A Crisis of Chaotic Pregnancy Centers

Last Week on Last Week tonight John Oliver reignited the debate around the practices of crisis pregnancy centers in the United States. The pro-life response to abortion clinics, crisis pregnancy centers, or CPCs, claim to offer medical alternatives to abortions. However, studies done over the last few deduces have indicated the CPCs do not always act in the most medically ethical ways. 

CPCs are technically not medical clinics, but rather ministries with intent to provide women with information about the pregnancy and basic medical services such as ultrasounds. At face value, these practices do not seem that nefarious. However, studies and news stories have revealed a darker side of the extent to which CPCs will go to convince women against getting an abortion. Several studies have found CPCs often mislead and misinform patients about their option and the consequences of said option. A study done in North Carolina found 86% of North Carolinian CPCs post inaccurate information on their websites. Furthermore, large numbers of CPCs have misinformed patients about the risk of infertility and metal illness after receiving an abortion. Some of these ministerial clinics have gone as far as convincing a woman she could receive an abortion at any point up to term in order to get her to miss the first trimester deadline. 

CPCs are heavily unregulated in the US. Most CPCs do not have to disclose they are not medical clinics to their patients. Many have adopted practices to give their ministers an appearance of medical professionalism. They have been criticized by many pro-life activist such as Julie Rikelman who wrote, “many CPCs purposefully mislead women about their mission. In every way possible, from their advertising, to their physical appearance, to the uniforms of their staff, CPCs are designed to look like medical clinics, not religious ministries.” Most attempts by city and state governments to prevent this dissemination of misinformation have been unsuccessful in the courts. The groups running the CPCs have used their first amendment rights as religious organizations to block ordinances and laws implemented to prevent the spread of misinformation. 

Consultations from CPCs are more readily available than from Abortion Clinics. In the United States there are 2,500 CPCs while there are a total of 1,800 abortion clinics. California State Representative David Chiu introduced a bill in 2015 which required CPCs to disclose their non-medical status and inform women abortion was an option. California passed the law hoping to provide women with a clearer path towards medically informed reproductive healthcare.  The law has been upheld by the courts and has made its way to the Supreme Court. The SCOTUS is expected to make a ruling on the law before the court's term ends in June. The Justices must determine if CPCs practices are protected by the free exercise clause. The implications of the decision will affect the status of CPCs around the country. 

I believe the practices of CPCs are not protected by the first amendment. Considering the negative impact CPC’s misinformation can have on a woman’s reproductive health and general well-being the facts of this case clearly establish their is a large state interest in regulating CPC practices. If one applies the Sherbet test in this case, it becomes clear there are no less restrictive means to ensure the State’s interest is met. Even after the ruling in Burwell V. Hobby Lobby precedent would dictate the court must rule in favor of California. In the court’s decision they held to the sherbet test and found there were less restrictive means by which female employees could acquire birth control. In the case of the CPCs, the state has an obligation to ensure its citizens are not misled when receiving information concerning their healthcare. The free exercise clause was not written to protect a preacher acting as a doctor. I can understand how one would be concerned about the government overstepping its limits and dictating what a congregation could preach, however the scope of this case is very limited to that of healthcare. If the court were to rule in favor of California, it would only allow states to ensure congregations do not preach on medical matters while masquerading as health care providers. Considering the legal precedent and the clear state interest, I hope the Supreme Court allows the States to regulate the practices of CPCs when it is clear they have become predatory misinformers preventing women from getting the healthcare they desire. 

Wayne State Christian Group denied recognition due to non-discrimination policy

The formation of various student groups on the campus universities and colleges benefit and bring together similar individuals in a student body in a cohesive democratic manner. For many colleges and universities, the development of these groups must be paralleled by an approval process in which students apply for recognition that allows them to receive funding and other student group accommodations via the school. At Wayne State University, the intervarsity Christian fellowship holds a rule that it welcomes athletes of all faiths, but limits leadership roles to Christians only, due to the activities they must perform such as, “leading ofprayer, organization for religious outreach, and prayer vigils and other events”. When applying for the student organization status the group was denied on the basis that its policies did not coincide with the schools nondiscrimination policy which reads, “This policy embraces all persons regardless of race, color, sex (including gender identity), national origin, religion, age, sexual orientation, familial status, marital status, height, weight, disability, or veteran status, and expressly forbids sexual harassment and discrimination in hiring, terms of employment, tenure, promotion, placement and discharge of employees, admission, training and treatment of students, extra-curricular activities, the use of University services, facilities, and the awarding of contracts”. There are other student groups on campus with similar principles, “Alpha Epsilon Phi has the stated purpose to ‘to inspire and support exemplary women ... while building on the vision of our Jewish founders’”. Previous to this, the group has participated as a student group on campus for more than 50 years. In response to the school’s refusal to go back on their decision, the group has now filed a lawsuit, claiming their being discriminated for their beliefs and that their First Amendment right to Free Exercise is being violated.

The court must decide if by denying Intervarsity Christian Fellowship, on grounds of the school’s non-discrimination policy, Wayne State University is substantially burdening the group to the point of violating the group’s First Amendment Right to Free Exercise. Similar in circumstance to Christian Legal Society V. Martinez, this case assesses a facially neutral policy that results in an indirect burden to a student religious group. In my opinion, the denial of the student group status is a violation of the students First Amendment Right.

