Sunday, February 28, 2016

Is Holding a Presidential Caucus on Shabbat Unconstitutional?

This past week Nevada held their third annual state Caucus. The Republican Caucus was held on Thursday while the Democratic caucus  was held on the following Saturday. The timing of Democratic Caucus has sparked controversy because Sabbath-observing Jews cannot partake in elections due to their religious obligations. In Nevada, the Jewish community is a major demographic for both parties, and their inability to participate in this year's Democratic Caucus will undoubtedly skew the polls.

The result of the state caucuses has a remarkable influence and important implications for who the Democratic and Republican nominee for President will be.  By denying Jewish peoples’ ability to vote in their perspective party's caucus, is the US Government impeding on their right to Free Exercise?

The timing of the Nevada Democratic caucus is made more problematic because of a caucus is a relatively unknown process to most citizens. Unlike primary elections, the process of caucuses is much more complicated and far less familiar to the general public. Not only is having the Caucus be on Saturday bad for Jewish representation, also, this will lead to even less of the general public understanding and participate in caucuses.

Although multiple Orthodox groups have voiced concern about the timing of the caucus nothing has been done to change it. Republicans argue that this is not an issue on the grounds that the interest from this demographic is lacking. In the words of Sandy Mallin, who headed the Jewish campaigns in the state of Nevada for Republicans, “I don’t know anybody who is going to caucus”. However, this is a stark contrast from what Joel Wagner a point man for Hilary Clinton said, He stated that in his canvassing has found upwards of 300 eligible Jewish voters.

This case reminded me of Braunfeld v. Brown, a case concerning whether a blue law restricting business operation on Sundays, were an unconstitutional burden on Jewish business owners because it required them to have their stores closed one more day than their Christian competitors. However unlike that case, I believe that this is an unconstitutional burden on the Jewish people of Nevada because it makes it impossible for them to practice their civic duty. Braunfeld v. Brown ruled that blue laws are constitutional because they serve a secular purpose by giving people a day of rest; however holding a caucus on a Saturday although convenient for some people makes it impossible for people of the Jewish faith to participate.

In my opinion, this is a tremendous problem. By excluding a whole religion the polls will be skewed and their voices will not be heard. Making it so Orthodox Jews have to choose between their civic duties or religious duties, in order to participate in this year's caucus is despicable. Unlike Braunfeld v. Brown, which was concerned with economic losses, Making it impossible for Sabbath-observing Jews to participate in the Caucus is a loss of rights. Being able to engage fully in the presidential election is a right, not a privilege. This loss of rights is blatantly unconstitutional and puts the Democratic Party at a huge disadvantage because the voices of a main demographic are being silenced furthermore their demands are left unheard.

Hopefully, in the future, the parties will take into account important religious events like this, and ensure poor timing of very important political events violates that one person’s rights on. This blatant disregard for Sabbath is not only insensitive but unconstitutional.

Christianity: Grounds to exempt a patient from being considered "dead"?

What would you do if a family member of yours was suddenly pronounced brain dead? This is a trying issue for a family in New Jersey.

According to The Daily Beast, two years ago, at the age of thirteen, Jahi McMath was wheeled into an operating room in her home state of California, for what was expected to be a tonsillectomy. However, after she began to hemorrhage blood during the surgery, she became unconscious, and was eventually pronounced brain dead.

A majority of the time, when a patient is pronounced brain dead, they are considered to no longer be a living being, due to their vegetative state. In fact, within the United States, 50 of the 51 states consider a patient whom is brain dead to no longer be living, issuing patients who do encounter this state, a death certificate. According to the National Kidney Foundation, brain death is an irreversible condition, which occurs after some sort of injury or trauma to the brain, which inhibits a blood supply from flowing into the brain. Without an active blood supply, the brain will no longer function, and as a result, will die. As stated previously, this condition is irreversible. There has never been a reported case of a patient who has recovered from brain death. In addition, brain death is a legal definition of death.

Once a patient is proclaimed brain dead, with the permission of family members, they are removed from life support. However, this is not the case with fifteen year-old, Jahi McMath and her family.

Shortly after the incident, the state of California issued Jahi McMath a death certificate, seeing as she was in an irreversible, vegetative state. Jahi McMath’s mother, Nailah Winkfield, did not agree with the doctor’s prognosis, claiming that although her daughter was brain dead, that she was not actually dead, and would, with the help of her Christian God, be able to make a full recovery. As a result, Winkfield refused to allow the doctors to remove her daughter from life support.   

