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. 

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?

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.

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.           

Praying Coach, Establishing Religion?

            Some people may look at football and believe that the fans of the sport could almost belong to a faith centered around; however, this time, we see a case where a suit was filed over the establishment of religion through sports. The case, which is currently in the early stages of a lawsuit, surrounds assistant high school football coach, Joseph Kennedy, who would walk to the 50 yard line alone, and take a knee in prayer as a thank you for keeping all players involved in the game safe, a practice that dates back to when he was hired in 2008. Slowly, through his time at the school, players began to join the coach in taking a knee at the 50-yard line to come together. A key point to be acknowledged here is the consideration that all players went to the 50-yard line voluntarily, and could choose not to at any point; however, many decided to join, not through peer pressure, but rather, because they believed that those moments were able to bring together the team. The perfect example of the players’ feelings towards the practice can be demonstrated by team captain at the time that this case began to gather attention.

            Ethan Hacker, football team captain and an agnostic, discussed the post-game activity with reporters, saying “It’s about unity. We can be mad at each other all we want during the game and get upset, but once the game ends, that all goes away.” Hacker went on to discuss how it is through this practice that Kennedy is able to bring all of the players together again. However, if one believes the mentality of acceptance towards this practice is limited to just the players, they would be incorrect, even amongst parents of players, the practice is not seen as an endorsement of religion, even enjoyed by some. When Hacker’s mother spoke to the press, she backed her son, saying what the practice meant to the players, despite her atheistic background. Therefore, Kennedy was shocked when the district notified him that he could no longer perform this activity as the district feared the legal consequences should the rights of its students or spectators be violated. Following the homecoming game, where Kennedy did perform his seven-year-old tradition, Kennedy was suspended from his job. Kennedy has now filed suit saying that he faced unnecessary backlash from his employer because he chose to exercise his religious beliefs.  

            Therefore, this case must be examined on a legal level to decide if the district, based on their fear of a lawsuit caused by the ruling from the case of Santa Fe Independent School District v. Doe, acted correctly. The district stated that this court decision demonstrated how prayer was not allowed at the high school football games, and that this alone provided enough reason to force the coach to stop. Simply stated, the court believed that the actions being performed by the coach would reflect a school endorsement, or establishment, of religion. The error in this logic is that Kennedy’s prayer is different from that of the one described in the Santa Fe Independent School District case in that this is not a public prayer. The prayer is said privately by the coach after he leaves the players, without inviting anyone to come with him. Rather, the players had approached Kennedy and requested to join him, and he did not say anything more than “it’s a free country, you can do whatever you want to do”. Moreover, the prayer is said by the coach with his eyes closed, making him unaware of any of those who are the vicinity of him, or watching him. This evidence clearly demonstrates that the act is completely voluntarily on the part of the players, and occurs as a private act as Kennedy has now concluded his coaching obligations, and is merely expressing his religion. Simply stated, by the coach performing this action after his coaching duties have finished, no reasonable observer could believe that Kennedy is still using his role as an assistant coach to force players to participate in a private less than 20 second prayer of thanks.

            As outlined in the previous paragraph, when this case reaches the courts, it will be analyzed on whether or not these actions by the coach were a violation of the establishment clause of the First Amendment. The reason that this case does not constitute a violation of the establishment clause is because of the inability of the government to regulate a private citizen’s actions or speech, something guaranteed by the First Amendment of the Constitution. The reason that this is private speech versus government speech is because the timing of the actions by the coach. Kennedy would not go to midfield until after the game, as well as all of his coaching duties, were complete. By waiting until this moment in time, the result was that the coach was no longer acting as a representative of the school; but rather, acting as a private citizen, making it so that limiting his speech was a violation of his First Amendment rights. Furthermore, because of the timing of these actions, a reasonable observer is able to see that coach Kennedy is not using coercion to make players attend; rather, players are free to make the choice between leaving, or joining in the practice. This is important because the lack of coercion makes sure that the act is voluntary for all present. By making this act voluntary, it ensures that coach Kennedy is not taking advantage of his role as coach to make people join him.

