email accounts can and cannot be used?; and 2.) In what capacity (official or unofficial) did Turner send the emails?

Analyzing the current policies (or lack thereof) regarding the use of government property and resources in Clay County will have a major impact on the outcome of this case. If there is a policy, either in written form or adopted as tradition by the school district, that prohibits the use of official email accounts for unofficial purposes, then Turner would clearly be in the wrong. However, even if such a policy exists, it would not necessarily prove that she violated the Establishment Clause, only that she violated local policy. In the end, it would all depend on what the “reasonable observer” would think. The courts tend to err on the side of a conservative definition of the reasonable observer, which means that if there is a regulatory policy regarding official email use, the court would most likely rule that the reasonable observer would view the content of the emails as “official,” and thus in violation of the Establishment Clause. However, if there is no such regulatory policy, the answer would be much more ambiguous.

The other, more important, element to analyze is in what context did Turner send the email, i.e. as the principal or as a private citizen. Had Turner sent the emails in her official capacity as the principal of the school, there would be an establishment issue because the requests for prayer would have been akin to an order given by Turner to her subordinates. However, it is evident by the content of the emails that requests for prayer were exactly that: requests. Everything Turner sent was sent in an unofficial capacity (i.e. she sent the emails as private citizen Turner, not Principal Turner). The fact that she used official channels for her unofficial communications only displays her foolishness, but does not constitute an establishment of religion.

Based on the evidence, I argue that Turner is guilty of nothing more than unwisely using her official email account. There is no evidence of any regulatory policies regarding how school employees can use their email accounts, nor is there any indication that Turner intended to coerce anyone into preforming any religious act using her position as their superior. The fact that the emails mentioned in the lawsuit came from a combination of both Turner’s official and personal email accounts is further proof that she intended them to be viewed in an unofficial capacity. It appears that she sent the emails to her subordinates using the email account linked to where she was located when she sent them (i.e. she used the official account when at school and the personal account when at home). In the future, any emails of this nature should be sent using only Turner’s personal account (although it would be wise for her to stop sending them altogether).

Merry Christmas to You, Establishment Clause!

This article, State Capitol Christmas Trees Honor 100 Years of Girl Scouting, in The Bladen Journal announces an event being put on by the North Carolina Girl Scouts. They have been in exists for 100 years and to honor that term, they have put up and decorated four Christmas trees that are located on the second floor of the State Capitol building. The ornaments and decorations commemorate the courage, confidence, and character of these young women. The unveiling will happen during the “State Tree Lighting Ceremony and Holiday Festival” on the State Capitol grounds on Dec. 8 and will remain through the 29th of Dec. There is also a museum exhibit that is happening at a local museum to commemorate these 100 years.

These trees bring up the question of establish. Is the state establishing the Christian faith on its people by allowing the Girl Scouts to be putting up this celebratory exhibit? There are a couple of aspects of this that one has to explore. The first is that although some may argue that the Christmas tree has become a secular object in American society, it is still remains a religious symbol. It is a universal Christmas symbol and Christmas is known as a religious holiday which celebrates the birth of Jesus Christ. The second is the proximity of the trees on state grounds. The trees are clearly on state grounds, because not only are they within government property lines, but they are in a government building. There is no way that one could argue the fact that these trees are on public land. The state had to approve these decorations to be put within the Capitol building. Though an accomdationist might argue that as long as other holiday symbols are included in the exhibit commemorating the 100 years, a strict separationist would greatly disagree. They would claim that there should be no tree on state property, let alone in state buildings, whatsoever, no matter how many faiths and how secular the symbol has become. At the end of the day, there are no other religious faiths being represented in this display and even if there were it would still be an establishment of religious by the state onto its people. Though if the trees should not be present because of Establishment, it would make sense that the State should not be holding an annual Tree Lighting on government grounds, the article is announcing the display, so that is what this post focuses on. But, if one were to immediately analyze the difference between a tree lighting and a display, a tree lighting is annual, which means it is tradition. This display does not occur on a year basis, because it is commemorating 100 years of existence, and that does not happen every year. But, to have adequate seperation, the state should not be endorsing an annual tree lighting, even if they were to hold an annual first day of the lighting of the menorah.