Now, two years later, Winkfield has moved her daughter to the state of New Jersey, the only state within the United States, which considers Jahi McMath to still be a living being. Since moving to New Jersey, Winkfield has worked hard in order to get the state of California to rescind Jahi McMath’s death certificate, under the request of a religious exemption. It is here that one may ask: should Jahi McMath be exempted from being considered dead by the state of California, due her family’s religious beliefs?

Winkfield wishes to be exempt from California’s law due to the fact that she believes her daughter, with the help of prayer and other religious activity, will make a full recovery, since becoming brain dead. According to, Winkfield claims that Jahi McMath’s brain death was wrongly proclaimed due to the fact that she still has parts of her brain, which are still active, and has, with the help of her God, made improvements within the past two years. In addition, Winkfield desires to move back to her home state of California, however, fears her daughter will not receive ongoing medical care. Thus, Winkfield is requesting a religious exemption, asking that the death certificate be repealed.

In all, Jahi McMath should be exempted from the California state law. While one could make the argument that voiding Jahi McMath’s death certificate is wrong, and to some degree pointless based upon scientific evidence, her parents do have the right to free exercise based upon their Christian beliefs and values.

Similar to Wisconsin v. Yoder, it may be determined that Jahi McMath’s parents have the right to decide whether or not their daughter, who with the help of modern day medicine still has a functioning heart and lungs, should be deemed dead or alive; it all comes down to the fact that Winkfield and her family have the right to keep their daughter on life support, due to their belief that their God will heal Jahi. In all, Jahi McMath is incapable of making the decision herself, thus allowing her parents to make the decision for her, due to their right to practice their rights as her parents.

However, giving Jahi McMath’s family a religious exemption may open a door for other’s who may wish to be granted a religious exemption under less severe circumstances. In addition, giving one singular family a religious exemption may pose issues between the state and similar cases, which have been previously decided within the court. In turn, this may cause lawmakers to question where the line may be drawn between those who may be exempted and those who may not be.

Manslaughter conviction of faith-healing Oregon couple who didn't take dying premature newborn to hospital is upheld

(Find articles about this topic here, here, and here.)

In 2009, a faith-healing Oregon couple had a baby through a home birth born two months premature. Nine hours later, the baby died due to underdeveloped lungs. Instead of calling 911, the parents chose to pray for their baby, believing that God would save him if it was meant to be. The courts ruled the couple guilty of second-degree manslaughter, and both parents will serve six years in prison.

Then, the couple appealed this conviction, claiming that because they are members of a faith-healing church they were exercising freedom of religion by not bringing the baby to the hospital. The Oregon Supreme Court upheld the original court's ruling, with the Judge reiterating that there could have been more done to save the baby. In fact, in testimony, a doctor stated that the boy had a curable disease: staphylococcus pneumonia, and had he received medical care there is a 99% chance he would have survived in a hospital.

The couple argued that they did not call 911 because they were too busy praying for the baby, who was turning blue and unable to breathe. The couple was hoping to receive a religious exemption from laws about child neglect, but this was rejected by the judge, who claimed that child abuse is still abuse regardless of the religious reasons behind it and should be treated the same.

This case reminded me of Wisconsin v. Yoder. In that case, the court ruled that Amish children were permitted to skip the last two years of required schooling to further their Amish values because the Amish culture was well established as a community and there is not a compelling state interest for Amish children specifically to go to the last two years of school.

However, in this case, the court ruled that the obligations of the health and life of a child are more important than the religious obligations of the family. This is a much different case because of the death of the infant: it is a compelling state interest to keep children out of harm's way and protect the child's life. Essentially, while parents are allowed to raise their children in a culturally different way, it was ruled here that they are not allowed to do so if it causes bodily harm or death to the infant. In this case, the life of another human is far more important to the courts than the free exercise of religion. If medical care is necessary, families are required to get medical care for the child regardless of religious beliefs.

Furthermore, this specific church, the Followers of Christ Church, have come under fire recently for other issues regarding the health of children. In fact, two other parents from the church were convicted for failing to seek medical care for their infant daughter because she had a growth in her eye that could have caused blindness. That couple was sentenced to three months in jail.

The couple claimed that they did not know that there was anything wrong with the infant, despite his short breath and light colored skin until it was too late. However, the Supreme Court recounted the minimal steps the couple had taken to save the baby's life.

It's clear in this case that medical treatment would have benefitted, or even saved the baby's life. Also, medical treatment is proven to work much better than praying, and it seems that any parent should know that regardless of religious belief. Western medicine is based on science - it works a lot of the time. Therefore, it is certainly within a state's interest to limit the free exercise of religion when health and lives are at stake.

