Monday, May 2, 2016

Mannequin Mayhem

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

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

Does an Employees Religious Freedom Outweigh a Business Request?

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

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

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

What's for Dinner?

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

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

Sunday, May 1, 2016

“The National Day of Prayer," and Reason?

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

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

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

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

Religious Freedom or "Religious Freedom"?

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

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

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

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

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

A new kind of picketers

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

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

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

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