The University’s decision to not approve the Intervarsity Christian Fellowship exhibits a hostility toward one specific religion, while also substantially burdening those who wish the maintain the group. Additionally, the act of discriminating against the ICF shows a disconnect in implementation of said ‘non-discriminatory’ policy. Similar to the dissenting opinion in Christian Legal Society V. Martinez, I would agree that the University wouldn’t be enacting their non-discriminatory policy by not allowing the formation of group based on their religion. Furthermore, I would argue that this displays hostility toward Christianity on the campus rather than the non-discriminations policy of tolerance. If not approved, student groups are still allowed to use school facilities to meet, although it is extremely costly, “the organization claims it paid $2,720 to reserve space it would have otherwise been able to use for free as a student organization”. As well non-approved groups can not apply for funding and certain grants. This places a substantial burden on the ICF’s ability to meet and exercise their religion as a cohesive group on campus. Likewise, logistically speaking the University’s policy states that students cannot discriminate on membership to the club or group, the nondiscrimination policy does not include leadership roles within the group. The group doesn’t discriminate on admittance into the group based on faith, it actually allows all religious faiths to be a part of the group. The part of the ICF’s policy that does not allow students other than Christians to hold leadership roles is entirely separate from the baseline inclusive policy of admittance to the group. Moreover, various other student groups are allowed to hold specific guidelines to those who join and hold leadership roles such as fraternities, sororities and religious groups, further showcasing the University’s discriminatory policy to the Intervarsity Christian Fellowship. Even more obvious, the mandating of a group to open up leadership positions to opposing viewpoints, defeats the purpose of the creation of student groups which are for the creation of unified environment amongst students. By allowing those who have different viewpoints to lead group activities, it would defeat the purpose of creating any type of club as it would undermine the group’s main purpose.

This is one of many student groups that have been effected by the decision in Christian Legal Society V. Martinez. If this case is to go to the Federal court, based on the precedent set in Christian Legal Society V. Martinez, it would most likely rule in favor of the University, despite the substantial burden placed on student organizations that are not approved per a logistically impossible policy.

Secular Education Requirements in Religious Private Schools

For many religious families, public education is incapable of fostering the fundamental values which are necessitated by religious texts. The solution to this problem is private sector education. The overwhelming majority of private schools are religious and it can be reasonably suggested that this manifested as a response to the removal of religion in public education. Without a doubt, the underlying purpose of private education is to provide families with the opportunity to have more influence in their child's education process.

This past Monday, April 2, 2018, New York State passed legislation which lowered secular curriculum requirements for private Orthodox Jewish Schools (or yeshivas) which emphasize strictly religious educations. The statute specifically broadened the criteria for assessing the "substantive equivalency" of private education. Substantive equivalency in layman's terms means the level of required uniformity in curriculum between private and public schools.

Outside of the large Hasidic Jewish communities in New York, many criticized the reduced state oversight of religious schools which some say already leaves students, "without a basic command of English, math, history or science." This is a common criticism among New Yorkers, many of whom  have suggested that the poor secular educations at yeshivas have been ignored by school officials due to fear of political repercussions. In 2015, the Department of Education vowed to investigate the quality of education at the behest of the Young Advocates for Fair Education, with one member of the organization stating, "he had never heard of basic scientific concepts." However, no investigation has taken place as of 2018. Proponents of the change in policy argue, "parents should have the ability to decide what sort of education their children receive,” and that the current requirements have limited the effectiveness of the religious institutions. 

The Constitutional question posed by this situation is a free exercise one, can the compelling state interest in maintaining a uniformly educated populace limit both the effective scope of religious private schools and their free exercise?

Without a doubt the state interest in maintaining an educated populace is compelling; however, there is constitutional precedent that helps provide an answer to this question. In Wisconsin v. Yoder (1972) the Court ruled that Amish children could not be forced to attend public school past 8th grade because the individual interest in the free exercise of religion under the First Amendment outweighed the state interest in compelling education. Despite the apparent differences, there are some clear similarities between these two cases. Both cases deal with a state interest in a uniformly educated populace and the question of free exercise. The passed legislation deals primarily with the high school education at yeshivas with the majority of the secular education being completed by the end of middle school. One of the key components of the Yoder decision was the whether the additionally years of high school would produce enough benefit to justify the compulsory high school education and the answer to that question was no.

The Yoder precedent demonstrates that the court would likely rule that the New York statute is in fact constitutional and that the application of stricter requirements on religious private schools would presumably be in violation of the free exercise clause. I would argue that this would be the correct ruling because I too agree that the individual interest in the free exercise of religion outweighs the compelling state interest to maintain a uniformly educated populace. Parents should have the right to educate their children in a religious manner. The purpose of a private education is to allow parents to have influence in their children's education process, and as demonstrated by the Yoder precedent, heavy and restrictive government oversight in this process is incongruent with the free exercise clause of First Amendment.

https://www.nytimes.com/2018/04/03/nyregion/yeshivas-budget-new-york.html
http://jewishweek.timesofisrael.com/questions-over-felders-yeshiva-amendment/