What's curious to me is that this couple still would not change their actions, and remain steadfast in their beliefs. Both parents testified that they "would not have done anything differently".

I am interested what you think: Where should the court draw the line in these kinds of cases? What is the least extreme circumstance in which action should be taken? Mental or emotional harm, physical harm, or death?

The Freedom From Religious Foundation Gives Up On Removing Big Mountain Jesus

         For the past 5 years, the Freedom From Religion Foundation has been trying to remove a statue of Jesus on public land found atop a mountain in Montana.  The Knights of Columbus, a Catholic Group, dedicated “Big Mountain Jesus” to World War II veterans.  This past week the FFRF has decided not to file an appeal with the Supreme Court to remove “Big Mountain Jesus” from the mountaintop.   

        Back in August, the Ninth Circuit Court of Appeals examined the salient issue of whether or not letting a statue of a religious figure remain displayed on public land violated the Establishment Clause.  The court ruled that having “Big Mountain Jesus” on government land was in fact constitutional and recognized its non-religious benefits in terms of its historical and cultural importance.  The court also recognized that the existence of the statue itself did not suggest government support since it was located near a ski resort, far away from any government building, and could only be seen by people using a nearby ski lift.  One of the people defending "Big Mountain Jesus" believed that the case was ridiculous, as the statue has existed for over 60 years without complaint from individuals.  In fact, it took the FFRF 6 months to find some individual to sue regarding the statue’s existence, meaning that the people who ultimately sued did not seem hurt by the statue’s presence enough to support the lawsuit.  Nevertheless, the FFRF argued that the statue’s existence on public land despite being maintained by private individuals was a clear breach of the separation of Church and State.

            So then, is it okay for the government to allow “Big Mountain Jesus”’s to remain on public land? Does this constitute as an establishment of religion despite the statue being privately maintained?

            This case was important because as the FFRF stated, allowing “Big Mountain Jesus” to remain on public land would allow for any religious icon, figure, or display to appear on public land. This could lead to a slippery slope of several icons from one religion to exist in a small area of public land, almost certainly displaying an establishment of religion. This case seems very similar to Natalie’s article last week regarding the cross embedded in a rock wall in a remote location in order to honor the death of a person working on the construction site.   While “Big Mountain Jesus” is a nice tribute, just as the cross in the wall was, it is unnecessarily religious, and is found on public land, despite its remote location.

            Just as I agreed with Natalie that the cross’ existence on public land was an establishment of religion, I agree that having “Big Mountain Jesus” on public land is also an establishment.  Despite the statue being privately maintained, the government maintains the land that it is on. Thus, even though the government is not directly funding the statue's upkeep, it is indirectly paying for the upkeep on the land on which the statue is found.  I do not believe the court’s argument support “Big Mountain Jesus”’s cultural significance to local area is important enough to allow the statue to stay.  If the statue can only be seen by people on a chairlift it is not getting much view time anyway and is not providing much of a benefit to the area.  Regardless of its remote location, I do not think popularity can allow for a religious icon to exist; its popularity is coming from the Christian majority, and thus could be offending several minority religions whose voices are not being heard.  Because of this, any celebrity status is not a good defense.  If I am a local skier in the neighborhood of a minority religion, I may not want to see “Big Mountain Jesus” every time I go up the mountain and I may not want my tax dollars going to mowing the grass around him.  If “Big Mountain Jesus” were going to be built today, it would most likely not be allowed to be built on public land.  Why then, should the government allow for it to exist today?  “Big Mountain Jesus” may be a local celebrity, and maybe many people did not express their distaste for the statue outrightly, but that does not make it any more okay for “Big Mountain Jesus” to be on public land.  By the government allowing the statue to remain on their land, it seems as though it is indirectly supporting Christianity, something that certainly violates the Establishment Clause.

No Problem with Big Mountain Jesus?

There is a federally owned ski slope in Montana that has a large statue of Jesus, known as Big Mountain Jesus, on one of the mountains. The Knights of Columbus, a Catholic service fraternity organization aimed to helping members in need, were the ones who set this up. They received a permit from the U.S. Forest Service and put the statue there in 1954 as a World War II Memorial. Veterans of the war that a part of the Knights of Columbus wanted to commemorate their deceased comrades.

