Abercrombie and Fitch's "Look Policy" & the First Amendment

Walk into any mall clothing outlet and you’ll notice that employees often conform to a distinct and often narrow style of dress. While some store employees might find the dress code annoying, what happens when some find it a strain on their religious free exercise? Two such cases were decided recently, both involving Abercrombie & Fitch. In one case, Umme-Hani Khan was fired from her position in an Abercrombie stockroom for refusing to remove her hijab, a religious headscarf worn by women in the Islamic tradition. The second case also dealt with a hijab, where Halla Banafa alleged she was not hired because of it. A third case is also cycling through the court of appeals and is identical to the latter case above.

Abercrombie has defended itself by arguing that its employees must follow its “look policy”, a strict dress code that perpetuates the company’s brand and image. It is considered an important component of their marketing strategy, and they justify its enforcement because it is constituted as “commercial free speech”.

The question at heart here is two-parted. For one, does “commercial free speech” trump individual free speech, and secondly do the religious overtones of the case indicate that a violation of the free exercise clause has occurred? To address the former concern first, Abercrombie’s look policy dictates that no headgear may be worn by any employee. That is a generally applicable policy that appears neutral. However, as pointed out by the dissent in Oregon v. Smith, a generally applicable law does not protect the minority and does not automatically make it immune to amounting to religious discrimination. Banning headgear in general is acceptable commercial free speech, but not accommodating an individual because of their religion appears as a blatant violation of free exercise. Wearing the hijab is a fundamental religious practice to the plaintiffs, and thus this case more closely deals with free exercise and accommodation.

The ninth circuit court utilizes two tests in order to determine religious accommodation cases:

A plaintiff must first establish a prima facie case. If successful, the burden then shifts to the employer to show that it “initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.” (Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9^th Cir. 2004).

The plaintiff accomplished the first facet by establishing that they would incur significant burden by complying with Abercrombie’s dress policies. Accommodation was not made as the employer fired the plaintiff for non-compliance. Abercrombie could only claim undue hardship, but ultimately that was found to be unsubstantiated. The court did not find the “look policy” to be so crucial to the company’s marketing success as they were unable to provide any evidence that the wearing of the hijab bore any detriment to the store’s sales. Abercrombie also argued that its employees are “living advertisements” and thus they have a right to force conformity amongst their employees’ dress. The court argued that since the plaintiffs in this case amounted to stockroom workers, they were not in the public eye and thus could not be classified as “living advertisements”. Subsequently, judgment was in favor of the plaintiffs.

Is this the correct decision? The argument that supports Abercrombie is that businesses are allowed to discriminate based on characteristics that would be considered “bona fide occupational qualifications”. This loophole in the employment discrimination law dictates that otherwise discriminatory practices can be overlooked if they would prove undermining to a particular business model. Companies such as Hooters or Catholic colleges utilize this practice when hiring female waitresses or Catholic faculty members, respectively. The latter example shows that religion can be used to legally filter employees. I ultimately agree with the Court in that both the “undue hardship” and “living advertisement” arguments seem weak. In Wilson v. Southwest Airlines, bona fide occupational qualifications were analyzed and it was determined that customer satisfaction alone cannot be a determination in cases utilizing the law as a defense. In essence, this is the core precept of Abercrombie’s argument and thus is invalid through precedent. The plaintiff, or rather anyone, should have an equal opportunity to work wherever they want, and by refusing to accommodate a hijab Abercrombie is practicing religious discrimination under the free exercise clause. Looking at the broader implications of these cases, do you think a private business has a right to tailor their policies to this extent, even if it excludes certain religious groups? Keep in mind that they only believe they are doing what is best for their economic success and survival (although I personally disagree with that belief).

Here is the full complaint.

Charter Schools and Religion

A charter school by definition is an alternative education system in which the school itself receives public funding, but operates independently.  This article from the New York Times deals with a charter school in San Antonio, Texas called the Eleanor Kolitz Hebrew Language Academy.  The classes are taught entirely in Hebrew in addition to classes on Israeli culture.  

The school is on the campus of the San Antonio Jewish Community Center,  is the first Texas charter to offer Hebrew, and one of two charters awarded by the state to open in a Jewish center.  The school officials take issue with some of the leasing arrangements and the specific population that they serve, but the schools continue to ensure the state that religion is being kept out of the class room, and they are focused on diversifying the student body.  
Much of the criticism is rooted in the number of religious schools that are converting to charter schools.  The process is legal, but it forces the state to question how students are getting accepted into the school, and the involvement of the state and state funding.  Interestingly, charter schools receive the same state funding that traditional public schools do.  This means that schools can adopt their own philosophies, while being funded by tax payers.  The principal of Kolitz Academy, Kathryn Davis, claims that Hebrew is a modern language and is spoken secularly, just like any other language in the world.  

The Kolitz Academy opened as a K-8 public charter school was funded through an educational grant worth $600,000.  Additionally, the academy shares a building with the Jewish community  center, a Holocaust museum and is located in in a affluent area, which the state feels may limit the diversity of the student body.  The school, like all charter schools, is publicly funded but privately run.  

I think that this was a particularly interesting article because it raises the question of whether or not these state supported schools, that were previously religiously affiliated, are changing just so they can be considered for state funding.  I would have to question whether or not this would be considered an establishment of religion.  To me this seems like a legal loophole to attain funding.  

