Can a school classroom be deemed a religion free zone? The American Center for Law and Justice (ACLJ) argues absolutely not. The ACLJ recently challenged a college where one teacher was firmly against religion in her classroom. This was brought about by a student who wrote an essay on friendship that included the friendship a Christian might have with Jesus. The student was reprimanded by the teacher for the religious content in the essay. The teacher stated that everyone does not necessarily believe in God and asked the student to refrain from talking about religion with her. The student’s response was that as a practicing Christian it is his duty to share his faith, however he did agree that he would refrain from further discussing religion with his teacher. Despite the student’s agreement, the teacher filed a harassment complaint with the college and the student had a disciplinary hearing. As a result, the student was prohibited from discussing religion in any form in the teacher’s class, including when responding to any assignments.
Following this decision, the student and the ACLJ complained that this was infringing on the student’s freedom of speech, while the conduct officer maintained his position that the student must treat the teacher’s classroom as a “religion free zone”. After issuing a letter to the college’s administration regarding the student’s right to speak from a religious viewpoint, demanding that the student be permitted to respond to class material and assignments from a religious perspective, the college responded and permitted the student to speak about religion in class. The college stated that the student would no longer be at risk for negative consequences as a result of him speaking about or responding to assignments from a religious perspective.
This case addresses two fundamental constitutional issues: Freedom of speech and free exercise of religion. Freedom of speech allows both the teacher and the student to have their own opinions on religion and to express them in the classroom. The teacher does have the right to not engage personally in discussions of religion if she is not religious, however in the classroom it is not her right to take away someone’s freedom of speech because she feels uncomfortable about the topic. Freedom of speech will and should be protective over the feelings and opinions of those who have to listen to the speech. In 1969, the Supreme Court in Tinker v Des Moines Independent Community School District ruled in favor of the First Amendment and protecting children’s freedom of speech. The ruling prohibited censorship so long as the speech does not substantially interfere “with school discipline or the rights of others". In this case, the speech and written assignments does neither. The author of this article, Carly F. Gammill, wrote that the teacher by stating that not everyone believes in God is asserting her own anti-religious opinion. I do think the teacher has every right to have an opinion, as long as she is not preaching to the class. The teacher's freedom of speech must be protected as well, even though in this situation I do not think she was being anti- religious, rather just pointing out that not everyone believes in God.
The Free Exercise clause is also at risk in this case. The exercise of religion needs to be protected and that is what is at question in this case. The teacher does not want the student to exercise his religion by sharing his faith, while the student believes it is his obligation as a Christian to share his faith. The student deserves the right to practice his religion regardless of the teachers belief. This can be a slippery slope, particularly if the student wanted to preach all class long and was disruptive to the teacher. I do think that someone should not be allowed to disrupt the whole class to preach their religion, however that is not the case here. The student even realized that the professor did not want to talk about religion in personal conversation so he respected this and chose to practice his religion in a respectful way when it could be applied appropriately to an assignment. The student is not being disruptive by responding in appropriate context with his religious beliefs. The school made the right decision in the end by prefrancing religious freedom over restriction.
This case is important as it brings up recurring issues seen in our nation's history, including cases like Snyder v. Phelps. In that particular case, free exercise is not addressed but the Supreme Court upheld the protesters freedom of speech at a military burial. Courts in the United State’s have continued the long standing precedent of supporting freedom of speech in most situations. In the case of this college, the place of religion in the classroom is addressed, which has been questioned and debated countless times in different cases. The issues of teaching evolution vs creationism and prayer in schools have been the subject of several cases and have continued to form the role religion has in public education. I believe that in the end, this school made the right decision and the student’s freedom of speech and free exercise were protected.
Sunday, March 25, 2018
New Mexico Association of Nonpublic Schools v. Cathy Moses
All children deserve textbooks,
right? Education is the future of America, right? Equal opportunity, and education is
a fundamental right that many Americans hold dear. The State of New Mexico has a textbookprogram, which is currently being challenged, as a violation of the
Establishment Clause and the state’s Blaine Amendment. The program uses taxpayer funds, around one
million each year, to pay for textbooks and computers for any school that
qualifies, whether it be private, public, secular or non-secular. The program was first created in an effort to
increase the literacy rate in New Mexico.
But when New Mexico became a state, a Blaine Amendment, was created in
an effort to discriminate against the rapidly growing number of Catholic
immigrants moving to the United States.
Many Blaine Amendments exists across the United States because of the
anti-Catholic sentiments that raged across the country. Many anti-religious groups have tried to use
the Blaine Amendment in an effort to prevent any funding, direct or
indirect to be given to religious organization, and in this case private
religious schools in New Mexico. The
state Court of Appeals first dismissed the case, but the State Supreme Court
sided with the parents and ended the funding to over one-hundred private
schools. The New Mexico Association of
Nonpublic Schools appealed the decision, sending the case to the federal high
court.
The lawsuit, first filed in 2012, has taken a new turn due to the decision of Trinity Lutheran Church of Columbia vs. Comer. The New Mexico Supreme Court had previously decided that the public funds providing aid to the religious schools were a violation of the Blaine Amendment, but after the Trinity ruling that is up for debate. The Trinity Lutheran Church v. Comer decided that laws which discriminated against religious organizations that would have otherwise receive funds, had they been secular, were deemed unconstitutional. The court will now have to decide if the Blaine Amendment is constitutional, sending the case back to the New Mexico Supreme Court awaiting oral arguments in May.