The Freedom From Religion Foundation believes this violates the first amendment because it is an establishment of religion, specifically recognizing Christianity. It went to court and the judge of the Ninth Circuit Court of Appeals proclaimed that statue does not violate the First Amendment because the statue is “far from any government seat or building, near a commercial ski resort, and accessible only to individuals who pay to use the ski lift,” so it is no endorsing Christianity. The Co-President Freedom From Religion Foundation responded by saying that “federal taxpayers are subsidizing religious speech, in this case Christian.” Eric Baxter, the lawyer who defends the right for statue to be there, claims that, “the First Amendment prohibits religious coercion, not religious culture.” The question at hand is if having a statue of a religious figure for a secular purpose, in this case honoring World War II veterans, goes against the Establishment Clause in the First Amendment?

This is an unconstitutional establishment of religion. One could argue that Knights of Columbus received government approval so the statue should stay, but this argument implies that nothing should be changed if the nation believes that their original action was wrong.

The judge believes the statue is not actively endorsing Christianity because it is not visible to anyone in government, but this insinuates that the government is not establishing Christianity if no one sees the statue, but the statue funded by taxpayers. There is an expectation among citizens that tax money does not go towards funding any religious symbol because that is an establishment of religion. There cannot be a religious symbol funded by the government on federal property.

People articulate that the statue was installed to honor the deceased soldiers of WWII. That is a secular purpose, but it is hard to justify why they have to a use a religious symbol to achieve that goal. Also, this statue can be offensive to deceased soldiers who were not Christian because their lives are commemorated with a symbol that is referencing a religion they did not believe in.

The supporters of the statue argue the statue cannot be removed due to its “cultural and historical significance for the veterans, Montanans, and tourists; and the government’s intent to preserve the site ‘as a historic part of the resort.’” The problem with this argument is that the “cultural and historical significance” probably stems at least partly from the fact that 37-43.9% of the population of Montana is Christian, so the statue carries more meaning to these people. This should not matter regardless; the only aspect that matters is whether or not this statue is an establishment of religion and it is has been argued that it is.

It is clear to see that the reasoning for keeping the statue is flawed. The defendants argue that getting a permit for the statue should justify its right to stay, but the ability to recognize mistakes and correct them allows for growth and progress.  The judge argues that the statue does not endorse Christianity because it is out of the way, but the fact that it is on federally owned property sends the message to anyone who skis by it that the government helped fund a statue of a Christian figure. The Knights of Columbus proclaim that the statue was created to commemorate the fallen soldiers of WWII, which is a secular purpose, but there are many other ways to accomplish this without using a figure that relates to religion. The most persuasive argument to keep the statue is that it has grave importance to the people of Montana and has become a part of their history. Although that may be true, it does not change the fact that this statue is a religious figure that establishes religion, and its historical significance cannot trump that. The judge of the Ninth Circuit Court of Appeals ruled this case incorrectly and this statue should be removed.

Utah Revisits Polygamy

As we discussed at the beginning of the semester, in 1878, the Supreme Court ruled in Reynolds v US that anti-bigamy laws were constitutional and the restriction of marriage to two people was not a violation of the Mr. Reynold’s right to exercise his religion.  This ruling set the precedent for anti-bigamy laws in Utah for the next 100+ years, although these laws were rarely enforced.  In most cases polygamist families all live together, but only one of the unions actually has a marriage license, while all the others are spiritual.  For anyone who has seen the hit TLC TV show “Sister Wives”, this arrangement may seem familiar.  The show centers around Kody Brown and his four wives living together in Utah.  This arrangement and many others like it have been allowed to continue, even though they are technically illegal, as long as everyone involved is an adult and an otherwise law abiding citizen.  

In 2013, the family successfully challenged part of Utah’s polygamy ban.  They argued that the portion of the statute that outlawed cohabitation violated their first amendment right to practice their religion.  The State argued that polygamy is often associated with other crime including sexual assault, statutory rape, and the exploitation of government benefits.  A judge agreed with the Brown family over Utah and struck down that part of the statute.  It is important to note that in this case there is a necessary distinction between polygamy and bigamy.  Polygamy, which is now decriminalized under this ruling, is the practice of taking multiple spouses and all living together.  Bigamy, which remains illegal, is the practice of holding marriage licenses with multiple spouses.  This ruling essentially protected families like the Browns from prosecution.  There are estimated to be roughly 30,000 polygamists living in Utah.  

Recently, Utah appealed the 2013 decision and the case was heard by the 10th circuit court in Denver.  The family claims that the law makes them live under the threat of constant prosecution and is an unconstitutional restriction of their right to freely practice their religion.  According to traditional Mormon teachings, multiple marriages are necessary to reach heaven.  The family believes that although Reynolds has been the standard for years, it is time for the court to revisit the decision and the precedent it set.  They argue that the state’s claims that polygamy facilitates illegal activities are unwarranted.  They argue that their TV show is evidence that polygamous families can be both functional and healthy and should therefore not be unfairly persecuted.  

