Monday, May 2, 2016

Mannequin Mayhem

In Elkhart, Indiana there has been a longstanding tradition for over 50 years where students of Concord High School partake in an annual Christmas Spectacular. The performance features students singing, dancing, and playing musical instruments to Christmas songs as well as performing songs to celebrate Kwanzaa and Hanukkah. The grand finale for the show has traditionally been a live Nativity scene with Concord High School students as the featured performers. However, this past year a lawsuit was filed against the Concord Community Schools claiming that the Christmas Spectacular performance was an unconstitutional endorsement of religion. U.S. District Judge Jon Deguilio deemed the performance to be overtly religious and unconstitutional, thus specifically banning the live performance of the Nativity scene featuring student actors. Deguilio explained that the inclusion of Hanukkah and Kwanzaa songs within the performance does not allow for the Nativity scene to be performed. The Nativity scene is the only religious spectacle within the entire performance that is performed by student actors.
Despite the court’s ruling, the community of Concord felt that the holiday performance must go on. Citizens of the town claimed the performance has been such a staple tradition within the town and it would be a shame to let it end so abruptly. The first half of the performance carried on as always with Christmas, Kwanzaa, and Hanukkah songs being sung and performed. When it came to the finale of the show, the Nativity scene, instead of student actors performing the scene, the school used mannequins to portray the scene. The school felt that by removing student involvement within the scene, there should be no legal issue with the Nativity scene being depicted. However, the replacement of students with mannequins was not received well by everyone. The Freedom From Religion Foundation, American Civil Liberties Union, and the ACLU of Indiana filed complaints against the school district this past Friday. They claim that the use of mannequins does not change the legality of the situation – the presence of a Nativity scene still violates the establishment clause. Does the removal of student actors from within the Nativity scene still endorse religion and violate the establishment clause?

I believe that yes, the presence of a Nativity scene within a school endorsed performance, whether it be with student actors or mannequins, is still deemed to be unconstitutional. The fact that the entire performance is school run and endorsed by the school means that there should not be a Nativity scene present within the performance. The school district believes that they are equally representing different religions by allowing for Christmas, Kwanzaa, and Hanukkah songs to all be sung during the performance. However, with the Nativity scene being the “grand finale” and taking up the entire second half of the show, it is clear that Christianity is being favored and placed in higher importance compared to the other religions represented, or not represented, within the performance.  

Does an Employees Religious Freedom Outweigh a Business Request?

St. Mark's Lutheran Church was in talks with Custom Graphics Inc about creating a new logo for the church. Church council members requested that the logo for the church include rainbow colors, but the Custom Graphics General Manager Zach Paxton decided to end the contract. Paxton said that he felt comfortable with Custom Graphics making signs or decals but creating a logo for the church crossed into a realm of which he didn't approve. Paxton felt that if the logo was created it would support the LGBT agenda. He has since apologized for his actions and elaborated that didn't mean to offend the church officials at St. Mark's. Adam Johnston and Tyler Schafter, both members of the St. Mark's council, said they met with Customs Graphics employees previously for a brainstorming session, and it seemed like a logo with rainbow colors was not an issue. The church later received an email about a week after their meeting saying that Customs Graphics no longer wanted to continue with the project. Both men felt that discrimination was a factor that led to the decline of the church's business, but felt they lacked the proof to prove this claim. The current North Dakota law currently doesn't prohibit discrimination based on sexual orientation. St. Mark's Church is a church that supports people who are part of the LGBT community. State Representative Joshua Boschee feels that this case is an example of discrimination against the LGBT community and encouraged the church owners to file a claim with the state Department of Labor and Human Rights.

I believe that Custom Graphics Inc. doesn't have the opportunity to back out of this particular contract. This case is similar to the discussion our class held on April 27, 2016. This case discussed whether the Mississippi's Protecting Freedom of Conscience from Government Discrimination Act was constitutional.

