Sunday, December 8, 2013

Swastika Slandering

            Earlier this year, on November 13th, tattoo parlors around the world offered free tattoos of swastikas as part of an ongoing effort to restore the swastika that the Nazis abused to its original meaning. The swastika is a symbol that originated in Hindiusm and that prior to the Nazi’s hijacking, had purely positive connotations. Unfortunately, since World War II, most western civilizations now view the swastika as a symbol of Nazism, white supremacy, and hatred. However, the swastika is still widely used in Asia and in Indian religions, such as Hinduism, Buddhism, and Jainism. 

            About a year ago, a concerned individual came across a pair of swastika earrings at Bejeweled, a jewelry store in Brooklyn, New York, and proceeded to send a picture of the earrings to a gossip website. As to be expected, the jewelry store quickly came under fire. The storeowner, Young Sook Kim, originally defended her decision to sell the earrings, claiming that the swastika is a symbol in Tibetan Buddhism. Numerous New York politicians responded to her defense with animosity. Manhattan Borough President Scott Stringer claimed, “…a swastika is not a fashion statement. It is the most hateful symbol in our culture and an insult to any civilized person.” He then proceeded to make underhanded accusations of anti-semiticism on the part of Kim by detailing anti-semitic incidents in Manhattan and Brooklyn. City Councilman Steve Levin called the storeowners actions as “totally outrageous” and claimed “they should be sensitive to what that symbol means to Jews around the world.” However, the most hostility came from State Assemblyman Dov Hikind, who called Kim’s defense nauseating and stated “It’s sick. It’s insulting. It’s degrading. The average person, when they see a swastika, they see it as a symbol of hate. End of story.” City Councilman Steve Levin then decided to visit Bejeweled to inquire about the earrings at which point, the owner agreed to stop selling he earrings. Levin then reiterated his former statement, claiming, “We have to be sensitive to what each other has gone through.” Unfortunately, I think the irony is lost on Levin.

Bejewled Jewelry Store
            Growing up in a western civilization, I too feel discomfort when I see the swastika, and I am sure that to many, the swastika evokes feelings of horror that I will never understand. However, that being said, the United States Constitution guarantees a right to freedom of religion, something that was threatened when New York politicians bullied a storeowner into removing a symbol of her religion from her store. The United States Supreme Court has demonstrated numerous times in the past that it is willing to protect minority religions, even when in doing so, they cause discomfort to the majority. For example, in Church of Babalu v. Hialeah (1993), practitioners of a religion called Santeria, which practiced ritualistic animal sacrifice, wished to establish a place of worship in the city of Hialeah. The idea of a Santeria church in Hialeah caused great discomfort to many members of Hialeah, and the city council proceeded to outlaw animal sacrifice. The Supreme Court decided that outlawing of animal sacrifice was not religiously neutral and ruled it unconstitutional, protecting the minority at the expense of the majority’s comfort. In another case, Cantwell v. Connecticut (1940), three Jehovah’s Witnesses were soliciting in New Haven, asking people on the street if they could play a phonograph record for them. The phonograph record included an attack on Catholicism, and as the area where they were soliciting in was highly Catholic, the record offended some people who were solicited. The Jehovah’s Witnesses were arrested for soliciting without a permit, but the United States Supreme Court overturned the conviction, claiming that the Jehovah’s Witness’ actions were protected by the First and Fourteenth amendments. These two Supreme Court cases demonstrate that there is a constitutional guarantee of freedom of religion, but not a constitutional guarantee of freedom from being offended, even if the offense is understandable to “any civilized person.”

            There are those who claim that it is impossible to rehabilitate the swastika after what has happened in World War II. While this is an argument I understand, it is often irrelevant, because for some people, the swastika does not need to be rehabilitated. The swastika is still used widely in other parts of the world, and for people from these parts, the swastika still has its original meaning. Another argument is that the swastika is often still used as a symbol of hatred and anti-semitism in the United States. While this is true, it is fortunately usually easy to see when the swastika is being used as a symbol of hate rather than a religious symbol by looking at the context. I therefore can find no state interest that is compelling enough to justify burdening Kim’s free exercise of religion.