Prior to becoming the Eleanor Kolitz Acamemy, the same campus housed a private Jewish day school.  After the transition from Jewish day school to Hebrew charter school, the majority of students, staff members, and head of school remained the same.  This makes me question the why these changes are occurring, and the morals behind these changes.  I feel that this is a case of religious entanglement.  I think that in the state funding these converted schools, in essence tare supporting a religiously affiliated education.  However, on the other hand, denying these converted schools could be considered discriminatory towards religion.  

I question that amount of changes that are occurring in the curriculum, considering the staff and student body from the Jewish day school remain the same.  The article also references another charter school eight miles from Kolitz Academy that is located on the property of Temple Beth-El, which is San Antonio's largest Jewish congregation.  Next year, the temple will lease part of their building to start the Great Hearts Academies.  The superintendent of the Great Hearts Academies claims that there will be no affiliation between the school and the temple aside from landlord and tenant.  This is a school that will be using space in a Temple, in one of the largest Jewish congregations and Jewish populated areas in Texas; seems a little fishy to me. 

I think that this is an issue of establishment of religion because the funding is coming from the state.  I think that many of these converted schools are still religiously grounded, and that state funding should not be provided.  

NYPD's Grooming Rule Violates Free Exercise Rights of Orthodox Jewish Officer

NYPD Sued Over a Beard: Litzman v. New York City Police Department 

Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish community, has passed required tests to be accepted into the NYPD Police Academy. According to Litzman rules and tradition based on rabbinic interpretation of Leviticus 19:27, which states; “Ye shall not round the corners of your heads, neither shalt thou mar the corners of thy beard.” Many Orthodox Jews interpret this message as to not shaving ones beard with a blade. In the past, which there was no other mean to shaving but using a razor Orthodox Jews just grew their beards out. However, in the today.s society many electric razors shave using a scissors action and some of the new electric razors which use a blade are not allowed, and thus some Orthodox men choose to shave with new technology electric razors that do not have a blade. For most people religion is based on ones interpretation of their religion sacred text. In this case, as for many other Orthodox Jewish men, he interpreted the text as a rule and tradition to grow his beard and not take a chance with other forms of blades that could potentially violate his religious practice. 

The NYPD Police Academy swore Fishel Litzman as a Probationary Officer on January 9^th 2012. In the NYPD’s Patrol guidelines prohibits police officers from growing beards but makes exception for undercover duties, medical conditions, and religious accommodations, which has to be approved by the Police Surgeon or the Deputy Commissioner of the NYPD’s Office of Equal Opportunity, OEEO,. By going by these guidelines medical and religious exceptions related to facial hair, beards in this case must be one millimeter or less. Litzman sent in multiple requests to accommodate to his religious purpose of having a beard that is 1-inch in length. The NYPD denied Fishel Litzman request for an exception and was subjected to cut his beard shorter. Litzman disregarded the NYPD department request and was soon fired for not cutting his beard. When he was fired Litzman filed a suit against the NYPD that his First Amendment of free exercise was being violated.

The NYPD’s position is that it cannot accommodate Plaintiff’s one-inch beard because newly graduated police officers must shave at least once each year to be certified to use an MSA Millennium model respirator, providing the NYPD a health argument to the beard length limit. For this process the officer must go through a fit-test which is a series of seven one-minute tests to determine whether the respirator properly seals the officer’s face. Proper sealing can not be capable with facial hair, a test that is giving to all police officers on the force. The NYPD use one example in case of an emergency when officers must apply a gas mask, the respirator, to their face and having a long beard would make that process difficult leading to injuries. This example that could lead to the injuries of others as well it carried a burden of showing that an accommodation would create "undue hardship." The New York City Human Rights Law similarly requires accommodation, but has a definition of "undue hardship" that creates a much higher hurdle for the employer. 

 The defendant argued on different various points on how this rule was not neutral and strictly violated Litzman free exercise. The defendant made the comparison in which they agreed that the guidelines were being enforced and exceptions were giving for undercover reasons, but there are those who have beards and are not being fired based on the one-millimeter beard rule. An issue that the court agreed on by stating:

"Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The ... NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals.... Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards....  Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate."

 Litzman also advises his religious leaders on what he can do if an emergency situation happens, which they told him that he could shave his beard in a life threatening situation for his life or lives of others and will not violate his religion practice. The defendant also attacks the NYPD regulation on the beard being one millimeter as they argue that it was not shown or proving to be found in the guidelines of the NYPD. Since the rule on length was strictly placed in the regulations Litzman did not violate the length issue.

The federal court ended up siding with Litzman on the NYPD infringing on his Free Exercise. I agree with the court and the defendant on this issue. Even though Litzman knew what he was getting into from the very beginning the NYPD did not present a very good case. One issue I saw that gave the defendant the right to fight against this is the exception the NYPD gives. Making it neutral to all religions making the guideline Constitutional, the issue arrived when they provided a length limit. By having a limit will give the NYPD the right to discriminate against certain people and religion practices. Such as Muslims and Orthodox Jews that has a history and practice of growing out long intensive beards. 

From "Snake Salvation" to Incarceration?