The request didn't break any prongs of the Lemon test. The church's request meets the first prong of the Lemon test because it has a right to have its logo changed. The logo is used to identify to its members of a meeting location for Lutherans who are in Fargo. This particular church holds its meetings inside the Elim Lutheran Church in Fargo after selling its original location to a group of investors. The logo has a globelike pattern with colors with four colors, each taking up a corner. This particular pattern symbolizes inclusiveness and recognizes that people come from different backgrounds. The second prong of the Lemon test is passed because the symbol doesn't contain any doctrine that advances or inhibits religion. Opponents may argue that the prime meridian and the equator of the globe form a cross. However, a religious establishment is allowed to have a symbol, even if it is recognizable, displayed on its private property. There was no intention of St. Mark's to place this symbol in a public space or near a government building. The final prong is met because the contract was between a private company and a religious organization. There was no government involvement in determining what symbols and color schemes were acceptable for the church to have. Both parties had previously sat in meetings and had a loose agreement that the rainbow color scheme was acceptable. While this deal may violate the personal liberties and freedoms of the printing shop owners, I believe that once a contract is signed, the obligations of both parties become the guiding doctrine for any party involved. If a person has a problem with any part of the contract, they should have a discussion beforehand, so that way the business is not being denied due to discriminatory reasons. In fact, the owner of the store, a relative of Paxton's, also felt that the business interests of the shop were more important than his objections to working with a LGBT friendly organization. In addition, the government has an interest in protecting certain minorities of citizens. As it currently stands, religion and sex are two of the demographics that American people and businesses are not allowed to discriminate against. The church qualifies under both of these protections. Finally, a person doesn't have the ability to overrule the federal government's laws. Antonin Scalia wrote in his majority opinion in Employment Division v. Smith, if an individual's obedience to the law is based how well the law coincidence with their religious beliefs, then it allows for every person to declare exemptions from the law. It would "contradict both constitutional tradition and common sense" because there would be no common law for Americans to follow. Federalism dictates that individuals are at the lowest level of government. They must abide by not only national laws, but state and local laws as well. Even though the state of North Dakota doesn't have an equal protection clause for people of nonbinary genders, the passage of Obergefell v. Hodges supersedes any state preferences for or against same sex marriages.

What's for Dinner?

     When a person becomes incarcerated, they lose some rights that citizens of the U.S have a right to. The issue is how many rights does a person give up while in the penitentiary system. Quincy Sims, an inmate at Centinela State Prison in California, sued multiple employees of the prison for what he believed to be a violation of his religious freedom. In 2013, Mr. Sims requested that inmates who were of the Islamic faith be able to be served the Jewish kosher meals. Sims was denied the request, with the prison stating that he did not meet the requirements for a Jewish kosher diet, but Sims argued that the foods that Jewish and Islamic peoples can eat are similar and the denial of him being served the meal was a violation of his religious rights. The court dismissed his complaint originally, but allowed him to submit a revised complaint which was recently allowed to move forward in the legal process by a separate judge. 
     The main issue that arises here stems from the Equal Protection Clause which says that no state can deny any person equal protection of its laws in the state’s jurisdiction. By not being allowed the Jewish Kosher meals, Sims saw that clause as being violated in that he was not being given the same opportunities to practice his faith as other inmates. This case also wrestles with the issue of The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which disallows the government from putting a substantial burden on the religious practices of people living or confined to institutions unless the government can show a compelling state interest and is the least restrictive version of that interest. The court was not convinced by the evidence that Sims gave that his religious practices were being burdened by him not being allowed the Jewish Kosher diet when he was a muslim and was of the opinion that there was a state interest in not allowing Sims to receive the different diet based on what effect the approval of the diet would have upon guards and other inmates. 
     Determining what an incarcerated person does and does not have the freedom to do can be difficult because the penitentiary system of the United States is supposed to rehabilitate prisoners, not just imprison them. Being that the majority of people within the United States are some type of religious practitioners, religious practices are supported inside of the prison system, as shown in this case by the existence of separate meals based upon religious restriction. As with teachers endorsing religion in public schools, there is a belief versus action rule that comes into play. A public school teacher is allowed to personally believe whatever they wish to believe, but they, as government employees, are not allowed to endorse or support one religion over another. Obviously public school teachers are not prisoners (though maybe some would beg to differ), but they are restricted in their actions. Similarly, prisoners have the right to believe whatever they wish but the prison does not have to grant them the right to act upon it if there is a clear secular interest in not allowing it. 

     I do not believe that Sims has a legally valid complaint in not being allowed a different diet. He did not offer any reason why he needed to be supplied a Jewish Kosher diet beyond saying that the diet restrictions in the religions were similar. The prison had restrictions in place that determined which prisoners could receive which meals, restrictions which had been approved and Sims, as a Muslim, did not meet the criteria to receive the kosher diet. If Sims had given evidence that the Jewish Kosher meals better represented the restrictions of his own religion rather than the Islamic meals he received than I would be inclined to side with him. Sims was being given the same right to practice his religion as other inmates and the Jewish inmates were not being established over him by receiving kosher meals because those were the meals that followed their religious guidelines. Sims does not have a right to Jewish Kosher meals just because he wants it, and a burden would also have been placed on the prison by having to prepare a separate meal plan for Sims than he had been receiving. 

Sunday, May 1, 2016

“The National Day of Prayer," and Reason?

