• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Louis A. Ruprecht, Religion Dispatches

On November 2, 1984, Velma Barfield became the first woman to be executed in the U.S. since 1962, and the first to be executed in the State of North Carolina after the nationwide moratorium on the death penalty was lifted in 1976. She was 52 years old.

For those of us who had worked on her clemency petition, it was a devastating blow. Then-Governor Jim Hunt was running for a seat in the US Senate against arch-conservative Jesse Helms. Inexplicably, Barfield’s clemency hearing had been scheduled just six days prior to the election. Helms made it a campaign issue, of course, suggesting that, were the Governor to grant Barfield clemency, then his true liberal stripes would be clear to everyone.

By contrast, even the staff at the Women’s Prison in Raleigh had written in support of Barfield’s petition; her work in counseling and religious instruction behind bars even earned her praise from the likes of Billy Graham. Everyone agreed there was no stronger clemency case on death row in the state.

But the governor’s peremptory meeting with those who presented the clemency petition lasted little more than half an hour, and it was clear to us that his mind was already made up.

The Barfield execution came back to life in the following spring, in the form of a letter from an eloquent if quirky citizen of the State of North Carolina; one who was opposed to the death penalty for religious reasons. He had calculated the approximate cost of executing Velma Barfield—not just the lethal injection, but the years of legal wrangling as well. According to his calculations, and given the current population of the state, exactly one cent of his own tax payment had been used to execute Velma Barfield—so he enclosed a check to the North Carolina State Tax Commissioner for 1984, in which he had withheld that suspect penny.

As you might imagine, the state took a different view, taking issue especially with this self-imposed tax break. Their point was that you do not get to pick and choose which state services you are willing to pay for, not even for religious reasons.

Especially not for religious reasons, since there are so very many of them.

The cash-strapped State of North Carolina spent a lot more than one cent to get that penny back. As they should have done, though this citizen’s symbolic point had been made quite eloquently by then.

No Picking and Choosing

I have returned many times to that story as I have listened to Catholic churches, Catholic institutions from hospitals to universities, and two Catholic presidential candidates all insist on what that poor guy from North Carolina was asking for: a religious exemption from paying for state services to which he was opposed on moral and religious grounds.

The state’s answer was simple in the spring of 1985: you don’t get to pick and choose the services you pay for, regardless of the reason.

This case raises an issue of considerably sharper interest, I think, given the Catholic Church’s consistent opposition to the death penalty, to preemptive wars (especially those conducted primarily through interdiction), to abortion, and now, we are told, to contraception.

So why has there never been a similar stink about Catholic exemptions from death penalty provisions? Why no such tax withholding for the wars in Iraq and Afghanistan? And why is the state bending over backwards to accommodate these religious sentiments about contraception, rather than some others?

One explanation might be historical: what a difference a generation makes. After thirty years of hammering away at the need for the secular state to accommodate religious objections to virtually every damn thing it does, the state is backpedaling and the Church is on the offensive. From 1979 to 2012, politicized Christianity isn’t just taking its place at the table, it’s trying to rewrite the menu. Anti-feminism has loomed large in that effort.

Clerical Hysteria

Which brings me to a second explanation, one that is not historical so much as it is hysterical. I mean that quite literally.

Hysteria is a term that derives from the Greek word for the uterus, and this is indeed a battle over women’s uteruses: over what goes in them and what stays out. The death penalty and international warfare simply do not energize the sex-obsessed American electorate the way that women’s sexual autonomy does.

What is the problem with contraception? It enables women to be sexually active without paying the price, as it were; the massive biological and sociological and personal costs that may come with unwanted pregnancy and bringing such pregnancies to term.

The end of the sexual act is procreation, from the Catholic perspective; sexual pleasure or expressions of love and affection are not legitimate ends if they are detached from the procreative intention. Contraception enacts that detachment. Moreover, by separating the sexual act from the intention of conception, contraception encourages women’s sexual promiscuity—so goes the Catholic thinking.

Rush Limbaugh’s tirade to this effect, for all of its bile, well describes what is at stake in this debate, for some people. The fact that men’s sexual promiscuity does not register as a concern of equal standing for such persons is itself quite telling.

To my eye, the most significant thing that has happened between 1979 and 2012 has been the significant and at times studied erosion of feminist achievements in mandatory, state-sanctioned equality. I’m talking about the basics here, the principal First and Second Wave achievements:

political equality, symbolized by a woman’s right to vote and to hold political office; and

economic equality, symbolized by the ideal, if not the reality, of equal pay for equal work.

But when the sexual equality of men and women is at issue—not sexual sameness, let’s be clear about that, just sexual equality—then the howling starts, and churches start withholding their money and support.

The debate is, in this sense, hysterical. And there’s a pretty simple solution to it. If you want to run as a Catholic hospital or a Catholic university and not offer the full array of health care services to women as mandated by the state, then don’t implicate yourself in any federal or state funding. Not one penny.

All the World a Stage

Now, I admit that this argument must seem overdrawn at first glance. There seems to be a fundamental difference between a citizen and/or organization withholding taxes for state services with which they do not wish to be identified, and a citizen and/or organization being asked to provide those services themselves.

The problem is that this creates a false distinction between the state as an actor and people as actors. State services are, all of them, provided by organizations and by people. Catholic institutions are claiming an exemption from the obligation to provide such services because they are religiously opposed to them. They are engaging in a selective opt-out, just like the guy from North Carolina.

I am not convinced that any of the charities, hospitals or universities involved in this debate are truly independent religious institutions that receive no federal dollars. An institution’s tax exempt status alone casts that into grave doubt. And these institutions seem not to recognize that one way for the state to insist on its way, and for them to gain their administrative freedom, would be to abrogate that curious tax exemption for an institution as wealthy as the Catholic Church in a time of real fiscal crisis. But clearly, this would lend itself to the very Big Brother vision of the federal government that created this controversy in the first place.

Instead, President Obama, ever the patient compromiser, attempted to create a new distinction, one of limited practical usefulness but great symbolic value, suggesting that insurance providers would be paying for these services, not the institutions themselves.

And that is when the U.S. Conference of Catholic Bishops, sensing weakness, intensified its position, indicating that it is not just opposed to being asked to pay for such services, but that any of the Catholics for whom they speak would be asked to provide them. This is fascinating; the Catholic Bishops now appear to be claiming the right to opt out of anyprograms with which they disagree. Here is their response to the president’s proposed compromise, in their words:

[this] continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions.

It’s not just about the money; it’s about Big Brother. And so:

We will therefore continue—with no less vigor, no less sense of urgency—our efforts to correct this problem through the other two branches of government.

So the problem is not with government per se, just with the president. This is why it is so rhetorically critical for them to refer to “Obamacare” rather than the “Patient Protection and Affordable Care Act,” thereby conveniently forgetting that this was a law passed by the Legislative branch of the US Government, not an Executive Order.

Now, it is perfectly within the Bishops’ rights to petition the US Congress to change a law, or even to vacate it and to start over, as it is their right to question the constitutionality of a law in the courts.

But that is why I began with the story from North Carolina. The question that should be asked is why the US Catholic Bishops are exerting so much energy and money and time on the matter of contraception, with no similarly public cries of outrage against the death penalty, state-sponsored torture, or the two preemptive wars in which the U.S. has involved itself for fully a decade.

Clearly there is a lot more to this debate than the First Amendment. It has to do with one of the most powerful patriarchal religious organizations in the world—be sure to recall that the bishops are all men, every last one of them—placing itself squarely in opposition to women’s sexual equality and autonomy.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Louis A. Ruprecht Jr., Georgia State University

At the same time that the US Supreme Court issued a second stay of execution in one week in the state of Texas, it permitted the execution of Troy Davis to go forward in the state of Georgia. And at 11:08pm on Wednesday, September 21^st, some four hours after his scheduled 7:00pm execution time, Troy Davis was indeed killed by a state-administered lethal injection. 

The range of emotions and the swirl of debates generated by this confusing juxtaposition are layered and complex: a white Army recruiter accused of rape and murder is spared, at least for now, while a black man accused of killing a police officer is not.  Both men insisted on their innocence throughout their circuit of appeals. 

I mention skin color because it is a part of the story of state-administered death no matter how we try to discuss the thing. The very fact that our system is organized to ensure that race is not a factor speaks eloquently to the fact of race’s inescapability in our judicial system, especially for the young black man. 

Yet I am less concerned with racial justice than I am with procedural justice. The manner in which Troy Davis met his end raises new and different questions about the death penalty in the United States. 

On September 21^st, Troy Davis had his second purported his last meal.  He elected to have the same meal that his fellow death row inmates had–not because he did not expect to be executed, but rather as an expression of solidarity with them. The execution of a person with a strong case for clemency is, as one can imagine, an emotionally devastating event for that state’s death row population. There is a hopelessness in the air for weeks after. 

Troy Davis was permitted to spend six hours with his family on the day of his scheduled death, a final private conversation.  He was then given some private time to himself and even permitted unusual access to music. He had his final meal between 4:00 and 5:00pm, then was prepared for death. 

But at the eleventh hour, and for the second time in his life, Davis’s execution was put on hold as the US Supreme Court asked to review the evidence one more time.  No doubt his hopes soared; certainly the hopes of the crowds gathered in vigil in Atlanta and Jackson, Georgia did. Those hopes were dashed just a few hours later when the High Court decided not to intervene in Davis’s case, and so he died just a few hours after he had expected to die when he awoke Wednesday morning. 

This is all very unusual. 

The fact that Troy Davis was convicted and sentenced to death twenty years ago in 1991, the fact that he suffered the double jeopardy of two last meals in his strange life behind bars, and the fact that his execution was once again delayed at the very last moment are all facts to which the vast majority of Americans across the political spectrum are opposed.

Supporters of the death penalty consider this endless round of appellate review excessive, almost as if we care more for the rights of the accused than we do the victim. Opponents of the death penalty consider this cruel as well as unusual, and thus a violation of the 8th Amendment to the US Constitution. No one can be happy with the manner in which we administer the ultimate penalty in this country. 

But the fact is that we will never be able to administer it any other way. The US Supreme Court has consistently held that the penalty of death is qualitatively different than any other kind of penalty and therefore subject to review unlike any other kind. Any prisoner sentenced to death has automatic rights to appellate review at multiple levels. Any prisoner sentenced to death in this country will languish on death row for a decade or more; will experience the surreal days and nights in which scheduled death dates come, are postponed, and return. As unusual as Troy Davis’s case may seem to us, it is in fact rather normal. 

The simple fact is that, given the constitutional commitments to individual liberty and due process of law—commitments for which we are justly proud—we will never be able to administer the penalty of death in the way other countries that have it—like China, Iran and North Korea—can. They do it fast, with little if any subsequent review. 

When I first became interested in the death penalty some decades ago, a famous case of serial execution took place in China. As a way to deal with the escalating problem of highway robbery, the government took 6000 men accused of the crime and shot them all together in a single morning. Highway robbery decreased dramatically. 

The point is that we can never administer the death penalty in that way. That is a very good thing; it is what makes us modern. It represents what is best and noblest in our system of justice. And it is in this sense that the death penalty is practically incompatible with the norms and the systems of justice that have emerged in Europe and the US in modern times. 

