Religion, Law, and Current Legal Issues
As we are approaching one of the most
prominent Jewish holidays, Passover, many local families will have an
opportunity to discuss the contours of religious freedom here, in the United
States, around their Seder tables. In
New York City, home to one of the largest Jewish communities in the Diaspora,
Jews have an ability to enjoy their holidays and celebrations openly, without
fear. Thanks to the Civil Rights
Movement in the 1960s and the US Supreme Court’s ruling in Sherbert v.
Verner, 374 U.S. 398 (1963), mostly gone are the days when observant Jews
were fired for refusing to work on Saturdays.
In Sherbert, an appellant was discharged by her government
employer because she would not work on Saturday, the Sabbath day of her faith.
The Supreme Court expressly held that strict scrutiny was the appropriate test
in evaluating government laws burdening religious freedom and that South
Carolina may not constitutionally apply the eligibility provisions so as to
constrain a worker to abandon his religious convictions respecting the day of
rest.
Moreover, public schools in New York
City provide accommodations for observant teachers and students by offering
alternative testing days and closing on major Jewish holidays. Yet, the
principle that government may accommodate the free exercise of religion does
not supersede the fundamental limitations imposed by the Establishment Clause,
which guarantees at a minimum that a government may not coerce anyone to
support or participate in religion or its exercise, or otherwise act in a way
which establishes a state religion or religious faith, or tends to do so. Both the Free Exercise Clause and the
Establishment Clause of the First Amendment complement each other and protect
our freedom of religious beliefs against government actions that might
simultaneously violate both of these provisions. The Supreme Court articulated
the primary test used for the Establishment Clause in Lemon v. Kurtzman that
assesses whether there is “an excessive government entanglement with religion”
in one of its prongs. Applying the Lemon
test, the Supreme Court in Lee v. Weisman held that a public school
cannot persuade or compel its students to participate in a religious exercise,
such the offering of invocation and benediction prayers as part of the school’s
graduation ceremony.
As the Court in Lee states:” The
lessons of the First Amendment are as urgent in the modern world as in the 18th
century when it was written. One timeless lesson is that if citizens are
subjected to state-sponsored religious exercises, the State disavows its own
duty to guard and respect that sphere of inviolable conscience and belief which
is the mark of a free people. To compromise that principle today would be to
deny our own tradition and forfeit our standing to urge others to secure the
protections of that tradition for themselves.”
A similar concern is currently being raised in a pending before the
Supreme Court case, Town of Greece v. Galloway, where an elected
five-member town Board invites local clergy to offer an opening prayer at its
regular monthly meetings.
In Town of Greece v.
Galloway, the plaintiffs allege that a municipality violated the
Establishment Clause of the First Amendment by aligning itself with “a single
faith,” namely Christianity. Since 1999,
the Town Board in a small town near Rochester, NY, has invited clergy to open
the Board's monthly meetings with a prayer. The vast majority of prayers during
the past years have been explicitly Christian in content. In their complaint, the plaintiffs contend
that the Town Board has publicly aligned itself with a single faith by
sponsoring persistently sectarian and almost exclusively Christian prayers.
According to the plaintiffs, the Board sends the message to non-Christians that
they are unwelcome at Board meetings and that the Board does not represent
non-Christian's concerns. Further, they allege that the defendants' practices
of favoring Christian clergy and prayers at Town Board meetings have the
purpose and effect of promoting, advancing, favoring, and endorsing the
Christian religion, and have a coercive effect on children present at Town
Board meetings. These practices convey the message that the Christian religion
is favored or preferred by the Town over other religions and over
nonreligion. The practices send the message to adherents of the Christian religion
that they are political insiders, and simultaneously send the message to
non-Christians that they are political outsiders.
In
response, the defendants maintained that sectarian prayer is permissible if it
is not exploited to proselytize, disparage, or advance a particular religion. In August 2010, the District Court held that
neither the town’s procedure for selecting clergy nor its practice of opening
board meetings with prayer violated the Establishment Clause by the Town Board.
On appeal, the Second Circuit reversed and remanded. In May 2013, the United
States Supreme Court granted petition for writ of certiorari to the United
States Court of Appeals for the Second Circuit.
This case is interesting and
controversial because, at first blush, it presents an excessive government
entanglement with religion; however, it also illustrates a tension between the
latest three Supreme Court cases in this area of jurisprudence: Marsh v.
Chambers, 463 U.S. 783 (1983), Cnty. of Allegheny v. ACLU Greater
Pittsburgh Chapter, 492 U.S. 573 (1989), and Lee v. Weisman, 505
U.S. 577 (1992). The Supreme Court in Lee
held a public school cannot persuade or compel its students to participate
in a religious exercise, such as the offering of invocation and benediction
prayers as part of the school’s graduation ceremony. As Lee stated, when
“citizens are subjected to state-sponsored religious exercises, the State
disavows its own duty to guard and respect that sphere of inviolable conscience
and belief which is the mark of a free people.” Town of Greece v. Galloway raises the
same concern.
As we will sit comfortably around our
Seder tables enjoying great food and company, we have to remember and be aware
of the important interplay between the Free Exercise Clause and the
Establishment Clause of the First Amendment that protects our freedom of
religious beliefs.