Representative from California’s 17th District known as Silicon Valley, Michael Honda (D), the Freedom From Religion Foundation, and numerous secularist organizations are fighting to have “National Day of Reason” on the same day this year that “National Day of Prayer” falls. Congressman Mike Honda introduced House Resolution (H. Res.) 670, which would officially name May 5th of this year as a “National Day of Reason” to counter the existing “National Day of Prayer.” The Committee on Oversight and Government Reform is currently debating H. Res. 670. To be clear, Congressman Mike Honda does not intend for the “National Day of Reason” to be in opposition to the “National Day of Prayer,” but rather, “another way for people to think about one of the fundamental forces that built this nation.” The Founding Founders set out to build a system that could accommodate a multitude of different groups and interests while facilitating collective action. This constitutional framework also safeguards the existence of an array of of religious (and nonreligious) traditions. The United States is a cultural mosaic, and the purpose of this resolution is to recognize the significance of reason in the advancement of humankind.

The Freedom From Religion Foundation, the largest American non-profit organization advocating for atheists, is rallying support for Congressman Mike Honda. The organization posted on its website that “National Day of Reason” is for “all citizens, residents, and visitors to join in observing this day and focusing upon the employment of reason, critical thought, the scientific method, and free inquiry to the resolution of human problems and for the welfare of humankind.” Furthermore, the nationally recognized day would fall on the same day as the “National Day of Prayer” to counter the unconstitutional endorsement of Christianity through the initial creation of that day. The “National Day of Prayer” is obviously unconstitutional because Reverend Billy Graham initiated it in 1952 with the purpose of “the Lord Jesus Christ” being acknowledged across the nation, which resulted in the president declaring an annual nationally recognized day. During the 1980s, two religious organizations, the National Day of Prayer Task Force and the Focus on the Family, collaborated with one another to communicate to Christian communities their mission to spread the message of personal repentance and prayer nationwide. Although the Freedom From Religion Foundation previously challenged this day in 2008 and even won a ruling in 2010, the 7th Circuit United States Court of Appeals held that the organization did not have standing to sue. The organization believes that the resolution would create an all-inclusive day of celebration for Americans. Annie Laurie Gaylor, Co-President of the Freedom From Religion Foundation, told a news and opinion publication that the “National Day of Prayer” is just one of many unconstitutional bills passed over fifty years ago. Others like it include the slogan “In God We Trust” on United States currency as well as the phrase “under God” recited in the Pledge of Allegiance. She stresses that the resolution is not intended to replace the already existing day bur rather to enhance it. Lastly, other opponents of the “National Day of Prayer,” such as the Washington Area Secular Humanists and the American Humanist Association who co-sponsor the National Day of Reason website, claim that the day makes those who do not pray feel like “second-class citizens.”

The house resolution raises two critical questions: (1) is the “National Day of Prayer” an
unconstitutional establishment of religion, and (2) if so, does the creation of the “National Day of Reason” on the same day fix the issue? I believe that a nationally recognized day of prayer is a blatant violation of the Establishment Clause of the First Amendment because it is not neutral, or in other words, it does not treat religion and non-religion the same way. The “National Day of Prayer” serves as the unconstitutional governmental support of religion over non-religion. One may argue that although the day was created by Christians to spread the word of the Lord, there is no implication in the name “Day of Prayer” of governmental favoritism of a particular religious sect. As a result, it is religiously neutral. This may hold true, but it is still not neutral between religion and non-religion, which is the issue at hand. The word “prayer” is religious in nature because the act of prayer is an important and universal feature of religion. It is a primary mode of expression- prayer is to religion what reason is to philosophy. Prayer is an expression of human feelings and thoughts that bridge the gap between humans and the sacred or holy. The “National Day of
Prayer” serves absolutely no other purpose but to encourage religious practice. A reasonable observer would not see the law as anything other than a government endorsement of religion. 

I agree with the statement that the day makes those who do not pray feel like “second class citizens,” and that the day is unnecessarily exclusive. It is not the government’s place to enact a law for people to recognize the significance of prayer, much like it is not the government’s place to encourage people to abstain from meat on Ash Wednesday, Good Friday, and all the Fridays of Lent, or to undertake a pilgrimage to Mecca at least once in your lifetime. I believe that the creation of the “National Day of Reason” on May 5th would fix the unconstitutionality of the “National Day of Prayer” because both the religious and nonreligious would benefit. One may argue that adding the “National Day of Reason” to our calendars is simply diluting the still unconstitutional “National Day of Prayer.” I think that by getting rid of the “National Day of Prayer,” the government may be viewed as showing hostility toward religion. In order to avoid this inevitable criticism, the government can create another day of celebration for all those who are not religious. All forms of expression, from prayer to rational thought, will be celebrated annually on a day that is completely inclusive.    

Religious Freedom or "Religious Freedom"?