Young Sook Kim was therefore denied her right to freedom of religion, guaranteed by the First Amendment of the United States Constitution when she was bullied, insulted, and coerced into removing an item bearing a symbol of her religion from her store. Levin was correct in saying that we need to be sensitive in what others have been through. However, this includes being sensitive to those of a minority religion that views the swastika positively, and is forced to deal with the polarized opinion of a western civilization.  

The Catastrophic Contraceptive Case

            Recently the Affordable Care Act, a part of ObamaCare, has been the topic of much controversy in the Private Business Realm. The Affordable Care Act requires companies of a substantial size, employing more than fifty individuals, to provide health insurance in the form of contraceptives. Companies who refuse to provide this coverage are subject to fines daily according to the number of employees who are withheld the insurance. Naturally there are exceptions to be made for this type of coverage along the lines of the First Amendment.
            The purpose of contraceptives clashes with many religious organizations that see them as opposing the Creator’s intention for men and women. As result, certain non-profit religious organizations have received an exemption to the Affordable Care Act. Organizations receiving exemptions include selective hospitals, universities, and charities. This exemption, however, certainly does not apply to all private businesses. For that reason, several private business owners have separately filed for exemptions to this Act based on religious convictions and perceived immunity provided by the First Amendment. The First Amendment, after all, does prevent Congress from making a law that prohibits the free exercise of religion.

            Lower courts have recently ruled differently in regards to private businesses filing for exemptions to the Affordable Care Act. The court lifted the Act for one private chain, Hobby Lobby, based on religious reasons. Around the same time, a different court was unwilling to lift the mandate for a private manufacturing company, Conestoga Wood Specialties Corporation (CWSC), despite its similar appeal to the First Amendment. This certainly raises the question, how does the freedom to exercise religion pertain to the Affordable Care Act and private business owners? The response of the lower courts provides a nebulous answer to this important issue. The answer to this question is important, as it will help provide the Americans with some guidelines on who are and what is guaranteed the freedom to exercise religion. The issue also addresses what sphere(s), private or public, the First Amendment regards. For lucidity, America turns to the Supreme Court, whose impending answer I will now address.
            I first address the sphere to which this issue pertains. In my opinion, the freedom to exercise religion should be contained to the private sphere and not the public as much as is possible. Religious organizations usually exist with the purpose of growing a body of adherents to one faith. These organizations inherently exercise religion by their very existence. They may provide a public service, but that does not constitute the purpose for existence. We may perceive them as belonging to the private sphere. On the other hand, private organizations that provide a public service, such as Hobby Lobby and CWSC, do not exercise religion as part of their existence. Therefore, I do not think that these should be considered as part of the public domain. So they should not exist as entities under the First Amendment that exercise religion. This is where the public and private spheres in regards to private businesses diverge. For that reason, business decisions, such as company wide health insurance, should not be subject to the religious convictions of its owners or shareholders. Private non-profit companies should be required to provide the health care mandated by the government.
            Sherbert v. Verner was a 1963 Supreme Court case that dealt with an individual who was fired for refusing to work on Saturday, and was denied unemployment benefits. The Court found that this violated the woman’s right to freely exercise her religion as a Seventh-day Adventist due to a substantial burden and no state interesting compelling enough to bring about this burden. So I also ask in the midst of deliberation, does the contraceptive mandate provide a substantial burden on the private business owners without a compelling state interest? Firstly, the mandate only imposes an indirect burden on business owners. The mandate is generally applicable and was proposed with goal of benefitting women, not subverting religion. The Act does present a burden to private business owners, but that burden is merely economic. Not only that, but the burden does not prevent business owners from freely practicing religion as it pertains to their own personal lives, the mandate does not compel them to use the contraceptives. Business owners do not claim a religious tenet that forbids them from providing others with contraceptives, so the burden does not seem to substantially affect an owner’s personal adherence to religious beliefs. I also think that a state interest exists to benefit women and their families who may not be able to afford this type of coverage. There obviously exists a more full proof method to preventing conception than contraceptives, and thus I don’t deem this interest compelling to the point that it should greatly burden religious freedom. Still, the burden is not substantial, and so private non-profit business owners must obey it.
            Finally, if all private business owners were granted an exemption, there is always the possibility that it will be taken to the extreme. This decision could potentially create a “slippery slope,” allowing business owners the right to prevent employees other benefits. This could essentially allow business owners to discriminate against certain employees for various reasons that they claim prohibit their free exercise. It is hard to foresee the type of corruption this might lead to, and thus it must be prevented.
            All this being said, I empathize with the private business owners who feel unable to practice their religion. But, I don’t believe they are covered under the free exercise clause to be granted an exemption.