            Therefore, based on the facts previously presented, the actions performed by coach Kennedy do not constitute an establishment of religion that the school district feared would be seen. This case is unable to be related to Santa Fe Independent School v. Doe due to the fact that the circumstances of this case are different, as previously outlined. Furthermore, the discrimination being felt by Kennedy is only increased by the school not even allowing Kennedy to have a moment of silence, which would not provide a clear link to any religion. By not even allowing the moment of silence, the school is not only displaying a clear hostility towards religion; but also, not even allowing the coach to participate in a secular activity. Therefore, based upon the aforementioned facts, the act that the coach was performing was not un-Constitutional; but rather, the act was Constitutionally protected by the First Amendment which ensures that all private citizens have the right to exercise the religion that they choose. Based on this conclusion, the school district should face penalties for infringing Joseph Kennedy’s Constitutional rights.

Side Note: It is important to note that the letter also referenced another activity that the coach would perform in giving his pre-game speeches. However, upon being notified of this issue, as well as the fact that the pre-game speech was not voluntary, the coach immediately stopped any reference to prayer, so as to comply with Constitutional rights.

Prayer in Public Schools

Is student led prayers okay in a public school setting? As seen in the Supreme Court Case Santa Fe Independent School District v. Doe, Justice Paul Stevens wrote that student-led and student-initiated prayers at the school football games were found unconstitutional. The court held that by the school authorizing the speech by the students it was as if the school was allowing it. In Wallace v. Jaffree the court stated that allowing is not endorsing. The court found that meditation was allowed however found that allowing voluntary prayer was not. This means that adults who worked for the school are not allowed to lead students in prayer because they represent the government making it seem as if they are endorsing religion for the government.

In a public middle school in Missouri a pastor lead prayer before lunch in the cafeteria. The uniqueness of the situation however is that no parents and no students who were part of this filed a complaint.
Dr. Brian Wilson, the superintendent of the Hollister School District, stated that this was not an issue of freedom from religion but freedom of religion. He later goes on to state that "There's not been a parent of Hollister schools nor a student that has issued a complaint... However we did receive a letter  from a group out of Madison Wisconsin." The letter was from Freedom From Religious Foundation (FFRF) who was represented by Patrick Elliott who in a press release on Feb 16 stated that
"It is well settled as a matter of established law that public schools may not advance prefer of remote religion, It is unconstitutional for a public school to allow an evangelical Christian organization to impose prayer on all students.
Giving the group access to all students as part of school programming suggests that the school district has preference not only for religion over non religion, but also evangelical Christianity over other faiths. This sort of entanglement between religion and public education is inappropriate."
The school invited the Pastor over for lunch and not prayer however they stated that the students during the lunch decided to invite the pastor to prayer not the other way around.
It was also argued by Wilson that the students had a choice whether they wanted to participate in the prayer and that everyone did participate and no one was opposed to the event.

Although the answer may be obvious that students and the school should not authorize this form of prayer amongst all the students, what if all the students and all the parents allow for it? Although no complaints from the parents and students came in I still believe this is unconstitutional. It seems as if most if not all of the student body is part of a christian religious group. Something else that was taken into consideration was that the lunch is "open" and families and vocals are allowed to come enjoy the meal with the students. All this apart however I believe that the school should not represent a Christian culture. This is too big of an entanglement with religion and there should be a separation of church and state. In this scenario I would state that allowing for this behavior is endorsing it. There is no secular purpose behind this prayer led by the students and the "school." Therefore this should not be allowed to continue and the series of prayers which occur before lunch should stop. 

The Return of the Flying Spaghetti Monster

The political culture of modern America often portrays a divisive and convoluted government structure. The Founding Fathers were not ignorant of the fact that opposing political views would soon form, so they bound these factions by a common standard—The Constitution. The Constitution was crafted to transcend politics, and establish a common legal framework. Even as America evolves, the constitutional implications of such changes must be addressed with the gravest sincerity.
The Founding Fathers couldn’t possibly have predicted the court's significant and ongoing history with the religion clause of the First Amendment. In the context of early America, religion was widely accepted, generally practiced, and limited in diversity. The First Amendment’s guarantee to free exercise, and constraint on establishment was crafted with that context in mind. So, the Founding Fathers would have a hard time understanding the development of new religions, and their role in society as legal entities. Modern courts have continually struggled with classifying new or minority religions, and deciding their constitutional rights. In order to guarantee rights, the court must decide the legitimacy of a religion, but doing so raises issues of possible government favoritism or censorship.