Reverend Andrew Hamblin, the pastor of the church featured on National Geographic’s TV Series “Snake Salvation” will be charged with 53 counts of possession of a venomous snake.  Ironically, his recent fame and his church enjoyed through the TV show alerted the authorities of his criminal action which prompted a raid of his church and the confiscation of his 53 venomous snakes.  The maximum sentence for each count of possessing a venomous snake is one year in prison.

Though this may sound strange, a passage in the Gospel of Mark supports the practice of incorporating snakes in worship as performed by Hamblin's Tabernacle Church of God in LaFollette, Tennessee.  Mark 16:18 reads:

“And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; they shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover.”

Despite being a sincere belief, acting upon such beliefs is illegal in Tennessee.  After a series of deaths at churches that incorporated snakes into worship services, the state passed a law in 1947 forbidding the practice to take place.  The state’s reasoning in passing the law was that the compelling state interest of not having people be killed by snakes outweighed all concerns for free exercise.  In the 1975 case Swann v. Pack, the law was challenged but upheld in the Tennessee State Supreme Court.  No exemption was given as the court reiterated the desire of the state to protect citizens, even willing citizens, from the harm that serpents could deliver.  The court took the measure a step further, calling all public snake handlers a nuisance to society.

Hamblin plans to plead not guilty to the charges, and despite being in clear violation of the law, he may have a chance to avoid punishment on the basis of the free exercise clause.  The Swann decision will certainly be working against him in court, but a more recent case contradicts Swann and supports Hamblin’s argument.  In the 2003 Blackhawk v. Commonwealth of Pennsylvania case, the Pennsylvania State Supreme Court granted a Native American man an exemption to a law forbidding the ownership of black bears.  While the state and dangerous animal in question are different in the Blackhawk case, this decision sets the precedent for allowing religious exemptions to laws that forbid ownership of dangerous animals.

Furthermore, Hamblin will be the beneficiary of a recent Tennessee statute, the Tennessee Religious Freedom Restoration Act, which is directed to limit the restrictions that the state can place on the free exercise of individuals.  This act requires the state to have a compelling interest to intervene and use the least restrictive means possible upon intervention.  Though some disagree, I find that the state has a compelling interest in not having people being killed by snakes, but it is unclear what the least restrictive means avoid such tragedy would be.

The no-harm principle is relevant to this case but not in the traditional way.  Since the church attendance is strictly voluntary, harm could befall only those who choose to put themselves in harm’s way.  Barring an escape of Hamblin’s snakes in a Planet of the Apes type of way, anyone not associated with the church will not be harmed.  Voluntarily putting oneself in harm’s way does not necessarily mean that one will be granted a religious exemption.  Since human sacrifice will never be legalized there is a barometer for which to gauge group inflicted harm.  The question is where to draw the line.

What about the kids?  Hamblin’s church and other snake handling churches like it do not allow children under 18 years old to be near the snakes.  While danger is still present by having the children in the same building as the snakes, the greatest danger is to Hamblin himself and other adult members of the congregation.

I believe that the Hamblin should be granted an exemption and acquitted on all charges.  While an accident may happen due to the nature of these creatures, I believe that on the basis of the free exercise clause, Hamblin has the right to freely exercise his religion.

The first point in his favor is sincerity of his belief.  Although I generally do not believe in judging sincerity, I find it useful in free exercise cases that are seemingly unusual, such as handling snakes, ingesting peyote, or hypothetically, Rob Ford’s church of crack.  Hamblin’s sincerity is proven by justification in a holy book, his own statements about devotion to God through snake handling, and the 3,000 signatures that he collected following the raid of his church.

The next point in his favor is that willing, non-coerced, members of his congregation are the only ones with the potential to be harmed.  The no-harm principle is generally designed to apply to individuals not associated with the church, none of which will be harmed by allowing Hamblin to continue his practice.  For the members of the church who willingly put themselves in harm’s way, it is imperative that they continue to participate in a strictly voluntary basis, but since they understand the risk I believe that they should be allowed to continue handling the snakes.

Finally, Hamblin should be allowed to continue his practice because he takes good care of the kids.  My first reaction to this case was to make sure that no child ever gets near a snake but I was pleased read that Hamblin already had that restriction in place.  Hamblin seems to be aware of the ever-present danger in his practice but he has shown responsibility in trying to balance safety and adherence to his practice.  The only lack of responsibility demonstrated thus far by Hamblin is through allowing National Geographic to film a TV Series of his church participating in illegal activities.

Hamblin's practice may put his congregation and himself in danger every Sunday but is it the right of the state to intervene and forbid a sincere practice?  Hamblin has said that his only desire is to be able to practice his religion in peace, yet in a country that was founded on the principle of religious liberty, he could be incarcerated for attempting to do so.

What do you think?  Should Hamblin be allowed to continue his practice?  Would your answer change if a member of his church was injured or even killed by a snake?

Will You Go to Heaven When You Die?

            Imagine yourself enjoying a nice leisurely day of shopping when all of a sudden you walk past a man who approaches you asking “will you go to heaven when you die?” You politely ignore him and keep walking, uninterested in his view of religion, but feel slightly annoyed that he is trying to impose his views on you. Maybe you make a comment while walking past a security officer, hoping that the situation will be taken care of. After all, why should you be subjected to someone else’s view point, you came to the mall to shop, not to listen to someone preach. The mall cops kindly ask the man to leave the premises, and to go through the proper procedure in order to be allowed to solicit on the property. When he refuses, they arrest him on a defiant trespassing charge.