Happy Holidays to some...

In Maryland, state law describes how public school holidays should be timed with Christmas and Easter. Many county public schools have since then also provided days off in recognition for Jewish holy days. Montgomery public schools made this adjustment in the 1970s. In light of two religions receiving their holy days as school holidays, today, Muslims in Montgomery County are calling for public schools to recognize one of the two major Islamic holy days as well.

Montgomery County public school officials have explained that high rates of absence on a day are necessary for consideration as to whether to add it as an official school holiday. One of the two major Muslim holy days, Eid al-Adha, saw that 5.6 percent of students and 5 percent of teachers were absent this year. To compare, the previous Tuesday had absence percentages of 3.2 (students) and 4.2 (teachers) respectively. Some Muslims, however, are calling these figures insubstantial because the percentages of other public school workers that were absent (like bus drivers and cafeteria workers) are missing and would help show that enough people are absent to warrant a school holiday.

It is important to note that Muslim kids are not directly harmed when exercising their religion and not attending school on either major holiday. Muslim holidays are labeled as non-testing days and related absences are excused. The Superintendent, Joshua P. Starr, also explained that the schools and teachers help students complete any work that was missed. Muslim families still feel that their kids should not have to make a choice between exercising their religious beliefs and missing instruction.  
School holidays in observance of religious holy days raise some very important questions as the situation above demonstrates. On one hand, there is a potential establishment issue of designating certain holy days as holidays while others go unremarked. The majority opinion of the establishment clause in Everson v. Board of Education explains that the establishment clause at least means that “Neither a state nor the Federal Government…can pass laws which aid one religion, aid all religions, or prefer one religion over another.” A definitive argument can be made that giving Christian and Jewish holy days off either aids these religions or preferences these religions above others, like say Islam. In light of this, some schools, like SUNY Stony Brook, a public university, are simply not giving any religious holidays off. This however, has been met with much anger. Some other school districts like that of New York City are moving in the opposite direction, toward ‘respecting’ Islam holy days and having them off. But would this just add Islam to the list of religions that are aided/preferred?

On the other hand, a free exercise case could be made for having Muslim holy days as designated school holidays. As the Muslim parents noted, missing school in order to observe Eid al-Adha and other days places a burden upon their free exercise. The burden is that the kids potentially miss important instruction and also may feel anxiety upon making a choice between school and religion.

Overall, I believe that the Montgomery County Schools should not make any of the Muslim holy days school holidays due to the current available statistics. For example, if the Christian holiday of Christmas was no longer a school holiday and Christians decided celebrate this day and not go to school, over 50% of Montgomery County School students, teachers, and other workers would most likely be absent. Operating schools with this many people absent is not only economically/socially useless but also probably ridiculously difficult, so the school might as well coincide this date with winter break. Unfortunately, while 5-6% could constitute a lot of people missing depending on overall numbers, it is not large enough nor outside the norms of non-holy days for the school to shut down and deem this day a holiday. Now the precise percentage that warrants shut down is obviously another issue for debate, but I think that if the public school system bases its decision on percentages, then the absences on days like Eid al-Adha must be higher. Absence rates are a secular determining factor and basing school holidays off of them might have the effect of giving preference to certain religions in society, but it is not the purpose. As McGowan v. Maryland, which challenged Sunday closing laws, pointed out, “it is equally true that the "Establishment" Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions.”