The Brown family and their lawyers also point to last summers’ landmark same sex marriage ruling as opening the door to polygamous unions.  Most of this comes from Chief Justice John Roberts’ dissent where he criticizes the majority for appearing to arbitrarily including the word “two” in some places in the decision, but not in others.  They also make the argument that as long as the court is willing to expand its definition of marriage, their claims are valid.  The problem with this, though, is that in cases like this the Court tends to take public sentiment and consensus into account.  In the case of same sex marriage, the court recognized the public’s changing opinion of same sex marriage and the widespread consensus in favor of allowing same sex couples to marry.  This reasoning does not necessarily help the Brown family as last summer, right after the Supreme Court ruled in favor of same sex marriage, a Gallup poll found that only 16% of Americans believed plural marriage to be acceptable.  On the other hand, the Court has, on occasion, drawn on international norms and consensus to make decisions.  For instance, when the Court ruled against the constitutionality of sentencing minors to the death penalty, it cited movements against this in states and also internationally.  This could help the Brown family, as plural marriage is legal and considered common in many parts of the world.  I think that as this case moves through the court system, the country may be forced to revisit polygamy.  At this point I don't think the Utah law will be overturned.

What do you think? Is it time to revisit the Reynolds decision? Are the Browns free exercise rights being violated? 

Monday, February 22, 2016

The Constitutionality of Religious Memorials on Public Property

The Freedom From Religion Foundation, the largest national non-profit organization which actively promotes the separation of church and state, claimed that a memorial cross that was implanted in the Seneca water treatment plant functions as the government's unconstitutional establishment of religion. A construction worker was inadvertently killed on the job. Consequently, the city of Seneca inserted a cross in the rock wall, using the same type of stones to do so, which made the cross almost indistinguishable. In addition to the cross' concealment in the wall, the wall is located behind a building at the end of a dead-end street, making the cross completely unnoticeable from the street. The city of Seneca asserts that the cross is meant to serve the sole purpose of commemorating a construction worker who suffered and died on the job. An objection sent to the city of Seneca's manager, Greg Dietterick, said that due to the fact that the memorial is exhibited on public grounds, the city must show religious neutrality in its means of honoring the deceased. The Freedom From Religion Foundation has filed several other complaints regarding the government's failure of separating church from state. In recent news, although they were unsuccessful in their efforts, the non-profit organization accused the Clemson University football coach of endorsing a team philosophy that violated the constitutional principle of separation of church and state. In another case, the organization was successful in creating a policy that banned prayer during meetings at the Pickens County School Board.

In this case, the organization claims that the city's use of a Latin cross is considered to be "a sectarian religious statement." To make matters worse, the cross implanted in the rock wall has no plate, inscription, or other sign of its argued purpose- commemorating someone's life rather than the city's establishment of Christianity. Additionally, The Freedom From Religion Foundation states that if the city of Seneca did include some sort of marking on the cross to make it appear as a memorial for the worker, the cross would still be unconstitutional. They argue that the reasoning behind this claim is that a federal court previously decided that crosses along a road that clearly honored the deceased were "unconstitutional, despite being privately maintained and despite the government disclaiming them." In addition, the symbol of the Latin cross is intrinsically religious. The irrefutable message of endorsing Christianity that the cross carries outweighs anyone's claim that the symbol of the cross is being merely used for a secular purpose. This raises the question- does the cross memorial that is displayed on public property serve as the city of Seneca's advancement of a particular religion and thus violate the establishment clause of the First Amendment?

Although not explicitly stated in the article, I believe that the federal court's decision that the Freedom From Religion Foundation is referring to is concerning the Mount Soledad controversy in San Diego, California. In 2011, the Ninth Circuit Court of Appeals ruled that a memorial cross was unconstitutional due to it being a "distinctly Christian symbol." However, in July of 2015, after twenty five years of litigation and controversy, the United States Department of Defense sold the piece of public land on which the Mount Soledad Veterans Memorial was located. I strongly believe that the case in Seneca should be treated the same way as the case in San Diego was. Although one may argue that the memorial cross embedded in the rock wall is barely noticeable and is not even visible from the road, the city's action of displaying a Latin cross on public property, regardless of its "secular purpose" is still considered unconstitutional and should be viewed as a violation of the establishment clause. The reason why it should be deemed unconstitutional is it being located on public, not private property. The display of a religious symbol on public land is a symbol of the government's advancement of that religion. There are other ways that the government can display a memorial for the construction worker that are religiously neutral. The city of Seneca could have easily embedded a stone in the wall with an "in loving memory" plague to commemorate the worker's life and commitment to the community. This would have still achieved the secular purpose of the memorial without creating any religious controversy.