            David Wells, of Oakhurst, NJ was the man arrested in the Monmouth Mall. He is a born-again Christian, and a retired cop. A large part of his faith is to evangelize and spread the word of the Lord. While this may seem inconvenient to the passerby who holds a different religious view and is uninterested in hearing what he has to say, for Wells he would not be acting on his faith if he did not try to convert others. The best place to do this is in a public setting such as a shopping mall. However, the fact that this is a privately owned mall allows some restrictions on the assumed freedom of speech.

            Wells himself cited the New Jersey Supreme Court ruling “New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corporation” as evidence that he should be allowed to distribute pamphlets in the mall. This case concerned a group of Persian Gulf War protestors who had requested permission to hand out pamphlets in a mall and were denied. In this case the Court ruled that their freedom of speech was being inhibited. However, what Wells failed to recognize was that even in this case the Court recognized that the privately owned mall could impose reasonable time, place, and manner restrictions. The Monmouth mall did in fact allow solicitation and offered to make a reasonable accommodation had Wells simply sought a permit. Wells admittedly did not take this extra step. He did not see reason to; in his own words, “I was just talking to people. I wasn’t amplified, I wasn’t street preaching on top of a soapbox. I was just approaching people one on one.”

            What makes this case even more interesting is that not only is free speech a concern, but also Wells’ right to freely exercise his religion. Regardless of whether or not the mall owners have the right to censor his speech by requiring Wells to apply for a permit in order to “solicit” in the space, should they be able to hinder his free exercise of religion? This seems to resemble the 1940 Supreme Court case Cantwell v. Connecticut, in which Jehovah’s Witnesses were given an exemption from an anti-solicitation law because their evangelical practices were central to their religion and they were not harming anyone in a public sphere. There has not been a more recent case that would overturn this if the exact conditions occurred; in fact the Court has become even more sympathetic to religious freedom that overlaps with the freedom of speech. However, at what point is evangelizing not considered a central part of the religion and would protecting the right therefore be less important? Does the fact that a mall is technically a private sphere change the implications?

            I do not think that the courts should be able to decide which religion evangelizing is important in, because that leaves the minority religions in a very vulnerable place to be judged harshly by the majority. However, I also think that even if the courts held the centrality of evangelizing in a religion to high importance in determining a case like this, born-again Christians would probably be recognized as valuing the evangelical ideals almost as much as Jehovah’s Witnesses. Therefore, I think that if this case makes it to a trial, the Court should go off of precedent in the Cantwell decision and rule that David Wells was wrongly arrested and that prohibiting him from spreading his evangelical message in a mall is violating his right to freely exercise his religion. I do not find the argument that a mall is a private setting compelling, because although that may technically be true, the atmosphere is one of a public space.

            Although I do acknowledge the fact many shoppers may find the solicitation inconvenient, it is important to remember that even if they are the majority, the minority has a constitutional right to freely exercise his religion. The majority does not have a constitutional right to avoid any inconveniences. What do you think? 

The Prayers on the Bus Go 'Round and 'Round...

            Earlier this month, a Minnesotan school bus driver was fired from his job for inviting public school students on his bus route to pray with him. George Nathaniel III, is a pastor at the Elite Church of the First Born and Grace Missionary Church in Minneapolis, who also works as a bus driver in the Burnsville School District. His route transports students to both local elementary and high schools.

Nathaniel claims to have given the students a choice to engage in prayer or not, “I ask the students would they like to pray and if they like to pray then they can lead prayer themselves and then I will pray,” he told CBS. As a pastor, Nathaniel felt that it was his job to invite students to prayer and did not see anything wrong with morning prayer on the bus, since he never forced any students to pray. He also has told the Star Tribune that he was praying for the “safety of the children,” and after the last child boarded the bus on the seven-minute ride to school, Nathaniel would start out with a song and then invite students to join him in prayer, giving them, “something constructive and positive to go to school with.” Nathaniel was given a warning from his company, Durham School Services, who received a complaint from the school district. After continuing to lead prayer on the bus after being told by his employers to stop, he was terminated in a formal letter saying “There have been more complaints of religious material on the bus as well as other complaints regarding performance.”

There are several issues at stake in this particular circumstance. First, there is the issue of a “captive audience.” According to the ACLU legal director Teresa Nelson, Nathaniel violated the First Amendment because the “school bus is a captive audience. When he is driving the bus he is acting like a school official and he does not have the right to proselytize or promote religion in that context.” Ruth Dunn, a school district official, refused to comment directly on prayers but did say that the district considers “the school bus to be an extension of the school day when it pertains to student behavior and support.” Finally, an employment lawyer commented on Nathaniel’s behavior, and argued that while the law tries to “balance employees’ rights to express religious beliefs and the rights of others to be free from the imposition of those beliefs,” that Nathaniel’s morning prayer fails to satisfy the stipulation of not being an imposition, since he is an authority figure to the students.