The Trinity Lutheran Church of Columbia vs. Comer has created a precedent that should make the Blaine Amendments unconstitutional. The Blaine Amendment, although facially neutral, is not neutral to non-secular groups. The New Mexico program is also specific in the allocation of funds. The funds cannot be used for any religious materials, or resources that can be used to promote religion. This distinction is vital to the continuation of the New Mexico textbook school fund and consistent with the decision in Meek v. Pittenger. Meek v. Pittenger determined that funds could be used to provide equipment for religious school, as long as there was no government entanglement with religion. The other argument for the continuation of the program is the fact that the materials that were being provided were granting the same “general benefits” that were available to the public schools. The helps to create a common educational basis on which the school systems can grow.
The program should be allowed to continue because, the funds are not being used to promote religion, rather they are being used to provide the same teaching materials that are offered at secular schools, and is being used to prevents schools from receiving funds just because they are religious. The Trinity Lutheran Church v. Comer also encourages the continuation of the funding project. The courts cannot prevent groups from receiving funding based on religion, but I begin to wonder if this sets a precedent of a slippery slope. Next private schools will be asking for more and more funding. I do not see an issue with this funding program because of the regulation of the funds, but it does create opportunities for more public funds to be available for religious organizations, as we have seen in the debate over disaster funding available for religious buildings.
https://www.becketlaw.org/case/new-mexico-associations-nonpublic-schools-v-cathy-moses/
The lawsuit, first filed in 2012, has taken a new turn due to the decision of Trinity Lutheran Church of Columbia vs. Comer. The New Mexico Supreme Court had previously decided that the public funds providing aid to the religious schools were a violation of the Blaine Amendment, but after the Trinity ruling that is up for debate. The Trinity Lutheran Church v. Comer decided that laws which discriminated against religious organizations that would have otherwise receive funds, had they been secular, were deemed unconstitutional. The court will now have to decide if the Blaine Amendment is constitutional, sending the case back to the New Mexico Supreme Court awaiting oral arguments in May.
The Trinity Lutheran Church of Columbia vs. Comer has created a precedent that should make the Blaine Amendments unconstitutional. The Blaine Amendment, although facially neutral, is not neutral to non-secular groups. The New Mexico program is also specific in the allocation of funds. The funds cannot be used for any religious materials, or resources that can be used to promote religion. This distinction is vital to the continuation of the New Mexico textbook school fund and consistent with the decision in Meek v. Pittenger. Meek v. Pittenger determined that funds could be used to provide equipment for religious school, as long as there was no government entanglement with religion. The other argument for the continuation of the program is the fact that the materials that were being provided were granting the same “general benefits” that were available to the public schools. The helps to create a common educational basis on which the school systems can grow.
The program should be allowed to continue because, the funds are not being used to promote religion, rather they are being used to provide the same teaching materials that are offered at secular schools, and is being used to prevents schools from receiving funds just because they are religious. The Trinity Lutheran Church v. Comer also encourages the continuation of the funding project. The courts cannot prevent groups from receiving funding based on religion, but I begin to wonder if this sets a precedent of a slippery slope. Next private schools will be asking for more and more funding. I do not see an issue with this funding program because of the regulation of the funds, but it does create opportunities for more public funds to be available for religious organizations, as we have seen in the debate over disaster funding available for religious buildings.
https://www.becketlaw.org/case/new-mexico-associations-nonpublic-schools-v-cathy-moses/
Monday, March 19, 2018
Condominiums: The Modern Day Church
If you’re in the market for a condominium that
can promise an abundance of brilliant sunshine, slow-swaying palm trees, and
restrictions on religious practice, then the Cambridge House in Port Charlotte,
Florida is the place for you. On February 6th, 2018, the board
members of the Cambridge House voted to ban all prayer, religious service, and
religious meetings within the common areas located within the complex.
Following the vote the board proceeded to place a sign on the lobby organ that
read “Any and All Christian Music is banned,” removed a statue of St. Francis
of Assisi from the property, and requested that all crosses and religious artifacts
be removed from the door of each resident. While the enactment of these
preliminary decisions proceeded without much contestation, Donna Dunbar filed a complaint against both the Cambridge House and it’s management company, The
Gateway Group Inc., stating that both parties violated the Fair Housing Act by
not allowing their residents to practice their religions freely. Dunbar, a lay
minister of The Seventh Day Adventist Church, held women’s bible studies
gatherings every Monday morning within the common rooms of the condominium
complex until the board members issued their decision to prohibit her from
holding future meetings in the public space. Following the board’s decision,
Dunbar has decided to continue holding the bible study meetings within her own condo
as it is not considered a public space within the complex.
The first issue that is addressed within this
case is whether or not the Cambridge House violated the federal law which
prohibits discrimination in home sales, financing, and rentals based upon race,
color, sex, national origin, or religious belief, otherwise known as the Fair Housing Act. Pursuant to the complaint filed by Dunbar, she outlines that the
actions taken by the board violates the Fair Housing Act as the law explicitly
protects renters from discrimination of their religious affiliations and she
was actively trying to exercise her beliefs. The plaintiff states further
within her complaint that while religious gatherings have been prohibited from
the common areas, there are frequent secular gatherings that are deemed
permissible by the board in the same location. This effectively raises an issue
regarding the face neutrality on the matter as those who hold religious
affiliations feel as though they are facing extreme adversity for something
that is protected within their First Amendment rights while secular practices
are freely allowed and encouraged. Also cited within the complaint is the
argument that the members of the board did not properly notify the residents
that they would be holding their vote in the first place. Dunbar argues that
this is important for had there been more notice then more residents would have
been likely to contest the decision and formulate their own arguments against
the board as well as elicit what a “religious practice” would be considered as
in the eyes of the board. Finally, Dunbar is bringing forth the fact that she
was required by the members of the board to get insurance if she desired to
continue her religious meetings in the public areas while other residents who
frequented the space with events such as movie nights and game nights were not
required to get any form of insurance whatsoever.