The only reason Socrates had time to talk with his friends while awaiting execution was the fact that Athens was celebrating a religious ritual during which the city was not permitted to kill anyone.  Had he been sentenced to death at any other time, he would have been killed immediately.  When Jesus was brought before the Roman civil administration in Palestine, he was tried, sentenced, tortured and killed all in a single afternoon. That pre-modern form of state-sponsored killing is no longer our own. 

We are trying, then, and failing, to administer a penalty that made sense in other times and makes sense in other parts of the world, as if still made sense in our own. The indignities and inhumanities that are born of those paradoxes and contradictions came into very sharp focus under some very harsh light last week. 

And it is in this sense that some of us may hope, however cautiously, that Troy Davis did not die in vain.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Scott R. Grubman

With approximately seventy-five percent of Americans identifying themselves as Christian (down from eighty-six percent in 1990), it is safe to call America a “nation of Christians.”  But can America also be called a “Christian nation”?  In a 2007 interview, then Presidential candidate John McCain expressed his belief that “the Constitution established the United States of America as a Christian nation.”  McCain is by no means alone in his belief that the United States – a nation founded, in part, in order to escape the dominance of the Church of England – is a Christian nation.  Also in 2007, the First Amendment Center, an organization associated with Vanderbilt University, conducted a survey in which it asked respondents, among other things, whether they believed that America was established as a Christian nation.  Fifty-five percent of respondents said that they believed that the Constitution established a Christian nation and sixty-five percent of respondents either “strongly” or “mildly” agreed that the nation’s founders intended the United States to be a Christian nation.      

According to Michael Lind, a columnist for Slate.com, there are four main arguments utilized by the Christian right in support of the argument that the United States is a Christian nation.  The first argument is anthropological:  “The majority of Americans describe themselves as Christians” and, therefore, the United States is a Christian nation.  But as Lind points out, the fact that the majority of Americans describe themselves as Christians is irrelevant to the question of whether the American government as an entity is Christian.  The second argument identified by Lind is that the Constitution is somehow “Christian in character.”  As to this argument, not only is there a complete absence of any reference to Christianity in the Constitution as one would expect there to be had the founding fathers intended to create a Christian nation but, as Lind explains, there are several parts of the Constitution that seem contrary to the idea of the Constitution establishing a Christian nation, including Article VI which states that “no religious test shall ever be required as a qualification to any office or public trust in the United States,” and the First Amendment which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”   

The third argument identified by Lind is “that while the U.S. government itself may not be formally Christian, the Lockean natural rights theory on which American republicanism rests is supported, in its turn, by Christian theology.”  As to this argument, Lind notes that the ideas of natural rights and social contracts “were inspired by themes found in non-Christian Greek and Roman philosophy,” and that idea of the social contract stretches back to the fourth and fifth centuries B.C., well before the time of Jesus.  The last argument that Lind discusses is that  

American leaders from the founders to the present have seen a role for otherwise privatized and personal religion in turning out moral, law-abiding citizens.  

Although our nation’s leaders may have used, and still do use, their personal religious beliefs as a basis for their political positions and beliefs, this does not mean that America was intended to be, or is, a Christian nation.  Further, the argument that our founding fathers were all Christian is questionable, to say the least.  Thomas Jefferson, for instance, is thought by most modern day religious scholars and historians to have subscribed to the schools of Deism and Unitarianism as opposed to Christianity in particular.  Benjamin Franklin described himself as a Deist and expressly rejected Christian dogma, although he did briefly belong to a Presbyterian church.  In a letter written just one month before he died, Franklin expressed that although he respected the system of morals preached by Jesus, he had “some doubts as to his divinity.”  John Adams was raised a Congregationalist and eventually became a Unitarian.  Although Adams believed in a higher power, he did not believe in the divinity of Christ. The religious affiliations of other founding fathers, including George Washington and James Madison, are less clear, although many scholars and historians argue that they were all more properly classified as Deists than as Christians.  In fact, the only major founding fathers that can definitively be classified as Christian are John Jay and Alexander Hamilton.  

There are several pieces of evidence that lend support to the idea that America was not intended to be a Christian nation.  One of the main pieces of evidence used to support this idea is the Treaty of Tripoli.  The treaty was ratified by the United States Senate on June 7, 1797 and signed by President John Adams a few days later.  Article 11 of that treaty provides:   

As the Government of the United States of America is not, in any sense, founded on the Christian religion,–as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],–and as the said States never entered into any war or act of hostility against any Mohametan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.  

Many scholars and historians argue that the unanimous ratification of the treaty by the United States Senate, including Article 11, is the strongest indication that the founding fathers did not intend for America to be a Christian nation.  It was, after all, entered into and signed by none other than John Adams, one of the leading founding fathers, and ratified by a Senate comprised of several other instrumental figures from the time of the founding.  Further, because it was unanimously ratified, the Treaty of Tripoli represents perhaps the most accurate statement of what the government as a whole perceived itself to be.   Another major piece of evidence cited by scholars as suggesting that America was not intended to be a Christian nation is an 1843 letter written by the tenth president, John Tyler.  In his letter, President Tyler wrote:   

The United States have adventured upon a great and noble experiment, which is believed to have been hazarded in the absence of all previous precedent – that of total separation of Church and State.  No religious establishment by law exists among us.  The conscience is left free from all restraint and each is permitted to worship his Maker after his own judgment …  

While this letter may only represent the beliefs of one—albeit a very influential—man, it is another piece of evidence that seems to many scholars and historians to conflict with the idea of America as a Christian nation. To be sure, it would be difficult to argue that America was not built upon certain “religious” principles such as the belief in a deity.  It is also undisputed that, for all of American history including the present day, the vast majority of Americans have identified themselves as Christians.  It is questionable, however, whether the founding fathers intended that America be established as a “Christian nation.” One thing is for sure — whether America is a “Christian nation” or merely a “nation of Christians” is a question that will be debated for centuries to come.   

Further Reading:  

Michael Lind, America Is Not a Christian Nation (April 14, 2009), available at http://www.salon.com/news/opinion/feature/2009/04/14/christian_nation.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Sherry Morton  

On June 28, 1969 the New York police raided the Stonewall Inn, a mafia run basement bar in Greenwich Village known as a haven for homosexuals.  

In an effort to root out this “undesirable element,” Stonewall was a too often the target of police raids. On this particular sultry summer night, the desperation of a people oppressed for no reason other than their sexual orientation (the police seem to have no particular issue with mafia run establishments), boiled to the surface.  Gay patrons and onlookers stood their ground, refusing to tolerate brutality and unjust treatment at the hands of the police. Patrons of Stonewall stopped dancing and started resisting; the police were trapped inside the Inn and days of rioting followed.  Instead of containing the “social ill of homosexuality,” the Stonewall raid provided the necessary fuel to set the gay pride movement in motion. 

The LBGT community has not only experienced legal oppression but sadly, it has also suffered theological oppression.  Practitioners, from a variety of religious traditions, often interpret their sacred texts as condemning homosexual acts and the people who engage in them.  One of the most widely cited examples of sacred condemnation of homosexuality is the Sodom and Gomorrah account found in Genesis 19 of the Hebrew Bible.  

The debate around this passage centers on a vague insinuation of same-gender sex.  While some argue this is evidence of strong Biblical condemnation of homosexuality there is a resounding silence around issues of social justice, most striking, a disregard for the care and well-being of young girls. 

As the story goes, two travelers (angels) arrive in the city of Sodom and meet with Lot, one of the righteous citizens of the city.  Lot, convinces the travelers to take shelter in his home for the evening.  A mob comprised of every remaining male in the city gathers at Lot’s door, demanding that he send the strangers out “so that they may know them.”  Lot begs the mob to leave his guests unharmed and offers in their place his two daughters; telling the mob they may do with them as they please (Genesis 19:1-8).  

The subsequent destruction of the cities of Sodom and Gomorrah is often used in conjunction with this passage as proof that the God of Abraham strongly condemns homosexuality, but there are challenges in interpreting Genesis 19 as the definitive condemnation of homosexuality.  

First, if there is a reference to sexual action in this passage, it is most probably a reference to some type of sexual assault and not equivalent to modern notions of homosexuality.  Also, considering the passage in context with other Biblical passages on Sodom and Gomorrah, there is a case to be made that the destruction of the cities was more closely related to a disregard for the hospitality codes of the age, issues of social justice, and denigration of the sacrificial system. 

Those who hold the position that Genesis 19 is concerned with homosexuality commonly use one particular phrase, Genesis 19:5, as central to their argument.  The passage reads:   

Where are the men who came to you tonight?  Bring them out to us so that we may know them. 

As an angry mob of one social group proposes this in relation to another foreign social group, it is likely a reference to some type of assault.  If sex is implied, it would be within the bounds of sexual assault and as all parties (mob and travelers) are male, it would more specifically be same-gender sexual assault.   

Sexual assault is not equivalent to our modern understanding of homosexuality.  Contemporary homosexuality extends far beyond the boundaries of simple same-gender sexual intercourse and is not synonymous with sexual assault. It includes the full spectrum of behaviours associated with committed relationships:  love, joint property, child rearing, and all manner of responsibilities for health and welfare.  

Genesis 19’s veiled reference to what might be same-gender-sexual assault appears to be more concerned with the establishment of social dominance of one group of people over another more than sexual gratification.  If sexual gratification were the goal, the mob would have accepted Lot’s offer of his daughters.  While the passage may condemn abusive same-gender-sexual assault, it does not make a coherent moral statement about the contemporary understanding of homosexuality, which is often comprised of partners engaged in mutually loving relationships.   

Given Lot’s focus on protecting his guests, this passage is likely to be a statement on the strict observance of hospitality laws rather than on sexuality.  The mob may have intended to disregard the traveler’s rights to safe harbour in a foreign land. The harsh climate of the ancient world of the Hebrew Bible made strict hospitality codes necessary.  There were no Super 8 Motels to leave the light on for you or Waffle Houses to provide corned beef hash and biscuits for breakfast.  In the ancient world, an open threat against the lives of foreign travelers was as an egregious offense and one that would have warranted the harshest judgment.  The phrase “so we may know them” is vague and it is possible that the mob only intended to talk with the strangers to determine whether or not they were a threat to their community.  Both issues—the incongruence between ancient and modern understandings of homosexuality and the challenge of hospitality laws—have been heavily debated by scholars.  Oddly, many who engage in the passionate debate around this passage pay relatively little attention to the treatment of Lot’s young daughters. 

Following the portion of the passage that may or may not condemn some type of same-gender sexual assault is:  

I beg you, my brothers, do not act so wickedly.  Look I have two daughters who have not known a man; let me bring them out to you, and do to them as you please; only do nothing to these men, they have come under the shelter of my roof. (Genesis 19:7-8)  

Using the Sodom and Gomorrah account to condemn homosexuality while ignoring the failure of family values in Lot’s treatment of his daughters is a glaring omission.  If this Genesis account is a strong argument for the immorality of homosexuality then it is a scandalous argument regarding the treatment of young women.  

Religious historian David Carr points out that, Biblical sexual morality was directly shaped by the harsh and unpredictable living conditions of the desert agricultural life of the Israelite people.  A minority of live births survived past the age of two and for this minority the life expectancy was only twenty-five to thirty-five years (49). Carr also asserts that, Genesis 19 is specifically concerned with the maintenance of hospitality laws and supports this claim by citing Judges 19, which states that a man might choose to offer his daughter’s or concubine’s to be raped in order to provide protection for a guest (186-187).   