A second problem addressed by the Star Tribune was the diversity of the school district. Another district bus driver noted that some routes transport primarily Muslim students, and a Muslim parent, Sanaa Hersi, whose daughter is in the elementary school, is concerned that prayer on the bus would undermine the Islamic prayer they teach at home. On the other hand, another parent was fine with the prayer, claiming, “If they don’t like it, they can just ignore it.” Nathaniel claims to have spoken with parents as he saw them at bus stops to ask if what he was doing was okay with them, and they agreed it was fine. Clearly Sanaa Hersi was not at the bus stop that morning.

Ultimately, Nathaniel rejects the claims of the ACLU as well as the district, and believes his termination to be a violation of his right to free exercise, as well as free speech. He has claimed “they are trying to take away every right the Christian has to express our Christian belief in this supposed to have been Christian nation” and that Christians have been relegated to being “closet Christians,” but that if “you have something good, you are going to share it with somebody.” The question is, in the context of his job as a school bus driver, does Nathaniel have the right to share his belief and invite explicitly Christian prayer among the students on the bus? Is his inability to pray on the bus a violation of his free exercise, or is the imposition of Christian prayer on a group of public school students a form of Establishment? In part, this depends on whether or not one considers time on the bus to be an extension of the school day, but it also begs the question of who exactly should be regarded as a representative of the school?

The Supreme Court has dealt with very similar questions in several cases, especially in Lee v. Weisman where the Court deemed it unconstitutional to have clergy-led prayer at a graduation ceremony as the clergy was seen as a representative of the school, which upheld the decision in the landmark case, Engel v. Vitale which made it unconstitutional for schools to encourage or lead prayer in school even if students are not forced to participate. More recently, the court found student-led prayer before football games to be unconstitutional since it was seen as the district’s endorsement of religion on school property and at a school event, in Sante Fe Independent School District v. Doe. Generally, the courts have found that school prayer violates the First Amendment’s Establishment Clause.

            Following the trend in school prayer cases over the past 50 years, I agree with the bus company’s decision to terminate Nathaniel’s employment. He has a captive audience of young people, who admittedly are not forced to take the bus to school, but in many cases if a parent works, the bus is the only option. So in that way, the student has no choice but to be there (much like a football player on the football team in Santa Fe v. Doe, or a student who wants to be at graduation in Lee). I also consider the time on the bus, as well as the physical space, to be an extension of the school day, particularly because the buses are funded by tax dollars and are school property. Following the argument in Santa Fe, prayer led by an individual is not private speech, but it is speech representative of the school, since it is on school property and in a school-related setting. Granted, the students have not begun the official school day, but by the same token, if a student were beat up on the school bus, would the school not consider that behavior to be punishable since the school day has not started yet? Finally, as we have seen in other cases and blog posts, giving children the opportunity to not pray when everyone else is—whether it is within the confines of a classroom or a football stadium or a graduation ceremony, and now a bus—is not always an easy choice to make and can be coercive even when coercion is not intended.

            What do you think? Should Nathaniel have been able to lead prayer on the bus? Was his termination a violation of his right to free exercise, or was the prayer a form of Establishment?

Halloween Is An Establishment of Religion?

Last month, a Pennsylvania school district decided to cancel elementary school Halloween celebrations because of its religious nature.  The school principal, Orlando Taylor, signed a letter that stated: "Some holidays observed in the community that are considered by many to be secular (ex. Halloween, Thanksgiving, and Valentine's Day) are viewed by others as having religious overtones. The district must always be mindful of the sensitivity of all the members of the community with regard to holidays and celebrations of a religious, cultural or secular nature. The United States Supreme Court has ruled that school districts may not endorse, prefer, favor, promote or advance any religious beliefs" (Scott 3).  “The district says the changes were made to maximize instruction time in the classroom, and that school-wide Halloween activities can take place before and after school hours” (7).  In exchange for canceling Halloween parties, the school district announced plans to hold a fall festival after school hours where students would be permitted to wear costumes.  Interestingly, the reaction from parents and students is mixed, with some parents complaining of no longer celebrating American tradition and culture and others stating that they would not send their children to school during the celebrations; however, the real debate in this case is whether Halloween celebrations in schools violate the Establishment Clause.  