The issue raised through Dunbar’s complaint brings
forth a contestation of the Free Exercise clause outlined within the First Amendment
of the U.S. Constitution. However, I would argue that because the Cambridge
House is a private complex and is owned by the Gateway group which is a private
company, then they have the jurisdiction to decide what practices their common
spaces may be used for. To tie in more foundation for my argument, I would like
to bring in the decision made in the case of Widmar v. Vincent, although it was ruled in the favor of the
religious organization. Briefly explained, this case sought to determine whether
or not the religious group known as Cornerstone could use the public spaces
provided within University of Missouri – Kansas City (a public institution) to
practice their religious beliefs. In this situation, the court ruled that the
school’s decision to not allow the members of the Cornerstone organization to
freely exercise their religious practices was a violation of their First
Amendment rights as it had little burden on anyone else and the spaces could be
used by both secular and religious organizations. However, a fundamental
difference that must be noted between these two cases is that in Widmar v. Vincent the disputed location
was within a public institution and public building, while the complaint filed
by Dunbar was located within a private compound. This difference holds
significant weight as those who own private property and allow their shared spaces
to be used by anyone still maintain the rights to that area and have the final
say regarding what practices may occur within that specific area. I do believe,
however, that the board should have given proper notification to the other
residents within the complex for they should have been granted enough time to
contest the decision made by the board for it affects many different parties
and they should all be granted an equal say in the matter. I must say, though,
that I anticipate following this case in the future for not only for the
dispute over the Free Exercise clause but also because the complaint was filed
on the grounds of the Fair Housing Act rather than another applicable
condominium act. This sets a precedent in the field as normally the fair
condominium cases are upheld frequently during their appeals as the private
property argument trumps a majority of the other arguments presented.
Public Funds Towards Private Schools in Michigan?
A recurring topic of controversy within courtrooms has been, whether public funds can be used to aid nonpublic schools. For example, Board of Education v. Allen where the State funded the purchase of textbooks and loaned them to nonpublic schools, free of charge, and Everson v. Board of Education, parents of private school students were given reimbursement for bus fares at the expense of taxpayer money.
In July of 2017, a similar case was brought to the Courts of Claims, in Michigan. Various groups sued the State, in lieu of a new budget which allocates $2.5 million of public funds to private schools. That is only a small portion of Michigan’s $16 billion education budget, but these groups fear the “slippery slope” of legislators redirecting more funds to private schools in the future. The purpose of the funding goes towards reimbursing nonpublic schools for their compliance with state mandates such as immunization and safety drills, not aiding their actual educational curriculum, but Jeff Donahue, an attorney representing the public schools school groups stated, funding could go a different direction it can be permitted to be used for other purposes, “including costs associated with releasing student information to parents, meeting requirements to use non-certified teachers and certifying school counselors.”
The Court of Claims invoked the decision in the Trinity Lutheran case. Trinity Lutheran Church applied for a state-funded grant to remodel their playground, grant’s were hard to come by, but they ranked 5th out of the 44 applicants. When they were denied funding because the state policy excluded religiously affiliated applicants, they sued, claiming it violated the Free Exercise Clause that the statute was hostile against religions. The court sided with Trinity Lutheran, excluding funds solely because of religious affiliation violated the free exercise clause. In order to, deny a generally available benefit based on religion, there needs to be justification from the highest order of state interest, Missouri was unable to do. Cynthia Stephens, the Court of Claims Judge, invoked this case to justify her holding. She found, not providing funds to private school was a “generally neutral,” and “generally applicable without regard to religion.” She stated, “The constitution provision at issue in this case, Article 8 section 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than a provision that singles out the religious for disfavored treatment.” She expressed, the importance of the wording in the ruling for the Trinity case, “that case concerned express discrimination based on religious identity with respect to playground resurfacing.” The case at hand did not involve express discrimination, therefore not violating the Free Exercise Clause.
The Court of Claims invoked the decision in the Trinity Lutheran case. Trinity Lutheran Church applied for a state-funded grant to remodel their playground, grant’s were hard to come by, but they ranked 5th out of the 44 applicants. When they were denied funding because the state policy excluded religiously affiliated applicants, they sued, claiming it violated the Free Exercise Clause that the statute was hostile against religions. The court sided with Trinity Lutheran, excluding funds solely because of religious affiliation violated the free exercise clause. In order to, deny a generally available benefit based on religion, there needs to be justification from the highest order of state interest, Missouri was unable to do. Cynthia Stephens, the Court of Claims Judge, invoked this case to justify her holding. She found, not providing funds to private school was a “generally neutral,” and “generally applicable without regard to religion.” She stated, “The constitution provision at issue in this case, Article 8 section 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than a provision that singles out the religious for disfavored treatment.” She expressed, the importance of the wording in the ruling for the Trinity case, “that case concerned express discrimination based on religious identity with respect to playground resurfacing.” The case at hand did not involve express discrimination, therefore not violating the Free Exercise Clause.
Many groups, including American Civil Liberties Union of Michigan and Michigan Association of School Boards, were not persuaded by the Court of Claims ruling and followed up with a dissenting opinion on August 14, 2017, with the goal of appealing the Court of Claims ruling. Chief Justice Markman offered the dissenting opinion claiming, the Court of Claims did review this case in enough depth. Stating, the trial court should look at four elements “(1) the moving party made the required demonstration of irreparable harm, (2) the harm to the applicant absent such an injunction outweighs the harm it would cause the adverse party, (3) the moving party showed that it is likely to prevail on the merits, and (4) there will be harm to the public.” He is not convinced by the plaintiffs understanding of irreparable harm, the plaintiffs believe, constitutional violations equate to irreparable harm the plaintiffs did not make any specific argument for suffering a loss of constitutional rights from this statute. Also, they could not provide evidence that the $2.5 million of funding would go to another person or institution and there is no reason to think public schools were entitled to these funds. Any statute is presumed to be constitutional unless there is evidence to the contrary. He finds, the plaintiffs did not provide sufficient evidence, questioning the constitutional validity of the statute. The Michigan Constitution states, no public monies will be used to aid or purchase educational services for nonpublic schools, but Markman describes, the funds would solely go towards auxiliary services for nonpublic school students, benefiting the health and general welfare of those students, prohibiting such funds would discriminate against nonpublic school children. The funding is supposed to be a reimbursement for complying with state health, safety, or welfare requirements. On March 11th, The Michigan Supreme Court refused to reverse the Court of Claims ruling.