Religious freedom bills have become a very controversial topic in the past few months, with many states passing bills that allow for individuals with sincerely held beliefs to refuse service to individuals whose practices do not align with these beliefs. Mississippi, North Carolina, and Kansas are just a few examples of states that have created this type of legislation in 2016. Most recently in Tennessee, a religious freedom law has passed that allows for therapists to assert their free exercise of religion rights. These therapists can refuse service to an LGBT patient on the basis of their religious objections. There are also two key provisions to this law that Governor Bill Haslam pointed out- one is that if the patient is in imminent danger to either themselves or others, services cannot be refused. The other is that the therapist must organize a referral for the client to another therapist who is better suited to him or her.

Proponents of the bill see it as giving therapists the same rights as lawyers or doctors by allowing them to choose their clients and work with those who they feel they can help to the best of their abilities. Governor Haslam said, in favor of the bill, “The substance of this bill doesn’t address a group, issue or belief system. Rather, it allows counselors-just as we allow other professionals like doctors and lawyers- to refer a client to another counselor when the goals or behaviors would violate a sincerely held principle. I believe it is reasonable to allow these professionals to determine if and when an individual would be better served by another counselor better suited to meet his or her needs”. The Tennessee director of the American Civil Liberties Union, Hedy Weinberg, disagrees, and instead sees this law as legalizing blatant discrimination against the LGBT community and said, “This measure is rooted in the dangerous misconception that religion can be used as a free pass to discriminate”. Those in opposition also see it as a reaction to marriage equality laws and an attack on the LGBT community as a whole.

This case is similar to one we heard about last week- Andrew Cash was taken out of the counseling program at Missouri State University because of his religious objections to gay marriage and his refusal to counsel gay couples. With both this bill in Tennessee and the Andrew Cash case, the issue revolves around a conflict between free exercise of religion and discrimination. This is also similar to other examples of religious freedom laws, such as the laws in Missouri that permit shop owners to deny services to individuals based on their sincerely held religious beliefs.

I believe that this religious freedom law in Tennessee is constitutional. It protects the free exercise of religion rights of individuals who have sincerely held beliefs. These therapists that do not feel as if they can be most beneficial to LGBT patients should have the right to refer them to another therapist who they feel is better suited to help. No individual should be forced, by law, to act in ways that go against their religious convictions. To do so would be violating their constitutional rights as citizens. Furthermore, the clients themselves would most likely benefit more from working with a therapist who wants to help them, rather than being forced into a professional relationship with a therapist who is not the best match for them. The client is never being completely denied services- rather, they are being placed with a therapist who is a good match for them, which other professions allow for now.

What do you think? Does this law protect the free exercise rights of therapists? Or does it discriminate against the LGBT community?

A new kind of picketers

For my last article on the blog, I decided to take as a starting point for analysis the reactions of a certain type of media to the recent counter-demonstrations organized by the Satanic Temple in front of Planned Parenthood clinics, in response to the more usual “pro-life” or “anti-abortion” protestations near those. I chose an article written for a Christian website specialized in cultural conflicts around abortion, siding with the “pro-life” movement. It is needless to say that the author was not sympathetic with the actions of the Satanic Temple: the lexical field of error is used throughout the article, with sentences and expressions like “their inability to rationally communicate their position”, “very poorly conceived”, “the message was essentially incoherent”, “the message never got though [sic]”, “confusion, incoherency”. However, this is not something negative, for the website itself shows its bias about the debate. This is not something that demand analysis so to say. In the article, the author – himself a recurrent participant to “pro-life” demonstrations in front of abortion clinics – does not directly advocate for the shutdown of the Satanic Temple counter-demonstrations, but he is extremely critical about the content of those gatherings, and about the people who are part of those. Thus I would like to study the hypothetical question of whether or not those counter-demonstrations are part of the free exercise right of the Satanic Temple members.

I have already established in one of my previous articles that the Satanic Temple is indeed a religious group in the eyes of the Supreme Court within the framework of the First Amendment, thanks to the 1963 United States v. Seeger case, for which the Justices ruled that a religion is a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those”. The Satanic Temple also seems to correspond to the popular understanding of what a religion is, for it has a definite structure, a consequential number of members, and traditions. The Satanic Temple defends a particular definition of femininity, which states – among other things – that women must have an absolutely total control over their own bodies. From that point of view, it is obvious that the members of this group are in disagreement with the “pro-life” movement, because that movement supports concrete obstacles between women and the full control of their own bodies. It is important to point out that this is a fact, outside of partisan opinions. The “pro-life” movement presents those obstacles as beneficial things for women and for fetuses, and one might share this perspective according to one's own opinions, but they do actually limit women in taking decisions about their own bodies. Within the First Amendment, it is thus indeed part of the free exercise right of the Satanic Temple members to protest against the pro-life movement.