Proselytizing in Public Schools

Last December, the ACLU of Louisiana brought the Webster Parish School District to court for its blatant practicing of religion in the public schools.  Every morning many of the schools in this district have a student volunteer read Bible verses or the Lord’s prayer over the school speaker system. Not only do the days at these schools start off with prayer, but prayers are commonplace in the school events hosted by this school district.  The school has also been known to include prayer during pep rallies, assemblies, and other athletic events. One year, they even hired a Christian rapper, Mynista, to come to the school and preach to the students. The Lakeside school, which is the main subject of this case, even holds its graduation services in churches. K.C. Cole, who attended Lakeside, a school in this district, and her mother had had enough of these practices and eventually worked with the ACLU to file a lawsuit against the district.  Many teachers and school officials at the Lakeside school “imply that students must take the Bible literally and have stated that evolution is a ‘fairy tale’.” One teacher has daily objectives hanging in their classroom which include “Love God!”, “Study His Word”, and “Pray Daily!” among others. The ACLU and the Cole family believe that Lakeside school’s practices are in violation of the Establishment Clause of the First Amendment. When these concerns were brought to the district, Johnny Rowland, who was the principal of Lakeside at the time and is now the district superintendent stated, “I’ll stop when someone makes me stop.”

The main question in this case is whether Lakeside’s practices involving religion such as holding prayer at the beginning of the day, prosthelytizing during athletic events, and having blatant references to religion on the walls of classrooms constitute a violation of the Establishment Clause of the First Amendment.

I think that this school district’s practices are without a doubt in violation of the First Amendment. The First Amendment states that "Congress shall make no law respecting an establishment of religion” and this school is definitely violating this law.  This school district is directly favoring Christianity, and is making the government funded, public school into a place of worship for students and teachers. Public schools are supposed to be secular entities because they are funded by the government. Allowing public schools to preference religion or to preach religion in any way is a violation of the First Amendment.

In order to be sure that this district’s practices constitution a breach of the Establishment Clause, I chose to invoke the Lemon Test which came about in the case Lemon v. Kurtzman. The three prongs of this test require that a statute must have a secular legislative purpose, its primary effect must not advance or inhibit religion, and the statute must not foster excessive entanglement with religion. The morning prayer as well as the other religious aspects in this school definitely do not have a secular purpose. The sole purpose of these practices is to advance religion and to push Christianity on students. In terms of this statutes primary effect, its primary effect is undoubtedly to advance Christianity. Finally, this statute does foster excessive entanglement between Church and State because it is a government funded school endorsing religion. This statute both fails the Lemon Test and is extremely coercive in nature, and is therefore unconstitutional.

While people in this school are not forced to stand during prayer, K.C., who’s family filed the suit, claimed that “other students ridiculed her.”  Additionally, when her parents refused to stand during the graduation prayers, “other parents hissed in disapproval.” K.C., who is agnostic, said that she was ridiculed by her teacher when she questioned the Bible and when she questioned the teaching that evolution is a fairy tale.  While I do not think this is enough to consider this an unconstitutional violation of Free Exercise, because technically neither the parents nor the students are being forced to participate, I do think that these practices are discriminatory towards religious minorities. If these teachers want to prosthelytize and preach their religion, they should be teaching in a private, Catholic school. Public schools are supposed to stay secular, and students attending these schools are supposed to be receiving a secular and equal education.

The part of this case in which the teachers are teaching their students that evolution is a fairy tale is similar to the case Edwards v. Aguillard in which the Supreme Court ruled that it was unconstitutional to require that creationism, or creation science, be taught alongside evolution. The Lakeside school case takes this even further by not teaching evolution at all.

This school’s practices involving religion are without a doubt a violation of the Establishment Clause of the First Amendment.  The school district is promoting Christianity and is pushing Christianity on the students. A public school, because it is government funded, is supposed to be a secular institution with a secular education and this district violates this precedent in many ways.

Blaine, Maine, and Montana Plains

One of the most hotly contested issues today is education.  This past week saw Oklahoma teachers engage on a 110-mile trek to our nations capital to protest a lack of educational funding.  Around 1,500 miles north of Oklahoma in Helena, Montana, another battle rages on the grounds of educational funding, but with an added religious twist.

Kendra Espinoza is a single mother of two who sends her daughters to Stillwater Christian School.  She made the decision to switch to religious private school after her daughters were mocked for their Christian faith at their old public school.  On her limited income, she relies on financial aid provided by the school but has trouble making ends meet.

She, along with two other moms, and the Institute for Justice recently brought suit against the Montana Department of Revenue.  They are contesting restrictions on a statewide, tax-funded scholarship program passed by the Montana legislature in 2015.  After the legislation passed, the Department adopted an additional rule to the legislation requiring that the scholarships be used at non-religious private schools.

According to the Montana Department of Revenue, the original legislation ignored Montana's Blaine Amendment, which disallows the use of public funds to directly or indirectly aid religious schools.  "Blaine Amendments," popularized by former Maine representative, James Blaine, are found today in 37 state constitutions.  They are laws that prohibit state funding of sectarian schools.  State Blaine Amendments developed from a proposed federal amendment that was brought to congress in 1875.  The federal amendment never passed but many state legislatures adopted similar laws into their state constitutions.

Blaine Amendments were created during a time of anti-Catholic and anti-Mormon fervor and are often contested for their discriminatory nature.  Blaine, before taking the amendment to the federal level, won overwhelming support in his, largely protestant, home state of Maine for quashing the scourge of Catholic education. Proponents of the amendments believe that they create a critical barrier between church and state.  Additionally, Blaine Amendments clear up the confusing distinction between direct and indirect funding of religious education as they prohibit both.