In 1993, in Clever v. Cherry Hill Township, the use of religious symbols and the marking of certain religious holidays on calendars was challenged by Cherry Hill, New Jersey taxpayers.  School parents also objected to religious displays in classrooms.  This specific case involved Christmas.  While it never made it to the Supreme Court, the New Jersey District Court ruled:  "Religion is a pervasive and enduring human phenomenon which is an appropriate, if not desirable, subject of secular study.  It is hard to imagine how such study can be undertaken without exposing students to the religious doctrines and symbols of others.  Plaintiffs protest that the calendars and central displays are not part of ‘a planned program of instruction,’ but the use of appropriate classroom and central displays is clearly a recognized and legitimate educational technique."  The ruling in this case permits public schools to include religious holiday observances and education.  The application of this ruling, because Halloween and Christmas are both included on the calendar and are from two different traditions, proves that there is no preference for one religion over another.  The custom of the Halloween celebration originates as a pagan holiday that was later influenced by the Catholic Church:   "Halloween is also known as All Hallows’ Eve, and traditionally the day serves serves as the beginning of Hallowmas, the time in the liturgical year dedicated to remembering the dead, including saints and deceased religious believers. Hallowmas is derived from two words: the Old English word halig, meaning saint, and the word mass. Many scholars believe that Hallowmas was created by the Catholic Church when it took a pagan holiday, Samhain, and Christianized it in order to ease the pagans’ conversion to Christianity. Samhain itself is a festival marking the end of the harvest season and the beginning of winter, and it is celebrated by modern pagans and others from sunset on October 31st to sunset on November 1st" (Bulger 2).  The question here is whether or not paganism is a religion.  I believe that it is; however, while Halloween has had Christian influence, the holiday itself is no longer religious.  It is a festival that initially celebrated the harvest and honored the dead.  In modern society, Halloween is commonly associated with costumes and candy, and most children are unaware that this celebration stems from a pagan holiday that was influenced by the Catholic Church.  Because Halloween has evolved into a secular tradition, I do not see celebrating this in schools as a violation of the Establishment Clause.  The purpose of the Establishment Clause is to prevent the government from promoting one religion over another.  The celebration of many holidays (Halloween, Christmas, Thanksgiving, and the Fourth of July for example) that originate from different religions, cultures, or historical events have been included on mass distribution calendars and recognized by the general population.  This fact demonstrates that the recognition of a faith tradition event is not equated to government sanctioning or promotion.  Therefore, because no one religion is being promoted over another, the celebration of Halloween in schools is not an Establishment of religion.  Do you agree?     

To Teach Or Not to Teach

In Volusia County, FL, there have been protests by right winged residents over what the groups argue to be an unfair balance between Islam and Christianity in school texts books.  The protesters contend that the two volume world history textbook series devotes an unequal amount of pages describing the foundation of Islam.  The school contends the page count is necessary in order to allow for a greater understanding of its cultural impact in the Middle East.  The groups have been demanding the school provide replacement textbooks that devote a proportional amount of pages for both Christianity and Islam.  “Critics say the 1,000-page book devoted too many pages to the rise of Islam without providing equal coverage to Christianity. One Lake County activist suggested patriotic schoolchildren should be encouraged to rip out the 32-page chapter on Islam, though he later recanted his position.”  The school contended that the reasoning behind the unequal coverage was simply a matter of chronology. “Because Mohammed, the founder of Islam, wasn’t born until about 570 A.D., the chapter on Muslim civilizations is found in the second book. By the time Volusia County students read about him, they’ve already learned about the rise of Christianity in the sixth grade.”  The school is not backing down and pledged to continue covering all major religions that “help us understand the modern world”.  With the debate continuing to heat up, some individuals, who champion the inherently secular nature of public school’s, argue that religion should not be taught in school.  These individuals will denounce the schools approach of using religion as a tool to develop a greater understanding of the world.  

In this particular case, the court will eventually struggle with the question of whether or not Volusia County is violating an aspect of the Establishment Clause. More specifically, is the County showing preference to one religion over the other (Islam v. Christianity, Judaism, etc), or is the County unlawfully adding religious curriculum into its public schools.  In the first argument, the school would have to prove a secular purpose of devoting more material covering the religion of Islam.  This would be a requirement in order to pass the Lemon test which may or may not be convincing enough to some.  On the other hand, the school may be challenged by the law to take all religion out of its curriculum.  The landmark case Epperson v. Arkansas paved the way for secular public schools.  Molleen Matsumura fromThe National Center for Science Education makes an excellence point regarding the famous case; “...the U.S. Constitution does not permit a state to require that teaching and learning must be tailored to the principles or prohibitions of any particular religious sect or doctrine.”  This principle could likely be applied to the Volusia County Public School system.  In short, if no secular purpose is legitimately contended, the district needs to prescribe to the law which would either provide for a balanced approach toward the implication of religious curriculum or it needs to ban it all together.

There should be no doubt in anyone’s mind that this case, like a plethora of others, will help mold the future for public schools in the United States. I believe this case helps discover the attitudes toward the secular nature of public schools as well as aid in the understanding of the social shift in our country.  In addition, this particular case may serve as an example of how religiously motivated controversy could lead to protest.  The article specifically cites that attempts at holding meetings have been futile due to the serious potential for violence.  It may be time for public schools, of all regions, to realize that without religion in the schools there may be a decreased potential for vicious debate.  It goes without question that the schools willingness to teach religion in schools lead to the protests and likely a change in curriculum.  I feel that the religion in public schools, especially K-12, should take religion out of its textbooks (curriculum) in order to remain secular and to avoid social consequences.  More specifically, this change could prevent unintentional indoctrination, social pressure, and violent protest.  With social issues aside, I will even go as far as to contend that the constitution argued for a strict separation and that there is not justifiable secular purpose to teach any form of religion in public schools.  I also fundamentally disagree with the focus of the article covering the debate in Volusia County.  I feel the author brought in politics by slamming the “conservatives”  for being anti-muslim and or radical Christians.  I feel the politics in the public school debate plays too much of a role.  I feel that this debate should transcend political ideology and instead focus on the fact that the public school system is generally an extension of the state.  The same state that is apart of the infamous quote; “separation of church and state.  

After reading, do you feel that Volusia County needs to be fair and balanced with its incorporation of religion in textbooks or do you think the County needs to take religion out of their textbooks and classrooms? 

Daily Devotionals to President Obama: Religious Establishment?