The Directions of Faith

In 2005, the town of Gilbert put a regulation into place the controlled which kind of signs could be shown in public areas. Most signs that were placed in public required a permit, but there were some exceptions to that case, such as signs that were ideological and noncommercial. Political signs were permissible as long as they were placed up to 60 days before a primary election and up to 15 days following a general election. The ideological signs could be twenty square feet and the political signs could be up to thirty-two feet at their largest. Temporary signs that gave directions to an event could be shown twelve hours before an event and one hour after the event, and could only be shown inside of private property. 
In 2008, the Good News Community Church, led by Pastor Clyde Reed, filed suit against the Town of Gilbert on a claim that the town “abridged their freedom of speech in violation of the First and Fourteenth Amendments.” The church was described by the Pastor as a “small, cash-strapped entity that owned no building”. The church did not own a primary physical place of worship but used local elementary schools to hold services, as well as other buildings in the town. The church was originally called the Good News Presbyterian Church because the name alternated between that and the Good News Community Church. The Court used the second name to describe the church because that name had been on the signs brought into question. The compliance manager who oversaw the sign code gave citations to the church twice for going over time limits and for not displaying the date of the event in question. Stricter regulations were used on the ideological messages because the Church could not afford more than temporary signs. 
The church filed suit in the district court for Arizona, and then at the Appeals Court for the Ninth Circuit. The Appeals court followed the lead of the decision of the district court by deciding that the restrictions that the town placed upon temporary directional signs was not regulating content based speech. When taken to the Supreme Court, the court decided in a 9-0 decision that the rule that regulated signs in the town was unconstitutional. The court decided that the code restricted the use of signs for the chance that the sign contained a religious message. Justice Clarence Thomas wrote that,  “Restrictions in the Sign Code that apply to any given sign [depend] entirely on the communicative content of the sign”. Justice Alito wrote a concurring opinion that was joined by Justices Sotomayor and Kennedy that agreed largely with the majority opinion, but added that the Court would not be setting a precedence for preventing cities from regulating signs deemed helpful for the general populace. The other main concurring opinion was written by Justice Kagan and joined by Justices Bader Ginsburg and Breyer stating that the strict scrutiny in using the Supreme Court in this case ran the risk of having the highest court in the land become “a veritable Supreme Board of Sign Review”. 

I do not agree with the Court’s decision or with that fact that the case was brought to the Supreme Court. The case itself was not so blatantly a religious case that required the Supreme Court. The Church in question was described as a poor church and so could not afford the signs that could be placed for longer. Since the tighter restrictions were placed on the temporary signs that were free and that the Church used, the Church filed a suit. It is not clear enough that the regulations were obviously geared toward restricting ideological messages on the temporary signs. Other groups were allowed to use the temporary signs as well, which meant that the restrictions did not directly apply to the religious or ideological groups. Justice Thomas’ majority opinion came from the idea that the innocent motives of the town allowed for the potential of dangerous censorship by the government. I disagree in that I do not see a potential for increased censorship from this case as it appears to be a simple decision regarding a town’s basic regulations. 

Sunday, February 21, 2016

Bibles in Backpacks

In June 2015, Republicans in Boise, Idaho pushed for the creation of a resolution that would explicitly allow for, and support, the use of the Holy Bible as a literary reference in public school curriculums. Idaho County drafted Resolution 2015-P20 and was submitted by the Idaho Country Chairman, Marge Arnzen. This resolution implies that because, “the strength of our nation lies with our faith and reliance on God our Creator…[we] must protect the values and principles that have made us strong” by allowing for the use of the Holy Bible in school curriculums. The resolution goes on further to state that the use of the Holy Bible in school curriculums abides by the First Amendment, and would be a source “worth studying for its literary qualities and its influence on history”.
The use of the Bible as a literary and historic reference is constitutionally endorsed and currently permitted in school curriculums. Idaho Republicans argue that this new resolution should be passed without hesitation due to previous resolutions made regarding a similar matter. In 1782, the United States Congress passed a resolution that allowed for the use of the Holy Bible in all schools and authorized a monetary loan to help print and distribute 10,000 copies of Bibles throughout U.S. public schools. If the Bible is currently allowed to be used as a literary resource in public school classrooms today, it begs the question – Why bother creating a law regarding this matter?