Espinoza vs. Montana Department of Revenue commenced only days ago in the Montana Capitol of Helena.  It's result in Montana's Supreme Court will surely be interesting but a substantial likelihood exists, especially if Espinoza loses, that the case will be heard in the federal Supreme Court.  The case will attempt to answer the question of whether or not Montana's Blaine Amendment violates Espinoza's free exercise of religion.

If the case does reach SCOTUS, I believe that the court will side with Espinoza, and further, will challenge the constitutionality of all Blaine Amendments.

The main constitutional problem with Montana's amendment is it's negation of neutrality towards religion.  The law very clearly targets parochial schools on the sole basis of their religious affiliation.  Historically, neutrality is the standard set by SCOTUS.  In Everson vs. Board of Education, the court held that state-funded bussing for religious schools is constitutional because the bussing, in itself, held no religious function and provided a neutral benefit to students attending all schools, religious and secular.

Espinoza's constitutional advantage doesn't stop there, however.  Another very similar case was heard by the Supreme Court in Zelman vs. Simmons-Harris.  In the case, SCOTUS held an Ohio school voucher program, which allowed parents to pick from religious or non-religious schools, to be constitutional.  Again, the deciding factor in the 5-4 decision was the neutral nature of the program.  Chief Justice Rehnquist noted in his majority decision that the "Ohio program is entirely neutral with respect to religion... it permits individuals to exercise genuine choice among options private and public, secular and religious."

SCOTUS, if given the chance, will not only rule in favor of Espinoza, but I believe, will call into question the constitutionality of all State Blaine Amendments.  Religious education, for many minority religious sects, is of extreme importance.  Withholding a publicly offered scholarship solely because of the schools sectarian affiliation shows blatant hostility of the State towards religion and burdens the free exercise of cash-strapped parents who want their children to lead spiritual lives.  These issues mixed with the discriminatory nature of the amendments' founding puts them on a preverbal chopping block.

This case could cause Blaine Amendments to follow the lead of their magician namesake and make a disappearing act, once and for all.

Playground or Prayer ground?

Most would agree that their memories of childhood education involved a recess break at the school playground. The Trinity Lutheran Church Child Learning Center, a Missouri preschool and daycare center, provides this childhood memory at their own playground. However, in 2021, the Church was excluded from a state program of reimbursements for the cost of rubberizing the surface of playgrounds. The Missouri Department of Natural Resources (DNR) that administered the Playground Scrap Tire Surface Materials Grant Program had ranked the Church high in the grant process due to a number of factors including the poverty level of the surrounding area. Nevertheless, the grant was not awarded to the school because Missouri’s State Constitution forbade the government from spending money on any “church, sect, or denomination of religion.”

Alliance Defending Freedom (ADF) was contacted by the Church / Learning Center in December of 2011. By January 2013, a lawsuit was filed against the Director of the Missouri DNR, but the district judge ruled for the state and dismissed the case. This decision was then appealed by ADF to the U.S. Court of Appeals for the Eighth Circuit. The Eighth Circuit ruled to uphold the district court’s decision. Taking it another step further, ADF petitioned the U.S. Supreme Court in November of 2015 to take the case. Finally, on June 26th of 2017, the Supreme Court ruled 7-2 in favor of Trinity Lutheran Church.

The majority opinion of the Supreme Court in Trinity Lutheran v. Comer came to the conclusion that churches and other faith-based organizations cannot be excluded from a secular government program simply due to their religious identity. The decision invoked numerous cases such as Everson v. Board of Education of Ewing. For in this case, a New Jersey statute that allowed reimbursements to parents of children being bussed by public transportation to and from public and Catholic schools was deemed constitutional. The state cannot exclude individuals of faith from receiving the benefits of public welfare legislation because of their faith or lack of it.

The dissenting opinion emphasized the entanglement of church and state as the most worrisome part of the case. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, believes in a strict separation of church and state. This would mean that the government cannot, or at the very least need not, tax its citizens and give that money over to houses of worship.

I understand the argument that because the Trinity Lutheran Church Child Learning Center is a private institution regarding religion, it should be funded through private dollars. However, this argument is weak when considering the neutrality of the Playground Scrap Tire Surface Materials Grant Program. I am in agreement with majority opinion.

Allowing for the Church to take part in the Grant Program passes all three prongs of the Lemon Test, especially the first in which “the statute must have a secular legislative purpose.” The secular purpose is the safety of children using the playground. Replacing the surface of the playground would provide a higher level of safety for the children at the center as well as all children in the community who use the playground after school hours and on weekends. It is important to note that children outside of those who attend the school have access. Secondly, “the principal or primary effect” of the grant “neither advances nor inhibits religion” because the Church and Learning Center would exist with or without the help of a government grant to renovate the playground. In no way is this State Program ranking a certain religion higher than another or ranking religion higher than non-religion. It is facially neutral to all schools who may need the resurfacing. Finally, the “statute must not foster an excessive government entanglement with religion,” and it does not. This does not deal with the funding of religious texts or even anything inside the classroom. Just as the transportation in Everson v. Board of Education of Ewing did not support parochial schools directly, the resurfacing of a playground is not directed towards religious schools.

In Wolman v. Walters, the Supreme Court held that giving the State of Ohio authorization to provide nonpublic school students with secular textbooks, standardized testing and scoring, diagnostic services, and therapeutic and remedial services is constitutional. Because the state would not be supplying private schools with religious instructional material or access to field trips, there is no advancement of religion occuring. This holding is equal to that of Trinity Lutheran v. Comer. Access to a proper school playground for preschoolers is equivalent to access to secular textbooks and resources. Aiding schools with an area for recreational time and socializing does not have the primary effect of aiding religion.