However, the Biblical position on the treatment of women, like its treatment of many important subjects, is ambiguous.  Scholars  K. C. Hanson and Douglas Oakman highlight the Bible’s assertion that with rulership comes responsibility, while women must submit to the authority of fathers, brothers and husbands; only an obedient woman was worthy of love, care, and respect (25).  

With a life expectancy of thirty-five years, it is easy to assume that if Lot’s daughters were still unmarried they were probably young teenagers.  Lot was willing to and justified in sacrificing his young daughters for the protection of adult men.  When I read the account of the damnation and destruction of Sodom and Gomorrah what is most vivid, in a long sad discussion of condemnation, is that a father begs potentially violent rapists to do as they will with his young daughters to save the life of grown men.  Lot’s family values were such that he could dispose of his daughters as he pleased, even if that meant their death and disgrace, and still be the “most righteous” man in the city.  Hopefully this is a morality that most could not sanction.  

When considering the judgement of Sodom and Gomorrah further, another salient fact emerges that may better explain why God destroyed the cities—aside from their uncertain sexual behaviour.  God has grown tired of the wickedness in Sodom and Gomorrah, according to Isaiah 1:10-17; the tiresome sin of Sodom and Gomorrah was worship divorced from social justice.  

Hear the words of the Lord, you rulers of Sodom!  Listen to the teaching of our God, you people of Gomorrah !  What to me is the multitude of your sacrifices? says. the Lord;  I have had enough of burnt offerings of rams and the fat of fed beasts;…..When you come to appear before me, who asked this from your hand? …Wash yourselves; make yourselves clean; remove the evil of your doings from before my eyes; cease to do evil, learn to do good; seek justice, rescue the oppressed defend the orphan plead for the widow.  (Isaiah 1:10-17) 

This is the longest passage speaking directly to the sins of Sodom and Gomorrah outside of the Genesis 19 account. In the remaining six passages, the two cities are mentioned as exemplars and modes of comparison for the wicked life.  This passage from Isaiah supports a reading of the destruction of Sodom and Gomorrah not as the final judgment on contemporary homosexuality, but on grounds that they repeatedly defiled the sacrificial system—a system critical to the Hebrew God’s relationship with the Israelite people—by living in ways that were unjust to those most vulnerable in society.   

Some interpreting Genesis 19 are so narrowly focused on the vague insinuation of what might be same-gender-sex assault that they miss the social injustice that motivated the destruction of Sodom and Gomorrah.  A contextual reading of the Genesis 19 narrative shows that what was of utmost importance at the time was maintaining strict hospitality codes and the integrity of the sacrificial system.  Unfortunately, the social justice necessary to maintain these systems did not appear to include concern for the wellbeing of young women.  

Using the Sodom and Gomorrah account to condemn homosexuality without addressing the issues of social injustice, particularly the disregard for the welfare of young women, is a case of theological stonewalling.  How ironic that the Stonewall Inn was the place where those so greatly oppressed by the interpretation of Genesis 19, as the definitive Biblical condemnation of homosexuality, finally defied that oppression.  

***********************

About the Author

Sherry Morton completed her MA in Religious Studies at GSU in 2010.  Her interests lie in the intersection of cognitive science of religion, particularly the impact of religious ritual on the brain. 

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…  Amendment I, U.S. Constitution 

“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”   ~ Thomas Jefferson, letter to the Danbury Baptist Association, 1802 

 By: Christa Lasher  

Reynolds has the prestigious position of being the first case in the U.S. Supreme Court’s history involving either the Establishment Clause (Congress shall make no law respecting an establishment of religion…) or the Free Exercise Clause (…or prohibiting the free exercise thereof…).   Reynolds was the first Free Exercise case heard by the Supreme Court who would not agree to hear an Establishment case until 1947 with Everson v. Board of Education.  After Reynolds, the Court did not consider another Free Exercise case until 1940 with Cantwell v. Connecticut.  (That is not to say that lower courts did not hear and adjudicate other Establishment or Free Exercise cases.  In fact, they did.  The Supreme Court simply did not choose to hear any until about 60 years after Reynolds.)  Up until 1940, Reynolds was the only precedent involving religion decided by the Supreme Court.  The decision in that case still has effect today.  

Joseph Smith

I will spend very little time discussing the history surrounding this case and instead defer to Sarah Barringer Gordon’s The Mormon Question (2002) which carefully and thoroughly outlines not only the history of the Church of Jesus Christ of Latter-day Saints as they journeyed from New York to the Utah Territory but also of the reaction to and debate about Mormonism and polygamy.  A brief survey of the highlights will do.  Joseph Smith, while living in upstate New York, claimed to have been guided by an angel to golden plates which he translated into the Book of Mormon in 1830.  He quickly attracted a good number of disciples who followed him through Ohio, Missouri, and Illinois.  In 1843, he received the “Revelation on Celestial Marriage,” (see LDS Doctrine and Covenant 132) which remained a secret held by Joseph Smith and his intimate circle for almost a decade after.  During the intervening years, Mormons met with discrimination and violence wherever they went.  In 1844, Smith was murdered by a mob that attacked the jail where he was being held awaiting trial.  Following his 

Mormon Temple

 death, faithful Mormons migrated to what would become the Utah Territory in 1847 with Brigham Young at the lead.  In 1850, Congress organized the Utah Territory, and two years later, the church acknowledged and read aloud the “Revelation on Celestial Marriage.”  After years of intense debate (polygamy was rhetorically connected to slavery, so states’ rights became an issue in the debate over polygamy as well), Congress passed the Morrill Anti-Bigamy Act of 1862.  In order to challenge this act, and the federal government’s right to interfere with local government (at the time, the federal government had little significant control over the states and other local governments), the Church of Jesus Christ of the Latter-day Saints (LDS) decided to get a member convicted of polygamy and appeal it all the way to the Supreme Court.  George Reynolds was a perfect candidate for this test case, for he was both a dedicated Mormon and yet of only modest standing within the Church.  In 1878, the Court heard the case, and in 1879, it handed down its decision. 

Chief Justice Waite wrote the decision of the Court, with no dissenting and only one concurring opinion.  He identified six questions before the Court, the first four of which were technical issues such as improperly excusing jurors or improperly admitting evidence.  The fifth question interests us here: “Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?”  The first four questions were dismissed – the court below had not acted improperly.  On this question about the exercise of religion Chief Justice Waite spent proportionally more time than any other question. 

This was the first time the Court adjudicated the significance of the First Amendment’s religion clauses, and so first, they set about defining religion.  Here, they used Thomas Jefferson’s understanding – the Jeffersonian interpretation of the wall of separation – to determine what religion and freedom of religion meant.  Quoting Jefferson’s letter to the Danbury Baptist Association, the court determined that religion – at least that part of it which was to be protected – sat in the realm of opinion.  The letter, the Court stated, “may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.  Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”  That is, belief is protected absolutely according this decision, but action is not.  Reynolds may believe whatever he wishes about the importance of polygamy, but that did not mean he could necessarily act upon that belief.  The Court had then to tackle the issue of polygamy itself. 

Chief Justice Waite traced the history of marriage – monogamy versus polygamy – within Europe, declaring polygamy to be “almost exclusively a feature of the life of Asiatic and of African people.”  Polygamy had virtually always been a disagreeable and punishable offence in all European societies and their descendents.  Moreover, it was not just a “sacred obligation” but also a “civil contract” which could be regulated by law.   

Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties…  In fact, according that monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people… rests.    

Marriage, according to this reading, is the base of the entire society.  From the marriage comes every other social relationship and institution, all the way up to the government.  Depending upon the type of marriage allowed the government is formed accordingly.  Polygamous marriage, the Court, and the larger culture, “fetters the people in stationary despotism.”  Only monogamous marriage could form the society necessary to support a democratic government.   

Still, was the government not required to give Reynolds – and the Mormons – an exemption because of religious belief?  No—certainly not.  “This would be introducing a new element into criminal law.”  After all, as the Court already determined, law may interfere with the practice of religion.  Suppose, the government asked, someone believed human sacrifice was a religious necessity?  Or the practice of sati?  Could these practices – central as they may be – be exempted from criminal law?  Absolutely not, according to Chief Justice Waite, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect, to permit every citizen to become a law unto himself.”  Law had to be the final authority.  The Free Exercise Clause, according to Reynolds, does not allow religion to exempt a citizen from criminal law.    

Reynolds was, and in certain cases, still is good law, according to the Supreme Court.  Until 1940 in Cantwell v. Connecticut, Reynolds was the only decision on Free Exercise, and the rule of law was this: Belief is protected absolutely by the First Amendment.  The government could not dictate to people their beliefs, nor make belief a prerequisite for benefits given to citizens, nor outlaw or punish citizens for their beliefs.  However, practice is not so absolutely protected.  A generally applicable law was constitutional even if it impinged upon a citizen’s free exercise. 

Reynolds was the first case—but case law is not static.  Cantwell v. Connecticut, the next opinion I intend to examine for Religion Nerd, will expand upon Reynolds and apply the First Amendment to the States.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Chris Rodda, Talk To Action

For the past year and a half or so, droves of right wing Christian websites have been selling a variety of “Pray for Obama” items — t-shirts, bumper stickers, hats, and even teddy bears — all sporting the slogan “Pray for Obama” followed by the Bible verse reference “Psalm 109:8.”

Psalm 109 is what’s known as an imprecatory prayer — a prayer to invoke evil, misfortune, or physical harm upon someone. The words of Psalm 109:8 are: “Let his days be few; and let another take his office.” The next line is “Let his children be fatherless, and his wife a widow.”

As Frank Shaeffer, appearing on Rachel Maddow back in November 2009 when this “Pray for Obama” merchandise was first becoming popular, explained: “[T]here is a crazy fringe to whom all these little messages that have been pouring out of Fox News, now on a bumper sticker, talking about doing away with Obama, asking God to kill him. Really, this is trolling for assassins.”

In an effort to determine “if the design was simply intended to be criticism of the President or something much worse,” CafePress posted an online poll, and found that: “General consensus has proven that the design does point to a broader interpretation of the Psalm and thus has been deemed inappropriate for sale at CafePress.” Zazzle.com also banned the slogan, issuing a statement saying they had “determined that these products, in the context of the full text of Psalm 109, may be interpreted in such a way as to suggest physical harm to the President of the United States.” But the banning of the slogan by mainstream websites like CafePress and Zazzle hasn’t slowed the sale of ‘Obama Prayer’ merchandise on right wing Christian websites or the slogan’s popularity.

In January, a Florida sheriff’s deputy was suspended for placing a note with “The Obama Prayer” in a coworker’s Bible last September. According to ABC News: 

When Sergeant Martha Nash reported for duty at the Manatee County, Fla., Sheriff’s Office on Sept. 29, she said she found her copy of the New Testament lying on the desk with a peculiar note sticking out from inside.‘The Obama Prayer,’ it read, in an unrecognizable, handwritten scrawl.

But when Nash looked to the relevant passage, circled with a pink highlighter, she said she was shocked by what it said. The text seemed to suggest that whoever left it wanted President Obama dead.

Sgt. Matthew Neu, who was known to oppose Obama politically, told investigators he received an e-mail referencing a bumper sticker with Psalm 109 and the “Obama prayer,” then left the Bible and note on Nash’s desk.