Then it is important, at this point, to focus our concern on the content of the counter-demonstrations, to verify if this is not too violent nor too sexual, that is to say too graphic, which is a limit to free speech commonly tolerated in modern American society. On that level, it is true that the content appears to be borderline for some, or even actually crossing the line. The protesters of the Satanic Temple used fake blood, scary masks, relative nudity, and whips. Nonetheless, I do not think it crosses the line of what the Supreme Court has historically authorized to take place in front of abortion clinics. In his book The Street Politics of Abortion: Speech, Violence, and America's Culture Wars (Stanford University Press; 2003), Joshua C. Wilson depicts the methods used by various pro-life groups around abortion clinics, since the middle of the 20th century. For example, Joshua C. Wilson evokes the anti-Semitic and KKK literature accusing the doctors being distributed outside of the clinics, the death threats said to women going to the clinics, or else for instance the extremely graphic images shown to them. The worst of those methods was seen during the well-known Spring of Life, during which, among other things, the “pro-life” protesters displayed actual corpses of fetuses in front of the clinics. Nevertheless, the Supreme Court never directly controlled the content of those demonstrations, for it is protected free speech, but rather made decisions so to ensure the physical practical access to the clinics, such as Madsen v. Women’s Health Center, Inc (1994). I willingly do not take in accounts the actions of the group Operation Rescue, which attained a criminal level.

I do believe that the counter-demonstrations organized by the Satanic Temple, as disgusting as one may consider them, are legitimate part of the free exercise right of the group, and that their content do not go further than what the Supreme Court has historically authorized around abortion clinics. What is your stand on the subject? Do you think the Satanic Temple went too far?

Friday, April 29, 2016

Fired for his Faith

Back in May 2014, Dr. Eric Walsh had the honor of working as a district health director for the Georgia Department of Public Health for one whole week. Why such a short employment period you may ask? Many people, including Dr. Walsh himself, have been asking the same question. Unfortunately, the answer is one that has recently raised a lot of conflict: Walsh claims to have been fired by the Department of Public Health after they realized that he was also a lay minister for the 7th Day Adventist Church. The day before he was fired, Walsh is said to have given the state copies of his sermons per their request. 

Walsh recently filed a lawsuit against the Georgia Department of Public Health. He is being represented by First Liberty, which is a large legal organization dedicated to protecting religious freedom in America. The lawsuit explains that, “DPH officers and other employees spent hours reviewing [his religious activities] and other of Dr. Walsh’s sermons and other public addresses available online, analyzing and taking notes on his religious beliefs and viewpoints on social, cultural and other matters of public concern as expressed in the sermons and other public addresses.” Walsh’s sermons are said to have discussed some controversial issues, including anti-gay marriage sentiments, which are consistent with his religious beliefs.  This resulted in the DPH rescinding Walsh’s job offer, even though he had already accepted. 

Walsh and First Liberty view his firing as an unconstitutional form of religious discrimination that should be prevented by the First and Fourteenth Amendments as well as the Civil Rights Act. Jeremy Dys, one of the attorneys for the case, explained, “Religious liberty means we should be able to find sanctuary in our own sanctuary. If the government is allowed to fire someone over what he said in his sermons, then they can come after any of us for our beliefs on anything. We must ensure every American has the right to talk about their faith at church without getting fired or being barred from public service.” Walsh and First Liberty believe that an individual’s religious beliefs and practices in their private life should not have any implications for their employment status. They received an official Right to Sue letter from the Equal Employment Opportunity Commission, which led them to file the lawsuit. 

On the other hand, the Georgia Department of Public Health believes that Dr. Walsh’s sermons, and particularly their controversial topics, are of their concern. Other outside groups, including The Georgia Voice, agree with the DPH. These groups are concerned that the topics and perspectives taken in Dr. Walsh’s sermons will be seen as symbols of the DPH and what it stands for. A member of The Georgia voice, which is a group that advocates on LGBT health issues, said, “Dr. Walsh’s public displays of anti-gay propaganda and religious rhetoric will become symbols of the department and will further isolate an already vulnerable population. We believe this hire is detrimental to the wellbeing of our community, as well as to the effectiveness of the Department to conduct meaningful outreach to LGBT Georgians.” These groups seem to be invoking issues of establishment with the possibility of Walsh’s sermons being seen as representative of the DPH. If his sermons are seen as an expression of the DPH’s own views, then the DPH would be seen as outwardly stating religious views, which it cannot do under the establishment clause. They are also arguing that there is a compelling state interest to protect the wellbeing of the LGBT community, which justifies ending Walsh’s employment with the Department of Public Health. 

The main issue at play in this case boils down to this: Can the Department of Public Health (a federal organization) constitutionally deny employment to an individual because of his religious associations in order to avoid a threat of perceived establishment and to meet compelling state interest in the wellbeing of LGBT individuals? 