A district court in Nebraska recently denied the Church of the Flying Spaghetti Monster status as a religion, and thus denied their rights of free exercise. The case was initiated by Stephen Cavanaugh, who is an inmate at the Nebraska State penitentiary, and sued over alleged free exercise violations. Despite giving exemptions to other religions, the prison would not let Mr. Cavanaugh wear his special religious clothing, which was full pirate attire. The prison also did not allow religious services between him and other members of the Church of the Flying Spaghetti Monster. Of course, he also asked for $5 million as reparation for the "deep emotional, psychological, and spiritual pain” that this incident has caused.

The Church of the Flying Spaghetti Monster was initially formed in 2005 by physics grad student, Bobby Henderson. Henderson “revealed” this new god as a satirical protest to a Kansas proposal to teach intelligent design in public school. He argues that the language of intelligent design doesn’t specify a unique god or deity, so it could be any divine entity. In an effort to promote “multiple viewpoints,” Henderson proposed that the Flying Spaghetti Monster get equal attention among the theories taught.

Regardless of the current status of the Church and its followers, it was clearly formed out of spite, and without sincere belief. However, Henderson doesn’t see that as an important issue when addressing constitutional rights; ”after reading the court documents and talking with people in the know, I feel that here is a troubled guy who is legitimately trying to pursue his faith and, only after being stymied by the in-house prison channels, was forced to take the fight to the courts." It doesn't matter that the religion was founded under insincere pretenses; the sincere belief of the follower is all that matters.

As hard as it is to judge the legitimacy of a religion, the court finds equal difficulty in judging sincerity of belief. The Nebraska court nullified any claim of belief by rejecting the church as a legitimate religious group. Writing for the majority, District Judge John Gerrard argues that "[the church] is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education."

The court has difficulty drawing lines, as that requires making substantive and definable measures for the entire future of the court. The court often builds on precedence, but the most effective way to interpret the constitution is from the view of those who wrote it. It seems naive to think that a modern judge would understand the grievances that prompted the guarantee of these rights more than those who lived through it. The crafters of the constitution were protecting deeply held and widely practiced belief from potential persecution from an overbearing government. As such, deeply held belief should undoubtedly be protected, but only with the pre-text of a sincere religion. Mr. Cavanaugh’s belief couldn't possibly be seen as sincere if the religion he subscribes to openly admits its satirical nature and political purpose. The religion was formed with the sole intent of addressing political issues, not for genuine worship. Nebraska’s district court decided correctly in denying the free exercise rights of Mr. Cavanaugh.

Mississippi RV Park: Open to Public?

An article posted in early April describes a case in which an RV park owner, Gene Baker in Mississippi, acting as the park's landlord, asked an interracial couple to leave his RV park only because they were an interracial couple. The landlord cited the reason of interracial marriage conflicting with his church's belief. This interracial couple is of Hispanic/Native American and African American descent. The husband, Stanley Hoskins, a sergeant in the National Guard, moved with his wife, Erica Dunahoo, and their two children at the end of February where they handed in a deposit of $275.

Dunahoo discussed initially meeting Baker described him as "real nice. He invited me to church and gave me a hug. I bragged on him to my family." The day after this visit, Dunahoo received a phone call from Baker and was told "You didn't tell me you were married to no black man." Upon asking why that mattered to him, Baker discussed how it is an issue within his church and his community and said "They don't allow that black and white shacking." Baker, however, told Dunahoo that he did not have a personal issue with interracial marriage but couldn't allow the couple's presence in the RV park because of his church's and community's beliefs.

After Baker returned the deposit the family left the RV park. They are now living in an RV park that charges $325 per month. Baker was asked how he would proceed if encountering this situation in the future, and Baker said "I'm closing it down."

The United States supreme court struck down state bans on interracial marriage in 1967. The main issue in this case is that "religious freedom" has never been a justified argument to discriminate against interracial marriages because of a fundamental personal racism issue. This was not acceptable or accepted before 1967 and is not now. Gene Baker had and has no legitimate reason the ask this family to leave his RV park. The couple is now facing a greater financial burden as they have to pay more to live at another RV park that requires a higher monthly rate. In class, we discussed how LBGT discrimination today is likened to racial discrimination in the past. It is a shame that racial discrimination is still occurring in 2016.

What do you think about this case? What are the more important details to pay attention to here in regards to justifying a discriminatory belief through the use of religion?