I believe the proposed statute was Constitutionally valid, only if all the funding goes directly towards “auxiliary” purposes. Jeff Donahue mentioned, there could be reimbursement directly going towards education including, releasing student information to parents and certifying school counselors, but in the Court of Claims decision and the dissenting opinion, there was no mentioning of such uses. Therefore, I would like to invoke the Lemon Test to prove its validity and the show the Statute does not violate Establishment Clause. The proposal has a secular purpose, it aids the safety and health of children through complying with state-mandated regulations. It does not inhibit, nor aid any religion, passing this law does not provide any parent a greater incentive for their child to attend a nonpublic school, its purpose is to aid nonpublic schools to pay for their compliance with state mandate costs which seems fair considering it costs roughly $10 million for the mandates. Lastly, it avoids excessive entanglement between church and state the funds are not going towards purchasing textbooks, or new technology, the sole purpose is to reimburse nonpublic schools for complying with the state mandates. I find it similar to Everson v. Board of Education, how reimbursing parents for busing is similar to reimbursing school if they comply with state mandates, just on a more significant level. Reimbursing parents $47 for buses fare is not a significant burden on taxpayers, similar to how $2.5 million is not a significant portion of Michigan’s $16 billion education budget. In Everson, the state found they had a compelling interest in the safety of children in Michigan, also has a compelling interest in the safety and welfare of their students.
Sunday, March 18, 2018
Freedom of Speech, Freedom to Discriminate?
In Iowa, on February 28th, a bill designed to protect the freedom of speech on college campuses faced a great deal of opposition with the concern it would legalize discrimination. Senate File 2344 defines what is considered protected free speech by specifying that, “’a member of the campus community who wishes to engage’ in protected forms of speech on campus ‘shall be permitted to do so freely subject to reasonable time, place, and manner restrictions.’” Those in opposition, found the sentence, “a public institution of higher education may prohibit student organizations form discriminating against members or prospective members on the basis of any protected status recognized by federal or state law,” quite troubling. Iowa’s civil rights code protects people from discrimination on the basis of race, color, sex, religion, etc., however with the passing of the bill, there is a great deal of concern that it would open doors to allow student groups to discriminate members because of their race, religion, sex, or other protected statues.
A provision to the bill was brought up when a Muslim student group at the University of Iowa required its members to be Shia Muslims. Senator Amy Sinclair, the bill’s sponsor, raised the concern that the bill could be applied in a way that would target this Muslim student group because they have that requirement for membership.
This legislation follows a lawsuit in which a student group, Business Leaders in Christ, claimed the University of Iowa revoked its registration as an on-campus organization after it denied a leadership role to a student who was openly gay. This meant the group could not participate in on-campus fairs, use school facilities, receive funding or any benefits other school recognized organizations could. The group claims it did not discriminate based on the student’s sexual orientation, but said that leaders must abide by the group’s religious beliefs, “which include avoiding activity outside of marriage between a man and a woman.”
Sinclair however, does not see the bill and lawsuit being related because it does not stop the University from acting on issues of discrimination, it just protects the rights of, specifically, this Muslim student group.
Senator David Johnson stepped into the conversation, pointing out that the bill is supported by the Libertarian organization, Americans for Prosperity, and the Christian conservative organization, The Family Leader, but is opposed to groups like the American Civil Liberties Union. This could be potentially very dangerous having the main supporters be of such organizations that facially do not support Muslim groups or the religion.
There are a few questions at stake here, the main one being does this bill prohibit the Establishment Clause of this Muslim student group? Also, was the Muslim group in the wrong for requiring its members to identify as Shia Muslim?
To determine the legality of this bill, I ran it through the Lemon Test. Upon first thought it seemed to clear all prongs of the test, however with more thought I began to ponder the supposed secular purpose of this bill. In writing, there is nothing about this bill that suggests it is religiously affiliated, however keeping in mind its main supporters are of Christian faith, I do see it potentially not serving the secular purpose it was intended to. That being said, I do not see a problem with the Muslim group denying acceptance to those who do not identify as Shia Muslim; if this group wants to start a religiously affiliated on-campus club, which the school does not have a problem with, they should be allowed to, and considering they are likely going to practice religion, it its very legitimate to require members to be of the same practicing religion.
Religious Equality in the Prisons
Prisons are supposed to be some of the hardest places to get in and out of, designed to protect the common populous from those who have broken the law. However, there are specific processes that allow people who have not broken the law to enter the prison so that they can visit loved ones that are there. One woman experienced the process when she went to go visit her brother and was met with even more problems than just the routine process. Audra Ragland was told to remove her head covering before being allowed entry into the visiting area of the United States Penitentiary in Georgia. When she refused on the grounds of her religion, she was told that because she was Christian and not Muslim or Jewish, which were approved to enter with head coverings she would not be permitted to see her brother until she removed her covering. Ragland was shocked because many Christian women in different sects around the world, do cover their heads, so she believed that it should not be an issue. She even offered to prove to the officer that her faith was valid by showing him the passage of the Bible that she believed was proof that she should cover her head to show her respect and deference to her God. Once again the prison officials did not accept this response and she was told she would have to remove her head covering.