Almost six months before it surfaced that the right wing Christians were promoting Psalm 109 as a prayer for Obama, this same imprecatory prayer was publicly issued by disgraced former Navy chaplain Gordon Klingenshmitt against Mikey Weinstein, the founder and president of the Military Religious Freedom Foundation (MRFF), and Barry Lynn, the head of Americans United for the Separation of Church and State (AU). Both MRFF and AU had been contacted by numerous people about Klingenschmitt’s use of the Navy uniform and title of Chaplain on his political website,prayinjesusname.org. To address the issue, MRFF and AU wrote a joint letter to the Chief of Naval Operations requesting an investigation of Klingenschmit’ts use of his image in uniform to solicit funds for political causes.

In response, Klingenschmitt emailed the following prayer to his surprisingly large mailing list, and also posted it on his website and on YouTube:

Saturday 25 Apr 09 One-Minute Prayer:  Imprecatory Prayers Against Anti-Jesus Barry Lynn and Mikey Weinstein

Let us pray. Almighty God, today we pray imprecatory prayers from Psalm 109 against the enemies of religious liberty, including Barry Lynn and Mikey Weinstein, who issued press releases this week attacking me personally. God, do not remain silent, for wicked men surround us and tell lies about us. We bless them, but they curse us. Therefore find them guilty, not me. Let their days be few, and replace them with Godly people. Plunder their fields, and seize their assets. Cut off their descendants, and remember their sins, in Jesus’ name. Amen.

Klingenschmitt also posted a very strange disclaimer on his website, in which he defended his right to call himself “Chaplain,” stating that he had a current endorsement as a “Chaplain and Evangelist to America” from the Chaplaincy of Full Gospel Churches (CFGC). It was this statement that led MRFF to take a closer look at the CFGC, a chaplain endorsing agency founded by retired Army colonel and chaplain Jim Ammerman, and authorized by the Department of Defense to provide the ecclesiastical endorsement required by the military for all military chaplains, with several hundred of its chaplains currently serving in all branches of the military.

It didn’t take long to find out that Jim Ammerman was a dangerous conspiracy theorist with a long record of making statements to foment anti-government sentiment and incite violence as a speaker for the Topeka, Kansas based Prophecy Club, an organization that promotes a plethora of conspiracy theories against the U.S. government — everything from 9-11 being a government conspiracy to the United States being in imminent danger of being placed under the control of U.N. forces to the entire U.S. government being an illegal government founded by the Illuminati and satanists. In fact, way back in 1997 a three-star general had called for an investigation of Ammerman and CFGC with a memorandum including nine pages of excerpts from Ammerman’s radio appearances and his Prophecy Club video, “Imminent Military Takeover of the U.S.A.,” a video being circulated among militia groups at the time.

Ammerman’s statements included everything from saying that Bill Clinton (president at the time the video was released) should have been executed to inciting the militia types by making claims that his chaplains were reporting back to him that they had inside information that the U.S. military was preparing to attack U.S. cities, and claiming inside information from other sources indicating an imminent threat of the United States being placed under martial law.

Ammerman’s more recent statements include a “suggestion” in his September 2008 CFGC newsletter that the four democratic senators who were then candidates for president — Hillary Clinton, Joe Biden, Chris Dodd, and, of course, Barack Obama — should be arrested and executed for voting against making English the official language of the United States. He has also advocated armed violence against law enforcement officials.

Ammerman has also allegedly slandered Mikey Weinstein and his family.  In one speech, describing a meeting he had had with a U.S. senator during which the senator asked him how the chaplains praying in Jesus’ name controversy got started, Ammerman claimed that Weinstein became a “madman” because one of his sons, both of whom are Air Force Academy graduates, “got saved” at the Academy. (Ammerman’s claim about Weinstein’s son is completely untrue, as is his claim that Weinstein is a multi-millionaire who’s getting other Jews to give him money).

He [the senator] said, ‘this big question about the name of Jesus, where did it start?’ And I said, ‘In the Air Force — the Air Force Academy, in fact, by a Jew who had two boys there. He was a graduate from there and became a lawyer — a real estate lawyer — and he’s a multi-millionaire and he’s getting other Jews to give him money to stamp out the name of Jesus throughout this nation. But, one of his two Jewish sons got saved up there and he’s been a madman ever since. He should come — and I pray God will enlighten him and say your son’s not on the road to hell any longer, and if I get a chance to meet him, I will say, ‘Do you know how happy you ought to be. One of your sons is on the road to heaven.’ Now, he might slug me because he’d turned into a madman at that point, but I’ll take a lick for Jesus. In fact, if he broke my neck and I died, I’d be in the instant presence of Christ, and I’m sure Jesus would have a little smile on his lips when I reported in.

In September 2009, Mikey Weinstein and his wife Bonnie filed a lawsuit against Gordon Klingenschmitt, Jim Ammerman, and the Chaplaincy of Full Gospel Churches. This is not a MRFF lawsuit, but a suit brought by the Weinsteins personally.

The lawsuit seeks an injunction restraining the defendants from “making further terroristic threats” or “encouraging, soliciting, directing, abetting, or attempting to induce others to engage in similar conduct or to harm Plaintiffs or their family.” In other words, the Weinsteins, who have already been subjected to numerous death threats and attacks on their home, want the court to stop Gordon Klingenschmitt from “trolling for assassins,” as Frank Shaeffer described it when talking about the danger of disseminating imprecatory prayers against an “enemy” to an audience that could include any number of unstable individuals who might take these prayers literally and act on them, thinking they’re doing God’s work.

The Weinsteins’ lawsuit was filed in Dallas County, Texas because this is where Jim Ammerman resides, and where the CFGC, Klingenschmitt’s chaplain endorsing agency, is located.

Klingenschmitt, a resident of Colorado, answered by filing a “special appearance” (a hearing to dispute the jurisdiction of one state’s court over a defendant from another state) in the Dallas County court. Klingenschmitt also filed a motion to dismiss the case. The Dallas County court found that, under Texas court rules, by filing this motion to dismiss the case on its merits, Klingenschmitt had already entered a “general appearance,” thereby waiving his “special appearance.” So, Klingenshmitt’s “special appearance” was denied. Klingenschmitt appealed this decision.

On Friday, March 18, the Court of Appeals, Fifth District of Texas at Dallas, upheld the Dallas County court’s decision, agreeing that: “In addition to its finding of fact that Klingenschmitt has extensive and systematic contacts with Texas and its conclusion of law that Klingenschmitt has continuous and systematic contacts with Texas, the trial court concluded that Klingenschmitt’s motion to dismiss and motion for reconsideration of the motion to dismiss sought dismissal of the Weinsteins’ claims on the merits and that Klingenschmitt waived his special appearance.”

Barring any further attempts to throw up procedural roadblocks, Friday’s ruling by the Court of Appeals means that the lawsuit against Gordon Klingenschmitt, Jim Ammerman, and the Chaplaincy of Full Gospel Churches will move forward in the Dallas court, and it will now be up to jury to decide if recklessly issuing imprecatory prayers against an individual or individuals, whether it’s a private citizen like Mikey Weinstein or the President of the United States, is a potential incitement to violence or protected free speech.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Mark Sherman, AOL News

WASHINGTON — The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son’s funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker,” Roberts said. “As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Alito strongly disagreed. “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he said.

Matthew Snyder died in Iraq in 2006 and his body was returned to the United States for burial. Members of the Westboro Baptist Church, who have picketed military funerals for several years, decided to protest outside the Westminster, Md., church where his funeral was to be held.

The Rev. Fred Phelps and his family members who make up most of the Westboro Baptist Church have picketed many military funerals in their quest to draw attention to their incendiary view that U.S. deaths in Afghanistan and Iraq are God’s punishment for the nation’s tolerance of homosexuality.

They showed up with their usual signs, including “Thank God for dead soldiers,” ”You’re Going to Hell,” ”God Hates the USA/Thank God for 9/11,” and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.

The church members drew counter-demonstrators, as well as media coverage and a heavy police presence to maintain order. The result was a spectacle that led to altering the route of the funeral procession.

Several weeks later, Albert Snyder was surfing the Internet for tributes to his son from other soldiers and strangers when he came upon a poem on the church’s website that attacked Matthew’s parents for the way they brought up their son.

Soon after, Snyder filed a lawsuit accusing the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.

The federal appeals court in Richmond, Va., threw out the verdict and said the Constitution shielded the church members from liability.

Forty-eight states, 42 U.S. senators and veterans groups sided with Snyder, asking the court to shield funerals from the Phelps family’s “psychological terrorism.”

While distancing themselves from the church’s message, media organizations, including The Associated Press, urged the court to side with the Phelps family because of concerns that a victory for Snyder could erode speech rights.

Roberts described the court’s holding as narrow, and in a separate opinion, Justice Stephen Breyer suggested in other circumstances, governments would not be “powerless to provide private individuals with necessary protection.”

But in this case, Breyer said, it would be wrong to “punish Westboro for seeking to communicate its views on matters of public concern.”

Margie Phelps, a daughter of the minister and a lawyer who argued the case at the Supreme Court, said she expected the outcome. “The only surprise is that Justice Alito did not feel compelled to follow his oath,” Phelps said. “We read the law. We follow the law. The only way for a different ruling is to shred the First Amendment.”

She also offered her church’s view of the decision. “I think it’s pretty self-explanatory, but here’s the core point: The wrath of God is pouring onto this land. Rather than trying to shut us up, use your platforms to tell this nation to mourn for your sins.”

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Peter Applebome, New York Times

Palenville, New York

During Palenville Pagan Pride Day in August, the agenda reflected the goddess-centered theology of the Divine Feminine, which members say has its roots 12,000 years ago in the Goddess Cybele in Central Anatolia, in Turkey.

So after the opening ritual at 9 a.m. and sandwiched around “Lunchtime with the Priestesses,” the schedule at the old Central House Inn included “The Goddess in Antiquity,” “Pagans in the Mundane World” and sessions on sacred drumming patterns, dragon rituals and the Cybeline Revival.

Still, it was the least celestial item that perhaps mattered most. That would be “Discussion of Maetreum of Cybele v. Town of Catskill, N.Y.,” a legal case dating to 2007 after the town first approved and then denied tax-exempt status for the group, which has been certified by the federal government as a tax-exempt religious charity. The goddess may rule the universe, but the lawyers will help decide whether the pagans of Palenville have a future in this historic old town just down the snowy hills from Hunter Mountain.

Built in the 1850s, the Central House functioned for most of its years as an inn in Palenville, a hamlet of about 1,000 in the Town of Catskill, which is the fictional home of Rip Van Winkle and has been called America’s first artists’ colony.

Thus, it was both somewhat jarring and not entirely impossible to imagine when four women, with interests in goddess worship and the idea of a women’s housing cooperative welcoming transsexual women, bought the increasingly decrepit inn in 2002. It eventually became the Catskills Phrygianum of the Maetreum of Cybele Magna Mater, their global headquarters and convent house. There it stands: yellow paint peeling, a pink bus in the snow, bright banners above the porch.

The group’s public face is Cathryn Platine, a stocky former certified nursing assistant and cabinet maker, who long ago lost a finger to a miter saw. Ms. Platine, 61, who describes herself as a lifelong pagan descended from a witch hanged at Salem and from John Quincy Adams, said her religion had been the only one singled out locally.

“We’re women oriented,” she said. “We’re goddess oriented. We’re gay and lesbian friendly. We’re witchy. We’re set up for communal living for priestesses. I think we set off a lot of buttons.”