With regards to the free exercise issue, there is certainly a burden upon Muslims in this community. Unfortunately, I think that accommodating Muslim students’ absences is the best that can be done because if the school system gives an Islamic holiday off because ‘its only fair,’ then the slippery slope principal comes into effect. If other religious groups start making cases for their holy days to be school holidays, then how much longer is the school year going to be drawn out?

In conclusion, I believe that the establishment issues raised in this situation are moot so long as the school continues to give days off based on these rates. Accordingly, perhaps days will eventually have to be re-evaluated given the changing nature of religious affiliations and people over time. With regards to free exercise, accommodation is the best the Montgomery School Systems can provide at this point in time. Due to the 98,328 public schools, the issue of religious holidays as school holidays has many important widespread ramifications. 

Friday, December 6, 2013

Public School Bans Religious Fliers

In Kansas, a seventh-grade student at Robert E. Clark Middle School wanted to distribute and post fliers that advertised a religious event. The event is called “See You at the Pole,” involving a student-led prayer performed around the flagpole before the school day. Even though many other fliers have been allowed to be distributed and posted in the school, this student was prohibited from doing so.
            The fliers the student was distributing contained Bible verses to promote the event, which would consist of prayer for the school, students, staff, and the country. After handing out the fliers at school, the student was approached by a school counselor at a school dance and was told that her fliers were “illegal.” This was based on the policy within the district that banned the “distribution of religious materials…on school grounds or in any attendance facility before, during, or after the school day or a school activity.” After school officials removed and destroyed the fliers the student had posted, she continued to secretly hand out fliers to other students without teachers’ knowledge. Because she was not able to publicly provide students with information about the event, the event was poorly attended.
            The Alliance Defending Freedom filed a lawsuit for the student, as her First Amendment rights concerning freedom of religion and free speech had been violated. They argued that students should not have to surrender their constitutional rights in the public school. The freedom of speech cannot be discriminated based on its viewpoint, which in this case was religious. The school allows all kinds of fliers to be posted within the school, including a poster of Lil’ Wayne that contained the phrase “Good Kush and Alcohol.” Also, the religiously oriented fliers did not have any great impact that would hinder the progression and order of the school day. Alliance Defending Freedom, therefore, believed that the school policy should be altered to allow the students their constitutionally protected rights.
            The issue here is whether this school policy of banning the distribution of religious materials violates the students’ rights of free speech and free exercise of religion as stated in the First Amendment. Although the school is allowed to set policies to monitor the students’ behavior, students should not be expected to give up their constitutionally protected rights while in the school domain. While the rules set are formed to maintain order throughout the school, the students should still be allowed some freedom, especially in situations concerning their constitutionally given rights.
            From the school’s viewpoint, I can see that this policy may have been put in place in order to avoid any sort of establishment or endorsement of religion. However, this policy functions more closely to an act of hostility towards religion. The policy singles out religion as the only subject of materials that is banned from dispersal. Therefore, the concern of this case is based on the individual students’ rights to free speech and free exercise of religion as opposed to any issues of establishment.
            There have been several cases that have dealt with free speech and free exercise of religion within the school setting. One example is Westside Community School v. Mergens (1990). In this case, a group of students was prohibited from forming an after-school Christian club. The Supreme Court ruled that the formation of this club was not a form of establishment and the students were protected by the Equal Access Act, which provides all students the ability to express themselves as they please, whether it is religiously related or not. If all other clubs are allowed, the school cannot deny a religious group to form a club as well. Similarly, in Rosenberger v. University of Virginia (1994), a student group that distributed publications from the Christian perspective was denied finance for publishing costs. The Supreme Court decided that denying financial subsidy to the religious publication violated the students’ First Amendment rights. Because the University funded all other publications promoting free speech, it was unconstitutional to discriminate against this specific group based on the religious content.