In order to see her brother and as not to burden those that she was attempting to visit him with, she removed her headscarf and fought with herself the entire time about whether or not she was disobeying her God. After walking through the visiting area filled with people she did not know, she said: “I felt humiliated and ashamed as I worried that I was dishonoring God.” After deciding that reporting this incident would not result in retaliation against her brother, she went to the ACLU of Georgia to help protect her religious rights. As of now, the ACLU is sending a letter to the prison saying that the government officials should not be able to decide what is part of a religion and what is not. Also in this letter, the ACLU said that if the prison did not comply then they would pursue legal action.
I think that this is a direct violation of Ragland’s right to freely exercise her religion. To require her to remove her head covering puts a substantial burden on her and the State has no secular interest in requiring her to remove her head covering for the entirety of her visit. There are ways to make the prison secure without requiring her to remove her head covering for the entirety of the trip, ways that were already in place for people of different religions that were known in America to commonly wear head coverings.
In the First Amendment, her right to exercise her religion is laid out very clearly yet these civil magistrates, as one might call them, were deciding that her religion did not “pass the test” for what they thought it should look like or what a practitioner of this faith should do. This concern is not new and was discussed by James Madison in his article, Memorial, and Remonstrance. He too said that civil magistrate should not be considered a competent judge of religious truth even though that is what this government employee did.
This case also is a question of the establishment of a religion because since there were exceptions set aside for only two religions while many others were head coverings this United States government facility is placing these two religions as higher than the others that have members who feel the need to cover their heads in public spheres. This letter that was sent to the prison addressed the issue of Free Exercise more explicitly but the Establishment clause is still a factor in this issue. Audra Ragland was forced to choose between her family and her religion and I think that that qualifies as a substantial burden on her religion and Ragland had proof of this act being a defined act within her religion. If the prison amended their policies to cover people from any religion, not just two, to wear their head coverings then the law would not lead to a possible establishment of certain religions and would allow people with a religious affiliation to exercise their religious rights freely.
https://www.law.com/dailyreportonline/sites/dailyreportonline/2017/11/16/aclu-alleges-discrimination-over-prison-visitors-christian-head-covering/?slreturn=20180218215908
In order to see her brother and as not to burden those that she was attempting to visit him with, she removed her headscarf and fought with herself the entire time about whether or not she was disobeying her God. After walking through the visiting area filled with people she did not know, she said: “I felt humiliated and ashamed as I worried that I was dishonoring God.” After deciding that reporting this incident would not result in retaliation against her brother, she went to the ACLU of Georgia to help protect her religious rights. As of now, the ACLU is sending a letter to the prison saying that the government officials should not be able to decide what is part of a religion and what is not. Also in this letter, the ACLU said that if the prison did not comply then they would pursue legal action.
I think that this is a direct violation of Ragland’s right to freely exercise her religion. To require her to remove her head covering puts a substantial burden on her and the State has no secular interest in requiring her to remove her head covering for the entirety of her visit. There are ways to make the prison secure without requiring her to remove her head covering for the entirety of the trip, ways that were already in place for people of different religions that were known in America to commonly wear head coverings.
In the First Amendment, her right to exercise her religion is laid out very clearly yet these civil magistrates, as one might call them, were deciding that her religion did not “pass the test” for what they thought it should look like or what a practitioner of this faith should do. This concern is not new and was discussed by James Madison in his article, Memorial, and Remonstrance. He too said that civil magistrate should not be considered a competent judge of religious truth even though that is what this government employee did.
This case also is a question of the establishment of a religion because since there were exceptions set aside for only two religions while many others were head coverings this United States government facility is placing these two religions as higher than the others that have members who feel the need to cover their heads in public spheres. This letter that was sent to the prison addressed the issue of Free Exercise more explicitly but the Establishment clause is still a factor in this issue. Audra Ragland was forced to choose between her family and her religion and I think that that qualifies as a substantial burden on her religion and Ragland had proof of this act being a defined act within her religion. If the prison amended their policies to cover people from any religion, not just two, to wear their head coverings then the law would not lead to a possible establishment of certain religions and would allow people with a religious affiliation to exercise their religious rights freely.
https://www.law.com/dailyreportonline/sites/dailyreportonline/2017/11/16/aclu-alleges-discrimination-over-prison-visitors-christian-head-covering/?slreturn=20180218215908
“Jesus, Take the Wheel” and Drive Over an Ancient Burial Ground
In 2008, the U.S. Federal Highway Administration erected plans to widen Highway 26 near Mount Hood in Washington. Upon presenting their intentions to the public, it was revealed that the proposals would effectively raze an ancient Native American burial ground that existed on the government’s property, and remove safe access to the grounds for future worship. This site consisted of a stone alter used for worship, the burial ground, trees and plants used by the tribes for religious practice, and a campground.
While the public might not take issue with the government ridding the surrounding areas of a campground, there was certainly uproar in regards to the burial ground. Members of the Klickitat and Cascade tribes maintain that the land has been passed down from generation to generation, and is held as sacred because it contains the remnants of the tribes’ forefathers and is integral to worshipping their “creator.”
The tribe attempted to bargain with the government, as several of their community leaders engaged in talks to develop a plan that would allow the government to expand the highway and the tribes to keep their hallowed grounds intact for generations. The elder statesmen of the tribe claim that they presented several plans that offered less of a burden to both the state and the tribe, but the government did not relent. The highway was built as planned as the government cited its compelling interest to expand. This video gives a good sense of the tribes’ story, and how intrusive the highway is.
In turn, the tribes sued the USFHA in Slockish v. U.S. Federal Highway Association. The suit has very direct goals, explains Carl Logan, a member of the confederation of effected tribes: “All we want is the return of our sacred artifacts, the rededication of the area for our ancestors, and the promise that we can continue to worship as our tribes have done for centuries.”