Senator Sheryl Nuxoll of Boise, Idaho believes that creating a bill specifically on this matter is necessary because teachers today are afraid they will be violating the constitution by using the Holy Bible in class. Nuxoll hopes that this bill will allow for the Bible to be used as a reference for “literature, comparative religion, English and foreign languages, United States and world history, comparative government, law, philosophy, ethics, astronomy, biology, geology, world geography, archaeology, music, sociology,” and etc. Nuxoll claims that use of the Bible will not be mandatory and that students will not be required to use the Bible in their studies if they object to do so. Nuxoll stresses upon the importance of the Bible in our nation’s history and distinguishes a contrast between the Bible and other religious texts because the Bible is so “embedded in American culture”. Opposing groups to this resolution argue that this motion creates an issue because it proposes that the Bible be used beyond just literary and historical courses which creates a conflict towards legal and scientific beliefs. Should there be a law allowing for the use of the Holy Bible in all subject matters within public schools? Or is this resolution a clear violation of the Establishment Clause within the First Amendment? 
I am conflicted in regards to this issue. I agree that the Bible should be available as a resource tool when discussing topics relative to historical religious history. However, I find many issues with the specifics of this desired bill. The fact that Nuxoll believes that the Holy Bible is a necessary literary reference for topics such as biology, ethics, astronomy, etc. makes me believe that the religious beliefs of Christianity could easily be coerced onto students. Yes, the bill does state the students will not be forced to partake in usage of the Holy Bible. However, what if constant reference to the Bible becomes a disadvantage to students who do not wish to use the Bible. Will teachers start using material found in the Bible on tests and exams? By opting out of using the Bible as a reference tool, will students be setting themselves back compared to their fellow classmates who do use the Bible in class?

A major point of conflict that I find in this resolution is discrimination towards religions besides Christianity. This bill is clearly discriminatory towards non-Christian religions because of its specificity of the use of the Holy Bible and no other religious text. Nuxoll’s statement on the importance of the use of the Bible instead of other religious texts by saying that the Bible is “embedded in American culture”, sheds light on the true intent of this proposed resolution. This bill clearly favors Christianity above other religions and by incorporating, and implicitly encouraging, this religious text to be used in classrooms, it is thus establishing religion within the classroom. If we open the door to the usage of the Holy Bible in the classroom, we should either allow for the use of any and all religious texts, or none of them at all.

Do Schools Violate the Establishment Clause by Encouraging Religious Experiential Learning?

On February 4th a public school in Rochester, New York held “World Hijab Day.”  Female students were encouraged by the administration to wear hijabs, the Muslim religious head covering.  Eman Muthana, a sophomore in high school, wrote a letter to principal Sheela Webster regarding the school putting on its own World Hijab Day.  The principal ultimately approved the school’s involvement in putting on the event.  Interestingly enough, no parents were notified prior to the school hosting said event.  
            The purpose of World Hijab Day was to educate the students on the religious purpose behind wearing a hijab in the Muslim faith.  Teachers brought in 150 scarves for female students to wear during a full school day.  To that end, Webster clearly states that the hijab was not to promote religion but rather for purposes of experiential learning and cultural acceptance.  She proceeded to tell WHAM: “We are an experiential school; we engage kids in all kinds of activities and projects all of the time, so the perspective of being able to learn what a hijab is, why some women choose to wear it and why some women don’t choose to wear it, and we provide the opportunity to experience it; it is well within school protocol of experiential learning.”       
            After the event was held much backlash ensued from angry parents who saw this as a completely inappropriate act on behalf of the school.  To that end, I can clearly see where these parents were coming from.  The government funds the school and thus both the teachers and the school as a whole are an extension of the government. The constitution clearly prohibits the governments participation in the affairs of any religious organizations or groups in order to keep neutrality.    Thus, the fact that the school took a day to promote a particular faith through “experiential learning” is a direct violation of the Establishment Clause of the First Amendment.  Furthermore, it is highly probably that since the teachers purchased the headscarves they most likely used the school’s money, public funds.  Again, a direct violation of the Establishment Clause as public funds are directly going to aiding religion. 
            Additionally, in the 1960s, there were several Supreme Court rulings banning school’s outright religious participation such as references to the Lord, conducting prayers, and direct readings from the Bible.  Thus, how is a school run World Hijab Day not considered religious participation?  Lastly, the school’s involvement appears to take neither an accommodationist nor separationist approach to religion.  It seems highly doubtful that the school would be open to allowing all religions to create their own events backed by the institution itself.  For example, if a Christian student wanted to promote having students wear crosses I can’t imagine the school would comply.  Thus, the school, and ultimately the government, is participating in favoring a certain religion over others.  As for the separationist viewpoint it is clear by the school’s blatant religious involvement with World Hijab Day that they do not or at least did not take this outlook.  Yet, this is exactly why this event generated so much controversy.  The ideals of the separationist and accommodationist are essential in interpreting the First Amendment in order to keep government neutrality and uphold the separation of church and state.  Either public institutions must be open to all religions or non at all -to step outside these boundaries is to violate the first amendment of the constitution.             

