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van Ooijen, “Religious Symbols in Public Functions: Unveiling State Neutrality”

This month, Intersentia Publishing will publish Religious Symbols in Public Functions: Unveiling State Neutrality: A Comparative Analysis of Dutch, English and French Justifications for Limiting the Freedom of Public Officials to Display Religious Symbols by Hana M.A.E. van Ooijen (LL.M, Utrecht University).  The publisher’s description follows.

Religious symbols are loaded with meaning, not only for those who display them. They have generated controversy in many circles, be they religious or secular, public or private, and within or outside academia. Debate has taken place throughout Europe and beyond, at times leading to limitations or bans of religious symbols. While this debate might seem whimsical in occasional flare-ups, it merits closer scrutiny, precisely because it is part of a long-running debate, it crosses boundaries and because it touches upon larger underlying questions.

This book singles out a particularly contentious issue: religious symbols in public functions and it focuses on the judiciary, the police and public education. It is often argued that public officials in these functions should be ‘neutral’ which consequently implies that they cannot display religious symbols. This book aims to unravel this line of thought to the core.

It disentangles the debate as it has been conducted in the Netherlands and studies the concept of state neutrality in depth. Furthermore, it appraises the arguments put forward against the background of three contexts: the European Convention on Human Rights, France and England. It critically questions whether state neutrality can necessitate and/or even justify limitations on the freedom of public officials to display religious symbols. Although this book is the result of an academic legal study, it can be read by students, academics, professionals, or anyone interested in the issue of religious symbols in public functions.

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Temperman (ed.), “The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom”

This November, Martinus Nijhoff Publishers will publish The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom edited by Jeroen Temperman (Erasmus University Rotterdam). The publisher’s description follows.

Increasingly, debates about religious symbols in the public space are reformulated as human rights questions and put before national and international judges. Particularly in the area of education, legitimate interests are manifold and often collide. Children’s educational and religious rights, parental liberties vis-à-vis their children, religious traditions, state obligations in the area of public school education, the state neutrality principle, and the professional rights and duties of teachers are all principles that may warrant priority attention. Each from their own discipline and perspective––ranging from legal (human rights) scholars, (legal) philosophers, political scientists, comparative law scholars, and country-specific legal experts––these experts contribute to the question of whether in the present-day pluralist state there is room for state symbolism (e.g. crucifixes in classroom) or personal religious signs (e.g. cross necklaces or kirpans) or attire (e.g. kippahs or headscarves) in the public school classroom.

Posted on by Marc O. DeGirolami

Does Eating Food Provided by a Church Violate the Establishment Clause?

It is difficult to know exactly what the facts in this case really are, because, as reported here, I cannot understand what possible complaint the Freedom From Religion Foundation could have.  The story reports that it is a longstanding tradition of a high school football team in Texas to provide players with pre-game meals made by various churches in the area.  If this truly is all that there is to the story, then I feel confident in saying that FFRF has no case under the Establishment Clause.  I cannot see how, even under any of the watery tests currently in use, eating food that a church prepares comes close to violating the Establishment Clause.  If it does, so much the worse for that silly interpretation.

There is, however, some suggestion in the story in a quote by FFRF attorney Andrew Seidel that the students were taken to a church to eat the food there and that the pastors were “shar[ing] the gospel of Jesus Christ” while they ate.  If there was indeed proselytism going on while the team members were eating at an event, in church, that they were required to attend, then that is, in my view, a much stronger case for violation of the Establishment Clause.  Indeed, one doesn’t need to talk about anything as loose and unclear as the endorsement test to find that sort of state-sponsored proselytism, at a public school function and at an event where students were required to be present, problematic.

What about taking students to a church at which they ate some food prepared by the church, but at which there was no proselytism?  Well, this is admittedly a more intermediate situation, but it’s worth noting that context will likely matter here, too.  See, e.g., the Seventh Circuit opinion recently discussed here, where in a very narrow holding the court decided that having a public school graduation inside a church with rich iconography violated the Establishment Clause, but that it would not necessarily do so in all cases.  See also this post by my colleague Mark, and particularly the second point he makes about the issue of proselytism.

The deviled eggs are in the details.