I believe that Dr. Walsh should not have been fired from this employment opportunity. First, his religion is completely part of his private life and his sermons a form of private speech. In no way are Walsh’s sermons at his private church a representation of the Department of Public Health’s views. Contrary to the claims of groups like The Georgia Voice, I do not think that a reasonable observer would perceive Walsh’s religious sermons as connected with the DPH since none of his religious activities are performed at work or on any form of government property. The employees of the Department of Public Health likely come from a diverse group of religious backgrounds, so it is not reasonable to suggest that people would find Walsh’s beliefs particularly to be that which the Department endorses. This is similar to the argument made in Rosenberger v. UVA in which the court explained that because UVA has numerous student newspapers with different ideological viewpoints, a reasonable observer would not perceive government endorsement of one particular ideological perspective.  Second, I do not think that the compelling state interest type argument made by The Georgia Voice is accurate. Dr. Walsh is known for being a very successful doctor with a lot of experience and training. He is completely capable of exercising this and has never expressed any indication of his religion impacting how he practices medicine. While a compelling state interest in public health and well-being may be important, Dr. Walsh is completely capable of providing this and has been described as extremely qualified for his position with the Department of Public Health. Because of this, there is no justification in limiting Walsh’s first amendment rights to freely practice his religion in his private life. 

Furthermore, rescinding Walsh’s job offer solely because of his religious beliefs is inevitably an illegal form of religious discrimination. The Civil Rights Act clearly prohibits various forms of discrimination, within which religious discrimination is included. The current case stands in sharp contrast to Hosanna-Tabor v E.E.OC. The important distinction is that Hosanna-Tabor was being fired from her position as a minister and therefore, the ministerial exception applied to her case, meaning that the school she worked at could be exempt from employment discrimination laws. Walsh, on the other hand, is being fired from a completely secular job position because of his religion. This is exactly what employment discrimination laws are meant to protect against.  Walsh should be able to practice his religion in his private life as he chooses, as guaranteed by the first amendment,  without having it impact his employment. 

Monday, April 25, 2016

Are Anti-Muslim Comments Grounds to Force an Employee to Resign?

Recently a New Jersey school board member was made to resign after she posted some anti-Muslim comments on her Facebook page. Gladys Gryskiewicz, who became a member of the school board only months ago, found herself in hot water after posting a few anti-Muslim comments on Facebook. She posted comments that told Muslims to "go back to your own country," along with other generally negative comments. When interviewed about the issue, Gryskiewicz claimed that the comments were in response to a video she saw about a Muslim woman disrespecting the national anthem, saying that "I don't care who it is. If you disrespect America, it upsets me." All posts were on her personal Facebook page. She was met with large backlash for her posts; Humza Yousuf, a student at Elmwood Park Memorial High School, a school in Gryskiewicz's district, saw the posts and signed a petition against her which over 600 others have signed. Backlash against Gryskiewicz went further when the New Jersey chapter of the Council of American-Islamic Relations as well as her boss, principal David Warner demanded she resign from her position on the school board.

As much as I don't like the nature of Gryskiewicz's comments on Facebook and believe she shouldn't have posted them, I do have to side with her when it comes to her job position. I think this case could be looked at from both establishment and free speech angles. From the establishment side, she did post the comments on her own personal Facebook page, thus separating her as an individual from her as a school board member. As a school board official she may be a government employee during the day but when she gets home after work she can freely act as an independant individual, this includes her Facebook page. Her comments were posted to her personal account and were in no way linked to her school board position, because they are unaffiliated with her position, there is no issue with establishment. As much as we all may disagree and dislike her comments, they are protected free speech. Forcing Gryskiewicz to resign from her position because of the comments she made in her private time is a violation of her free speech rights. As much as we might dislike it, as long as they are not threatening, anti-Muslim comments are protected speech. Gryskiewicz does have the right to profess her feelings about Muslims in her own time, which is exactly what she did. While her boss might suggest that she remove the posts for the sake of reputation, he cannot force her to resign for them. The case made by the New Jersey chapter of the Council of American-Islamic Relations and principal David Warner is that the posts were offensive. There is no right not to be offended, and forcing someone to resign over offensive private speech creates a very slippery slope. An Atheist posting that they do not believe in a god could be offensive to some while a Christian posting a prayer could be taken as offensive to others. Any religious, political, or social opinion could be taken as offensive by somebody, so using that as a basis to force Gryskiewicz to step down from her position opens the door for many other employees to be forced to resign as well. We have to protect free speech and be consistent, if we make an exception for Gryskiewicz, what stops more rash exceptions from being made?

What do you think? Are Gryskiewicz's comments strong enough that she can be forced to resign?