It is important to note that there have been cases that have come up that were similar. One case is Van Orden vs. Perry. What came into question was whether or not it was considered establishment that a big monument of the 10 commandments was located on government property? Though the court ruled in favor of keeping the Commandments there because of tradition. The reason why both displays should be removed is entirely similar. The dissent argued that these symbols (the Christmas Tree and the 10 Commandments—both of which have religious histories) have become secular in America. But in conclusion, both are religious and both displays have only religious purposes and there lacks neutrality between religion and non-religion. The difference between these cases is the fact that there is no tradition of the North Carolina State Capital having 4 Christmas trees on their second. Therefore, this argue would not work for keeping the trees.

The reason why this is an important issue is because of the time of year. It is the holidays. Everyone knows that Christmas happens in late December and Hanukah mid to late December, and Kwanza around then. Those are the three that tend to be included in decorations, card material, and calendar notifications. So, if you are an individual who does not celebrate one of those holidays or who chooses not to take a holiday path, you already feel left out of American Culture. Sad feelings are not unconstitutional. But the situation is furthered by the state establishing a religious path, let alone the majority faith of Christmas, on its people through Christmas trees. The Girl Scouts should not be allowed to commemorate their 100 years in North Carolina through Christmas trees in the State Capitol. A plaque or a sign would be a terrific alternative.

Hasidic Jews in the Military

The Army has recently settled in a suit that banned Rabbi Menachem Stern from being an army chaplain due to his Hasidic faith that prohibits him from shaving his beard, violating Army regulations restricting facial hair. In 2009, Stern received approval for a reserve commission slot in the Army but was later rejected due to the issues over his beard. This is not the first time the Army has faced a decision regarding a person’s religious duty and the strict standards of the military. Colonel Jacob Goldstein, also a bearded Chabad-Lubavitch rabbi was granted an exemption for his facial hair and has served in the US Army Reserves and the National Guard for the past 33 years. Two Sikh captains were also granted a religious exemption that allowed them to wear a turban and have a beard while in uniform. When Stern was not granted this same exemption he filed a federal lawsuit accusing the Army of violating his free exercise and equal protection rights. According to Stern, “The Army rules, which only apply on entering service and can be waived for those who cannot shave for medical reasons, are discriminatory and violate the Constitution, especially because waivers have been granted to Sikh and Muslim soldiers.” The settlement allows for Rabbi Stern to join the military, which currently has a shortage of Jewish chaplains.

In my opinion this case is clear. The Army cannot grant an exception to some based on their religion and then restrict others based on the same issue. Their decision to withdraw the commissioning of Stern blatantly infringes upon his free exercise and that is why they finally allowed him to serve. In my opinion they were correct in setting a precedent approving beards for religious reasons and there is no excuse for why that precedent was ignored. It is indeed a slippery slope when dealing with religious exemptions and once given, the institution in charge needs to be prepared to offer them to all religious groups.

Big Mountain Jesus

A legal battle is looming in Montana over a six-foot statue of Jesus located along a ski run at the Whitefish Mountain Resort. The statue, fittingly referred to as "Big Mountain Jesus," was erected more than 50 years ago by the local chapter of the Knights of Columbus – the world’s largest Catholic fraternal service organization. The purpose of the statue was to honor soldiers who had seen similar shrines of Jesus in the mountains of Italy during World War II. Big Mountain Jesus has caused a stir recently because the Freedom From Religion Foundation, an atheist group, believes that the statue violates the constitutional principle of separation of church and state because it stands on United States Forest Service property. The special-use permit for the Jesus memorial is currently up for renewal, and the Freedom From Religion Foundation is urging the Forest Service not to reauthorize it. Both sides in this issue over Big Mountain Jesus claim they will go to court depending on what the National Forest Service decides. According to deputy chief for the National Forest System Jim Peña, “Because of the historic and cultural significance of the statue, we’re going to have to relook at it and figure out the right way to go.” The Forest Service is expected to make a decision on the statue in early 2012.

The legal question in this case is whether the existence of Big Mountain Jesus on U.S. Forest Service property violates the constitutional principle of separation of church and state.

Advocates of the statue’s removal claim that because the statue stands on United States Forest Service Property, it violates the principle of separation of church and state. According to the Freedom From Religion Foundation’s co-president Annie Laurie Gaylor, the decision should be a “no brainer.” Gaylor claims that, “A violation doesn’t become less egregious because it’s gone on a long time.” She adds that if the statue stood on private property her foundation would not have a problem with it.