Can The Government Decide Who is Catholic?

In Wisconsin, state law requires that each county provide transportation to all private schools for students who live more than a mile away from their school. The law also states that if there are two religious schools of the same denomination in the county, the schools are responsible for dividing the county in to non overlapping attendance areas. The district only must provide transportation for students to the school on their side of the county.  In a particular district, there is a Catholic school, St. Gabriel, as well as an independent school, St. Augustine. St. Augustine is an independent school that, while it teaches Catholic ideals, is not associated with the Catholic school system and the archdiocese. The school has its own governing body and their articles of incorporation state that they are separate from the Catholic church but promote “Catholic teachings.” The superintendent was the one who is given the task of deciding that St. Augustine classifies as Catholic school. The parents of three children are filing a case against the superintendent and the district. After the superintendent’s decision, their children were no longer provided transportation to St. Augustine because they do not live on the right side of the county. They claim that it is a violation of both the free exercise and establishment clauses.

Does the government making decisions about what is a Catholic school an infringement on the establishment clause? Does denying school children transportation qualify as a violation of the free practice clause?

Since this case calls into question issues of both free exercise and establishment, there are two separate details that are crucial. Firstly, in regards to the free exercise clause: the parents claim that they are unable to freely exercise their religion because their children do not receive transportation to school, where they will theoretically strengthen their religion. Secondly, in regards to establishment: the parents claim that the state violates the establishment clause because the superintendent is making decisions about what is Catholic.Since this case has to do with school buses, I was first reminded of Everson v. Board of Education. This case determined that parents are entitled to free buses for their children, regardless of whether they are being taken to a religious or non-religious school. The state law does not go against this ruling: theoretically, children can get free buses to the religious school of their parent’s choice. However, the question here is not whether Catholic school children should receive buses to school, but rather what is defined as a Catholic school. I would argue that this case is like Cantwell v. Connecticut. In that case, the court ruled that it was unconstitutional to require religious groups to get a permit before soliciting on the street when non-religious solicitors did not have to do the same. One important point that was argued was that the government should not be given the authority to decide what qualified as a legitimate religious cause, and therefore have the authority of defining what was religious. I would argue that this same entanglement is happening here: The superintendent is given the authority to decide what is Catholic and what isn’t. In short, he is making calls about the definition of Catholicism. Personally, I do not think that the superintendent should be given the authority to decide what is Catholic. To me, that seems like a direct violation of the establishment clause. I would argue that this is a case of excessive entanglement.

Additionally, this is a violation of the free exercise clause. The parents of these children are encountering a burden because they lack buses to their school of choice based on their religion. There is a state interest to have the law: when there are two Catholic schools, splitting the district no doubt saves the district money by having their buses travel sorter distances each day. However, the individuals clearly believe that the religious education their children would receive at St. Gabriel is different from the one they would receive at St. Augustine. The state interest, I think, is trumped by this religious belief. Some may argue that since the schools are both Catholic, it shouldn’t matter that the schools are run by different governing bodies. This is a slippery slope: can the government then also group all Christian school as the “same religion?” I think it should be left up to the schools to self identify their religious views instead of having the district decide. If the view of the St. Gabriel and St. Augustine define themselves as different, the parents should have the authority to choose which one better aligns with their Catholic views. By splitting the district between two schools that may have different beliefs, the free exercise and establishment clauses are is violated.  

Tell Us How You Really Feel: How America’s Free Speech Laws Allow Negative Advertising without Consequence

St. Augustine Beach, Florida currently houses a billboard that states: “Islam Bloody Islam, DOOMED BY ITSDOCTRINE!” This billboard has been met with scrutiny from over 15,000 individuals around the world, all of whom have signed a petition asking for the county government to remove the billboard. This petition is housed on the website Care2 and the petitioners have explained that they do not think that Free Speech covers messages which stem from “hate” and ignorance.” The billboard has not been removed and a St. Johns County official stated that the billboard is protected under the First Amendment right of Free Speech.