The tribe claims in their suit that the government’s refusal to heed the warnings of the tribe and construct the highway has placed a significant burden on their ability to freely exercise their religion, hence violating the First Amendment. Further, they seek protection under the Religious Freedom and Restoration Act, which was aimed at safeguarding Native American communities from this sort of action, forcing the government to abstain from substantially burdening free exercise even with their policies that are facially neutral. For the government to be granted an exception under the law, they must demonstrate a “compelling interest” and proceed in the least burdensome manner possible.
On Friday March 2nd, 2018, a United States District Court in Oregon ruled in favor of the USFHA. The court held that the government was not violating the rights to free exercise of the citizens statutorily, as they deemed the governmental actions to qualify for an RFRA exception. Further, the court cited precedent from the case Navajo Nation et al. v. USFS (US Court of Appeals, 9th Circuit), stating that: “there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no ‘substantial burden’ on the exercise of their religion.” Therefore, the tribes’ claim under the RFRA is invalid.
The defense’s case also hinged on precedent set in Sherbert v. Verner, a case that established a test requiring the government to prove a compelling interest and proceed in the least restrictive means possible in cases where a religious person(s) practice was substantially burdened. Additionally, Wisconsin v. Yoder was invoked to display the notion set forth by SCOTUS that individual’s interest in free exercise outweigh the government's interests, in this case to build a highway. They claimed that, since the government has destroyed their place of worship, they have effectively been “barred” from entering it, placing a direct burden on their free exercise. The defense claims that his action fails the Sherbert Test. Likewise, further appealing to Yoder, they claim that their free exercise interests are greater than the government's interests in building a highway.
The opinion of the court claimed that it is not as though this was the only place of worship for this group: there are “dozens” of other ones in the area. In addition, the court stated, “They face no ‘forced choice’ or ‘Catch–22.’ They are still able to access the site, and there is no evidence that they will be cited for trespass or suffer any government-imposed penalty for doing so. Thus, while plaintiffs may raise important questions whether the decisions regarding the site were culturally sensitive or the least destructive choice among various options, those factors do not establish a substantial burden under the RFRA.”
Effectively, the court has said that since there is a compelling state interest, and their actions have been done in their least restrictive means feasible, the Sherbert Test is passed, the tribe has failed to establish that their rights have been “substantially burdened”, regardless of the moral reprehensibility of the USFHA’s decision.
As I first read this case, I was fervently on the side of the tribe, whose place of worship was taken. As I read through the opinion of the court, I have been swayed partially, and certainly see their logic. However, the realty of the situation is that there is a highway literally running through the worship site (as seen in the video). Further, I am still not convinced that the USFHA acted in the least restrictive means possible when building this highway, as the tribe claims to have presented suitable alternative that were ignored. In that case, the actions would fail the Sherbert Test, and the case should be ruled in favor of the tribe. I acknowledge the slippery slope argument that accompanies this reversal of opinions; that each citizen would essentially hold a veto for government action when their religious beliefs are offended. My response to that is throughout history, the Native American Community has been subject to so many governmental actions of this nature that acts, like the RFRA, had to be enacted to protect their rights. Hence, the groups should and do qualify for higher levels of judicial scrutiny in cases such as this one. I would like to end on a comparison: although a church would be on private grounds whereas this site was on public ground, what would the reaction be if the government razed a church to build a highway? Would the court rule in the same way?
While the public might not take issue with the government ridding the surrounding areas of a campground, there was certainly uproar in regards to the burial ground. Members of the Klickitat and Cascade tribes maintain that the land has been passed down from generation to generation, and is held as sacred because it contains the remnants of the tribes’ forefathers and is integral to worshipping their “creator.”
The tribe attempted to bargain with the government, as several of their community leaders engaged in talks to develop a plan that would allow the government to expand the highway and the tribes to keep their hallowed grounds intact for generations. The elder statesmen of the tribe claim that they presented several plans that offered less of a burden to both the state and the tribe, but the government did not relent. The highway was built as planned as the government cited its compelling interest to expand. This video gives a good sense of the tribes’ story, and how intrusive the highway is.
In turn, the tribes sued the USFHA in Slockish v. U.S. Federal Highway Association. The suit has very direct goals, explains Carl Logan, a member of the confederation of effected tribes: “All we want is the return of our sacred artifacts, the rededication of the area for our ancestors, and the promise that we can continue to worship as our tribes have done for centuries.”
The tribe claims in their suit that the government’s refusal to heed the warnings of the tribe and construct the highway has placed a significant burden on their ability to freely exercise their religion, hence violating the First Amendment. Further, they seek protection under the Religious Freedom and Restoration Act, which was aimed at safeguarding Native American communities from this sort of action, forcing the government to abstain from substantially burdening free exercise even with their policies that are facially neutral. For the government to be granted an exception under the law, they must demonstrate a “compelling interest” and proceed in the least burdensome manner possible.
On Friday March 2nd, 2018, a United States District Court in Oregon ruled in favor of the USFHA. The court held that the government was not violating the rights to free exercise of the citizens statutorily, as they deemed the governmental actions to qualify for an RFRA exception. Further, the court cited precedent from the case Navajo Nation et al. v. USFS (US Court of Appeals, 9th Circuit), stating that: “there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no ‘substantial burden’ on the exercise of their religion.” Therefore, the tribes’ claim under the RFRA is invalid.
