Posted on by Marc O. DeGirolami

NYC Council Passes Equal Access Resolution for Churches to School Property

Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). We have on various occasions discussed the “serpentine path” of litigation in the Bronx Household of Faith case, and it appears from Mead’s report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be “appearing to endorse religion.” The Council’s resolution may have been spurred by the events in the Southern District of New York.

I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the “appearance” of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually does violate the Establishment Clause. Here, though, I only want to note that Mead’s view that “the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties” is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one’s views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.

Posted on by Mark Movsesian

Is Yoga Constitutional?

Last month, I  wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.

Yoga Class at Encinitas School (New York Times)

It turns out that very issue is being litigated this week in a California  court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.

Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.

This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court  has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.

So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga  in yoga?

Posted on by JCPW

Around the Web This Week

Some interesting law & religion stories from around the web this week:

Posted on by JCPW

Rzeznik, “Church and Estate”

978-0-271-05967-9mdIn July, Penn State Press will publish Church and Estate: Religion and Wealth in Industrial-Era Philadelphia by Thomas F. Rzeznik (Seton Hall University). The publisher’s description follows.

In Church and Estate, Thomas Rzeznik examines the lives and religious commitments of the Philadelphia elite during the period of industrial prosperity that extended from the late nineteenth century through the 1920s. The book demonstrates how their religious beliefs informed their actions and shaped their class identity, while simultaneously revealing the ways in which financial influences shaped the character of American religious life. In tracing those connections, it shows how religion and wealth shared a fruitful, yet ultimately tenuous, relationship.

Posted on by JCPW

Cohen, “Divine Service? Judaism and Israel’s Armed Forces”

Divine Service_PPC.QXD_radicalism unveiledThis July, Ashgate will publish Divine Service? Judaism and Israel’s Armed Forces by Stuart A. Cohen (Ashkelon Academic College, Israel). The publisher’s description follows.

Religion now plays an increasingly prominent role in the discourse on international security. Within that context, attention largely focuses on the impact exerted by teachings rooted in Christianity and Islam. By comparison, the linkages between Judaism and the resort to armed force are invariably overlooked. This book offers a corrective. Comprising a series of essays written over the past two decades by one of Israel’s most distinguished military sociologists, its point of departure is that the establishment of the state of Israel in 1948, quite apart from revolutionizing Jewish political activity, also triggered a transformation in Jewish military perceptions and conduct. Soldiering, which for almost two millennia was almost entirely foreign to Jewish thought and practice, has by virtue of universal conscription (for women as well as men) become a rite of passage to citizenship in the Jewish state. For practicing orthodox Jews in Israel that change generates dilemmas that are intellectual as well as behavioural, and has necessitated both doctrinal and institutional adaptations. At the same time, the responses thus evoked are forcing Israel’s decision-makers to reconsider the traditional role of the Israel Defence Force (IDF) as their country’s most evocative symbol of national unity.