            These two cases and the one described here all commonly pertain to the issue of viewpoint discrimination. In these cases, the policies that had been established and the actions of the schools were prejudiced against a religious view. Even though all other groups or clubs were allowed to convene or distribute materials advertising their events, the religious groups were specifically discriminated, which is a violation of the students’ First Amendment rights. All students are entitled to their rights to free speech and the free exercise of their religions. The student at Robert E. Clark Middle School should be allowed to distribute pamphlets and advertise the religious ideas and events just as any other student is allowed to express his or her views on any other type of subject matter. Even though in some cases, such as Westside Community School v. Mergens, the school authorities might fear establishment, the overriding issue is the violation of appropriately allowing the students their First Amendment rights. The actions of the students are a reflection of the students themselves, and the schools should encourage the sharing of their diverse beliefs instead of regulating them.

            No decision on this case has been reported yet, but how do you think the court should decide? Do you think that the school policy should be changed to allow distribution of religious materials in school? Or do you think that the policy should remain the way it is because there is a legitimate fear of establishment?

Monday, December 2, 2013

One Nation, With a Passport Under G-d

The issue of putting G-d in our patriotic rites has long been debated, and even discussed on this blog before - along the lines of our money, the Pledge of Allegiance, and the Bible oath.  Each of these occurrences happen within the United States and can therefore be looked at as internal issues between various American identities.  But what happens when the collective American identity is labeled as theistic to the rest of the world?

That is what the Freedom From Religion Foundation (FFRF) has determined the government has done with the introduction of a new United States passport.  The debut of a new passport means the designs needed to be revamped, of course, but this time around the U.S. State Department decided to include some rather prominent quotes with theistic meanings.  Examples of such quotes include:
"May G-d continue the unity of our country as the railroad unites the two great oceans of the world." - inscribed on the Golden Spike, Promontory Point, 1869
"We have a great dream. It started way back in 1776, and G-d grant that America will be true to her dream." - Martin Luther King, Jr.
"This nation, under G-d, shall have a new birth of freedom." - Gettysburg Address by Abraham Lincoln
"The G-d who gave us life, gave us liberty at the same time." - the Jefferson Memorial, Thomas Jefferson
"We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." - excerpt from the Declaration of Independence

To most this may seem like a non-issue, but there are many American citizens who do not identify as theistic, do not believe in solely one G-d, or do not wish to declare such views to others and the FFRF believes that the new passport violates the rights of those American citizens to have a separation between their church and state.  In selecting these specific quotes the state has not only established itself as a theistic entity, but a monotheistic one, effectively shutting out a large portion of the American "melting pot".  One argument is that many of the quoted have said other inspiring and important messages that do not mention G-d, so why couldn't the State Department have chosen those?

Others, however, are not so swayed by the FFRF's argument.  Many feel that the quotations on the passports represent America's history, and because they are quotes, it should be viewed as the state recognizing its past leaders and important moments, not necessarily establishing or endorsing a certain religious viewpoint.  Even the American Center for Law and Justice (ACLJ) did not take issue with the new passport, viewing them as perfectly Constitutional.  Jordan Sekulow, ACLJ's executive director, said "the Establishment Clause [...] was not designed to prevent 'benign' references to G-d or faith from being made in government" and that these quotes are okay because they "endorse neither a specific faith nor a specific denomination".

Both sides present fair arguments that have me swaying between the two.  While I have never been a fan of the historical argument, I believe it may actually have some relevance to this situation, but I still feel that it is wrong to have the government declaring a monotheistic belief, as I have throughout previous discussions of this manner.  In addition, this document is not something you can opt out of if you do not agree with the material, like you could with the Pledge of Allegiance or the Bible Oath.  If you wish to leave the country and travel as an American citizen, you must present this document, quotes and all, to the customs agent in any and every country you visit.  It could potentially then be argued as a burden to someone's free exercise of his or her religion.