This is not the first time that a media campaign of this nature has met public scrutiny. Pamela Geller is a Jewish American and the head of the American Freedom Defense Initiative. Ms. Geller has run ad campaigns that are critical of Islam in New York City and in other cities around the country. She has stated, “Muslims and Islamic apologists are working furiously to bring the oppressive Shariah state of hate to America…Islamic law commands Islamic Jew-hatred, creed apartheid, gender apartheid, and criminalization of free speech. Everywhere voices of freedom and dignity speak, these fascists shut them  down.” She ran a $100,000 anti-Islam media  campaign in 2014 on MTA property. Mayor Bill de Blasio believed that the hateful messages were wrong  and had no place on New York City ad space. However, the local court deemed these advertisements to be constitutional and the mayor was unable to ban them since the ads are not covered under defamation law, regardless of the accuracy of their content. After Ms. Geller’s ads ran on the MTA in 2014, the MTA issued a blanket ban on all viewpoint ads, which would ban all forms of political speech on MTA subways and buses.

Geller's advertisements which were placed on
New York MTA subways and buses 

The St. Augustine case is different than any of the other free speech cases that we have encountered in class because this speech is not government endorsed. The billboard does not promote a specific religion, nor does it portray government endorsement of one particular religious sect. However, it does portray a very negative view of Islam. When does Free Speech infringe upon the Establishment clause? According to the Lemon Test there are three important questions, which we must ask to determine if something violates the Establishment Clause: does the statute have significant secular purposes? Does it not have the primary effect of advancing or inhibiting religion? Does it foster excessive entanglement between government and religion? The billboard has a primary secular purpose, which is to education the people of St. Augustine on the dangers of Islam within their community. The government does not pay for this billboard nor is it on government property; therefore there is no question of endorsement or entanglement. Opponents to this billboard may argue that it clearly places other religious sects above Islam, and could potentially be seen as government supported animus towards Islam. However, since this billboard is not connected to the government in any way, it does not violate the Lemon Test.

This case is similar to Good News Club v. Milford Central School (2001), which is one of the few cases we have examined in class that deal with private speech. In 1992, Milford Central School created a community-use policy for organizations that may want to use its buildings after school. This became possible when New York State authorized local school boards to create their own regulations concerning buildings. One of the restrictions was utilizing the school building for any religious worship or instruction. The Good News Club felt as though its Free Speech rights were being infringed upon due to the restrictive nature of the school board’s regulations. Justice Thomas explains in the Court Opinion that it is important to understand that Milford operates under a limited public forum, which means that the State does not have to allow individuals to engage in every type of speech in this forum, which differs from a public or open forum. According to Rosenberger v. Rector and Visitors of University of Virginia the State can, “reserve[e] [its forum] for certain groups or for the discussion of certain topics” (Muñoz, 483). However, Milford school district violated Good New Club’s free speech rights because it restricted the club on the basis of its viewpoint, which is not constitutional according to Cornelius v. NAACP Legal Defense for Education Fund, Inc. Justice Thomas also explains that the Supreme Court cannot limit private conduct. For those of you who may have agreed with the dissent in the case of Good New Club, it is important to understand that content matters in deciding these cases. The St. Augustine billboard differs from Good News Club in two ways; the billboard is not part of government property, unlike the school and the billboard is part of an open forum. This means that the restrictions on free speech are even more limited than the restrictions that the Good News Club faced. Removing the billboard in St. Augustine would clearly be viewpoint discrimination. The message on the board does not violate any hate speech or defamation laws and would only be taken down because people disapprove of the viewpoint that the billboard displays. This is a form of discrimination in itself and violates the First Amendment rights of the individual who paid for the advertising space. Thus, even though it is possible to interpret limited open forum restrictions in different ways, there is no justice who would argue that it is constitutional to restrict public forum speech on private property (according to the Nevada Law Journal- private property can be considered a public forum).

It is very important to understand what classifies hate speech in order to understand this case and its legal basis. The Washington Post published an article, “No, there’s no ‘hate speech’ exception to the First Amendment,” which explains how hate speech is protected by the First Amendment. Therefore, if you would like “hate speech” to be banned, you must take it up with Congress and not the Supreme Court. Hateful ideas are protected under the First Amendment and according to the Washington Post article, “One is as free to condemn Islam- or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens- as one is to condemn capitalism or Socialism or Democrats or Republicans.” There are a few types of speech that are not protected by the First Amendment: obscene speech, pornography and fighting words. Fighting words are considered face-to-face personal insults that are addressed to a specific person that will likely incite a fight. The Supreme Court rules that prohibition of bigoted fighting words is unconstitutional in R.A.V v. City of St. Paul (1992). Threatening to kill someone because of their identity or inciting others to immediately attack someone because of their identity is illegal, however not due to hate speech laws but because it is illegal to make true threats and incite crimes against anyone or any reason.