On October 22, 2013, Joshua Dubois’s book, The President’s Devotional, was published and made available to the public.  Dubois is a Pentecostal preacher and the former head of the Office of Faith-based and Neighborhood Partnerships in the Executive Office of the President of the United States.  The book is a compilation of 365 of the thousand daily devotionals that Dubois emailed to President Obama each morning during his first term and into his second.  Each devotional includes a Bible passage, a short prayer, and, often, a reference to relevant and difficult national issues.  The goal of the emails was to help the President cultivate his Christian faith and maintain a close spiritual relationship with God.  President Obama called the reflections meaningful, and those around him said the emails grounded and motivated him.

The Office of Faith-based and Neighborhood Partnerships was established by the Bush administration in 2001 to “[form] partnerships between government and non-profit organizations, both secular and faith-based, to more effectively serve Americans in need.”  Since its inception, the Office has received some criticism from Americans United for Separation of Church and State and the American Civil Liberties Union who argue that the Office uses government funds to support religion.  The White House, however, ensures that the Office strengthens the capacities of faith-based and community organizations to provide social services in ways that are consistent with Constitutional guarantees.  The Obama Administration established an Advisory Council for the office made up of religious and secular leaders from various faiths and backgrounds and has been working to expand the office’s responsibilities.

The specific daily devotional practice has caused controversy because it was not part of Dubois’ job description. Critics have argued that there were more pressing duties and issues for Dubois and his office to be addressing.  The daily religious reflections have also been criticized because the specifically Christian prayers and lessons were composed and sent to the President using government time and money.  Dubois argued that although he spent an average of an hour to an hour and a half every day writing the emails, he usually did so on personal time and often from his personal email rather than his White House account.  Dubois, in addition to writing these daily devotionals, also strongly advocated for Rick Warren to give the invocation at President Obama’s first inauguration.

Under the First Amendment, Congress is prohibited from passing a law that establishes religion.  Despite this seemingly straightforward constitutional command, Establishment Clause jurisprudence has varied greatly throughout the Court’s history.  In Epperson v. Arkansas, the Court ruled that the government must be neutral and non-preferential with respect to religion, and must not be hostile to or promote any religion or non-religion.  The Lemon Test, which originated in the Lemon v. Kurtzman decision of 1971, controlled Establishment Clause jurisprudence for many years.  In Wallace v. Jaffree, some members of the Court began to push back against the use of the Lemon Test and take a more accommodationist perspective, arguing that government action can have religious purposes rather than just secular ones.  The Court has also used Justice Kennedy’s coercion test and Justice O’Connor’s endorsement test to determine constitutionality in religious establishment cases.

In Lamb’s Chapel v. Center Moriches School District, the Court simply mentioned that school districts allowing religious groups to use their facilities after hours passes the Lemon Test without going into detail about the prongs of the Test.  Justice Scalia, in his concurrence, related the Test to a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”  Scalia found fault with the Court’s continued use of what he saw as an unconstitutional test, and argued that Justices only invoke the Test when they want to strike down certain practices that violate it.  In one of the most recent establishment cases, Mitchell v. Helms, the Lemon Test was used, but the effect and entanglement prongs were combined.  Recent cases have also brought up conflicts between the Establishment and Free Exercise Clauses of the First Amendment.  The issue at stake here is whether government composition of prayers and Bible lessons for the President establishes the Christian religion in America.

It is important to note that no President thus far in American history has been an atheist or a follower of a non-Christian religion.  Religious beliefs of presidential candidates can greatly influence their electability, and can affect how they lead if elected to the position.  President Obama is a Christian who came to religion in adult life after not being raised in a religious household.  I do not think that Dubois was writing the President’s devotionals with the intention of promoting or establishing one religion in the U.S.  President Obama is a Christian and Dubois wrote the prayers with the goal of helping the President express his faith and ensure its importance in his busy life.  Based on more recent Establishment Clause jurisprudence, with movement away from the Lemon Test, I do not think the daily devotionals are an establishment of religion.  They may not have a specific secular purpose, but I agree with some members of the Court who have argued that religious purposes can be permitted so hostility to religion does not occur.

I think the argument could also be made that the government is being neutral towards religion in this case.  Dubois wrote specifically Christian prayers and lessons because the President is a Christian, not to promote Christianity over other religions.  It just so happens that this is the religion of the current President and all those who have come before him.  While I think the country would benefit from leaders with more religious diversity, this is the reality in the U.S.  And while I agree with critics that Dubois should not have written the prayers with government time and money because that was not one of his duties, the White House and Dubois, in this case, were expressing the importance of religion in the lives of Americans, not establishing religion in America.

What do you think?  Are you comfortable with the daily devotionals?  Do they constitute an establishment of religion?

The Politics of ENDA and Catholics

The United States Senate just passed a bill to be voted on called the Employment Non-Discrimination Act, better known as ENDA. This bill would ban employers from firing, refusing to hire or discriminating against workers or job applications based on their sexual orientation or gender identity. The Senate vote to hear a debate on the bill ended up being 61-30, clearing the 60-vote procedural Senate hurdle by one vote. The vote results showed seven Republicans crossing party lines and affirmed the passage of the bill to be debated among Congress members. This bill is groundbreaking, considering that the Senate has not deliberated a federal nondiscrimination law concerning sexual orientation since 1996, and it is the first nondiscrimination bill to include the protection of transgender people. Federal nondiscrimination laws are already in tact to protect workforce discrimination on the basis of race, religion, gender, and a number of other factors. However, it still remains legal in most states to fire or refuse to hire people because of their sexual orientation. Only 21 states and the District of Columbia offer protections to people of all sexual orientations.