Coerced Prayer Approved by School Board

On February 7^th, 2018 the Americans United for Separation of Church and State filed the lawsuit Does1-7 v. Bossier Parish School in Louisiana. The AU is representing seven parents of students who are arguing that a child’s parents or guardian, rather than the school district should decide how children learn about faith. The Bossier Parish School has allegedly violated the Establishment Clause with the widespread endorsement of Christianity and has refused to stop promoting blatantly religious practices that occur in this diverse public school district with over 22,500 students.

The plaintiffs’ complaint was filed in the District Court for the Western District of Louisiana, stating their constitutional concerns and evidence of religious practices exposed to children of all backgrounds at the school. The Bossier Parish School principles, teachers, and coaches regularly require Christian prayer at school-sponsored events. The prayers, often referencing Jesus Christ, take place at graduation ceremonies, sporting events, banquets, pep rallies, student council meetings, etc. Additionally, school-sponsored choir events have been held in churches filled with religious symbols creating an atmosphere of indoctrination. The teachers at the school have reportedly required students to memorize sectarian prayers, advised students that ‘to be a good person one must be Christian’, and have invited diverse young students to attend local church gatherings that promote creationism and religious doctrine. These practices have been supported and encouraged by the School Board's policies.

The Bossier Parish School Board, lead by the Superintendent must comply with federal, state, and local law. The parents, in this case, argue that the Board and Superintendent are deciding religious education for the children by requiring Christian prayer practices. The plaintiffs argue that constitutional rights of both the parents and the students are being violated since parents should be the deciders of a child’s faith education, and the prayers violate the Establishment Clause based on past court case precedent. The names of the parents are anonymous in the case as their children have already been exposed to ostracism and bullying due to their lack of participation in the prayers and the parents’ complaints. By looking at the evidence that the school has allotted time schedules for prayers in school, at ceremonies, at sporting events, and other school-sponsored events, at which the school board and superintendent are in often attendance, it is clear that the district is knowingly ignoring federal laws. Not only is the Bossier School District allowing religion in a secular school system, it is endorsing a specific Christian message and coercing many students who do not follow this religion to abide.

Coerced school prayer, rather than just silent periods that could be used for voluntary prayer, in public schools has been ruled unconstitutional in Abington School District v. Schempp and Wallace v. Jaffrey. The majority opinion in Abington stated that the “most effective was to establish religion is to finance it” and these past cases and this case, Does1-7 v. Bossier Parish School, all involve the use of taxpayer dollars funding religious prayer, which is a direct sponsorship by the state of one particular religion. Bossier Parish School District is thus establishing Christianity within the school district and the state. Additionally, the use of prayer at graduation ceremonies was deemed a violation of the Establishment Clause in Lee v. Weisman, since allowing invocations and benedictions at school-sponsored events, like graduation ceremonies, does not have a secular purpose. Also, when a school official decides which clergy and what prayer should be given, this choice is attributed to the state, thus creating state and church entanglement. In Lee v. Weisman, the school attempted to be neutral by allowing different religious figures come to the graduation, however, the Bossier Parish School District is strict in its Christian views making this case easier to argue that this is a clear establishment of religion in a publically funded diverse school compared to Lee v. Wiseman. The parents of students who send their children to public school have the right to decide what role religion plays in their child’s life, and the Bossier Parish School Board's widespread endorsement and coerced Christian indoctrination on thousands of children violate precedent that has been set in the Supreme Court for decades.

The Dewey Hill "Cross"road

This past Monday, the US Supreme Court declined an appeal by supporters of the Dewey Hill cross, a monument in Michigan donated by the First Reformed Church of Grand Haven to commemorate those who served in the Vietnam War.  The pole stands along the Grand River and can be transformed into a cross on Sundays and even for events, such as summer concerts.

In 2015, the city decided the cross could no longer be raised after backlash claiming it was an establishment of religion.  The resolution followed the requests of a group called "Remove the Grand Haven Cross."  The Washington, D.C. - based Americans United for the Separation of Church and State backed these claims, saying they should be allowed to erect displays of their choosing on the hill or else the city would face a lawsuit against them.

Supporters of the cross filed an immediate appeal once the city's decision was made.  Attorney Helen Brinkman, who represents the Grand Haven residents, argues the cross was part of an open, public forum, and to take it down would violate the public's constitutional right to free-speech.  Furthermore, she claims it be discrimination on the basis of religion.   After all, the cross was donated by a private religious group and the first Amendment states that the government cannot hinder the beliefs and practices of one religion.

Ultimately, the question at hand is whether or not the Dewey Hill cross is an establishment of religion.

I believe that, yes, the Dewey Hill cross does in deed violate the First Amendment right of the Constitution.  The cross stands alone upon the hill, and there has been no true secular purpose claims to it other than free exercise and expression.

This case immediately reminded me of McCreary County v.  ACLU, in which the ACLU sued 3 Kentucky counties for publicly displaying the Ten Commandments in isolation.  The holding of the court stated that commandments were "undeniably a sacred text in the Jewish and Christian faiths," and that the government "acts with ostensible and predominant purpose of advancing religion."