If the individual who paid for the St. Augustine billboard is taken to court, I believe that the billboard should be ruled constitutional. There is clear evidence that these types of speech are permissible and have been ruled as such by both local courts and the Supreme Court. Denying this individual advertising space would be viewpoint discrimination and a violation of their Free Speech rights under the First Amendment. Although the billboard shows a marked animosity towards Islam, this speech is not being endorsed by the government and thus does not violate the Establishment Clause according to the Lemon Test. We are all advocates of free speech until it pertains to topics with which we disagree. It is important that we protect individual rights and that we do not try to act on behalf of Congress, nor do we ask that of the Supreme Court. It is not the job of the court to write legislation and currently there are no laws in place, which prohibit this billboard under the Constitution or under any defamation, or libel laws. This billboard may be distasteful, however it is certainly legal.

Historically Significant or Religious Endorsement?

This past week, Tennessee passed a Bill making their state book The Holy Bible. Supporters of this Bill argue that the Bible holds deep significance in Tennessee’s state history, and making the Bible their state book is an attempt to honor that history.  Supporters of the Bill reject the idea that this is a government endorsement of a religion, stating that the historical significance of the Bible should hold more meaning than its religious connotation. Opponents of the Bill, however, see this bill as a clear violation of the Free Exercise Clause. Further, arguing that by making a book as sacred as The Bible so trivialized; putting it alongside things like ‘state exercise’ or ‘state sport’ detracts considerably from the holy beliefs deeply held by those who believe in its teachings.

In a 19-8 decision the bill passed the State Senate and is now going to Republican Senator Hassan to be signed. It’s unclear whether the Senator will sign or veto the bill due to concerns about whether it goes against the Establishment Clause. In a statement he released he said; “The Bible is the most important book in my life, and I think in the world, but that's very different than being the state's official book.”

The opposition surrounding this is very vocal; Tennessee’s Attorney General cited the First Amendment in the statement he released earlier this week; “The Holy Bible as the official state book of Tennessee would violate the Establishment Clause of the First Amendment to the federal Constitution and Article I, § 3, of the Tennessee Constitution, which provides ‘that no preference shall ever be given, by law, to any religious establishment or mode of worship’”.

In the past, when The Supreme Court has grappled with the question of whether the religious significance or secular interest reins supreme, there have been multiple factors that decide this. In the cases we’ve examined in class the defense of history and context has appeared imperative for the Supreme Court in their decision. In Van Orden v. Perry, the court ruled although a monument that has its roots in religion, the secular interest of historical significance was important enough to have the monument kept.  Further in Chambers v. Marsh and The Town of Greece v. Galloway, the Court ruled that a state instructed prayer was constitutional. They ruled this on the basis of historic past that legislative prayer, and the tradition it holds in the legislature. Additionally, Justice Kennedy argued that legislative prayer is only meant for the legislature.

This all being said, I believe this example, although similar to the cases above, differs in some very key ways.  In Van Orden v. Perry, the concurring argument stated as one of its main reasons the monument was not coercion was because passers-by didn’t have to stare at it and could choose different walking paths to avoid it. Further the fact that the monument was in a park with multiple monuments informing the states history was also important in the decision of this case. Conversely, in this case, there is nothing else around a state book to inform its historical significance. In Chambers v. Marsh and The Town of Greece v. Galloway, the court decided in their concurring argument that legislated prayer is not intended for everyday people, further, there is not the tradition of having a religious text assigned as a state's official book. This Bill, however, is overreaching to all citizens, not just the legislature, and coerces as well as endorses religion by doing so.

In my opinion, Tennessee’s bill to change the state’s official book to The Bible is a clear violation of the Establishment Clause. Although there have been court cases that justify the secular use of religious symbols to inform history or tradition, this goes beyond the conditions set forth by the Supreme Court, because it is an unavoidable and blatantly endorsing a religion, as well as elevating one religion above non-religion and other religions.

What do you think, in this case, do you think that the historical significance trumps the religious connotations; or is this a violation of the First Amendment's Establishment Clause?