Are the rights of the religious minorities in jeopardy?

In 2013, in Oklahoma, an organization called the Satanic Temple asked for the settlement of a statue of Baphomet, next to a Ten Commandments monument that was located on the state capitol’s ground. Following this proposition, there was a massive wave of protestations against the Baphomet statue, which eventually forced the state authorities to wonder about the constitutionality of the Ten Commandments monument itself. After a long judicial struggle, the Oklahoma Supreme Court ruled that the Ten Commandments monument was unconstitutional indeed. Thus the state, according to the same process of thought, had no reason to accept the statue of Baphomet.

Of course, the legitimacy of the Satanic Temple as a religious group was one of the most controversial elements of this case. There are several parameters to be taken in account to decide weather or not this was a legitimate source of concern. On its website, the organization explains that it does not recognize Satan as a supreme being, but that “the metaphorical Satanic construct is no more arbitrary to [them] than are the deeply held beliefs that [they] actively advocate for.” The organization thus seems to fit into the official definition of religion operative in the United States: “The Supreme Court has interpreted religion to mean a sincere and meaningful belief that occupies in the life of its possessor a place parallel to the place held by God in the lives of other persons. The religion or religious concept need not include belief in the existence of God or a supreme being to be within the scope of the First Amendment.” 
It is then natural for the beliefs of the Satanic Temple members to be protected by the First Amendment, for it is made clear in most Supreme Court cases about religious freedom that the First Amendment was made to protect beliefs, before anything else. Some might be tempted to oppose this previous idea by describing the Satanic Temple more as a “hatred group” than as a “faith group”, as was seen in the press during the entire duration of the case. However, it seems to be part of Satanists' free exercise to “fight” against Christianity: Christian beliefs themselves affirm that Satan is working against God. Lastly, I would like to point out the fact that arguments concerning a lack of traditions or an insufficient number of members to debunk the Satanic Temple as a religious group are not really coherent. The organization often settles ceremonies and group prayers for its members, and their number is consequent. As written in the original article from the Washington Post, the Satanic Temple is a worldwide spread religious group.
This case is very similar to the one posted last week on the blog, about public prayer. Just like in that case, instead of recognizing free exercise for a religious minority, the state preferred to suppress signs of establishment, so to escape the accusations of unconstitutionality. Even if you are convinced that the goals of the Satanic Temple are purely political, I would like you to consider the strong message that such cases are sending: that the modern day interpretations of the First Amendment are only practical with religions of the majority. As we talked about in class, there is behind such an observation a possible logical explanation because of the framework of democracy, which naturally puts the opinions of the majority above the others.
However, I cannot help but feeling that such rulings are doing exactly what the First Amendment was originally made to avoid. As phrased by Tocqueville, the First Amendment was made to avoid the “tyranny of the majority”, that is to say so not to recreate a situation of religious intolerance like the one existing in England at the time, that Pilgrims and Puritans had fled from. As Thomas Jefferson said: “Is uniformity attainable? Millions of innocent men, women and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced an inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.” 

My point, nevertheless, is not to defend the existence of any practice as long as it is presented as religious. In France, the law is quite strict on that level. The government has the right to officially classify a supposedly religious group as a cult (une secte). If a religious group is legally defined as a cult (a decision which is based on the treatment it reserves to its members), its rights are limited but more importantly its activities are watched over. To give you a concrete example, Scientology is considered as a cult in France. I think most Americans will say that it limits religious freedom, to which I agree. I only wanted to evoke this matter to inform the readers that my opinions on this case are not entirely the result of my cultural background.
I simply think that under the First Amendment, if one follows an interpretation granted in history, the Satanic temple should have been granted the right to settle its own religious statue. After that, Christians would of course have had the right to protest against the statue, because this is also part of their free exercise to fight against the spread of Satanism – but I do not think that it was the place of the state officials to conduct such a quest. It clearly shows a preference of the state for a particular religion and thus causes an infringement to the Establishment Clause of the First Amendment. What is your opinion on that matter? Are the modern day interpretations of the First Amendment in concordance with the original motivations behind it?