In both cases, there was a clear and direct promotion of religious symbols.  Both the Dewey Hill cross and Ten Commandments, were displayed in public settings.  I personally believe that the location of the cross is indistinguishable, as it is right upon the hill and looks over the town.  It is also crucial to note that there are no other religious monuments accompanying it, and the only other symbol near it is the American Flag.  Are these two symbols commonly correlated with one another?  Does the flag imply that a cross in a nationally held religious belief?  Therefore, I can't help but condemn that a religious cross and an American Flag, located right next to each other, establish a religion

Moreover, the fact of the matter is that it serves no secular purpose.  Supporters of the cross claim its an open and public forum.  The First Reformed Church of Grand Haven donated it to commemorate those who served in the Vietnam War.  However, as noted by the judges: "the defendant did not allow individuals to place private messages, even messages limited to a certain topic, on the Dewey Hill monument when the lifting mechanism was raised, the Dewey Hill monument is government speech and forum analysis is inapplicable to it."  Therefore, the claims of a secular purpose do not apply here, and it remains that the intentions of this cross were to advance a religion.

The cross has since been converted into an anchor.  Not only do I believe it is a better representation of the message of the monument in the first place, to salute our veterans, but an anchor is far more neutral and can therefore apply to a greater scope of beliefs.  Additionally, the American flag, one of the most important symbols of our nation, stands in front of it.  This furthers the true message of the monument, and is far more neutral.

Conclusively, I coincide with both the rulings of the District and Supreme Court that the Dewey Hill cross violates the First Amendment guarantee.  Though I acknowledge to not allow the cross to be raise would be discrimination, the monument does not abridge by a secular purpose and instead advances a religious message.  Therefore, the state has a compelling interest to just remain facially neutral and eradicate the cross completely.

Tis' the Season to be Sued

The Catholic Church has always advocated for keeping "Christ in Christmas" and having "reason for the season." However, this past holiday season, a District of Columbia judge ruled against the Archdiocese of Washington's efforts to promote this message through an advertisement on Washington Metropolitan Transit Authority vehicles. This ruling has been appealed by the Archdiocese and the case, titled Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, now waits on a decision from the U.S. Court of Appeals for the D.C. Circuit.

The problem began when the WMATA rejected the Archdiocese of Washington's request to buy advertising space for their ad centered on the idea of finding "The Perfect Gift." The advertisement, pictured below, was said to violate the WMATA's advertising policy adapted in 2015 to prohibit “advertisements intended to influence members of the public regarding an issue on which there are varying opinions” and “advertisements that promote or oppose any religion, religious practice, or belief.” Although the wording on the advertisement is not specific to religion, the WMATA argues the purpose of the advertisement still promotes religion,  as it features images of silhouetted shepherds and sheep against a starry background. The link promoted on the ad, FindThePerfectGift.org, leads individuals to a website with a central message that "Jesus is the perfect gift" and  a page containing Christmas Mass times in the local area.

The Archdiocese of Washington rejected this prohibition on the grounds that it violated their First Amendment rights, stating "[The ad] conveys a simple message of hope, and an invitation to participate in the Christmas season.” Chieko Noguchi, the Director of Media Relations for the Archdiocese, additionally clarified that the advertisement was specifically tailored to avoid any controversy stating, "Our other ads have a very similar image but contain a quotation from the Book of Luke. This is the simple one, just for Metro." 

This case has some key similarities to Lynch v. Donnelly(1984), which ruled that a nativity scene in the city's Christmas display did not violate the Establishment Clause. The Archdiocese's Ed McFadden even touched on this point in a statement stating, "To borrow from a favorite Christmas story, under WMATA's guidelines, if the ads are about packages, boxes or bags ... if Christmas comes from a store ... then it seems WMATA approves, but if Christmas means a little bit more, WMATA plays Grinch." However, the difference between this case and the one at hand lies in the fact that the advertisement cannot be reasonably argued to have a secular purpose.  If Christmas "means a little more," the government would be establishing a religion, as having this advertisement on public transportation might imply government endorsement. In Lynch v. Donnelly, the court was at the very least able to argue that the other Christmas symbols and their ability to draw customers to local shops fulfilled a secular purpose. In this case, however, the images are clearly non-secular and the central message of the advertisement is to find "the perfect gift" of Jesus this holiday season.

For this reason, I find the original ruling of the court, in which the advertisement rejection was upheld as constitutional, to be correct. In addition to the clearly non-secular purpose of the advertisement, allowing the advertisement to be featured would force tax-payers of other religions to pay money for government transit (that is forbidden from endorsing one religion) to promote religious messages they likely disagree with. By neutrally banning all religious messages on advertisements, the court is able to avoid the impossible task of distinguishing between what religious messages are appropriate and which ones are not if religious messages were allowed. This neutrality among all religions also follows the courts prior rationale that nonpublic forums need only to be viewpoint neutral. Lastly, I do not believe that disallowing a religious group to promote their message on public transportation is barring the "free exercise" of their religion. Even if proselytization is a key aspect of one's religion, there are other forums and places religious groups can do this if they wish too. The purpose of removing religious messages from advertisements is to keep peace in public forums, not to hinder religion, as the WMATA has previously rejected advertisements from Birthright Israel, PETA promoting a vegan lifestyle, and abortion pills.  

Because of this, I believe it is clear that the holding the court originally came to in this case is the one that should prevail again in the Court of Appeals.