Sunday, April 24, 2016

Violating free exercise rights and education?

A former student of Missouri State University sued the university because he was denied his master's degree on the basis of his religious beliefs. The student, Andrew Cash, was working towards his master's degree in counseling. During a presentation, Cash was given hypothetical scenarios which included the situation of counseling homosexual couples with their relationship issues. Cash said that he would not be willing to counsel this hypothetical couple due to his sincerely held religious beliefs about homosexuality. His Christian faith expresses the belief that a marriage should be between one woman and one man, therefore he does not want to counsel a couple that goes against these religious values. Shortly after Cash made this comment, he was denied his master's degree due to "ethical reasons". The school told Cash that his statement goes against the American Counseling Association's code of ethics.

The lawsuit against Missouri State says that Cash was "targeted and punished for expression his Christian worldview". The University notes that they have a strict policy of nondiscrimination, including on the basis of religion. This raises the important question of whether or not denying Andrew Cash his master's degree, which has cost him a lot of money, time and energy, is constitutional under the first amendment. Is this act a violation of the free exercise clause?
In defense of the University, Cash's opinions about consoling gay couples do go against their anti discrimination policy. On the mere premise of this university wide policy, Cash does violate certain expectations. Also, the university is not explicitly telling Cash that he cannot embrace his religious beliefs and put them into practice. They are only saying that his actions are not in line with the university's policies and that they are not appropriate for the setting that he was in. The university does not see this as a violation of Cash's free exercise of religion.

However, because this is a matter of religion which is protected by the constitution, Cash should not have faced the consequences that he did. Not only is Cash being punished for following his religious beliefs, but he is facing consequences that extend farther than just a violation of his free exercise rights. Cash spent years in school studying to become a counselor. This obviously adds up to a lot of money spent on tuition that was essentially useless to Cash because he did not obtain the degree that he worked so hard for. This is an economic burden on Cash in addition to the burden on his free exercise rights. I personally believe that Cash should not have been denied his master's degree for verbalizing his religious beliefs. Although Cash's beliefs may go against university policy, the constitution overrides that policy and Cash's rights should be defended. There is a substantial economic burden placed on Cash as well as a clear discrimination against his ideals because of their religious affiliation. What Cash plans on doing with his degree after he obtains it does not reflect the university and it's policies. Cash was talking about a hypothetical situation and did nothing to directly violate the university's policy. Cash's free exercise rights are certainly being unconstitutionally violated.

What do you think? Did Cash deserve to be denied his master's degree or does the first amendment protect him?

Is Anti-Evolution allowed in Kansas?

On April 19th, 2016, the 10th U.S. Circuit Court of Appeals decided by a 3-0 margin that the science class curriculum in Kansas public schools wasn't anti-religious. This second challenge to the law came from an organization known as the Citizens for Objective Public Education (COPE). In its mission statement, COPE seeks to "promote objectively in public school curricula that address religious questions and issues so that educational effect of teaching is religiously neutral." The Next Generation Science Standards in question were adopted by the Kansas Board of Education in 2013. These standards are already in place in 26 out of the 50 states in the Union. In the suit, COPE accused the school board of promoting atheism to children, which would subtly manipulate Kansas schoolchildren into rejecting their Lord and Savior Jesus Christ. In its place, COPE wants schools to adopt A Patriot's History of the United States, a conservative take on American history.

The judges in the suit felt that COPE failed to "(1) show an injury that is concrete, particularized, and actual or imminent and (2) traceable to the challenged actions." The district court judges maintained that the standards "simply establish performance expectations for what students should know." The judges also pointed out "the standards don't condemn any or all religions and don't target religious believers for disfavored treatment."

I agree with the judge's ruling for a couple reasons. First, it is not the duty of public schools to teach religious content with a preference or a deference to any particular sect. As stated in Edwards v. Aguillard, religious content, especially the teaching of creationism, is not allowed to be taught within secular schools. The Supreme Court came to this decision using the Lemon test. The first branch of this test involves proving that the Next Generation Science Standards were secular. The second prong of the test is to prove that religion was neither advanced nor inhibited in the science requirements. Kansas's current laws state that these guidelines serve as "guideposts for school districts, which retain control to shape and adopt their curricula." This quote is a facially neutral statement on the purpose for the science standards, a secular obligation for any public school to fulfill. There is no religious language or motivations within the statement that appears to favor or dissuade anyone from a particular belief system. Both of the first two tests have been met. The final prong is to test whether there is any excessive entanglement between the religious and secular spheres. By having schoolchildren ask questions about the nature of life and the universe, there are likely many answers to be heard from students. Some of these answers may be based in religious contexts while others may come from a more scientific belief. Since students are coming to their own decisions about how the world works, there is no method of entanglement for their thoughts. In addition, by having students learn about potential perspectives that differ from theirs, it would foster unity within the classroom.