She said the town’s legal case kept shifting, and the only constant seemed to be animus toward the group.

“It’s a mystery to us why this fight continues,” she said. “We’re pretty clearly who we are. And there’s nothing threatening about what we do here. Come on, we’re practically Catholic nuns except we’re willing to have sex.”

Daniel Vincelette, a lawyer representing the town, said the dispute was not over whether the group was a religion or a charity, but whether the use of the house was directly tied to the religious purpose. If the use is primarily residential and the religious use is incidental, that would not be tax exempt, he said.

“Whether it’s Catholic, Jewish, Protestant, Muslim, Hindu, whatever it is, we look at it the same way,” he said. “If you look at the documents, the way this has developed, the town’s position is that this is not supporting an exempt purpose.”

The town’s specific objections differed for the two years being contested by the group, but both focused on the use of the house, not whether the group was a valid religion.

That may be wise, given the religious figurines and pictures inside, the detailed theology on the Web site and regular events like daily praise observances, goddess meetups, full moon observances, priestess training and others that might not be Sunday church religion but could easily be viewed as religion nonetheless.

There are, of course, all kinds of questions that can be asked about religious tax exemptions over all, but the Maetreum’s $5,400 tax bill is unlikely to rival the multimillion-dollar exemptions of conventional religions. Still, with unconventional religions on the rise, it poses issues that go beyond the old inn here.

The Cybelines are facing possible foreclosure proceedings for the $13,800 they owe and appealing for money. But in the smorgasbord of religious law, they may also have weapons of their own if they want to pursue a discrimination claim. They say they just want to get back to where they were.

“Our goal is simply to have them recognize us, give back the money they owe us and our attorney fees, and leave us alone,” Ms. Platine said. “We will walk away from this happily if they’re willing to do that.”

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Christa Lasher

What is the first word of the First Amendment?  Congress—”Congress shall make no law…”  And for most of American history, following the creation of the Bill of Rights, that is just to whom the First Amendment applied—Congress.  That means that the First Amendment only applied to the federal government and that the individual states did not necessarily have to abide by First Amendment Religion Clauses.

In 1940, however, that changed through a process known as the incorporation doctrine.  Gradually, the Court began to apply the Bill of Rights to the states through the Fourteenth Amendment.  The incorporation of the First Amendment via the Fourteenth came with Cantwell v. Connecticut, one of the many Jehovah’s Witness cases of the 1930s and 40s.  In fact, Jehovah’s Witnesses, with their enthusiastic and prolific participation in the judicial system, have had a major effect in First Amendment jurisprudence.  For an excellent, if overly generous, history on Jehovah’s Witness involvement in the courts, I recommend reading Judging Jehovah’s Witnesses by Shawn Francis Peters.

Now for the facts of the case which involve a father and his two sons, Newton, Jesse, and Russell Cantwell, all Jehovah’s Witness ministers.  It is important to note that one of the key practices of the Jehovah’s Witnesses is proselytizing, which at the time in question, included passing out literature or playing recordings.  In the late 1930′s, the Cantwells were doing just that on Cassius Street, a street with a very high concentration of Catholic residents, located in New Haven, Connecticut.  The Cantwells split up to move individually from door to door asking the person who answered for permission to play one of the records he was carrying.  If given permission, he would play a record which introduced one of the books he carried.  He would then ask the person to buy the book or to give a contribution.  If rebuked, he would go on his way and try again at the next door.

On that particular day and in that particular neighborhood, the Cantwells, specifically Jesse Cantwell, decided to play a decidedly anti-Catholic tract to two men, Catholics both, who had agreed to listen to his record. The men quickly became incensed by the recording and even reported feeling the urge to hit Cantwell.  They demanded that Cantwell leave, and he did so. Each Cantwell was arrested that day under a statute that stated that no one may solicit money for any religious or charitable purpose without receiving approval from the Secretary of the Public Welfare Council.  Said Secretary would determine if, given a religious purpose, it was a genuine religious purpose and provide a certificate.  The Cantwells had received no such certificate.  The Cantwells argued that such a law was, on its face and as applied, offensive to the due process clause of the Fourteenth Amendment, the Freedom of Speech, and the Free Exercise Clause.  The Court agreed.

We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of the law in contravention of the Fourteenth Amendment.  The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.

And that’s the million dollar statement!

The Court ruled that the religion clauses of the First Amendment forbade the government from requiring its citizens to accept any creed or practice – this is the Establishment Clause.  The clauses also permit citizens to exercise freely within whatever religion they prefer – the Free Exercise Clause.

Thus the Amendment embraces two concepts – the freedom to believe and the freedom to act.  The first is absolute but, in the nature of things, the second cannot be.

Here, the Court is in line with the Reynolds ruling. Recall that Reynolds was the first Free Exercise case – indeed the first religion clause case – and it involved the Mormons and polygamy.  In Reynolds, the Court ruled that a person may believe whatever they want, but action must conform with the law.  In the Cantwell case, the Court agreed with the previous ruling in Reynolds.  However, the Court in the Cantwell case added a stipulation: any regulation of action must not “unduly… infringe the protected freedom.”  Whereas Reynolds gave the government the right to regulate as it best saw fit, Cantwell constrains the power of that regulation.  They ruled that a

State may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting… and may safeguard the peace… without unconstitutionally invading the liberties protected by the Fourteenth Amendment.

For the most part, the rest of the decision seems to lie with Freedom of Speech, the free communication of ideas, and when and how the government may regulate this.  What is clear is that it cannot be regulated based upon content.  The Court ruled that the process for obtaining a certificate for solicitation was unconstitutional because it required that the Secretary (a state representative) determine what constituted a genuine religious purpose.  The State, the Court declared, is forbidden to determine what a genuine religious purpose is or is not.  As there is far too much at risk that bias and discrimination may color the process.

Most significant in Free Exercise jurisprudence is the constraint placed upon legislation.  The Court in Reynolds did not see fit to constrain in any way the legislature’s power to regulate action.  If a generally applicable law, like the Morrill Anti-Bigamy Act, were to hamper the exercise of religion—that law did not necessarily offend the Free Exercise Clause.  Cantwell subtly changes that.  A generally applicable law may still infringe on free exercise (after all, belief is protected absolutely, practice cannot be) if it does not do so unduly.

The next case we will explore, Everson v. Board of Education, tests the first Establishment Clause.  You will see that, while Free Exercise jurisprudence is relatively predictable, Establishment Clause jurisprudence is far more convoluted.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By Scott R. Grubman

November 2, 2010 was an election day to remember for many reasons, although perhaps a day most Democrats would love to forget.  Throughout the country, voters went to the polls not only to vote for the politician of their choice (or, perhaps more likely, against the incumbent), but to decide some of the most important social issues of our time.  Voters in Arizona, for instance, approved a ballot initiative to amend the state constitution to ban affirmative action programs in state government agencies.  Arizona voters were joined by Oklahoma voters in prohibiting mandatory participation in the new federal health care system, often referred to as “Obamacare.”  Voters in California rejected a ballot initiative which would have decriminalized possession of small amounts of marijuana, while Arizona voters approved legalization of marijuana for medicinal purposes.  And voters in Arkansas, South Carolina and Tennessee all voted to add the right to hunt and fish to their respective state constitutions. 

But Obamacare was not the only thing that Oklahoma voters spoke up against in 2010.  They also overwhelming approved a state constitutional amendment prohibiting state courts from considering Sharia law (or the sacred law of Islam)—as well as international law—when making rulings.  The ballot measure passed by an overwhelming 70 percent.  Apart from the legal objections to the amendment, which will be discussed more below, the amendment’s passing raises an obvious question—was it really necessary for voters to prohibit Oklahoma courts from considering Sharia law?  A quick search of Westlaw (the online legal research service) returns not one result for a case in which an Oklahoma court considered Sharia law in reaching its decision.  Of course, as comedian Stephen Colbert facetiously opined on his November 3 show, “just because something doesn’t exist, doesn’t mean you shouldn’t ban it.” (In that same segment Mr. Colbert called for ballot initiatives to ban cat airline pilots, baby hurling, and man-futon marriages).  Further, as the Los Angeles Times and other publications have reported, out of a total population of over 3.6 million, there are only approximately 15,000 Muslims living in the state of Oklahoma, equivalent to approximately 0.4 percent.  

None of this, however, stopped the Oklahoma legislature from placing the measure on the November 2 ballot, nor did it stop 70 percent of Oklahomans from casting an affirmative vote.  The bill’s primary author, former Oklahoma State Representative Rex Duncan (a Republican lawyer from Sand Springs, Oklahoma, who did not seek reelection in 2010) was not discouraged by the fact that Sharia law had never been considered by an Oklahoma court.  Mr. Duncan pointed to the United Kingdom and was quoted by the Edmond Sun as saying that Sharia law “is a cancer upon the survivability of the UK.”  He called the bill “a pre-emptive strike against Sharia law coming to Oklahoma.”  One of the bill’s co-authors, State Senator Anthony Sykes (another Republican attorney from Moore, Oklahoma), was similarly quoted as saying that “Sharia law coming to the U.S. is a scary concept.  Hopefully the passage of this constitutional amendment will prevent it in Oklahoma.”

Muneer Awad

As one might guess, it did not take long for the first legal challenge to the Sharia law ban to be filed—two days to be exact.  On November 4, Muneer Awad, executive director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR) filed a complaint in the United States District Court for the Western District of Oklahoma.  In his complaint, Awad seeks a temporary restraining order and preliminary injunction enjoining the Oklahoma State Board of Elections from certifying the election results for the Sharia law ballot proposition.  The complaint alleges that the ballot measure “is a gross transgression of the Establishment Clause”—so gross, Awad claims, that “little precedent deals with violations similar in magnitude.”  Awad further asserts that the measure violates the First Amendment’s Free Exercise Clause. 

Specifically, Mr. Awad contends that the Sharia law ban violates the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”) “because it has a purpose and effect that is sectarian and because it necessitates excessive religious entanglement.”  Either of these things would be sufficient to find an Establishment Clause violation.  In Lemon v. Kurtzman, a case decided in 1971 that has become the central case in Establishment Clause jurisprudence, the Supreme Court set forth a three-pronged test for determining whether a government action violates the Establishment Clause.  Under this test, government action does not violate the Establishment Clause if it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster and excessive entanglement with religion.  In the case of the Sharia law ban, it is difficult, to say the least, to find a secular purpose, or to argue that the ban does not have the principal or primary effect of inhibiting religion.  Similarly, it is likely that enforcement of the ban would require an excessive entanglement with religion. Accordingly, it is extremely likely that the ban will be found to violate the Establishment Clause.

Finally, it is also likely that the Sharia law ban violates the First Amendment’s Free Exercise Clause.  In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (2003), the Supreme Court held that:

At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.

The Court went on to hold that

[a]lthough a law targeting religious beliefs as such is never permissible, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.

It is clear in this case that the Sharia law ban is not facially neutral, discriminates against a specific religious group, and prohibits conduct undertaken for religious reasons.  Accordingly, in order to save the ban from a constitutional attack, its supporters would have to show that it is supported by a compelling interest and is narrowly tailored.  Given the facts cited above—specifically that Muslims make up .4 percent of the total population of Oklahoma and no Oklahoma court has ever cited Sharia law in deciding a case—it is exceedingly unlikely that any court would buy into an argument that the Sharia ban is supported by a compelling interest.