"You May Get The Cross Down, But You Will Never Get the Cross Out of Us"

In Grass Lake, Michigan, The Michigan Association of Civil Rights Activists (MACRA) have filed a complaint due to the presence of a cross on state owned property. The cross has been there for nearly 70 years, and is referred to by local Reverend Melvin Parker, the president of the Ministerial Association as what gives the community “more unity”. Despite the historical context and the pleas of Christian supporters, Civil Rights Activists are calling this use of state land for the place of the cross as unconstitutional. Mitch Kahle, co-founder of MACRA asks, “What authority did the state think it had to allow a permanent religious symbol on public land?”. He also stated that he expects the courts will rule in their favor as “[they] are not favorable to crosses on public property”. Although this attack against the placement of the cross was started by a complaint of a longtime resident, this isn’t the first time the cross has come under fire. In 1992, criticism arose after a photograph of the cross was published. It was ruled back then that no violation of the separation of church and state had occurred. The Department of Natural Resources (DNR) granted a permanent-use permit in 1992 that allowed the Lake Ministerial Association to place the cross on Sackrider Hill in the Waterloo Recreational Area as long as the association existed. Kahle comments that decision by saying, “The letter and permit are disturbing because they demonstrate significant entanglement between religion and government…it is always unconstitutional for the state to appropriate, authorize, approve, or otherwise allow the erection and maintenance of sectarian religious symbols on public property”. In the meantime, the cross remains, and Easter Sunday service will be held on Sackrider Hill with the cross proudly displayed. The Lake Ministerial Association has also launched its own petition asking the DNR to “reject the complaint lodged by anti-cross activists”.

Regardless of historical context and the previous permits given to the Lake Ministerial Association, this is a violation of the Establishment Clause. Grass Lake, MI is allowing for one religion to be privileged above others, by allowing this blatant symbol of Christianity to be placed on state owned land. It may be the views of the majority in Grass Lake, MI that they prescribe to Christianity and think the cross should remain there, as has been seen by the outcries of many religious townspeople. However, the Establishment Clause was created to protect religious minorities and to prevent the excessive entanglement between State and religion. Removing the cross from state owned land does not significantly burden the Lake Ministerial Association, nor does it violate their Constitutional rights to free exercise. The cross can be placed on church owned land, where it can be enjoyed by those who share the same religious beliefs, and where it will not infringe upon the religious freedoms of others and not be in violation of the Establishment Clause. If the Lemon Test was applied to this allowance of religious symbolism on state owned land, it would certainly not pass. There is no secular purpose, as the cross is clearly linked to particular religious faiths, the presence of the cross is advancing one particular religious belief over others, and there is excessive entanglement as the cross is on state owned land. There can be parallels drawn to Lynch v. Donnelly (1984) in which the court ruled in favor of allowing the crèche to be displayed. However, in Lynch v. Donnelly there was a secular purpose and the crèche was determined to be depicting the origins of the Holiday. In this case, the only secular purpose argued is that it promotes unity, but there must be a better way for promoting town unity than via a Christian symbol. Furthermore, while it can be argued in that Christmas is not an entirely sectarian holiday, as it was in Lynch v. Donnelly, Easter is the most important day in the Christian religion and revolves around the resurrection of Jesus Christ. If the cross is allowed to stay on state owned land, and this is not ruled to be a violation of the Establishment Clause, then there is a dangerous precedent for the level to which states can sponsor certain religions.

Will the Constitution Steal Christmas?

For decades, the students of Concord High School in Indiana have staged and performed a Christmas Spectacular. In 2015, the Freedom From Religion Foundation wrote a letter on behalf of one of the students parents to Concord High School, alleging that the Christmas Spectacular violated the First Amendment's Establishment clause. The first half of the show often varied from year to year and was non-religious in nature. However, the second half of the show contained a 20-minute segment called “The Story of Christmas” that included readings from the New Testament and a nativity scene, which student actors posed for. Over the course of litigation, the school made changes to the program. First, the school removed the scriptural reading from the nativity scene. Secondly, they added two songs to begin the second half: “Ani Ma’amin” and “Harambee.” These performances were intended to represent Hanukkah and Kwanzaa. The District Judge said that these changes were not enough to address the Establishment Clause problems. Concord quickly edited the second half of the program further and announced that the Christmas Spectacular would now “observe the many cultural celebrations during this holiday season”. To represent Hanukkah and Kwanzaa, the show included a four-and-a-half-minute explanation and performance of their songs. For the remaining 20 minutes of the show, the school continued to perform songs from the old program such as, “Jesus, Jesus, Rest Your Head,” and “O Holy Night,” including the nativity scene with mannequins instead of student actors. The New Testament readings were removed completely from the program. In Freedom From ReligionFoundation v. Concord Community Schools, the U.S. 7th Circuit Court of Appeals held that a revised version of an annual Christmas program did not violate the Establishment Clause.

I think that this case could have gone either way considering courts also have ruled in favor of bans on religious music in public schools (Stratechuk v. Board of Education, South Orange-MaplewoodSchool District). However, cases like this have to be taken case by case because the context is important. Examining this case through the endorsement, coercion, and purpose tests, I don’t think that the revised version of the program violated the Establishment Clause.

The show passes the endorsement test because of the secular first half, the nativity’s lack of prominence, and the inclusion of other holidays. The second half used to be exclusively a telling of the birth of Jesus, but now it can be seen as a collection of music from multiple traditions. Overall, any reasonable observer wouldn’t believe that Concord is signing off on any particular religious message.