Posted on by Mark Movsesian

ACLU to South Carolina Public Schools: We’re Watching

The Wall Street Journal‘s Law Blog reports today that, as the new school year begins, the ACLU of South Carolina has sent a letter to public schools in the state reminding them of their constitutional duty to avoid promoting religion:

“It’s important that all students know that they’re going back to school to a place where they will be welcome no matter what they believe,” said Victoria Middleton, executive director of the ACLU of South Carolina, in a statement Monday. The group claims to have received numerous reports of religious freedom violations, including complaints that many South Carolina schools impose religion on students.

In response, South Carolina’s education superintendent accused the ACLU of trying to intimidate students from engaging in legitimate religious expression in public places. Sounds like litigation ahead.

 

Posted on by Mark Movsesian

Virginia Ten Commandments Case Settles

A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.

Posted on by Marc O. DeGirolami · 2 Comments

Fourth Circuit: No Establishment Clause Violation in Credits for Off-Campus Religious Education

The United States Court of Appeals for the Fourth Circuit has held that a South Carolina public school district policy of permitting its students to receive 2 units of credit for off-campus religious instruction does not violate the Establishment Clause.  The policy was adopted pursuant to a South Carolina state statute which authorized such credits with various limitations.  Several students in the school district took a class in a neighboring religious school entitled, “Christian Worldview,” the quality of which was assessed by another religious school (thereby obviating the need for the public school to evaluate the quality of the educational program).  The public school district did not officially promote or otherwise encourage its students to take the course, and it did not list the course on its catalog, though it did permit fliers to be distributed by its guidance counselors advertising the course — to be discussed and distributed only after a student expressed interest.  Over a 3 year period, about 20 of the district’s 1,500 students took the course each year.

The plaintiffs are parents and students in the district, as well as the Freedom From Religion Foundation, who believe that this policy violates the Establishment Clause.  The district court disagreed, and the Fourth Circuit affirmed.  After eliminating some of the plaintiffs on standing grounds (including FFRF), the court recognized the difference between a case like this and Zorach v. Clausen — the giving of academic credit for release time programs.  But the court found that this distinction was not important with respect to the constitutionality of release-time programs.  The one that mattered was the distinction between Illinois ex rel. McCollum (in which religious instruction was had within the public schools, and those who did not want it were compelled to go elsewhere) and Zorach (off-campus instruction), and the district’s approach was far closer to the latter.

Here is another interesting statement by the Fourth Circuit:

[P]rivate religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school . . . . It would be strange and unfair to penalize such students when they attempt to transfer into the public school system by refusing to honor the grades they earned in their religious courses, potentially preventing them from graduating on schedule with their public school peers. Far from establishing a state religion, the acceptance of transfer credits (including religious credits) by public schools sensibly accommodates the “genuine choice among options public and private, secular and religious.” Zelman v. Simmons-Harris, 536 U.S. 639, 662 (2002) (upholding an Ohio voucher initiative for this reason).

The case is Moss v. Spartanburg County School District Seven.

Posted on by Marc O. DeGirolami

Supreme Court Declines to Hear Candy-Cane Case

The Supreme Court yesterday refused to hear a Fifth Circuit case involving the First Amendment rights of public elementary school students to discuss religion with other students and to distribute religious items, including religiously-themed candy-canes and pencils with messages such as “Jesus is the Reason for the Season,” and “Jesus loves me, this I know, for the Bible tells me so.”

The en banc Fifth Circuit held that students do have such rights, but that the public school administrators who had barred the students from exercising their rights had qualified immunity from suit because the rights were not clearly established.

The (rather long) en banc opinion is Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).

Posted on by Marc O. DeGirolami

Bronx Household of Faith Obtains TRO on Free Exercise Grounds

CLR Forum’s educated readership knows that the Free Exercise Clause was interpreted in Employment Division v. Smith to mean that neutral laws of general application which do not specifically target religion for discriminatory treatment are constitutional.  Of course, the majority of the Court in Smith, unlike some of Smith’s most ardent academic supporters, was quite friendly to legislative accommodations for religion.  Smith was about what the Constitution mandated, not what it permitted.