On November 9, U.S. District Judge Vicki Miles-LaGrange issued the temporary restraining order after she found that Mr. Awad had standing to bring the suit (because an invasion of his First Amendment rights was “both particularized and imminent”) and that he had made a preliminary showing that the new law would violate his First Amendment rights.  Judge Miles-LaGrange then scheduling a hearing for November 22, when she will decide whether to issue a preliminary injunction.  It is important to note that issuance of a temporary restraining order does not necessarily mean that the Court is going to find in Awad’s favor, although it is certainly a very good indication that it will.  Instead, issuance of the temporary restraining order means that Judge Miles-LaGrange determined that Awad demonstrated a “substantial likelihood of success on the merits.”  With or without the constitutional amendment, it is exceedingly unlikely that Sharia law will ever find its way into an Oklahoma legal decision.   

The case brought by Mr. Awad is Awad v. Ziriax, No. 10-1186, W.D. Okla. (Nov. 4, 2010).

Update:  

On November 29, 2010, Judge Miles-LaGrange issued a permanent injunction blocking the certification of the Sharia law ballot measure.  In her order, Judge Miles-LaGrange stated that the case goes “to the very foundation of our country, our Constitution, and particularly the Bill of Rights.  Throughout the course of our country’s history, the will of the ‘majority’ has on occasion conflicted with the constitutional rights of individuals.”  This injunction means that until Judge Miles-LaGrange hears the merits of Mr. Awad’s lawsuit and issues a final ruling on the constitutionality of the measure (which may take months to occur), the state Board of Elections is enjoined from certifying the election results, therefore preventing the measure from taking effect.   

***The opinions expressed in this article are those of the author, Scott R. Grubman, only and do not necessarily reflect the opinions of the Department of Justice. 

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By:  Scott R. Grubman

In my last article I discussed the religious composition of the Supreme Court, both historically and in the present day.  Since I wrote that article, President Obama has nominated current Solicitor General Elena Kagan to replace the retiring Justice John Paul Stevens.  If Kagan is confirmed by the Senate, she will be the eighth Jewish Justice and the third Jewish member of the current Court.  Significantly, Kagan’s confirmation would bring with it something that has never occurred in the history of this country – a “Protestant-less” Court.  Assuming Kagan is confirmed, the Court will soon be comprised of six Catholics and three Jews, religious groups that make up only around twenty four and two percent of the country’s population, respectively.   

But before one focuses too much on the religious composition of the Court, it is important to examine whether the personal religious affiliations of the Justices really even matter when it comes to the most important aspect of a Justice’s job – ruling on cases before the Court.  Although there are undoubtedly countless methods that might be utilized to determine the correlation between a Justice’s personal religious affiliation and the way in which that Justice might rule on cases before the Court, this article will focus on two hot-button areas of the law that are so intertwined with religious belief that it is often hard, if not impossible, to separate the two—abortion and the death penalty. 

Abortion:

According to the group Catholic Answers, “[t]he Catholic Church has always condemned abortion as a grave evil.”  A 1984 Time Magazine article noted that “[o]pposition to abortion is one of the clearest and oldest moral preachings of the Roman Catholic Church,” dating back to the first century.  It is important to note that, although the Catholic Church hierarchy, including the current Pope Benedict XVI, has always espoused strong opposition to abortion, there are some Catholic theological authorities that permit abortion in certain situations.  For example, many scholars refer to fifteenth century Saint Antoninus as a “pro-choice bishop.”  This title, however, seems misplaced, at least by today’s understanding of what it means to be “pro-choice.”  Even St. Antoninus was against abortion in all but one very limited situation—he believed that in situations where the embryo had not yet been infused with a soul (which he regarded as occurring at forty days for males and eighty days for females), it was legitimate to abort the embryo if that was necessary to save the mother’s life.

It is more difficult to ascertain the “Jewish view” on abortion.  This is largely because, unlike the Catholic Church, there is no centralized Jewish hierarchy or supreme authority.  Not only are there many different sects of Judaism, but views on topics such as abortion vary widely even within an individual sect.  Generally, however, modern-day Orthodox Judaism opposes abortion except where it is absolutely necessary to save a mother’s life.  In modern-day Conservative Judaism, the Rabbinical Assembly Committee on Jewish Law and Standards, which sets halakhic (religious law) policy for the Conservative movement as a whole, takes the view that abortion is justifiable if continuation of the pregnancy might cause the woman severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective.  The Union for Reform Judaism, an umbrella organization which provides direction and leadership to Reform Jews, takes a more pro-choice view when it comes to abortion—not only does Reform Judaism permit abortion where it is necessary for the life or health of the mother, but it is also permissible in cases of rape or incest; where it is determined through genetic testing that the child will have a disease that will cause death or severe disability; or where the parents believe that the impending birth would be an impossible situation for them, among other circumstances.

So how have the Court’s current Justices ruled in cases dealing with abortion?  During his confirmation hearings, Chief Justice John Roberts, a Catholic, stated that Roe v. Wade was the “settled law of the land,” and that nothing in his personal views would prevent him from fully and faithfully applying that decision.  Since joining the Court in 2005, Roberts has cast a vote in only one significant abortion case.  In that case, Gonzales v. Carhart (2007), Roberts joined four other Justices in upholding the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute prohibiting a form of late-term abortion.  Although Justice Clarence Thomas, another Catholic, filed a concurring opinion in Gonzales advocating for reversal of Roe v. Wade, Chief Justice Roberts declined to join that opinion.  Interestingly, all five Justices in the Gonzales majority were Catholic (Roberts, Kennedy, Scalia, Thomas and Alito), whereas all of the dissenting Justices were either Jewish (Ginsburg and Breyer) or Protestant (Souter).

Another of the Court’s Catholic members, Justice Antonin Scalia, has taken what some call an “anti-abortion” stance in several cases.  For instance, in a dissenting opinion in the landmark abortion case of Planned Parenthood v. Casey (1992), a case in which the majority of the Court upheld the central holding if Roe v. Wade, Justice Scalia argued that there is no right to abortion in the Constitution and that it should be left up to the states whether to permit or ban abortions.  Scalia has called for the reversal of Roe in several cases.  In one of those cases, Stenberg v. Carhart, where the Court struck down a state statute banning partial-birth abortion because it did not allow an exception for the health of the mother, Justice Scalia dissented, noting that “[t]he method of killing a human child . . . proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”  Scalia joined his fellow Catholic Justices in upholding the constitutionality of the federal partial-birth abortion law at issue in Gonzales, which like the state law at issue in Stenberg did not contain an exception for the health of the mother.

Another member of the all-Catholic Gonzales majority, Justice Anthony Kennedy, drew some criticism during his nomination process in 1987 for citing Roe v. Wade favorably in a case that he decided as a lower court judge.  Despite his stated support for Roe, Justice Kennedy has made it clear that certain restrictions may permissibly be placed on the availability of abortions.  In Hodgson v. Minnesota (1990), for instance, Justice Kennedy joined four other Justices in upholding a state law requiring notice to both parents before a minor could undergo an abortion.  It was significant to Kennedy that the law at issue contained a judicial bypass provision allowing the parental notification to be bypassed when a court found it necessary.  A couple of years later in Casey, however, to the surprise of many legal scholars, Justice Kennedy joined the controlling plurality opinion reaffirming the central holding of Roe v. Wade.  In 2007, Justice Kennedy wrote the majority opinion in Gonzales, upholding the federal partial-birth abortion statute.

Like Justice Scalia, Justice Clarence Thomas has stated in several cases his belief that the Constitution is silent on the issue of abortion.  In 1992, Thomas joined Scalia and the other dissenters in Casey, which expressed the belief that Roe was wrongly decided and should be overruled.  Justice Thomas filed a concurring opinion in Gonzales, stating his belief that the partial-birth abortion statute suffered no constitutional infirmities.  In his confirmation hearings, Justice Samuel Alito stated that he would look at the issue of abortion with an open mind but refused to state how he would rule on Roe v. Wade if that issue were to come up before the Court.  In his only significant abortion case as a Supreme Court Justice, Alito joined the majority in Gonzales upholding the federal partial-birth abortion law.  Interestingly, although he was not on the Supreme Court in 1992 when the Court reaffirmed the central holding of Roe v. Wade in its Casey decision, then-Judge Alito was a member of the three-judge panel that heard that case in the court of appeals.  Alito dissented in that case, espousing positions which were later overruled by the Supreme Court in Casey.  

Finally, although she has not had the opportunity to rule on any abortion cases since becoming a Supreme Court Justice in 2009, Justice Sonia Sotomayor, as an appeals court judge, upheld the Bush administration’s implementation of the “Mexico City Policy,” which stated that the United States would no longer contribute to organizations which performed or actively promoted abortion as a method of family planning in other nations.  Then-Judge Sotomayor held that the government was free to favor the anti-abortion position if it so chose.  After nominating Sotomayor to the Court, however, President Obama stated that Sotomayor supported a woman’s right to an abortion and would affirm the holding of Roe v. Wade.   During her confirmation hearings, Sotomayor expressed her opinion that Roe was “settled law.” 

Both of the Court’s current Jewish Justices—Ginsburg and Breyer—have generally ruled in favor of abortion rights.  In a 2009 interview for the New York Times, Justice Ginsburg stated in regards to abortion that “the basic thing is that the government has no business making that choice for a woman.”  Ginsburg was raised in a Conservative synagogue.  Justice Breyer, on the other hand, was raised in the Reform tradition.

Death Penalty:

Like abortion, the Catholic Church strongly opposes the death penalty in nearly all cases.  However, there are several Catholic theologians who have approved of the death penalty in some circumstances.  Thomas Aquinas, for instance, accepted the death penalty as a necessary deterrent and prevention method, but not as a means of vengeance.  Similarly, the Council of Trent’s sixteenth century Roman Catechism advocated for imposition of the death penalty in certain circumstances.  More recently, Pope John Paul II suggested that capital punishment should be avoided unless it is the only way to defend society from the offender in question.  In one letter, Pope John Paul II said that punishment “ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.”  The Pope went on state that, because of “steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”  This view has been restated by the most recent edition of the Catechism.  The current Pope, Benedict XVI, also opposes the death penalty.

When it comes to the Supreme Court’s death penalty jurisprudence, the Court’s Catholic majority has been somewhat inconsistent.  While Justice Scalia and Justice Thomas have consistently upheld the death penalty from a variety of constitutional attacks, Justice Kennedy has generally voted to restrict the use of the death penalty.  Although Justice Alito has not had much of an opportunity to express his death penalty views since joining the Supreme Court, he issued numerous rulings as an appeals court judge indicating his support for capital punishment.  Justice Sotomayor has indicated that while she is personally opposed to the death penalty, she does not believe that the practice of capital punishment is unconstitutional. 

Although the Jewish attitude towards the death penalty, for the same reasons mentioned above, is less cohesive than in Catholicism, Judaism generally approves of the death penalty in theory, but establishes such a high standard of proof that, in practice, capital punishment is rarely, if ever, authorized.  The twelfth century Jewish scholar Maimonides, for example, argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing proofs of burden.  Maimonides stated that “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent person to death.”  Both of the Court’s Jewish Justices have generally voted to restrict imposition of the death penalty.  This, of course, does not mean that the Justices have done so based on their Jewish upbringings.  Instead, it is likely that their opposition to capital punishment is more correlated to their left-leaning political ideology than their religion (although some would argue that one’s religion informs that person’s political ideology). 