The show also did not pressure or coerce any individuals to support any religious beliefs. In Santa Fe Independent School District v.Doe (2000), the Court concluded that a student initiated prayer before a high school football game forced students to make an unconstitutional choice between religious conformity or not attending games. This court has employed the coercion test to find the school created a “captive audience” in a proselytizing environment. The concern over coercion is heightened in this case because it involves elementary and secondary public school students who are particularly vulnerable because attendance is mandatory and they are more impressionable. Yet unlike Santa Fe, there was no religious activity in which the audience members had to partake in. There was no prayer, the reading of the New Testament was removed in 2015, students were allowed to opt out of the performance, and viewing the show is optional.

Now, the purpose of the show wasn’t so clear. Concord claims that the secular purpose of the show is to provide a cultural education of December holidays. After scrambling to make the Christmas Spectacular more inclusive, Concord insincerely included brief songs to represent Hanukkah and Kwanzaa. There was clearly a lack of research on the holidays evident by the fact that “Ani Ma’amin” is a Jewish song, but not specifically about Hanukkah. Also, the Hanukkah and Kwanzaa performances are given much shorter time than the Christmas songs. Therefore, cultural education may not have been Concord’s true aim. That purpose may have been valid if they dedicated a more proportionate amount of stage time to other holidays.

However, the primary purpose of the Christmas Spectacular may not have been cultural education, but it was also not a religious one. The Establishment Clause only mandates that the primary motivation cannot be a religious purpose and Concord has proven that here. Concord asserts that the primary purpose for the program is for entertainment and to provide a learning opportunity for their performing-arts students.

http://blogs.edweek.org/edweek/school_law/2018/03/federal_appeals_court_upholds_.html 

A Moment to Shine

Margaret is a first grader in the North Carolina School System who was recently given the right to hand out Easter invites to her classmates where the events were hosted by her church. Initially, Margaret was allowed to provide invites to church events to her classmates but not permitted to do so for 2017s Christmas events around the Holidays as the school district felt it coerced religious minorities to try and attend the functions. Margaret’s ban on Christmas invites was lifted by the school district after the American Center for Law and Justice intervened and wrote a letter to the school on her behalf.

Many different constitutional precedents could be weighed in support of Margaret and her mother who filed the petition. If this case ended up going to court, before it was resolved internally, the court would rule that student to student literature exchange is within the confines of First Amendment protections unlike teacher to student religious literature exchange. If a teacher were to coerce students into adopting or supporting a specific religion, then the court would have a problem, but giving an invitation is not a demand to attend but rather Margaret being a supporter of her Church’s events, and as a first grader, she garners more leeway in First Amendment's protections than adults. This case represents a violation of the first grader's rights under the Equal Access Act (1984) that states “cannot discriminate against student extracurriculars based on religious, political, philosophical, or other content of the speech at student-run events.

These church events are outside the confines of school and should be equated to similar treatment as if the students were passing out invitations for a celebration which cannot be targeted even though it is religious in nature, because it is not supported nor funded by the school. The policy of the school targeted religious speech specifically for Christians, and  were morally obligated to overturn their ruling which they rightfully did.

The school was wise to permit Margaret and other students to pass out invitations to church events such as Easter or else they would have faced a legal setback in court as students free speech rights are far more protected than state-employed teachers. On top of that was the issue that the school never even had a direct policy in place to ban students from passing out flyers to church-sponsored events which would thus make it illegal to ban them even if the constitution permitted that behavior of discriminating against the church and the students attempt to promote it. The Establishment Clause here is not violated as students are guaranteed rights to freely practice their religion even if that be in public school because they are not actors of the state and their actions towards religious events do not connote a state sponsorship of religion.

This case is almost identical to a lower court ruling K.A v Pocono Mountain School District in which a Pennsylvania court permitted a school girl from passing out invites to occasions of religious nature as the girl passed the Tinker test. The Tinker Test extended many First Amendment privileges to public school students and was used to expand from a previous ruling of West Virginia v Barnette which protected symbolic speech made by students first guaranteed back in 1919 in Stromberg v California. Justice Fortas wrote in Tinker that to ban the speech the school must “base it upon an urgent wish to avoid the controversy which might result from the expression.”

There wasn’t any urgency to ban the invitations or speech of the student because it was a welcoming event that just so happened to be religious. The issue would be greater if the girl refused to include religious minorities on the invite list, but the inclusive nature of the invites means there was no coercive nature to attend simply attempt to spread gospel. Also since the subject of the invites to church events were meant for youth they just so happened to be social gathering in which the main goal was to make new friends in the least coercive nature possible. The nonexistent law that the school had in penalizing Margaret for her invites would have failed the Tinker Test because there is no substantial risk to safety or wellbeing by the passing out of invites without the expectation of full attendance.

Personally, Margaret is well within her rights to try and pass out invites for her church-sponsored events as long as she does it without monetary benefit. Here the church does not hold direct influence over her, and there is no attempt at the church trying to coercive members to join as the events are explicitly focused on children and not on adult worshipping of a higher power. To make matters worse was the school had no written law down preventing religiously minded invites to be passed out in school which could have possibly given them the ability to take this to court but they were wise to prevent this from escalating. There is nothing malicious nor coercive, merely a young child trying to spread the gospel which has been protected by the court as long as it is not coercive or degrading which the school might then have interest in intervening. It is a minor accommodation the school should have permitted as students have rights to exercise their religion as they are not actors of the state and should not be treated as such.

Religion Free-Zone

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.

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/  

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 6^th, 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.

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.