Yet in the fabric of Smith was an important exception — or, perhaps it’s not even right to call it an exception, as it seems to follow from the very rule that Smith announced.  Where a law is not neutral, or not of general application, it warrants the strict scrutiny that applied in the Court’s pre-Smith free exercise jurisprudence. 

And that seems to be the reason for Judge Loretta Preska’s decision to issue a temporary restraining order enjoining New York City’s Board of Education from barring Bronx Household of Faith and all other religious organizations from using public school buildings for religious worship services.  Readers will remember that the Second Circuit, in an opinion by Judge Pierre Leval, held that the municipality could exclude “worship” even though (under Good News Club v. Milford Central School), it could not exclude “religious expression.”  And the Supreme Court, regrettably, denied cert.  But the Second Circuit’s decision did not involve a free exercise claim, and Bronx Household of Faith had preserved that claim. 

If one looks at the memorandum in support of Bronx Household’s motion for the TRO, the free exercise claims involve allegations of non-neutrality (the policy of exclusion specifically targets religious worship, and even more specifically targets Judeo-Christian religions which engage in organized worship) and the lack of general application: the policy is “substantially underinclusive” — it allows “prayer, singing hymns, and religious teaching,” while at the same time excluding worship.  The district court also agreed with the plaintiff’s Establishment Clause claim as a reason to grant the order.

Posted on by Marc O. DeGirolami · 1 Comment

Resistance to Abington v. Schempp

The Supreme Court’s decision in Abington v. Schempp (holding daily devotional reading of the Bible and recitation of the Lord’s Prayer in public school unconstitutional) is one of the most controversial opinions in the entire religion clause canon, perhaps the most controversial.  This story from a couple of days ago in the NY Times reports that it continues to be resisted.  The story gets several things wrong.  For example, consider this statement: “It has been nearly 50 years since the Supreme Court  ruled that officially sponsored prayer in public schools violated the separation of church and state.”  In the first place, “the separation of church and state” is not a standard that a majority of the Supreme Court uses or has ever used to adjudge the constitutionality of a law or policy.  And in the second, assuming that the reference is to Schempp, it is not true that the Supreme Court decided anything of the kind in that case.  It decided that daily devotional reading of the Bible and recitation of the Lord’s Prayer which was intended by the school as a religious ceremony was unconstitutional.  It much later (decades later) decided in a series of opinions that the inclusion of prayers in other school-sponsored activities was also unconstitutional.  At any event, the story contains some interesting reporting on a current controversy discussed earlier here.

Posted on by Marc O. DeGirolami

Does Banning Religious Texts in Public Schools Violate the Establishment Clause?

An interesting case out of the 9th Circuit back in August, Nampa Classical Academy et al. v. Goesling (the panel consisting of Judges Reinhardt, W. Fletcher, and Rawlinson, who concurred only in the result), in which an Idaho Public School Commission adopted a policy banning  outright the use of public funds to purchase all “sectarian and denominational texts” for instructional use in public school classrooms.  Apparently there is a provision of the Idaho constitution which provides, in relevant part, as follows:

No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.

The provision seems to me to be talking about proselytism in public schools; otherwise, it would really and truly mean that no “political” books or documents could be used in public school education, a rather perplexing position — ‘no U.S. Constitution in public schools!’  But I guess the Idaho school commission came up with a different interpretation.  There are speech claims and other standing issues involved here which knocked the case out, but what about the religion clause issue?  The policy may be rather knuckle-headed, but does it violate the Establishment Clause? 

ADDENDUM: I suppose somebody might think that including religious texts as part of secular instruction would itself violate the Establishment Clause.  Indeed, it appears that the district court thought this very thing: “If the Defendants allowed the Plaintiffs’ proposed curriculum, they would be in violation of the Establishment Clause.”  Nampa Classical Academy v. Goesling, 714 F. Supp. 2d 1079, 1093 (D. Idaho 2010).  That a school commission or school district would think this is regrettable, but these are not legal bodies and so the misunderstanding is not too surprising.  But that a district court could be this completely wrong about the law is mystifying.  In no way is it improper for a public school to include religious texts in the regular curriculum.  That’s been true historically since the founding of the country, and it was stated explicitly in Abington v. Schempp by Justice Clark.  What a strange mistake.

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