On the other side of this debate are those who want Big Mountain Jesus to remain right where it is. These people argue that the statue should be viewed as a military memorial rather than a religious shrine, and that because the statue has not caused a problem for the past 50 years, it should not suddenly become controversial now. These people are so passionate about saving Big Mountain Jesus that they have created a “Save Big Mountain Jesus Statue” facebook page and recently held an “Occupy Big Mountain” rally with supporters hiking up to the statue in solidarity.

As we have seen throughout the semester, establishment clause cases involving public displays are complicated, and the Supreme Court has ruled differently in cases with seemingly identical situations. For example in Van Orden v. Perry and McCreary County v. ACLU, the court ruled differently regarding the public display of the Ten Commandments. Justice Breyer was the deciding vote in each of these cases, voting with the majority in both. In McCreary County v. ACLU, Justice Breyer ruled that the displaying of the Ten Commandments in courthouses and public schools in Kentucky violated the Establishment Clause, claiming that their sole purpose was to enhance and endorse religion. In Van Orden v. Perry, however, Breyer allowed the display of a monument inscribed with the Ten Commandments to remain on Texas State Capitol grounds, acknowledging its historical significance and claiming that removing it and other monuments that have stood for decades without challenge would be considered an assault on religion.

Based on Justice Breyer’s opinion for the majority in Van Orden v. Perry, I believe that the removal of Big Mountain Jesus would cause an excessive entanglement between the U.S. government and religion and should not be allowed. In my defense I would use Breyer’s concurring decision in this case, where he claimed that the removal of a Ten Commandments monument would “lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions” and could “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.” Removing Big Mountain Jesus from Whitefish Mountain in Montana would express the same hostility towards religion as the removal of the Ten Commandments monument from State Capitol grounds in Texas would have. This hostility would cause an excessive government entanglement with religion, and would threaten the legitimacy of the Establishment Clause in American law.

Another Ten Commandments Display...Is This One Different?

On Sunday, November 27, 2011, the residents of Dixie County, Florida, rallied in front of the county courthouse in support of a granite monument engraved with the 10 Commandments seated in front of this government building. The monument was funded by a local businessman named Joe Anderson, Jr. No government money was used for the construction or installation of the monument, but the positing of this structure was approved by the Dixie County Commissioners.

However, this monument contains not only the Decalogue, but also an admonition which reads “Love God and keep his commandments.” One woman involved in the rally carried a sign reading “If you don’t like what our USA was built on, GET OUT.”

The Florida ACLU filed suit against the county in federal district court and won; the county then appealed. Americans United subsequently filed an amicus brief in support of the strict separation of church and state. They “argued that Commandments displays have become weapons of choice in the Religious Right’s crusade to make America an officially Christian nation.” Joseph L. Conn, for Americans United, adds that America was not built on the Ten Commandments, but on “the constitutional separation of church and state.”

This case is important for us to consider so that we may gain some clarity over where the court stands on these issues. As we have seen, the rulings of the court in Ten Commandments cases are seemingly contradictory. However, I disagree with the ACLU and Americans United for several reasons, and I believe that the court’s rulings in this area are not as contradictory as one might think.

First, Americans United argues that America was founded on the constitutional separation of church and state, but this separation is nowhere mentioned in the constitution. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” Therefore, if the constitution merely asserts that no federal religion shall be established, then certainly no private funding of religious monuments can possibly be considered establishment even if the structure is on government property. However, this is not the only basis on which I disagree with Cobb’s position.

I accept the court’s reasoning that the Ten Commandments are an important part of America’s history as a state. Therefore, the Decalogue’s importance is not only religious, but historical as well, a significant part of the decision in both Pleasant Grove v. United States and Van Orden v. Perry. This means that, if we accept the Lemon Test, there is a secular purpose to display such a historical monument.

Finally, as Scalia notes in his concurring opinion in the Van Orden Case, the government cannot exhibit any hostility toward religion. Instead, it must exercise benevolent neutrality so as not to directly benefit or inhibit any one religion (again, according to the Lemon Test).