There is one big concern for Republicans: the religious implications of a bill like this. If there is a concern for Republicans, there is a concern for everyone because the bill will not be passed through the House without the consent of both political parties. The Catholic faith is leading the loudest protest to the bill, saying that their constitutional guarantee of free-exercise is infringed upon if they are not offered an exemption from the implications of this bill. Catholic’s state that they are vehemently against “unjust discrimination,” including those who experience same-sex attraction. The Church basically says that the same-sex attraction is okay, but if one actually acts of the attraction that is a whole other story, and the church is asking for the right to discriminate based on “conduct,” rather than just “status of sexual attraction.” A murky distinction if you ask me…

Three bishops from the Catholic Church wrote a letter to the US Senate explaining the problems they see in the ENDA bill. The Church wants an exemption from the bill because they believe it has five fundamental flaws and ultimately impedes on Catholic followers’ free-exercise of religion. The five flaws are that the ENDA bill: lacks a BFOQ exemption, needs status/conduct distinction, supports marriage redefinition, rejects the biological basis of gender, and threatens religious liberty. For our purposes, only the first and last points are relevant towards the constitutional debate, however the other points are well articulated and entertaining if you’d like to read them in the hyperlinked letter above.

The first complaint is that the Employment Non-Discrimination Act does not have a BFOQ exemption. A BFOQ is a “bona fide occupational qualification,” for cases where employers are offered an exemption to the nondiscrimination laws because they see that it is not unjust to consider certain aspects of job applicants. The Church argues that only racial discrimination does not allow a BFOQ, and that discrimination on the basis of religion, sex, and national origin discrimination do offer BFOQ exemptions. Therefore, the church is asking for a BFOQ exemption because they argue that if they are not offered one, sexual orientation is being put on the same playing field as race and racial discrimination.

The second complaint is that the Catholic religious liberty and constitutional right to free-exercise is being challenged by the nature of the ENDA bill. The Catholic Bishops argue that ENDA could be a way to punish what many religions – including the Catholic religion – teach. Thus, arguing that the bill, and therefore the government, is implying that follower’s of the Catholic faith will be punished if they act in accordance to their religious doctrines.

I will now, respectfully, counter each argument the Church has offered. I wish to advocate that the ENDA, as it is, does not place enough of an infringement on Catholic’s free-exercise of religion. To me, the factt that a term such as “unjust discrimination” even exists is questionable, at best. All discrimination is unjust no matter what basis it lies under. I do not find the distinction between same-sex attraction, and same-sex action that the church lays out compelling. The Church basically approves of celibate people who have same-sex attraction and hide it by not acting on it, and suggest that it is "just" to discriminate against sexually active homosexuals and that discrimination should be protected in law.

As for the BFOQ argument, it is compelling and something I did not know before. However, once I researched more I found out that this statue is rarely used, and courts have interpreted it very narrowly. According to Title VII, race or color is not included in the BFOQ because the state acknowledged that there couldn’t be any reason that would justify discrimination on the basis of race of color. These are the basis that allow discrimination under the BFOQ:

“In order to show that a discriminatory action was allowable as a BFOQ, an employer must prove:

1.              There is a direct relationship between the protected characteristic and the ability to perform the job duties;

2.              The bona fide occupational qualification directly relates to the “essence” or to the “central mission of the employer’s business”; and

There is no less-restrictive, reasonable alternative available to the employer”

The court has made these guidelines specifically strict and very hard to apply. One of the few cases where a BFOQ was awarded was in International Union, UnitedAutomobile, Aerospace & Agricultural Implement Workers of America, UAW, et.al. v. Johnson Controls, Inc.  In that case, the employer established a policy excluding fertile women from working in a position that required exposure to high doses of lead, in order to protect the possible unborn fetuses from damage due to the lead exposure. The courts have never approved this BFOQ exempt status to a group of people, and it is hard to believe that the state could award it to a group as large and as powerful as the Catholic Church.

For the second argument the Church makes, I can see that there may be a burden on the  religion. However, their free-exercise burden is outweighed by a compelling state interest to end discrimination on the basis of sexual orientation. If the Catholic Church were to receive this exemption, it would apply to other religiously affiliated institutions beyond just churches, such as hospitals. The state also has a compelling interest here to intervene to ensure that the hospital has, let's say a heart surgeon, who is most qualified for the job of saving people’s lives, regardless of his or her sexual orientation.

It was found that there are roughly 8.2 million gay and lesbian employees nationwide according to estimates released by the Williams Institute at UCLA in which researchers drew their estimate from U.S. Census data on the public- and private-sector workforce. If the government offers the Catholic Church an exemption, there could be 8.2 million Americans without a job due to discrimination—that doesn’t sound very American to me. Therefore, the state has a compelling interest to deny the Catholic Church this exemption because human rights and equality are secular American values that, in this case, trump religious free-exercise.