Conclusion:

Although much can be said about how a Justice’s religious affiliation affects his or her rulings in cases before the Court, at least in the areas of abortion and the death penalty, it appears that there is no direct correlation between the two.  Instead, it would appear that a Justice’s political ideology (particularly whether that Justice was nominated by a Republican or Democratic President) is a better indicator of how that Justice will rule on these issues, although this is not always the case (many forget that Justice Stevens, hailed by most to be the Court’s most liberal Justice, was nominated by Republican President Gerald Ford).  It will take some years to see whether the soon-to-be Protestant-less Supreme Court differs materially from the historically Protestant-majority Court.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By: Scott R. Grubman    

Depending on how you define the term, anywhere between sixty-five to around seventy percent of United States Supreme Court Justices, both past and present, identified themselves as “Protestant.”  Of the various Protestant sects, the Episcopalians claim the highest number of Justices—thirty-five former Justices, or approximately one-third of all current and former Justices—followed by the Presbyterians at nineteen.  By contrast, there have only been twelve Catholic Justices on the High Court, which is just a little over ten percent of past and present Justices.  The first Catholic Justice was Roger B. Taney, who was nominated Chief Justice by President Andrew Jackson in 1836.  The most recent Catholic Justice is Sonia Sotomayor, who was nominated by President Barack Obama in May 2009.  Additionally, there have been seven Jewish Justices—the first one coming in 1916 with the nomination of Louis Brandeis by President Woodrow Wilson (it is reported that, in 1853, President Millard Fillmore offered to appoint Louisiana Senator Judah Benjamin, who would later become the Secretary of State for the Confederacy, to the Court.  Benjamin declined the offer, a practice not uncommon in that period), and the most recent one coming with the addition of Justice Stephen Breyer by President Bill Clinton in 1994 (in fact, both of President Clinton’s nominees to the Supreme Court were Jewish—Justice Breyer and Justice Ruth Bader Ginsburg).  Pentecostals, Mormons, Muslims, Buddhists, and Hindus are among the major world religions and denominations that have yet to be represented on the Court.  Further, there has never been a self-identified atheist on the Court, although Justice Benjamin Cardozo, born and raised in the Jewish tradition, began to identify himself as agnostic later in life. 

Although the Supreme Court was majority-Protestant for most of its history, this is no longer the case.  In the late 1990s, when Justice Clarence Thomas left the Episcopal Church to return to Catholicism, the tradition in which he was raised, the Court, for the first time in history, lost its Protestant majority.  And with the more recent additions of Chief Justice John Roberts and Associate Justices Samuel Alito and Sotomayor (all Catholic), the Court is now, for the first time in its history, majority Catholic.  The current Court is comprised of six Catholics (Roberts, Kennedy, Scalia, Thomas, Alito and Sotomayor), two Jews (Breyer and Ginsburg), and only one Protestant (Stevens).  With Justice Stevens’ recent announcement that he will leave the Court after the current term expires, the Court is facing a possibility that it has never come close to facing before—the possibility of a “Protestant-less” Supreme Court.  In light of this impending possibility, many have called on President Obama to replace Justice Stevens with a fellow Protestant, thereby creating a so-called “Protestant seat,” to go along with the “African American seat” and the “Jewish seat” already in existence.  

Justice Stevens’ impending retirement has brought to the forefront the debate over whether a potential nominee’s religious affiliation should be something that the President takes into consideration in determining who to nominate to the Court.  For example, Cynthia Rigby, the W.C. Brown Professor of Theology at Austin Presbyterian Theological Seminary in Austin, Texas, has been quoted as saying that religious affiliation should be one of the many factors the president takes into consideration in choosing a Supreme Court Justice, along with gender, race, and demographic origin.  On the other side of the debate are individuals like Matthew Wilson, an associate professor of political science at Southern Methodist University, who do not believe that religion should play any role in the selection process.  Not surprisingly, President Obama has not indicated whether he will take religion or any other demographical category into account when choosing Stevens’ replacement.  Instead, the President has said that he will choose a candidate with 

an independent mind, a record of excellence and integrity, [and] a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people. 

Since Justice Stevens announced his retirement early last month, a “short-list” of potential replacements has emerged.  It is important to note that this list is not an official list and may not include all of the potential candidates being considered by President Obama.  At any rate, it is widely believed that the list contains nine names.  After some research, I was able to identify three of these potential nominees as Jewish, one as Catholic, and two as Protestant.  However, I was not able to identify the religious affiliation of the three other potential nominees.  Based on this information, though, there is a significant chance that Justice Stevens will be replaced with a non-Protestant, thereby creating a “Protestant-less” Supreme Court for the first time in American history.  This is particularly striking considering that, according to a survey conducted by the Pew Forum on Religion & Public Life in 2007, slightly over fifty percent of Americans identify themselves as Protestant, compared to the less than twenty-four percent that identify themselves as Catholic and the less than two percent that identify themselves as Jewish.  

Regardless of who the President chooses to replace Justice Stevens, it is clear that the religious composition of the Court (over sixty-six percent Catholic, twenty-two percent Jewish, and only eleven percent Protestant) is in no way representative of the religious composition of the American public at large.  The question remains, however, whether this really matters.  After all, the Supreme Court, unlike the Congress, was not designed to be representative of the people.   Instead, it was designed to function as a co-branch of government independent of the other two branches.  Given this, should it matter that the religious composition of the Court is extremely skewed compared to the religious composition of Americans in general?  In order to answer this question, it may be necessary to first examine whether the personal religious affiliations of the individual Justices play any role in how those Justices rule in cases before the Court.  In the second installment of this article, I will attempt to answer this question by focusing on two issues that are so entwined with religion that it is difficult to separate the two—abortion and the death penalty. 

FURTHER READING: 

• Dan Gilgoff, A Supreme Court without Protestants?, available online at http://www.cnn.com/2010/POLITICS/05/03/supreme.court.protestants/index.html.
• Religious Affiliation of the U.S. Supreme Court, available online at http://www.adherents.com/adh_sc.html.  It is important to keep in mind that this article was written in 2006, before Justice David Souter (a Protestant) retired and was replaced by Justice Sotomayor (a Catholic).
• U.S. Religious Landscape Survey, Report: Religious Affiliation (2007), available online at http://religions.pewforum.org/reports.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By:   Scott Grubman

On April 28, 2010, the United States Supreme Court issued its decision in Salazar v. Buono, No. 08-472.  The plaintiff in Salazar, Frank Buono, claimed that the “Mojave Cross,” a Latin cross placed on federal land in the Mojave National Preserve by members of the Veterans of Foreign Wars (VFW) in 1934, violated the First Amendment’s Establishment Clause.  Buono sought an injunction (an injunction is defined by Black’s Law Dictionary as “[a] court order commanding or preventing an action”) requiring the government to remove the cross.  The trial court granted Buono’s request for an injunction, finding that the cross on federal land “conveyed an impression of governmental endorsement of religion,” therefore violating the Establishment Clause, which prohibits such an endorsement.  On appeal, the Ninth circuit Court of Appeals affirmed the trial court.  While the government’s appeal from the trial court’s ruling was pending, however, Congress passed the Department of Defense Appropriations Act, which directed the Secretary of the Interior to transfer the cross and the land on which it stands to the VFW in exchange for privately owned land elsewhere in the Preserve.  According to Buono, this transfer was an invalid attempt to get around the trial court’s ruling that the cross was unconstitutional—because the Establishment Clause only prohibits actions by the government and not private citizens, by transferring the cross to a private organization, the constitutional issue became moot.  The government, on the other hand, argued that transferring the cross to a private organization was a way to comply with the trial court’s injunction by removing the constitutional problem.  Buono went back to the trial court seeking to stop the land transfer authorized by Congress.  Concluding that the transfer was an invalid attempt to keep the cross on display, the trial court granted Buono’s motion and blocked the government from implementing the land-transfer statute.  The Ninth Circuit once again affirmed.

By a margin of 5-4, however, the Supreme Court reversed the granting of the second injunction.   The plurality opinion (a plurality opinion is an opinion lacking enough votes to constitute a majority, but receiving more votes than any other opinion) focused on the context in which the land-transfer statute was enacted and the reasons for its passage.  The Court noted that private citizens placed the cross to commemorate American servicemen who had died in World War I.  It went on to say that “[a]lthough certainly a Christian symbol, the cross was not emplaced . . . to promote a Christian message.”  The plurality noted that the cross had stood in the same location for nearly seven decades before the land-transfer statute was enacted and, by that time, “the cross and the cause it commemorated had become entwined in the public consciousness,” and that Congress had even designated the cross as a national memorial.  The Court discussed the dilemma facing the government after the trial court issued its first injunction—“[i]t could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring.”  It held that nothing in the trial court’s original injunction prevented the government from enacting the land-transfer statute.  Deferring to Congress’ judgment, the Court discussed “Congress’s prerogative to balance opposing interest and its institutional competence to do so.”  It went on to hold that “the land-transfer statute embodie[d] Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation.” 

At this juncture it is important to note what the Court in Salazar did not do.  The Court did not say that the trial court was powerless to prevent the government from implementing the land-transfer statute.  What the Court did say, however, is that the trial court went about doing so the wrong way—instead of simply granting the injunction because of its suspicion of an illegal governmental purpose, which is what the trial court did, it should have inquired into the effect that knowledge of the land transfer would have on any perceived governmental endorsement of religion.  Further, and of particular importance, the Court in Salazar did not say whether maintenance of the Mojave Cross on federal land was constitutional under the Establishment Clause—that issue was not before the Court.  However, the Court did indicate its possible disagreement with the plaintiff’s position, noting that “[t]he goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm . . . . The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”  This segment of the plurality’s opinion might come into play in a future case where the constitutionality of a religious symbol on federal lands is brought directly into question.  It is important to note, however, that only three Justices—Kennedy, Roberts, and Alito—signed on to this portion of the opinion.  

Mojave Cross (google Images)

Dissenting, Justice Stevens first took issue with the plurality’s suggestion that the Mojave Cross did not have a Christian-specific message, stating that “[a] Latin cross necessarily symbolizes one of the most important tenants upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ.”  As to whether Congress’ land-transfer statute violated the first injunction issued by the trial court requiring the government to remove the cross, Justice Stevens said that it did.  He noted that the initial injunction barred the government from “permitting the display of” the cross and that the land-transfer statute, in direct contradiction of this order, permitted the display of the cross.  Justice Stevens stated that, because the federal government owned the land at issue, the transfer statute would require the government to take an affirmative act designed to keep the cross in place.  He also went on to discuss why, in his opinion, the display of the cross on federal land would violate the Establishment Clause by endorsing a specific religious message.  In a separate dissenting opinion, Justice Breyer held that, assuming that the cross on federal lands violated the Establishment Clause, so did the statute permitting its transfer to a private organization.  

As already mentioned, the Court’s opinion in Salazar was nowhere near as significant or groundbreaking as it might seem at first glance.  In fact, it was entirely procedural, and failed to put forth a substantive ruling on the constitutionality of the cross on federal land.  However, the different opinions in Salazar lend some insight into how the individual Justices would rule should this constitutional question—the legality of a religious symbol on federal land—come directly before the Court in a future case.  For now, the case will go back to the trial court for a more detailed analysis as to whether the land-transfer statute violated the court’s original injunction requiring removal of the cross.  