The defense’s case also hinged on precedent set in Sherbert v. Verner, a case that established a test requiring the government to prove a compelling interest and proceed in the least restrictive means possible in cases where a religious person(s) practice was substantially burdened. Additionally, Wisconsin v. Yoder was invoked to display the notion set forth by SCOTUS that individual’s interest in free exercise outweigh the government's interests, in this case to build a highway. They claimed that, since the government has destroyed their place of worship, they have effectively been “barred” from entering it, placing a direct burden on their free exercise. The defense claims that his action fails the Sherbert Test. Likewise, further appealing to Yoder, they claim that their free exercise interests are greater than the government's interests in building a highway.
The opinion of the court claimed that it is not as though this was the only place of worship for this group: there are “dozens” of other ones in the area. In addition, the court stated, “They face no ‘forced choice’ or ‘Catch–22.’ They are still able to access the site, and there is no evidence that they will be cited for trespass or suffer any government-imposed penalty for doing so. Thus, while plaintiffs may raise important questions whether the decisions regarding the site were culturally sensitive or the least destructive choice among various options, those factors do not establish a substantial burden under the RFRA.”
Effectively, the court has said that since there is a compelling state interest, and their actions have been done in their least restrictive means feasible, the Sherbert Test is passed, the tribe has failed to establish that their rights have been “substantially burdened”, regardless of the moral reprehensibility of the USFHA’s decision.
As I first read this case, I was fervently on the side of the tribe, whose place of worship was taken. As I read through the opinion of the court, I have been swayed partially, and certainly see their logic. However, the realty of the situation is that there is a highway literally running through the worship site (as seen in the video). Further, I am still not convinced that the USFHA acted in the least restrictive means possible when building this highway, as the tribe claims to have presented suitable alternative that were ignored. In that case, the actions would fail the Sherbert Test, and the case should be ruled in favor of the tribe. I acknowledge the slippery slope argument that accompanies this reversal of opinions; that each citizen would essentially hold a veto for government action when their religious beliefs are offended. My response to that is throughout history, the Native American Community has been subject to so many governmental actions of this nature that acts, like the RFRA, had to be enacted to protect their rights. Hence, the groups should and do qualify for higher levels of judicial scrutiny in cases such as this one. I would like to end on a comparison: although a church would be on private grounds whereas this site was on public ground, what would the reaction be if the government razed a church to build a highway? Would the court rule in the same way?
Saturday, March 17, 2018
Orange is the New Way to Justify Denying Constitutional Rights?
Benjamin Espinosa is a prisoner in Nevada’s Lovelock Correctional Center. Espinosa seeks to form a humanist study group so that prisoners can come together and discuss their humanist beliefs, His request has been denied over a period of two years. Nevada’s Lovelock Correctional Center allows more than two dozen theistic religious study groups to meet on prison property. The district court ruled that Espinosa does not have the right to gather with like-minded humanists on the grounds that humanism does not respect a deity. The AU and the Freedom from Religion Foundation filed a friend-of-the-court brief in late February to support Espinosa, as his case is currently being taken to the 9th U.S. Circuit Court of Appeals. It is also important to recognize that the Federal Bureau of Prisons does officially recognize humanism and permit humanist study groups.
Two inevitable questions arise from this lawsuit. Firstly, is the prison violating the establishment clause by suggesting that only theistic religions are worth constitutional protection? Secondly, are Espinosa’s free exercise rights being violated because of the denial of his ability to form a study group?
The Nevada correctional center is violating the establishment clause by solely providing religious benefits to theistic religions. Benefits include, the ability to hold an open forum, exemption from work duty on holidays, and assignment based on faith. The supreme court found in Torcaso v. Watkins's unanimous decision that a theistic religion should not be given more governmental protection than a non-theistic religion (Munoz pp 97). It also can be argued that Justice Black regarded humanism as a religion in Torcaso v. Watkins case when he pointed to the fact that humanist organizations have sometimes been granted religious based tax-exemptions.
Additionally, United States v. Seeger exemplifies an instance when a non-theistic belief was treated in terms of a religion. Seeger’s devotion to goodness and moral compass is very similar to the beliefs that humanism centers around. Seeger wished to be exempt from military duty and at first was denied for his lack of belief in a deity. The supreme court found in another unanimous vote that the constitution was not meant to define religion, and further, that Seeger’s beliefs should be treated equally to beliefs in a supreme being. If the court had denied Seeger’s request, it would have been promoting theistic beliefs above others. Hence, this would establish governmental support of theistic religions. The need for government neutrality in terms of religion is just as present in Espinosa’s case as Seeger’s. United States v. Seeger should be referred to as precedent for why the denial of humanism religious benefits would violate the establishment clause.
Given, from above argument, that Humanism is an established non-theistic religion, practicing members of humanism should be treated equally to members of theistic religions. This is not the case in Nevada, which clearly demonstrates how the prison is discriminating against some religions, thereby promoting others. It is key to acknowledge that the prison is a government-run facility, so this policy is violating the establishment clause.
Moving on, the denial of the humanist's request to form a religious entity by the prison violates the free exercise clause. I would like to utilize Widmar v. Vincent as precedent. In this case, the court upheld that the University could not exclude groups from forming a “generally open forum to engage in religious worship and discussion” (Munoz pp 228) because of the content of their speech, as this would violate their free exercise rights. I think there are many comparisons to be made between the Espinoza lawsuit and Widmar v. Vincent. In both cases there was a system in place permitting religious groups to meet and worship in an open forum. In both cases there were specific groups being denied as a result of the content of their worship. The discussion of deities and the denial of their existence is content of humanist’s religious discussion. The court should again uphold the principle that the government should be content neutral when reviewing religions, as well as the fact that every religion should have equal opportunity to free exercise. One could summarize, the district court disregarded precedent and the religious clauses of the constitution when making their decision. To conclude, the law should not stop serving justice simply because of cell bars.
Two inevitable questions arise from this lawsuit. Firstly, is the prison violating the establishment clause by suggesting that only theistic religions are worth constitutional protection? Secondly, are Espinosa’s free exercise rights being violated because of the denial of his ability to form a study group?