In McCreary v. ACLU, the Supreme Court ruled that a government sponsored display of the Decalogue in a Kentucky Courthouse violated the Establishment Clause, and rightly so in regard to precedent since it appealed to the Lemon Test to show that there was no secular purpose for the government’s sponsorship of this display. On the same day, in Van Orden v. Perry, the court ruled that a privately funded display of the Ten Commandments outside of a Kentucky Courthouse did not violate the Establishment Clause on the basis of the criteria I have already mentioned. The difference in the sources of funding and status of sponsorship in these cases was pivotal in the court’s rulings. I therefore believe that these decisions were not as contradictory as we might believe at first glance.

Into which of these two categories, then, does our current case fit? The Decalogue was privately funded by a local businessman, and therefore it would seem the correct precedent to consider is Van Orden. I do not believe that this case constitutes a violation of the Establishment Clause for the reasons mentioned above. However, there is one thing left to consider.

In Pleasant Grove v. United States, the court appealed to a reasonable observer to argue that the Ten Commandments would not be understood as a form of proselytizing. As I mentioned, however, this monument contains the admonition “Love God and keep his Commandments.” An important question therefore arises: does this constitute a form of proselytizing that goes beyond the scope of the Decalogue itself?

Although I have many concerns over the practice of invoking a reasonable observer in these cases from the beginning, it is largely irrelevant in this instance since I believe that this statement is no more than a summary of the Commandments, which themselves profess what they say. If the Decalogue itself is not seen as a form of proselytizing, then I do not feel that this admonition can be seen in this way either.

Christmas and Holiday Trees

On Tuesday, December 6, Rhode Island Governor Lincoln Chafee will host the annual State House holiday tree lighting at the State House Rotunda at 5:30 p.m. All Rhode Islanders are invited to attend to see the 17-foot Colorado blue spruce tree lit for the first time, which was donated by Big John Leyden’s Tree Farm in West Greenwich, Rhode Island. Santa Claus and Mrs. Claus will be available for visits with children during the lighting. Although this is an annual event, this year the event has been surrounded by controversy. Gov. Lincoln Chafee proclaimed that the tree must be referred to as a “holiday tree” rather than a “Christmas tree.”

Gov. Chafee, however, is ignoring a resolution recently passed by the State House Legislature that proclaimed trees during this season would be called “Christmas trees.” He claims it cannot be called a “Christmas tree” because that counters Rhode Island’s founding as a haven for religious tolerance, where government and religion were kept separate. Critics of Chafee’s seasonal semantics thought that he was taking political correctness too far- and defying the will of the state legislature. In particular, John Leydon, the owner of the Christmas tree farm, is disappointed with Chafee’s yuletide word choice because he wanted to promote Christmas tree sales with other Rhode Island Christians. He states, “We’re a Christmas tree farm. That’s what the name is.”

This case is important in evaluating the complex relationship between the Establishment Clause and the legality of holiday decorations on town property. In Lynch vs. Donnelly (1984), the court ruled that display of a crèche in Pawtucket, Rhode Island’s shopping district has a legitimate secular purpose to celebrate the season and the origins of Christmas, which has long been part of Western culture. Although placing a nativity scene on public property may plainly have a religious purpose, Chief Justice Berger saw that “like a painting, the crèche is passive.” By labeling the tree as a “holiday tree,” Governor Chafee attempts to make the lighting ceremony passive and give it secular purpose. He wants to ensure the state is neutral towards all religions, and so makes an effort to make the ceremony a holiday one, not just a Christmas tree lighting event. Furthermore, he asserts that if the tree was labeled as a “Christmas tree”, one may view that as a state endorsement of the Christian faith.

I understand Governor Chafee’s attempt to respect all religions in Rhode Island. However, I think it is obvious that the “holiday tree” is in fact a “Christmas tree.” A Christmas tree farm donated the tree, and the ceremony also entails time with Santa Claus, a tradition associated with Christianity. If the state did not want to endorse the Christian faith, Santa would not be present, and there would be no lighting ceremony to begin with. In order to obtain neutrality, there would be no holiday celebrations using tax funds on state property.

The state violated the Establishment Clause by mandating that trees during the holiday season should be called Christmas trees through a resolution. With this legislation, the state undoubtedly endorses the Christian faith. It is important to recognize, that not all spruce trees are used as Christmas trees.

Obviously the tree lighting event has historical tradition and significance for the people of Rhode Island, despite this controversy. In order for the state to avoid endorsing one particular faith though, people should celebrate their holiday traditions privately.