Second, if the decision were reversed the curriculum proposed by COPE would favor a Judeo-Christian belief. COPE previously stated that "Americans used to learn about American exceptionalism and religion." However, the current structure in their opinion teaches, "victimization, racism, and a host of other evils." This action would entangle the government and religious spheres based on the pro-religious contents of the book. As demonstrated in Westside Community School v. Mergens, high school students don't have the full ability to separate speech from the items that a classroom teaches. These potentially religious duties would be occurring during school hours, which were deemed to be unconstitutional. This Supreme Court decision was able to pass because the religious duties didn't interfere with any instructional time. On the other hand, college students such as the Rosenberg v. University of Virginia decision were treated as fully fledged adults that can handle speech which they may find blasphemous or false. The need to protect cohesiveness among its students is an important breach of the wall of separation that public schools need to perform. Americans United for Separation of Church and State (AU) in its own analysis of this case adds, "parents who oppose the teaching of evolution...can send their child to private religious schools, homeschool them, or offer supplemental instruction at home." This suggestions bases its logic behind the Supreme Court case, Everson v. Board of Education (New Jersey). In both decisions, parents, not the government or a school board retained the ultimate authority to decide which school they wanted their kids to attend. This case also suggested that the religious schools were created in order to ease the financial and resource burden that the public school system faces.

Thursday, April 21, 2016

In God Do We Trust?

In January, 2016 a California atheist, Michael Newdow, who has taken it upon himself to continually “keep fighting, hopefully winning, and getting the government to do what it is supposed to do, which is (provide) equal protection for all religious views” has challenged the phrase “In God We Trust” on American currency.   He believes that the United States government has “substantially burdened” atheists and others to continuously carry around a religious message that goes against what they believe in.  
  Newdow along with being a Sacramento-based emergency-room doctor is also an attorney.  He based his case off of the Religious Freedom Restoration Act (RFRA) -a law specifically designed to protect the free exercise of religion.  In comparison to Newdow’s case, it’s noteworthy that the Hobby Lobby Supreme Court case also used this line of defense and was extremely successful.   The court allowed the company an exemption from providing four contraceptives from their health care services because the contraceptives violated the ideals of their Christian faith.  
Newdow goes on to argue that the phrase is based on the Bible and that it basically persists as a statement of belief that is “the antithesis of the Plaintiffs’ religious ideals.”  On the other hand, the court has used the pushback that the phrase is more of a secular motto than a religious affirmation.  Thus, invoking the belief that tradition, although it can have religious connotations, is not an establishment of religion because it does not count as the government endorsing a particular faith.  
From a historical context, congress voted to place the phrase on all U.S. currency in 1955, during the middle of the Cold War.  They believed that this was a pushback against “godless communism.”  The new phrase replaced the old motto, “E Pluribus Unum,” which basically encompassed the notion that out of many states (or colonies) emerges a single nation.    
Personally, I think the origins of “In God We Trust” on U.S. currency are extremely important in deterring whether this phrase is unconstitutional.  The original phrase “E Pluribus Unum” validates the nation’s motto in a neutral manner.  In other words, the phrase is entirely secular which keeps neutrality between religions by avoiding the government endorsing a single religion or embracing certain religious ideals.  Although the term “God” is not specific to one religion the term does go against both those that do not believe in God and those who believe in many Gods.  Thus, “In God We Trust” does promote specific religious ideals, which the government is endorsing by choosing to erase a secular motto for a religious one.  Although this phrase has been coined as a more traditional saying that can be synonyms with “patriotism” and “nationalism” there is inherently religious content behind it.  
With the recognition of the religious connotation I think the usage of the phrase must also be strongly considered.  The phrase is on currency, which every U.S. citizens must use and carry around.  Whenever, people take out money from the bank, pay in cash, or even just pick up their wallet they see the government’s backing of specific religious principles.  Although the government may not intend for there to be an establishment of religion “reasonable observers” or those who don’t know the true intent of the phrase do not understand the motivation behind the religious words.  

Furthermore, if we look to Newdows invocation of the RFRA defense, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” his case has a lot of merit.  He is an atheist, an individual who does not believe in religion, and is being forced to both carry and pass around a message he does not agree with, a message that goes against his standards of living.  Thus, although many do believe in a single God and many may even see the phrase as a support for patriotism, there are many in the minority that would disagree.  So, to be forced to use an object daily that burdens the ideals of one’s moral principles would most definitely seem to violate the RFRA.  To that end, although there cannot be an exemption in this case like with Hobby Lobby there can be a change to the currency itself where the nation embraces the secular phrase it had prior.