Liberty Legal Institute “Don’t Tear Me Down” Video

http://www.youtube.com/watch?v=NeuBB_mOFIA

Further Reading:   

• L.A. Times article covering Salazar:  http://www.latimes.com/news/nationworld/nation/la-na-court-cross-20100429,0,4660088.story
• The full text of the Court’s opinion in Salazar can be accessed online at: http://www.scribd.com/doc/30642133/Salazar-v-Buono-No-08-472
• Full citation:  Salazar v. Buono, No. 08-472, 2010 U.S. LEXIS 3674 (April 28, 2010).

http://www.youtube.com/watch?v=NeuBB_mOFIA

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

By:  Scott R. Grubman

On April 15, 2010, United States District Judge Barbara Crabb, of the Western District of Wisconsin, issued her order granting summary judgment in favor of the plaintiffs in the case of Freedom From Religion Foundation, Inc. v. Obama.  Freedom From Religion, a non-profit organization based in Madison, Wisconsin, whose mission is to “educate the public on matters relating to nontheism,” (Oxford English Dictionary defines “nontheism” as “not having or involving a belief in God, especially as a being who reveals himself to humanity”), and “to promote the constitutional principle of separation of church and state,” brought suit against President Obama and his Press Secretary Robert Gibbs, claiming that the federal statute establishing the National Day of Prayer violated the Establishment Clause of the First Amendment to the United States Constitution.  In a detailed 66-page opinion, Judge Crabb sided with the plaintiff, concluding that the federal statute creating the National Day of Prayer was unconstitutional. 

The bill establishing the National Day of Prayer was introduced in the United States House of Representatives by Representative Percy Priest of Tennessee in 1952, immediately after the Reverend Billy Graham called for such a bill in a speech on the steps of the United States Capitol.  On April 17, 1952, Congress passed the bill into law, which provided that “[t]he president shall set aside and proclaim a suitable day each year, other than a Sunday, as a National Day of Prayer, on which the people of the United States may turn to God in the prayer and meditation at churches, in groups, and as individuals.”  The law was amended on May 5, 1988 to its current version, which set the National Day of Prayer as the first Thursday in May.  As Judge Crabb noted in her opinion, all Presidents since 1952, including President Obama in 2009, have issued proclamations designating the National Day of Prayer each year.

The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion . . . .”  As Judge Crabb correctly notes in her opinion, “[d]ecisions under the establishment clause are controversial and difficult in part because of the competing values at stake in each case.”  Although the Supreme Court’s Establishment Clause case law is rather confusing, the standard that courts will apply when dealing with challenges brought under the Establishment Clause can be found in the Supreme Court’s 1971 decision in Lemon v. Kurtzman.  Under what is commonly referred to as “the Lemon test,”  in order to pass constitutional muster, a law must (1) have a secular legislative purpose, (2) not have the primary effect of either advancing or inhibiting religion, and (3) not result in an “excessive government entanglement” with religion.  Although the Lemon test has been criticized by several individual Justices over the years (including former Chief Justice William Rehnquist and current Associate Justice Antonin Scalia), it continues to be the governing test when it comes to Establishment Clause challenges. 

Judge Barbara B. Crabb

Applying the Lemon test to the National Day of Prayer statute, Judge Crabb concluded that the statute violated the Establishment Clause because it failed to satisfy both the first and second prongs of that test.  As to the first prong, which asks whether the statute has a secular legislative purpose, she concluded that the statute’s legislative history indicated that its primary purpose was to endorse religion.  Judge Crabb noted that the bill to establish the National Day of Prayer was first introduced in the Congress at the conclusion of an evangelistic revival led by Billy Graham.  She also cited the statements of several of the bill’s sponsors, which were placed in the Congressional Record, indicating that the purpose of the law was to promote religion and to spread the word of God.  Judge Crabb held that the legislative history “supports the view that the purpose of the National Day of Prayer was to encourage all citizens to engage in prayer, and in particular the Judeo-Christian view of prayer.”  Rejecting the government’s argument that the purpose and effect of the National Day of Prayer was “to acknowledge the role of religion in American life,” Judge Crabb held that “[e]stablishment clause values would be significantly eroded if the government could promote any longstanding religious practice of the majority under the guise of ‘acknowledgement.’”  She also rejected the government’s argument that it was simply attempting to accommodate religion, a practice allowed under the other religion clause of the First Amendment—the Free Exercise Clause.  Noting that, with or without the statute,  private citizens were free to pray at any time, and could even proclaim their own day of prayer if they wished, Judge Crabb held that the statute at issue could not be seen as a mere attempt to accommodate religion.  (An example of a statute that permissibly accommodates religion is the Religious Land Use and Institutionalized Persons Act, which prohibits the government from imposing substantial burdens on prisoners’ religious exercise.  In Cutter v. Wilkinson (2005), the Supreme Court held that this statute was constitutional because instead of establishing religion, it merely accommodated religion).

As to the second prong of the Lemon test, dealing with the law’s primary effect, Judge Crabb noted that the proper focus was whether a “reasonable observer” would view the government’s conduct as endorsing religion.  She found that the primary effect of the National Day of Prayer statute was to advance religion, and rejected the argument that the National Day of Prayer did not violate the Establishment Clause because it did not endorse any one religion, noting that not all adherents of all religions “turn to God in prayer.”  Judge Crabb cited the Supreme Court’s decision in McCreary v. ACLU (2005), where the Court held that “[m]anifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with” the First Amendment.  She also cited the Supreme Court’s decision in County of Allegheny v. ACLU (1989), where the Court, in an opinion authored by Justice Harry Blackmun, held that the First Amendment “guarantee[s] religious liberty and equality to ‘the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.’”  Judge Crabb held that the government’s conduct could not survive First Amendment scrutiny simply because it arguably endorsed multiple religions instead of just one.  She concluded her application of the Lemon test by holding that “[b]ecause the National Day of Prayer does not have a secular purpose or effect, it cannot survive scrutiny under Lemon.”  Finally, she rejected several of the arguments advanced by the Government to get around application of the Lemon test, including its argument that the statute was constitutional because participation in the National Day of Prayer is voluntary, as well as an attempted comparison to the permissible practice of opening legislative sessions with a prayer.  In conclusion, Judge Crabb granted the plaintiff’s motion for summary judgment and enjoined the defendants from enforcing the National Day of Prayer statute.  However, this injunction does not go into effect until after the defendants have exhausted their appeals.

The Obama administration has expressed its intention to appeal Judge Crabb’s order.  Although the district court decision seems to be well-grounded in established First Amendment precedent, it would not be surprising if the conservative Seventh Circuit Court of Appeals eventually reverses Judge Crabb’s ruling.  In order to do so, the court would have to identify a secular legislative purpose served by the National Day of Prayer statute.  One way to do this would be to cite some of the legislative history of the statute that indicates the secular purposes of “protect[ing] against the corrosive forces of communism” and promoting peace.  Further, the court of appeals would have to show why the primary effect of the statute is not to advance religion over non-religion.  Although this would be a difficult task, it would not be surprising given the inconsistent history of Establishment Clause case law.  Further, if the Seventh Circuit reverses Judge Crabb’s ruling, it would be exceedingly likely that the current 5-4 conservative Supreme Court would either refuse to review that decision (thereby leaving the Seventh Circuit’s ruling intact) or affirm the circuit court.

Useful Sources:

The full citation to Judge Crabb’s order is Freedom From Religion Found, Inc. v. Obama, No. 08-cv-588-bbc, 2010 U.S. Dist. LEXIS 37570 (W.D. Wis. April 15, 2010).

A full PDF version of Judge Crabb’s order can be accessed online at http://www.scribd.com/doc/29993102/Freedom-From-Religion-Center-v-Obama.

• Share this on Facebook
• Email this to a friend?
• Share this on Reddit
• Stumble upon something good? Share it on StumbleUpon
• Tweet This!
• Send this page to Print Friendly
• Digg this!
• Email this via Gmail

Good news Religion Nerd readers!  Christa Lasher of Georgia State University has joined RN as a guest blogger.  Christa will be keeping us up to date on U.S. Supreme Court cases involving 1^st amendment issues and will be contributing articles on various traditions she has studied throughout her academic career.  Welcome Christa!  For more information see Christa’s bio at Guest Blogger.     

By:  Christa Lasher

On Monday, April 19^th, the Supreme Court will be hearing Christian Legal Society Chapter v. Martinez.  Here are the facts of the case:  The University of California Hastings College of Law has a nondiscrimination policy which states: 

The College is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, College-owned student residence facilities and programs sponsored by the College, are governed by this policy of nondiscrimination. The College’s policy on nondiscrimination is to comply fully with applicable law. 

The University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admissions, access and treatment in Hastings sponsored programs and activities. 

If a student organization is to receive funds and be recognized as an official student organization at Hastings College, they must follow this nondiscrimination policy… Something that Christian Legal Society refuses to do.  Christian Legal Society is, as might be obvious from the name, a Christian group.  Its bylaws require voting members and officers to adhere to its Statement of Faith.  This Statement of Faith would act as a violation of the nondiscrimination policy on the basis of religion and sexual orientation.  SLC asked for an exemption from the policy, and Hastings denied that request.  CLS filed a lawsuit in October, 2004 and late last year, the Supreme Court granted certiorari (agreed to hear the case).

CLS is arguing that in denying the exemption, Hastings is violating their right of expressive association and is discriminating based upon viewpoint.  These are First Amendment issues.  Free Speech, Free Exercise, and the Establishment Clause are all implicated in this case.  The question before the Court, then, is whether Freedom of Speech and Freedom of Religion allow an organization to be exempted from non-discrimination policies.

I see two relevant cases for this decision.  The first is Widmar v. Vincent (1981), which ruled on “equal access.”  That is, the Court held that a public university could not exclude a religious student organization from using the university’s facilities.  This was decided on discrimination based upon speech.  The university could not justify its content-based discrimination; therefore, the religious student organization had a right to “equal access” of the university’s facilities.  The Court ruled in favor of the religious student organization in this case.  The Court could make a similar ruling in this case.

At the same time, though, there’s also Bob Jones University v. US (1982), in which the Court ruled against Bob Jones University for its discriminatory admissions policy.  Bob Jones University (and Goldsboro Christian School) discriminated based on race.  In 1970, the IRS adopted a new policy that would deny tax-exempt status to organizations that practiced racial discrimination.  The Court ruled that religious belief and practice did not exempt them from this policy because preventing racial discrimination was an overriding governmental interest.  The Court could rule against SLC based upon the importance of preventing discrimination based upon religion and/or sexual orientation.

There are certainly other cases that are applicable here, and I cannot guess how the Court will decide.  While the SLC certainly deserves equal access to the university, that doesn’t mean that they are exempt from the nondiscrimination policy.  All the other religious student organizations follow the nondiscrimination policy; SLC is the only one asking for an exemption.  On Monday, the case will be argued.  We should see in a few months how the Court decides.

Here are couple of links that might be helpful:

Letter sent by CLS – http://www.clsnet.org/sites/default/files/CLSvUCHastings_DemandLetter_0.pdf 
Supreme Courts notice granting certiorari – http://www.supremecourt.gov/qp/08-01371qp.pdf   

Pew Research Center article –  http://pewresearch.org/pubs/1550/christian-legal-society-vs-martinez-religion-government-funding