Personally, I believe that while these quotes undoubtedly play a role in our country's history, they are not necessary to have in our passports.  They add a nice touch, but could just as easily been replaced by quotes of equally historical precedence and American value that do not have theistic themes.

How do you feel?  Does this case differ from others that we have talked about?  If so, in what way?  Are the quotes enough to constitute an establishment of religion, or place a burden on free exercise?

Sunday, December 1, 2013

The Law is The Law!

On November 21st of this year, oral arguments were held in the District Court for the Eastern District of Kentucky- Covington on a case where Atheists challenged the constitutionality of IRS exemptions for religious organizations and argue that all religious organizations and churches should be expected to meet the same financial requirements as secular nonprofit organizations.
This particular case deals with the IRS Form 990, which is an annual report statement that must be filed and provides information on the organization’s programs and finances. Currently churches and religious organizations are being exempted from filing this form because their annual revenues are under a specific amount. Atheists continue arguing that religious organizations and churches are receiving preferential treatment “because they do not have to withhold income tax from compensation to clergy, reveal staff salaries, or disclose the names of donors who give more than $5,000” (Winston, Religious News). This also suggests that since there is no filing of Form 990, there is no way of actually keeping track on whether these organizations actually benefit the public or have contributed to their communities.  

As it turns out this is not the only exemption that is in full effect today. There is also a clergy tax-free housing exemption that benefits many ministers, rabbis, etc. and this gives them a 5-10% cut on their take-home pay, in other words this allows any clergy to shield part of their salary from federal income taxes. For example,
“Churches routinely designate a portion of a pastor’s salary as a housing allowance. So, a minister that earns an average of $50,000 may receive another third of income, or $16,000, as a tax-free housing allowance, essentially earning $66,000. Having to pay taxes on the additional $16,000 ($4,000 in this case) would mean a 6 percent cut in salary” (Bailey, Religious News).
 In Wisconsin, this has been clergy tax allowance was challenged and a District Court judge ruled that this exemption violates the Establishment Clause because it only benefits religious people and therefore is unconstitutional. 

I couldn’t help but look at both these exemptions and see that there is no such thing as separation of church and state. I think that religious organizations and churches should meet the same requirements as secular non-profits including reporting their finances by filing Form 990 and states should not offer a clergy housing allowance. I think that everyone should comply with the federal law and there should be no preferential treatment towards any religion. As explained in the court opinion in Employment Division v. Smith, Justice Scalia argued that religious beliefs should not be an excuse from complying with the law that is conducted and regulated by the government. And in this particular case, I think that if these exemptions continue there could be a slippery slope. Think about it, any nonprofit organization could claim to be religious affiliated and would not be required to file Form 990. It just seems as though there is no secure process of checking on these religious organizations and churches to see if they are in fact following their goals or helping the public and greater community. I also think that having these exemptions entails that there is entanglement between church and state. There is no clear separation and that is perceived as the federal government aiding the religious. Although, I believe that all religions have the same capability and opportunity to obtain these benefits, the state prefers religion to non-religion. And the only way to maintain neutral would be to have religious organizations and churches comply with the law and properly file Form 990.

I also believe that clergy housing allowances should not be given. From what I understand, these allowances first originated when clergy were actually residing in “church-owed parsonages.” Today not many clergy reside in their facilities and having this allowance becomes somewhat useless because there is no way of tracking whether the clergy is using the money towards their churches or facilities. In Walz v. Tax Commission of City of New York, Walz sued the state of New York for aiding religious groups with an exemption from taxes on property and argued and this kind of exemption provides a financial benefit only to the religious and therefore violates the Establishment Clause. The Court in this case ruled that the exemption was intended to avoid interference with religious beliefs and practices. But the exemption alone is in fact interference because it is a financial benefit that only religious organizations, churches and clergy are able to enjoy and therefore disregards the nonreligious.

Do you agree or should these exemptions continue to be used?