The Nevada correctional center is violating the establishment clause by solely providing religious benefits to theistic religions. Benefits include, the ability to hold an open forum, exemption from work duty on holidays, and assignment based on faith. The supreme court found in Torcaso v. Watkins's unanimous decision that a theistic religion should not be given more governmental protection than a non-theistic religion (Munoz pp 97). It also can be argued that Justice Black regarded humanism as a religion in Torcaso v. Watkins case when he pointed to the fact that humanist organizations have sometimes been granted religious based tax-exemptions.
Additionally, United States v. Seeger exemplifies an instance when a non-theistic belief was treated in terms of a religion. Seeger’s devotion to goodness and moral compass is very similar to the beliefs that humanism centers around. Seeger wished to be exempt from military duty and at first was denied for his lack of belief in a deity. The supreme court found in another unanimous vote that the constitution was not meant to define religion, and further, that Seeger’s beliefs should be treated equally to beliefs in a supreme being. If the court had denied Seeger’s request, it would have been promoting theistic beliefs above others. Hence, this would establish governmental support of theistic religions. The need for government neutrality in terms of religion is just as present in Espinosa’s case as Seeger’s. United States v. Seeger should be referred to as precedent for why the denial of humanism religious benefits would violate the establishment clause.
Given, from above argument, that Humanism is an established non-theistic religion, practicing members of humanism should be treated equally to members of theistic religions. This is not the case in Nevada, which clearly demonstrates how the prison is discriminating against some religions, thereby promoting others. It is key to acknowledge that the prison is a government-run facility, so this policy is violating the establishment clause.
Moving on, the denial of the humanist's request to form a religious entity by the prison violates the free exercise clause. I would like to utilize Widmar v. Vincent as precedent. In this case, the court upheld that the University could not exclude groups from forming a “generally open forum to engage in religious worship and discussion” (Munoz pp 228) because of the content of their speech, as this would violate their free exercise rights. I think there are many comparisons to be made between the Espinoza lawsuit and Widmar v. Vincent. In both cases there was a system in place permitting religious groups to meet and worship in an open forum. In both cases there were specific groups being denied as a result of the content of their worship. The discussion of deities and the denial of their existence is content of humanist’s religious discussion. The court should again uphold the principle that the government should be content neutral when reviewing religions, as well as the fact that every religion should have equal opportunity to free exercise. One could summarize, the district court disregarded precedent and the religious clauses of the constitution when making their decision. To conclude, the law should not stop serving justice simply because of cell bars.
The Kids Aren't Alright
In the great state of Idaho, there has been a reoccurring issue in which families are looking to receive a very specific religious exemption from prenatal and other western health care services for their infants, and resultantly the babies are dying because they are not being treated in a way that allows them to become healthy individuals. This is a multifaceted issue in nature, due to the fact that not only are infantile children dying on the state’s watch, but there also seems to be many quarrels regarding the exemption and its impact on all religions. The exemption is in the name of faith healing, and since 2012 alone, there has been two easily preventable deaths of young children due to their familial ties to the faith healing exemption. The state has the responsibility to protect its citizens and has even more of a responsibility to protect its children, however the state is also obliged to respect the free exercise rights of the parties involved.
In 2011, a couple was imprisoned for six years for manslaughter in response to the negligent act of not supplying their premature child any medical support. In response to the consistent happenings of premature deaths, child advocates have attempted to get legislatures to fine-tune and rework the current written law. There seems to be a pattern of religious tolerance and maybe even promotion in Idaho, by allowing for the Bible to be used as law. Idaho leads the nation in faith-based child neglect related deaths. The exemption only exists for a specific section of the Idaho population, which also has lead citizens of the state to believe the exemption is actually discriminatory in nature.
It is not an uncommon belief that even with the evidence proving that these neglectful deaths are occurring, the parental and religious rights of the parties involved in these cases are absolute in power. The issue stretches much farther than Idaho. After the passing of the Federal Child Abuse Prevention and Treatment Act in 1974, states began implementing faith-based medical exemptions in return for financial aid from the federal government. Easily avoidable deaths are occurring, and it brings up a valid question: How many deaths will it take before the endangerment of children takes precedence over the religious rights of the parents? This is in essence a free-exercise issue that upholds personal liberties for a section of the population by allowing them to give their children the treatment they believe in, while simultaneously creating the possibility of a death sentence for many innocent and blissful children who will never get to live a life they can make decisions in, based on one decision their parents made based on faith.
In my personal opinion, I believe that this debate has a very hard time being answered. It is not rational to argue that this laws benefits outweigh it costs, but to allow the government to step in and force an individual to act or parent in a certain manner is authoritative and unconstitutional in my opinion. A compromise on how faith-based and non western the treatment is may be warranted, but to force the parents of a newborn baby to change and expunge their values because they do not believe they can give their children certain medical treatments on a religious level is what the free-exercise clause looks to prohibit. The government undoubtedly holds the interest of protecting its citizens, and the somewhat common fatalities of children of families who gain the religious exemption leads many to believe that there is a public consensus to get rid of the exemption.
On the other hand, the government may be able to come to the same conclusion that they did in Reynolds vs. United States, in which they decided beliefs and actions are two completely different animals. The parents may believe that they do not have to treat their kids with western medicine because it goes against their religion, but if the states mandates that every child gets a certain type of health care, the written law would have more power than the beliefs of the people involved. People are entitled to their beliefs, but if the actions go against the interests of the state clearly illustrated by documented law, those actions would still remain illegal. Until the exemption is deemed illegal based on solid grounds, the state does not have the right to deny the religious based exemption from the parents who believe it is in their purview and rights to use it.
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